Poznan v State of Victoria (Department of Human Services)
[2014] FCA 873
FEDERAL COURT OF AUSTRALIA
Poznan v State of Victoria (Department of Human Services) [2014] FCA 873
Citation: Poznan v State of Victoria (Department of Human Services) [2014] FCA 873 Parties: MILKA POZNAN v STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) File number: VID 171 of 2014 Judge: NORTH J Date of judgment: 1 August 2014 Legislation: Federal Court Rules 2011 (Cth)
Legal Profession Act 2004 (Vic) s 2.2.2Date of hearing: 1 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 11 Counsel for the Applicant: The Applicant appeared in person. Solicitor for the Respondent: Mr B Murray of Minter Ellison Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 171 of 2014
BETWEEN: MILKA POZNAN
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
1 AUGUST 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The interlocutory application filed by the applicant on 1 August 2014 is refused.
2.On or before 29 August 2014, the parties to agree to a list of defined categories of discoverable documents, subject to Court Order.
3.On or before 30 September 2014, the parties give discovery of documents falling within the defined categories, as agreed and Ordered.
4.Each party to complete inspection of documents on or before 31 October 2014.
5.By no later than 30 November 2014, the respondent to file and serve affidavits of Mr Debinski and Ms Bowen and any other person involved in the administration of the disciplinary process if they are to be called as witnesses but otherwise the trial to proceed on oral evidence in chief.
6.The directions hearing is adjourned to 10.15 am on 8 December 2014.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 171 of 2014
BETWEEN: MILKA POZNAN
ApplicantAND: STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)
Respondent
JUDGE:
NORTH J
DATE:
1 AUGUST 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Mrs Milka Poznan, was employed by the State of Victoria from 1993 to 2012, until she was dismissed for alleged disciplinary offences. She claims that her termination and the way in which she was treated contravened s 50 of the Fair Work Act2009 (Cth) and other legislative provisions.
She filed her application in this Court in March this year and has been represented by Mr Costa Brehas. Mr Brehas was a legal practitioner who was admitted in Victoria, but he has chosen to give up that practice as from 1 July 2014. He previously conducted his practice under the name of Forum Legal and, since 1 July 2014, continues to trade under that name. He now conducts his practice in the capacity of a ‘workplace relations advisor’.
The applicant seeks an order of the Court that Mr Brehas be granted leave to represent her as a lay advocate in these proceedings. This requires a dispensation from the requirements of r 4.01 of the Federal Court Rules 2011 (Cth), which provides:
(1) A person may be represented in the Court by a lawyer or may be unrepresented.
On one view, the application is a deserving one. Mr Brehas appeared in Court to make the application, as did the applicant. It is obvious that he has concern for the applicant. He has acted for her to date without remuneration, and offered in the course of the hearing to continue to representing her without a fee. He has a deep knowledge of the facts of the case, and it appears that the applicant does not have the financial resources to engage another lawyer.
However, in essence, the application is for Mr Brehas to continue to act in the same way as he has acted for the applicant to date. The application put in this way appears to seek permission from the Court to do what is prohibited by s 2.2.2 (1) of the Legal Profession Act 2004 (Vic), namely, to engage in legal practice without being an Australian legal practitioner. To act in contravention of that prohibition attracts a maximum penalty of two years’ imprisonment.
Whilst it is unfortunate that the applicant may not have the assistance of a caring and devoted legal practitioner who is prepared to act with no fee, the consequence of the application seems inevitably to sanction a breach of the provisions which prohibit engagement in legal practice without the entitlement to do so. Consequently, the application as it is presently framed should be rejected.
That is not to say that there might not be circumstances in which Mr Brehas may perform a role in assisting the applicant. There is no prohibition on him providing assistance to the applicant, providing it is not engaging in legal practice. Obviously, with Mr Brehas’ background in the proceeding, he needs to take great care that any assistance which he gives does not cross the line. However, it is not impossible for him to so assist without breaching the law. Furthermore, it is always open for the applicant to apply to the Court to permit Mr Brehas or any other friend or relation to assist, if it is necessary, in the course of the proceeding, for instance, to advocate in the course of the hearing on her behalf.
The sanctioning of such assistance is well known to the law and although rarely granted, should be provided when the circumstances justify it. In order for an application in those terms to succeed, the role of the friend or person otherwise engaged to assist should be clearly defined.
Lest it be thought that the legislative scheme which permits only legal practitioners to engage in legal practice is designed simply to protect the legal profession and its desire to capture legal work in the community, it should be clearly stated that one of the purposes of this type of legislation is to ensure that persons engaged in legal practice are answerable to the professional bodies, to the Court and to their colleagues for the occupation in which they engage.
A person who is not entitled to practise as a legal practitioner does not have those responsibilities and is not subject to those sanctions. Whilst there is no suggestion that there are any grounds on which Mr Brehas’ conduct could be impugned, nonetheless, the Court needs to take into account the fact that the respondent does not consent to the application and would suffer a degree of prejudice in being faced with an opponent providing legal advice, but not being subject to the sanctions to which a legal practitioner would otherwise be subject.
For these reasons, the application in the present form is refused.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 18 August 2014
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