Reynolds v The Minister for Health & Anor - [2010] FMCA 843

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REYNOLDS v THE MINISTER FOR HEALTH & ANOR

[2010] FMCA 843

PRACTICE AND PROCEDURE – Representation in human rights proceedings – application in a case for a non-lawyer to appear on behalf of the applicant – factors in relation to non-lawyers appearance – complexity – whether proceedings founded in industrial relations law – whether evidence of harassment – nature of victimisation – victimisation both criminal and civil – nature of unjustifiable hardship – difficulties of self-represented party – non-lawyer an industrial agent – requirements for registration as an industrial agent – non-lawyer’s qualifications and experience – applicability of non-lawyer industrial agent’s professional indemnity insurance and Code of Conduct – availability of disciplinary measures against non-lawyer – whether lay advocate has a duty to the Court – protection of client and opponent – interests of justice – advocate as witness – whether inappropriate for non-lawyer to appear.

HUMAN RIGHTS – Alleged unlawful disability discrimination – application for non-lawyer to appear for applicant.

WORDS AND PHRASES – “victimisation” – “unjustifiable hardship” – “industrial agent”.

Australian Human Rights Commission Act 1986 (Cth), ss.46PO(1) and (4), 46PQ, 46PU
Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 15(2)(a), (b), (c) and (d), 21B, 35(1)(a) and (b), (2)(a) and (b), 42(1) and (2)(a)
Employment Dispute Resolution Act 2008 (WA), ss.6, 7
Equal Opportunity Act 1984 (WA), ss.75, 79, 80, 83, 83A, 84, 87, 88, 89, 90, 91, 93, 107, 108
Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth), ss.575(1), 576, 590(2)(f), (g) and (h), 591, 593(1), 601(1) and (4)
Federal Court of Australia Act 1976 (Cth), ss.23, 33C(1)
Federal Magistrates Act 1999 (Cth), ss.3, 18, 42, 44
Federal Magistrates Court Rules 2001 (Cth), Part 9, Part 12, Dictionary
Industrial Relations Act 1979 (WA), ss.7(1), 23(1), 23A, 26(1)(a) and (b), 31, 81, 81A, 81AA, 81B, 81E, 85(1), (2), (3), (3a), 90(1), 91(1)(a), 93(3), 96K, 112A(1), (3) and (4), 105, Schedule 1, cl.2(d)
Industrial Relations (Industrial Agents) Regulations 1997 (WA), regs. 4, 6(1), 8, Schedule 1
Legal Profession Act 2008 (WA), s.12
Workplace Relations Act 1996 (Cth)

Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26
Brehoi v Minister for Immigration and Multicultural Affairs [2001] FCA 931
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
Dowling v Fairfax Media Publications Pty Ltd (No.2) [2010] FCAFC 28
Fazio v Centrelink [2008] FMCA 594
Freehill Hollingdale & Page v Bandwill Pty Ltd & Anor [2000] WASCA 150
Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381
Hadgkiss v Aldin (2006) 155 FCR 499; [2006] FCA 1638
Johnson Tiles Pty Ltd & Ors v Esso Australia Pty Ltd & Anor (2000) 104 FCR 564; [2000] FCA 1572
Kousal v Tack (2002) 30 Fam LR 581; [2002] FamCA 1152
McCormack v Commonwealth [2007] FMCA 1245
McKenzie v McKenzie (1970) 3 All ER 1034
Malouf v Malouf (2006) 65 NSWLR 449
Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481
Mercy v Persons Unknown (1974) 231 EG 1159
P v R (No.1) [2002] FMCAfam 65
Penhall-Jones v New South Wales [2007] FCA 925
Pittorino v Meynert & Ors [2001] WASC 245
Re F: Litigants in Person Guidelines (2001) 161 FLR 189; [2001] FamCA 348
Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land and Agency Co Ltd & Ors (unreported Supreme Court of South Australia, Perry J, 4 February 1993)
Skipworth v State of Western Australia (No.2) (2008) 218 FLR 16; [2008] FMCA 544
Sullivan v Department of Transport (1978) 20 ALR 323
Taylor v CGU Insurance Limited (2005) 193 FLR 120; [2005] FMCA 1073 Walker v Aztec Steel Pty Ltd [2010] FMCA 68
Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281
Welsh v Allblend Holdings Pty Ltd (No.2) (2010) 239 FLR 234; [2010] FMCA 377
Wu v Avin Operations Pty Ltd (No.3) [2006] FCA 1321

J L Glissan QC, Advocacy in Practice, being the fourth edition of Cross-Examination: Practice and Procedure (Chatswood: LexisNexis Butterworths, 2005)
Human Rights and Equal Opportunity Commission, Federal Discrimination Law (Sydney, 2008)
Ipp J “Lawyers’ Duties to the Court” (1998) 114 LQR 63
Sir David Napley, The Technique of Persuasion (London: Sweet and Maxwell, 1991) (4^th Edn)
D Pannick QC, Advocates (Oxford: Oxford University Press, 1993)

Applicant:

BRUCE WILLIAM REYNOLDS

First Respondent:

THE MINISTER FOR HEALTH

Second Respondent:

ROSLYN ELMES

File Number:

PEG 56 of 2010

Judgment of:

Lucev FM

Hearing date:

21 July 2010

Date of Last Submission:

21 July 2010

Delivered at:

Perth

Delivered on:

5 November 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr B. King

Solicitors for the Respondents:

State Solicitor's Office

ORDERS

The applicant’s application in a case filed 14 June 2010 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 56 of 2010

BRUCE WILLIAM REYNOLDS

Applicant

And

THE MINISTER FOR HEALTH

First Respondent

ROSLYN ELMES

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Reynolds, alleges that the respondents, the Minister for Health and Ms Roslyn Elmes,[1] the former Mr Reynolds’ employer, the latter his immediate manager, unlawfully discriminated against him, and victimised and harassed him, in relation to his employment, by reason of his disability. The disability is said to arise from a stroke allegedly suffered by Mr Reynolds in or about December 2006. Specifically, the substantive application alleges discrimination, victimisation and harassment in employment on the grounds of disability by reason of the alleged contravention by the respondents of ss.5, 6, 11, 15(2)(a), (b) and (d), 35(1)(a) and (b) and (2)(a) and (b) and 42(1) and (2)(a) of the Disability Discrimination Act 1992 (Cth).[2]
[1] Individually, “the Minister” and “Ms Elmes”, collectively, “the respondents”.
[2] “DD Act”.

Application in a case

These Reasons for Judgment concern an application in a case filed by Mr Reynolds seeking orders under s.44(c) of the Federal Magistrates Act 1999 (Cth)[3] that Mr Paul Anthony King[4] be granted leave to represent Mr Reynolds as his advocate in the whole of the proceedings, including mediation. Mr King is not a legal practitioner.
[3] “FM Act”.
[4] “Mr King”. Mr King is not to be confused with Mr B King who appeared as Counsel for the respondents.

Representation - legislation

Section 44 of the FM Act provides as follows:
A party to a proceeding before the Federal Magistrates Court is not entitled to be represented by another person unless:
(a) under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b) under the regulations, the other person is taken to be an authorised representative; or
(c) another law of the Commonwealth authorises the other person to represent the party.
The Federal Magistrates Court Rules 2001 (Cth)[5] generally provide that a party may represent themselves in person or may be represented by a lawyer.[6]
[5] “FMC Rules”.
[6] See generally FMC Rules, Part 9. The FMC Rules Dictionary defines “lawyer” as “means a legal practitioner who is entitled to practise in the Court.”
Section 46PQ of the Australian Human Rights Commission Act 1986 (Cth)[7] provides as follows:
[7] “AHRC Act”.
(1)     A party in proceedings under this Division:
(a)     may appear in person; or
(b)     may be represented by a barrister or a solicitor; or
(c) may be represented by another person who is not a barrister or solicitor, unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear.
(2)     A person, other than a barrister or solicitor, is not entitled to demand or receive any fee or reward, or any payment for expenses, for representing a party in proceedings under this Division.
Section 46PQ of the AHRC Act is a law of the Commonwealth authorising another person to represent Mr Reynolds for the purposes of s.44(c) of the FM Act, “unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear.”[8]
[8] AHRC Act, s.46PQ(1)(c).

Representation - legal principles

The Court has discretion under s.46PQ(1)(c) of the AHRC Act to allow Mr King to appear as a non-lawyer in these proceedings. The discretion is to be exercised cautiously.[9] The general restriction on appearances, allowing only individuals who are parties or qualified legal practitioners to appear, seeks to ensure that the Court has assistance from:
a)parties who know their case; or
b)qualified legal practitioners who:
i)can make informed submissions;
ii)can assist the Court; and
iii)have duties to their clients and to the Court, which duties unqualified persons do not have.[10]
[9] Groundwater v Territory Insurance Office (2004) 183 FLR 437 at 445 per Brown FM; [2004] FMCA 381 at para.39 per Brown FM (“Groundwater”).
[10] Groundwater FLR at 445 per Brown FM; FMCA at para.40 per Brown FM.
When deciding whether to exercise discretion to grant leave to allow a non-lawyer to appear on behalf of a party, courts generally take into account the following principles:
a)the complexity of the matter;
b)the genuine difficulties of a self-represented party;
c)the unavailability of disciplinary measures against, and the absence of any duty to the Court by, lay advocates;
d)protection of the client and the opponent from the actions of an unqualified person;
e)whether lay advocates ought to appear in inferior courts and tribunals; and
f)the interests of justice.[11]

Complexity of the matter

[11] After an extensive review of the authorities these principles were enunciated in Damjanovic v Maley (2002) 55 NSWLR 149 at 162-164 per Stein JA; [2002] NSWCA 230 at paras.69-86 per Stein JA (“Damjanovic”), and applied in Groundwater FLR at 445-446 per Brown FM; FMCA at paras.42-46 per Brown FM and Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 at para.14 per Bennett J (“Melaleuca”).

Preparation of documents

At the outset, it is relevant to note that all documents prepared and filed on behalf of Mr Reynolds, both in this Court and before the Australian Human Rights Commission,[12] have been prepared by Mr King.
[12] “AHRC”

Complexity – the factual allegations and legal claims

Mr Reynolds’ factual allegations and legal claims are contained in a “Statement of Material Facts”[13] dated 27 April 2009 attached to the application to this Court. The SMF is a lengthy document of 36 pages comprising 199 paragraphs, plus a statement of the relief sought, and mixes forms of narrative, submission and pleading.
[13] “SMF”.
It appears to the Court that the material facts alleged are as follows:
a)Mr Reynolds suffered a stroke in or about December 2006, which was not diagnosed until July or August 2007, and which, following specialist medical investigation, was clinically identified as hypertensive encephalopathy in November 2007;
b)in June or July 2007 Mr Reynolds was involved in a redeployment exercise because of decreased workload in his substantive position as Senior Project Coordinator, Level 12 with the North Metropolitan Area Health Service;
c)following sick leave from 31 July 2007 to 12 August 2007, Mr Reynolds returned to work on 13 August 2007 and advised his employer of his doctor’s initial diagnosis of stroke and of his referral to a specialist;
d)on 15 August 2007 the Minister commenced a purported performance review process related to Mr Reynolds which identified three areas of alleged concern:
i)cognitive (a lack of alertness),
ii)recall (inability to recall specifics, requiring of ongoing reminders and review of information and processes); and
iii)deadlines (inability to meet);
e)Mr Reynolds denies:
i)that the three areas of alleged concern were discussed with him; and
ii)the accuracy of the matters alleged,
and says that, in any event, to the extent they exist, they are symptoms of his medical condition;
f)Ms Elmes sought to re-classify Mr Reynolds downwards from Level 12 to Level 5 in disregard of medical evidence from a clinical psychologist, consultant neurologist and an occupational physician, which indicated that Mr Reynolds:
i)was generally fit for work in his usual capacity; and
ii)that he ought to be located in a quiet workspace free from noise and distractions;
g)Mr Reynolds was not provided with a quiet workspace, but a shared and noisy workspace;
h)at three meetings in April, May and June 2008, Ms Elmes, at one or other of those meetings:
i)inquired as to whether Mr Reynolds had a good superannuation fund, and suggested that he contact an accountant as to his superannuation fund;
ii)raised the issue of whether Mr Reynolds would retire;
iii)said that, in her opinion, Mr Reynolds was unfit to work or be employed;
iv)said that Mr Reynolds had not been transferred to a quiet work environment because in her opinion he was totally medically unfit to work in his substantive position; and
v)said that the simple solution was for Mr Reynolds to go on workers’ compensation stress leave;
i)Mr King, on behalf of Mr Reynolds, told Ms Elmes:
i)at each of the three meetings in April, May and June 2008, that her actions contravened disability discrimination legislation, and that she was discriminating against Mr Reynolds on the basis of his stroke,
ii)at the May 2008 meeting, that her opinion as to Mr Reynolds’ medical fitness was not based on proper medical or professional opinion; and
iii)at the June 2008 meeting, that her ongoing behaviour towards Mr Reynolds amounted to harassment;
j)at some stage in the course of one of the three meetings, Mr Reynolds was presented with three options, later confirmed in writing, as follows:
i)termination of employment on the basis that he was medically unfit;
ii)resignation from his existing Level 12 position and acceptance of another position at Level 5-7; and
iii)investigation and consideration of the effects of other options such as superannuation and utilisation of leave entitlements;
k)at the meeting on 11 June 2008:
i)the respondents were advised that the three options were not acceptable to Mr Reynolds; and
ii)Mr Reynolds indicated that he was prepared to consider a transfer, but at no less a level than Level 10 (an offer subsequently withdrawn because of medical and psychological advice that Mr Reynolds is medically fit to perform the duties of his substantive position);
l)on 2 July 2008 the respondents:
i)confirmed that Mr Reynolds’ position was that he believed that he was medically fit to undertake the duties of his substantive position at Level 12;
ii)advised that the respondents’ position was that Mr Reynolds was medically unfit to perform his duties at Level 12; and
iii)instructed Mr Reynolds to attend a further medical appointment with a medico-legal occupational physician, Dr Alan Home, to assess his medical fitness to perform Level 12 duties;
m)in the letter of referral to Dr Home the respondents make certain comments concerning Mr Reynolds’:
i)change of behaviour and cognitive deficits identified by Ms Elmes in early 2007, and
ii)work, and concerns related to Mr Reynolds’ performance of that work, including difficulty with memory, inability to recall specifics and meet deadlines; and
iii)requirement for ongoing reminders and review of information and processes, along with close supervision and direction,
which Mr Reynolds claims are “false misleading and deceptive”;
n)on 9 October 2008 whilst Mr Reynolds was on sick leave caused by stress, the respondents advised Mr Reynolds that a substandard performance management process had been instituted in relation to his performance, which occasioned him further stress and anxiety detrimental to his health;
o)the respondents adopted a procedure which denied Mr Reynolds procedural fairness in responding to the allegations of substandard performance;
p)on 30 October 2008 Dr Home confirmed that Mr Reynolds had suffered from cognitive difficulties related to chronic hypertensive encephalopathy, but agreed with another doctor’s opinion that psychometric testing abnormalities involving executive functioning were unlikely to be of ongoing significance;
q)by January 2009 Mr Reynolds had not heard anything concerning intended negotiations on his current employment status, and Mr King was instructed to, and, on 24 February 2009, did forward, a draft deed of compromise and release to the respondents;
r)by 18 March 2009 no response to the draft deed of compromise and release had been received from the respondents, and Mr King wrote to the Minister’s Assistant Director Industrial Relations proposing that the matter be referred to the Western Australian Industrial Relations Commission[14] under the Employment Dispute Resolution Act 2008 (WA)[15] which allows the WAIRC to mediate any question, dispute or difficulty arising in relation to employment;[16]
[14] “WAIRC”
[15] “EDR Act”.
[16] EDR Act, ss.6 and 7; “EDR Act Proposal”.
s)the respondents rejected the EDR Act Proposal on 19 March 2009;
t)further drafts of a deed of settlement were exchanged by the parties in April 2009;
u)on 23 April 2009 Mr Reynolds made a “Final Demand” of the respondents that:
i)he be transferred back to his substantive position; and
ii)the “unsubstantiated allegations of substandard performance as they originally stood” be reactivated,
and asserted that he had the right to pursue all matters through the WAIRC and the Human Rights and Equal Opportunities Commission (now the AHRC);
v)the respondents did not respond to the “Final Demand”; and
w)for approximately eight months prior to and including April 2009 Mr Reynolds says that he was provided with no work, that this occasioned him further stress and anxiety, and was a strategy employed to force his resignation.
In the SMF Mr Reynolds submitted that:
a)the acts of the respondents were contrary to the Department of Health Western Australia policy directive concerning the prevention of bullying, harassment and discrimination in the workplace; and
b)he had suffered “unjustifiable hardship”[17] by reason of:
i)the effect of the respondents’ actions on his recovery from his stroke;
ii)loss of opportunity for transfer or promotion or to be considered for special projects;
iii)the cost of having to attend upon Mr King;
iv)the cost of attending upon various medical or specialist medical practitioners; and
v)various physical, physiological and psychological effects which have followed from the actions of the respondents towards Mr Reynolds.
[17] The use of this phrase is significant in the context of an argument below concerning provisions in the DD Act, ss.11 and 21B, related to “unjustifiable hardship”: see paras.33-38 below.
In the SMF, and in his application, Mr Reynolds says that the alleged facts give rise to the following legal claims:
a)direct unlawful discrimination contrary to s.15(2)(a), (b), (c)[18] and (d) of the DD Act during the period 13 August 2007 to 27 April 2009;
b)victimisation by Ms Elmes, who is alleged to have consciously ignored advice that she was breaching Mr Reynolds’ human rights, and continued in “the relentless pursuit” of Mr Reynolds; and
c)harassment, by reason of the respondents’ ongoing behaviour which was, allegedly, repeated, unwelcomed, unjustified and unsolicited, and offensive, humiliating, intimidating, threatening and reckless.

Complexity – consideration

[18] The s.15(2)(c) claim – which relates to discrimination “by dismissing the employee” is not maintained in the application.

Complexity – consideration – generally

In these proceedings the facts are:
a)numerous;
b)likely to be recorded in numerous documents (including medical and psychological reports), which it is likely will be sought to be tendered; and
c)spread over a period of at least two and one half years.
This is, relatively speaking, a fact and document rich case.
The facts are likely to be deposed to by at least ten witnesses.[19] Those witnesses include at least five professional medical and psychological witnesses, who are likely to give factual and expert evidence.
[19] Perusal of the SMF would indicate that witnesses are likely to include: Mr Reynolds, Roslyn Elmes, Dr Rick Stell, Ms Linda Belotti, Dr Frank Kotai, Dr Linda Hayward, Dr Evelyn Lee, Mr Frank Furey, Dr Alan Home and Mr Paul King.
The factual context in this case is primarily concerned with the establishment of Mr Reynolds’ disability, and the alleged discrimination on the grounds of disability. However, the context also runs to:
a)a number of secondary issues related to alleged victimisation and harassment of Mr Reynolds; and
b)a number of subsidiary issues, related to Mr Reynolds’ potential redundancy, and his alleged performance deficits and performance management issues.
It is the manner in which the redundancy and performance issues have been dealt with which are said to give rise to the claims of alleged discrimination, victimisation and harassment.
Given:
a)the matters and material referred to in the SMF; and
b)the number and nature of the witnesses likely to give evidence,
it is likely that:
c)much of the evidence will be contentious;
d)in the course of the hearing issues will arise in relation to the admissibility of evidence, and the Court will probably have to deal with relevance, hearsay and opinion based objections to the admissibility of evidence; and
e)there will be submissions as to the weight to be attributed to evidence and the credit of witnesses.
A hearing of this matter is likely to take at least three days, and possibly more, even with orders requiring the evidence-in-chief of the parties to be filed by way of affidavit.
This matter is not “a relatively simple one”[20] in which it might be appropriate to allow a non-lawyer to appear, as was the case in Aztec Steel where the company was allowed to be represented by one of its officers, having regard to:
a)the matter being a relatively simple one;
b)the officer of the company having been allowed to appear at the first directions hearing in the matter;
c)the applicant being initially self-represented, and then not appearing at the final hearing; and
d)the objects of the FM Act and the FMC Rules.[21]
[20] Walker v Aztec Steel Pty Ltd [2010] FMCA 68 (“Aztec Steel”).
[21] Aztec Steel at para.9 per Lucev FM.
The circumstances set out above reveal this matter to be relatively complex, both factually and legally, and a matter in which a lawyer (and probably Counsel and solicitor) would ordinarily be engaged to represent the parties.

Complexity – consideration – industrial relations law

Mr Reynolds submits:
a)that “the matter is founded in discrimination and industrial relations law”; and
b)in reply, that the disability discrimination issues are “straightforward” and that “the complexity of the matter is derived from the actions and allegations of the respondent, which have a foundation in industrial relations law”. Presumably “respondent” in this critical submission is intended to be “respondents”, and, if not, it is not clear which actions and allegations of which respondent are being referred to by Mr Reynolds.
The Court observes that:
a)as it has said above;
i)the disability and discrimination issues are relatively complex; and
ii)the industrial relations issues (redundancy and performance) whilst related, are subsidiary to the primary issues (disability and discrimination) and the secondary issues (victimisation and harassment);
b)the application presently before the Court:
i)does not “have a foundation in industrial relations law”, but is based solely on the provisions of the DD Act; and
ii)does not make any claim, in either this Court’s primary or associated jurisdiction (or accrued jurisdiction if the Court has accrued jurisdiction), under any federal workplace relations or fair work laws, or in contract or tort, or otherwise, as might have been done.[22]
[22] FM Act, s.18; Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; Johnson Tiles Pty Ltd & Ors v Esso Australia Pty Ltd & Anor (2000) 104 FCR 564 at 598 per French J; [2000] FCA 1572 at para.87 per French J; Taylor v CGU Insurance Limited (2005) 193 FLR 120; [2005] FMCA 1073; Welsh v Allblend Holdings Pty Ltd [2010] FMCA 281 at paras.14-20 per Lucev FM.
In the Court’s view that part of Mr Reynolds’ original submission which submits that “the whole of the matter is complex” is essentially correct.

Complexity – consideration – the grounds of the application

In the context of complexity, the respondents made submissions concerning Mr King’s lack of familiarity with disability discrimination law being demonstrated by the framing of the grounds of the application, and the form and content of the application showing that Mr King is not able to render appropriate assistance to Mr Reynolds.
The respondents submit that ground 1 of the application claims indirect discrimination under s.6 of the DD Act, but that there are no allegations in the SMF giving rise to indirect discrimination, and the claim is simply not supported by the evidence to be relied upon. The range of facts alleged and allegations made in the SMF is so vast that it cannot, in the Court’s view, confidently be said that there is nothing in the SMF giving rise to a claim of indirect discrimination, or that there will not be evidence capable of being relied upon to ground a claim of indirect discrimination. It must be remembered that the SMF is not evidence, nor is it a statement or points of claim. Whilst the Court entertains considerable doubt, based on the SMF, that Mr King might be able to properly draw a statement or points of claim, and affidavits, it is nevertheless the case that a statement or points of claim, and affidavits, properly drawn, might yet raise an arguable claim of indirect discrimination in this matter. The Court therefore does not accept that ground 1 is not capable of giving rise to an allegation of indirect discrimination.
The respondents submit that ground 3(b) of the application alleges unlawful harassment, contrary to s.35(1)(a) and (b) and (2)(a) and (b) of the DD Act, but that there is nothing in the allegations, or in the SMF, that would give rise to or support an allegation of harassment. Section 35(1) and (2) of the DD Act provides as follows:
Harassment in employment
(1) It is unlawful for a person to harass another person who:
(a) is an employee of that person; and
(b) has a disability
in relation to the disability.
(2) It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed; and
(b) has a disability;
in relation to the disability.
In the Court’s view there is sufficient in the allegations of harassment[23] of Mr Reynolds, and especially alleged harassment by Ms Elmes, for a case of harassment to be at least arguable in this matter. There are also arguably interesting questions, which are yet to receive significant judicial consideration, as to whether discrimination and harassment are overlapping concepts, or whether they are capable of operating independently, which might arise for consideration in this matter.[24]
[23] As defined in McCormack v Commonwealth [2007] FMCA 1245 at para.75 per Mowbray FM.
[24] Human Rights and Equal Opportunity Commission, Federal Discrimination Law (Sydney, 2008), page 215.
The respondents submit that ground 3(c) of the application alleges the commission of the offence of victimisation, contrary to s.42 of the DD Act. The respondents say that there is no basis for the claim because the last interaction between Mr Reynolds and Ms Elmes – whom he claims victimised him – was October 2008, and the complaint was lodged with the AHRC in April 2009, therefore there is no connection between the alleged victimisation by the respondents (particularly Ms Elmes) and the making of a complaint to the AHRC. Section 42(1) and (2)(a) of the DD Act is relied upon by Mr Reynolds, and provides as follows:
Victimisation
(1) It is an offence for a person to commit an act of victimisation against another person.
Penalty: Imprisonment for 6 months.
(2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first‑mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986 ; or
(b) …; or
(c) …; or
(d) …; or
(e) …; or
(f) …; or
(g) …;
or on the ground that the first‑mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
Although s.42 creates an offence, it is also open for an aggrieved person to bring a civil action alleging unlawful discrimination by reason of alleged victimisation under s.42 of the DD Act. In Penhall-Jones v New South Wales[25] the Federal Court observed as follows:
[25] [2007] FCA 925 (“Penhall-Jones”).
10. Sections 46P and 46PO are in Part IIB of the HREOC Act (which provides for ‘redress for unlawful discrimination’). A complaint alleging victimisation may be dealt with under the provisions in Part IIB of the HREOC Act because s 3 of the HREOC Act defines ‘unlawful discrimination’ to include:
‘…any conduct that is an offence under:
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992.’
Section 42 of the Act appears in Division 4 of Part 2 of the Act. Accordingly the Federal Magistrates Court has power to deal with an application alleging victimisation under the Act if a complaint to that effect is terminated under s 46PH of the HREOC Act. Such proceedings are civil proceedings. They are to be distinguished from proceedings for an offence brought directly under s 42 of the Act (see O’Connor v Ross (No 1) [2002] FMCA 210 at [11]).[26]
[26] Penhall-Jones at para.10 per Buchanan J.
The respondents assert that because the complaint with the AHRC was lodged sometime after the last interaction between Ms Elmes and Mr Reynolds that there is no connection between the alleged victimisation and the making of the complaint to the AHRC. This however is to mis-read s.42(2) of the DD Act which provides for victimisation not only in relation to the making of a complaint to the AHRC, but also the proposed making of a complaint to the AHRC.
On the basis of the facts alleged in the SMF the Court does not consider that it can be said that there is nothing in the SMF giving rise to a possible claim of victimisation. There are numerous instances in the SMF where the possibility of the making of a complaint, or the bringing of proceedings, or the reasonable or proposed assertion of rights which could be rights under the DD Act or the AHRC Act, in relation to alleged disability discrimination by the respondents is specifically raised. The Court does not therefore accept the respondents’ assertions in relation to ground 3(c) of the application.
The respondents submit that ground 2 of the application is misconceived. They say that there is nothing in s.11 of the DD Act which provides a basis for a claim of unjustifiable hardship on the basis of any alleged discrimination against Mr Reynolds. The same objection can be made to ground 3(a) insofar as it seeks to refer to unlawful discrimination which has occasioned Mr Reynolds an unjustifiable hardship.
Section 11 of the DD Act provides as follows:
Unjustifiable hardship
(1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
(2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
Section 11 of the DD Act is a definition section, and does not, of itself, provide a basis for making a claim. Therefore, to make a claim based on s.11 is misconceived because of its nature as a definition section. More importantly, however, s.21B of the DD Act provides as follows:
Exception--unjustifiable hardship
This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.
Therefore, unjustifiable hardship, as defined in s.11 of the DD Act, is a defence under s.21B of the DD Act. It cannot form the basis for a ground of an application alleging disability discrimination: it is a shield not a sword. It is clear that in drafting the application Mr King has misunderstood the nature of “unjustifiable hardship” as defined in s.11, and its purposes as a defence to a disability discrimination claim under s.21B of the DD Act.
The misunderstanding of the DD Act entailed in grounds 2 and 3(a) of the application as drafted by Mr King is serious. On a plain reading of the provisions of the DD Act it is difficult to see how such an error could be made. The error casts serious doubt on Mr King’s capacity to properly understand and represent Mr Reynolds in a complex case.
By itself, the error made by Mr King in pleading a defence as a ground of application demonstrates that the overall complexity of the matter in terms of the grounds of application, and the nature of the error which has been made, are such that it is inappropriate for a non-lawyer, and specifically Mr King, to represent Mr Reynolds in these proceedings.

Complexity – consideration – other issues

Mr Reynolds submitted that he would have great difficulty representing himself because of his lack of legal knowledge. But, this is not a matter which goes to complexity of the case. In any event, it is a matter which is common to most self-represented litigants.
Mr Reynolds also submitted that Mr King had the background and qualifications to deal with the complexities of this matter. Without commenting on Mr King’s background and qualifications, at this stage, it suffices to say that the background, qualifications and understanding of the case by the non-lawyer seeking to appear are not matters which go to the complexity of the case.
Mr Reynolds also submitted that unless he had a legal practitioner who had been representing him from the commencement of the matter it would be difficult for a legal practitioner to fully comprehend and understand all of the issues, and that a legal practitioner would therefore not be able to represent him as effectively as Mr King can. That submission reinforces the Court’s view that the matter is, if even just factually, a complex one. But the submission is also wrong, because what litigation lawyers are engaged to do, and qualified to do by both training and experience, is to read, research and come to understand large and complex litigation, and unfamiliar areas of law.
The learned author of Advocacy in Practice observes:
“Every advocate is familiar with the sinking feeling that accompanies the receipt of a brief or file which is either in an unfamiliar area of practice or an unforgiving size. Adequate techniques of preparation and analysis provide the cure for that problem. If you wish to be successful there is no alternative to the hard grind of simply sitting and reading the whole of the material.”[27]
[27] J L Glissan QC, Advocacy in Practice, being the fourth edition of Cross-Examination: Practice and Procedure (Chatswood: LexisNexis Butterworths, 2005), page 11.
The English solicitor, Sir David Napley, said:
“The decisive factor lies in the initial preparation; the material which is so disclosed; the incontrovertible facts which are marshalled; and the care and patience which go into ensuring that no stone is left unturned. These are by far the most significant factors in the proper presentation of the case for any client.”[28]
[28] Sir David Napley, The Technique of Persuasion (London: Sweet and Maxwell, 1991) (4^th Edn), page 15.
It suffices to observe that a lawyer adequately prepared will, in the vast majority of cases, be better at putting a complex factual or legal argument to a court than a non-lawyer similarly or better prepared. It is not an invariable rule,[29] but given the complexity of this case, and Mr King’s fundamental misunderstanding as to the nature and purpose of “unjustifiable hardship” under the DD Act, the Court is of the view that a lawyer adequately prepared for this case would do a better job in safeguarding Mr Reynolds’ interests in the litigation than would Mr King. A competent lawyer given proper instructions would have little difficulty in being adequately prepared and properly representing Mr Reynolds at future stages of these proceedings.
[29] In England, Counsel once lost a case in the Court of Appeal to “persons unknown” who “appeared in person”: Mercy v Persons Unknown (1974) 231 EG 1159, referred to in D. Pannick QC, Advocates (Oxford: Oxford University Press, 1993), page 19.

Complexity – consideration – conclusion

Having reviewed the matters set out above with respect to the complexity of this case, the Court is of the view that:
a)the case is a complex one, factually and legally, which, if Mr Reynolds is to be other than self-represented, requires a lawyer to adequately represent his interests; and
b)Mr King’s fundamental misunderstanding as to the nature of unjustifiable hardship is a significant error which demonstrates that this case is one in which he will be unable to represent Mr Reynolds’ best interests in.

Genuine difficulties of an unrepresented party

The types of genuine difficulties of an unrepresented party potentially giving rise to a non-lawyer being granted leave to appear envisaged in Damjanovic include:
a)language problems;
b)hardship;
c)disability; and
d)emergencies such as the unexpected absence of a legal advisor.[30]
[30] P v R (No. 1) [2002] FMCAfam 65 at para.11 per Driver FM; Damjanovic NSWLR at 162 per Stein JA; NSWCA at paras.72-73 per Stein JA.
Neither language problems nor emergencies have been demonstrated here.
Mr Reynolds submitted that if Mr King were not granted leave to represent him he would be placed at an unfair disadvantage because:
a)the respondents have legal representation;
b)there exists a genuine difficulty for him in understanding the complexities of the substantive areas of law and the substantive issues of his case; and
c)as he has no background or training in law, it would be a detriment if he were left with no other option than to be an unrepresented litigant.

To the extent that a self-represented litigant is at a disadvantage where a lawyer appears for the other party, Mr Reynolds is faced with nothing more than the normal circumstance of a self-represented litigant. This Court deals with self-represented litigants appearing against lawyers frequently in matters including bankruptcy, industrial law, and, in particular, migration. The mere appearance of a lawyer for the other party does not of itself warrant the appearance of a non-lawyer for what would otherwise be a self-represented litigant. Whilst it may be a detriment for Mr Reynolds to appear as a self-represented litigant, it is not a detriment which can be cured by allowing the appearance of a non-lawyer in a complex case, in which the non-lawyer has demonstrated a fundamental misunderstanding of part of the relevant legislation. If Mr Reynolds is to be other than self-represented, he requires a lawyer who can adequately represent his interests.
There are no genuine difficulties demonstrated by Mr Reynolds that are unusual for self-represented litigants.
Mr Reynolds submits that he is not in a financial position to engage a legal practitioner to represent him, and is left with the options of Mr King representing him or being a self-represented litigant. If Mr King is not granted leave to appear on Mr Reynolds’ behalf it does not necessarily or logically follow that Mr Reynolds has no other option but to represent himself. There is no evidence that any approach has been made to a lawyer to represent him. Consequently there is no estimate of costs for a lawyer to conduct the case. Mr Reynolds’ submission that he is unable to afford legal representation and his only remaining option is to represent himself:
a)is unsupported by further explanation or evidence; and
b)does not address avenues available to him to apply for legal or financial assistance in respect of the proceedings, through the Attorney-General,[31] or the FMC Rules or any relevant Bar Association, Law Society, community or special interest legal centre, or other pro-bono scheme.[32] Given that the case has not yet been to mediation and that even if it were now to be listed for hearing by the Court it is unlikely to obtain a hearing date, for a three day hearing, before mid-April 2011, there is still ample time for those avenues to be pursued.[33]
[31] AHRC Act, s.46PU.
[32] FMC Rules, Part 12.
[33] Whether as an employed state public servant Mr Reynolds fits within the eligibility criteria for any pro-bono scheme is a matter for the administrators of any such scheme.
Mr Reynolds submits that he suffers financial hardship, but he has provided no evidence of his income or assets to enable the Court to make any specific findings, and concedes that that is the case.[34] Fundamental issues relevant to financial hardship have not been the subject of evidence. From the SMF it appears that Mr Reynolds is still employed in the health industry, and has retained a substantive Level 12 position. It might be inferred from the SMF that that is a reasonably senior position given the apparent responsibilities and reporting lines, such as they are discernible from the SMF. However, the Court has no evidence of how much Mr Reynolds earns in that position, or of any other income that he earns or derives from any other source. Likewise, the Court is not told what Mr Reynolds’ outgoings are. For example, the Court does not know whether he has a home mortgage, car loan or any other form of outgoings which diminish his income, and which place him in a position of financial hardship. The mere assertion of financial hardship, is, in the absence of any supporting evidence, insufficient to establish the fact of financial hardship.
[34] Transcript, page 17.
Mr Reynolds submitted that he has to carefully control his blood pressure, and, faced with the prospect of having to represent himself, it may occasion problems and imminent risks to his health, which in turn would cause lengthy delays in the matter. Mr Reynolds’ submission regarding his medical condition:
a)was, and was conceded to be,[35] unsupported by any medical evidence as to how, if at all, his medical condition might affect his ability to conduct these proceedings; and
b)did not prevent him from attending Court and arguing, competently enough, this application in a case.
[35] Transcript, page 17.
The failure to lead evidence in respect of matters essential to a finding of genuine difficulty, such as Mr Reynolds’ medical condition and financial hardship, is a fundamental flaw in the preparation for the argument of the application in a case for leave for a non-lawyer to appear.
The failure to lead evidence discloses a lack of appreciation of the need to ensure that claims and assertions made in proceedings in a court exercising judicial power are backed up by evidence. It is a proposition so fundamental that it makes the absence of evidence all the more marked. Given that the papers for the application in a case were prepared by Mr King for Mr Reynolds, it is an absence which causes the Court concern. If affidavit evidence cannot be properly marshalled for a hearing of this type, it must raise doubts as to Mr King’s ability to properly marshal all of the evidence of Mr Reynolds, and other witnesses, including experts, for a multi-day hearing.[36]
[36] The alternative, that there was in fact no evidence to support the claims, would give rise to a conclusion even more adverse to Mr King, because if that were the case, submissions concerning genuine difficulties ought never to have been made.
In Groundwater this Court observed that it is:
53. … a nonsense to allow somebody to assert he cannot conduct his case without there being any adequate evidence to support such a submission.[37]
This observation is apposite to the circumstances of this case set out above.
[37] Groundwater FLR at 447 per Brown FM; FMCA at para.53 per Brown FM.
Mr Reynolds’ written submissions (prepared by Mr King) also submit that if he is to be a self-represented litigant, the presiding Federal Magistrate would be placed in the position of being:
a)examiner-in-chief; and
b)would have to re-examine Mr Reynolds after cross-examination,
whilst having to remain impartial in the matter. Mr Reynolds submits that if this were the case, then not all areas may be covered and expanded upon, whereas Mr King has the experience as examiner-in-chief (albeit in industrial matters), is aware of court procedure and has the requisite knowledge of the whole of the matter.
This is a case in which the evidence-in-chief of witnesses will be on affidavit filed prior to the hearing. There will therefore be no necessity for a Federal Magistrate to conduct an examination-in-chief of Mr Reynolds, beyond the formalities attended upon the affidavit being received into evidence, and perhaps, if it is necessary, asking the deponent whether there are matters requiring amendment or clarification. Beyond that, it will be for the other parties to cross-examine, and for Mr Reynolds to deal with any matters arising out of cross-examination which require clarification in re-examination. That does not require a Federal Magistrate to conduct a re-examination, but merely to ask the question of Mr Reynolds as to whether there are any such matters arising from cross-examination. For witnesses for Mr Reynolds, other than Mr Reynolds himself, it will be for Mr Reynolds to examine and re-examine the witnesses as best as can be done, with such guidance as the Court can properly provide.
The Court has dealt with the role of the Court in relation to self-represented litigants, and has observed, in a matter concerning whether there ought to be a referral for pro-bono assistance, as follows:
“… the court can and will have regard to principles established to allow courts to deal with self-represented litigants and diminish (so far as possible) disadvantage suffered by an unrepresented litigant vis-à-vis a represented litigant, but not so as to have the presiding judicial officer “get into … [the unrepresented litigants] corner and provide them with tactical and other advice as to the consequences of certain actions.””[38]
[38] Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387 at 394 per Lucev FM; [2007] FMCA 26 at para.36 per Lucev FM; and see also the following cases: Re F: Litigants in Person Guidelines (2001) 161 FLR 189 at 226-227 per Nicholson CJ, Coleman and O’Ryan JJ; [2001] FamCA 348 at para.253 per Nicholson CJ, Coleman and O’Ryan JJ; Brehoi v Minister for Immigration and Multicultural Affairs [2001] FCA 931 at paras.6-7 per Beaumont J (“Brehoi”); Kousal v Tack (2002) 30 Fam LR 581 at 590 per Nicholson CJ; [2002] FamCA 1152 at para.47 per Nicholson CJ. See also Fazio v Centrelink [2008] FMCA 594 at para.31 per Lucev FM.
The role of a federal court in relation to self-represented litigants has been broadly described by the Federal Court as a requirement to be fair.[39] That does not entail being unfair to the other party. Such guidance as is provided by a federal court to a self-represented litigant is not for the purpose of advantaging the self-represented litigant in the litigation, or disadvantaging the other party or parties, but rather to ensure that the case proceeds, so far as is possible, in a manner consistent with the interests of justice.[40]
[39] Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at para.24 per Graham J, citing Malouf v Malouf (2006) 65 NSWLR 449 at 452 per Bryson JA.
[40] Brehoi at paras.6-7 per Beaumont J.
Mr Reynolds’ submissions misconceive the role of both the presiding Federal Magistrate and the Court:
a)vis-à-vis Mr Reynolds, for reasons set out above;[41] and
b)fundamentally, by putting the Court in the role of:
i)the advocate, as examiner and re-examiner; or
ii)the inquisitor, and in a role more akin to that of a judicial officer under the continental inquisitorial system of justice, rather than the adversarial British common law system of justice which lies at the heart of the legal process under which this Court operates.
[41] See para.58 above.
The submissions with respect to the role of the Federal Magistrate in any proceedings if Mr Reynolds is a self-represented litigant reveal a lack of understanding of the proper role of a federal judicial officer vis-à-vis a self-represented litigant, and of the procedure in this Court where a party is self-represented. Because Mr Reynolds’ submissions were prepared by Mr King it indicates that Mr King does not understand these matters. That indicates to the Court that he would not be of particular assistance to the Court, and more particularly to the interests of Mr Reynolds, in the conduct of the proceedings.
Mr Reynolds also submitted that having:
a)already had Mr King represent him at conferences, at the AHRC;
b)had Mr King directly address the alleged work issues; and
c)had Mr King draft all documentation that was filed with the AHRC,
Mr King would continue to do so, and that this would greatly assist in the effective, efficient and expeditious disposal of this matter before the Court.
The participation in conciliation before the AHRC, a non-judicial body not empowered to determine disputes, is, in the Court’s view, not of any significant assistance in the preparation for a multi-day court hearing, involving up to ten witnesses, including experts, before a court exercising judicial power. Furthermore:
a)the drafting of the SMF, as to style, content and form, is such that it does nothing to persuade the Court that Mr King would be of assistance in the preparation of a statement or points of claim, outlines of submissions or contentions of fact and law, and affidavits. If anything, the written materials prepared by Mr King and submitted with the application lead, as suggested by the respondents’ submissions, to the contrary conclusion; and
b)the failure to submit affidavit evidence of matters essential to proof of the application in a case do not lead the Court to believe that Mr King would be of assistance in the effective, efficient or expeditious disposal of the matter.

Unavailability of disciplinary measures and a duty to the court by lay advocates and protection of the client and the opponent

It is convenient to consider these two factors together.
Mr Reynolds submits that Mr King:
a)is qualified in the area of industrial relations law;
b)is qualified and experienced as an industrial relations advocate and has the requisite knowledge to be able to adequately act as advocate for Mr Reynolds in these proceedings;
c)is registered as an industrial agent,[42] and is bound by the Code of Conduct for registered industrial agents;[43]
d)is required to, and holds and maintains professional indemnity insurance;[44]
e)holds the same duty to a client as does a lawyer, as they are set out in the Industrial Agents Regulations, as well as a fiduciary duty and obligation to his clients;
f)has some legal training through enrolment in a bachelor of laws; and
g)has dealt with matters involving unlawful discrimination.
[42] Pursuant to s.112A of the Industrial Relations Act 1979 (WA) (“IR Act”).
[43] Industrial Relations (Industrial Agents) Regulations 1997 (WA), reg.8 and Schedule 1 (“Industrial Agents Regulations”).
[44] Industrial Agents Regulations, reg.7.
Mr Reynolds asserts that Mr King is qualified. There is no evidence, and it is conceded that there is no evidence,[45] that Mr King has any qualifications at all. There is evidence that he studied in a bachelor of laws course at the University of Notre Dame Australia in Fremantle in the years from 1997 to 2000. It is clear that he was not a full-time student, completing only one unit in 1998. In any event, on the evidence it is undisputed that he did not complete the bachelor of laws degree.
[45] Transcript, page 17.
It is said that Mr King is a registered industrial relations agent for the purposes of the IR Act and IR Regulations in Western Australia, and there is no doubt, on the evidence, that that is the case. But what exactly does that mean, and how does one become registered as an industrial agent, and does it require that the registered industrial agent be qualified or relevantly experienced?
Section 112A(4) of the IR Act provides as follows:
(4) A person shall not be registered under this section unless that person can demonstrate that that person has professional indemnity insurance, or has sufficient material resources, of a prescribed kind to provide professional indemnity.
Regulation 4 of the Industrial Agents Regulations provides for an application for registration as an industrial agent to be made to the Registrar of the WAIRC. The application must provide certain personal and business details, but does not require the provision of any particulars of qualifications or experience.
Regulation 6(1) of the Industrial Agents Regulations provides as follows:
(1) The Registrar is to grant an application made under regulation 4 if —
(a) there is no admission of a criminal record by the applicant and no objection under regulation 5(1) to the registration of the applicant; and
(b) the applicant produces to the Registrar evidence that the applicant —
(i) holds professional indemnity insurance for not less than $100 000 covering the year in which registration is to be granted; or
(ii) has sufficient moneys or other financial resources, or other sufficient material resources in the form of real or personal property, to provide professional indemnity.
It can thus be seen that provided that a person who applies to be registered as an industrial agent, who:
a)has no criminal record; and
b)holds, or has sufficient resources to hold, professional indemnity insurance as an industrial agent,
can be registered as an industrial agent. There is no requirement of qualification or experience to be registered as an industrial agent. The fact that Mr King is registered as an industrial agent does not indicate, and it cannot be inferred from the mere fact of registration, that he has any qualifications or experience in industrial relations at all.
Registration as an industrial agent allows the industrial agent to appear in proceedings under:
a)section 31 of the IR Act, which allows a party to proceedings before the WAIRC to appear by an agent;[46]
b)section 81E of the IR Act, which allows an agent to represent a party in proceedings before an industrial magistrates court in Western Australia;[47] and
c)section 91 of the IR Act, which allows a party in proceedings before the Western Australian Industrial Appeal Court to appear by an agent.[48]
[46] IR Act, s.31(1)(b).
[47] IR Act, s.81E(b). Industrial magistrates courts in Western Australia are courts of record which may sit at any place within Western Australia: IR Act, s.81(1) and (2), with prescribed jurisdiction to hear certain matters under the IR Act and other Acts: IR Act, ss.81A and 81AA, and being constituted by a person holding office as a magistrate who is appointed as an industrial magistrate: IR Act, s.81B.
[48] IR Act, s.91(1)(a). The Western Australian Industrial Appeal Court consists of four members, each of whom is a Judge of the Supreme Court of Western Australia: IR Act, s.85(2) and (3), any three of whom (but one of whom must be the presiding judge or the deputy presiding judge of the Western Australian Industrial Appeal Court), may sit to exercise its jurisdiction: IR Act, s.85(1), (2), (3) and (3a), and which hears appeals from the President of the WAIRC, the Full Bench of the WAIRC or the WAIRC in court session: IR Act, s.90(1), and from a decision of an industrial magistrates court in freedom of association proceedings: IR Act, s.96K.
Mr King gives non-specific evidence of only ever having appeared in the WAIRC. There is no evidence that he has ever appeared in an industrial magistrates court or in the Western Australian Industrial Appeal Court.
The jurisdiction of the WAIRC is to have “cognizance of and authority to enquire into and deal with any industrial matter.”[49] The phrase “industrial matter” is widely defined in s.7(1) of the IR Act, but relates to what, speaking broadly, might be categorised as traditional industrial relations issues, including cases of unfair dismissal,[50] but not the hearing and determination of disability discrimination cases. The WAIRC’s functions are primarily arbitral, and not judicial. The rules of evidence do not apply in the WAIRC, and the WAIRC is required to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.[51] In short, the WAIRC does not exercise judicial power as does this Court, the other federal courts, and the various courts within the Western Australian State legal system, such as the Supreme Court, District Court and Magistrates Court of Western Australia.
[49] IR Act, s.23(1).
[50] IR Act, ss.23 and 23A.
[51] IR Act, s.26(1)(a) and (b).
Mr King also refers to appearing in “the Fair Work Commission” and the “Fair Work Australia Commission”. The Court presumes that this is intended to be a reference to Fair Work Australia,[52] a body established by s.575(1) of the Fair Work Act 2009 (Cth).[53] Like the WAIRC, FWA is a body established to deal with certain functions, essentially industrial in character,[54] but not judicial in nature.[55] FWA may in fact:
a)make a decision without holding a hearing;[56] and
b)inform itself by, for example, conducting inquiries or undertaking or commissioning research, or by conducting a conference.[57]
Like the WAIRC, FWA is not bound by the rules of evidence and procedure in relation to a matter before it, whether or not it holds a hearing in relation to that matter.[58]
[52] “FWA”.
[53] “FW Act”.
[54] FW Act, s.576.
[55] For a short explanation and more detailed discussion of the nature and history of the division of the judicial and arbitral functions in industrial relations matters in Australia see Welsh v Allblend Holdings Pty Ltd (No 2) (2010) 239 FLR 234 at 239-240 per Lucev FM; [2010] FMCA 377 at paras.11-18 per Lucev FM.
[56] FW Act, s.593(1).
[57] FW Act, s.590(2)(f), (g) and (h).
[58] FW Act, s.591.

Mr King claims to be currently involved in proceedings before the WAIRC and FWA. By inference, it is suggested that he has prior experience of appearing in these industrial bodies. Given the experience claimed the Court might have expected to see some evidence of that experience, by way of a list of matters indicating when, where (in which jurisdiction) and in respect of what type of matter Mr King had appeared. Confidential settlement agreements would not ordinarily prevent information of this type being disclosed. Further, given that:
a)all decisions and published reasons for decisions of the WAIRC are required to be published in the Western Australian Industrial Gazette;[59] and
b)FWA decisions must be in writing and published on its website or by any other means that FWA considers appropriate,[60]
Mr King ought to be able to point to the public record of published decisions of the WAIRC and FWA as indicative of relevant experience. No such evidence was tendered on the application in a case. If, as is asserted by Mr Reynolds, Mr King’s appearance on his behalf is so critical to his conduct of the proceedings before this Court, then the Court is entitled to expect that there be cogent, substantive evidence of Mr King’s alleged experience. It is of concern to the Court that there is no evidence of this type, particularly in circumstances where the evidence discloses that it is Mr King who has prepared and filed the relevant papers in this Court for this application in a case. Once again, the need to prove assertions appears to have been ignored.
[59] IR Act, ss.93(3) and 105, and Schedule 1, cl.2(d).
[60] FW Act, s.601(1) and (4).
Mr King also claims experience in equal opportunity matters. However, on the evidence, with the exception of this matter and a Federal Court matter discussed below, that experience appears to be limited to matters in the Equal Opportunity Commission of Western Australia.[61] The EOC is a non-judicial complaint receival and resolution body which is part of the Western Australian public sector,[62] and complaints which are not resolved by the EOC may be referred to the State Administrative Tribunal for hearing.[63] There is no suggestion on the evidence that Mr King has ever argued a discrimination matter before the State Administrative Tribunal.
[61] “EOC”.
[62] EO Act, ss.75, 79, 80, 83, 83A, 84, 87, 88, 89 and 91.
[63] EO Act, ss.90, 93, 107 and 108.
There is also no suggestion on the evidence that Mr King has any experience dealing with federal discrimination complaints, whether disability or not (subject to the exceptions referred to in the preceding paragraph), and no suggestion that he has been involved in the resolution of complaints involving the AHRC,[64] under the AHRC Act.
[64] Formerly (prior to 5 August 2009) the Human Rights and Equal Opportunity Commission.
Annexure E referred to in Mr King’s Affidavit[65] is not evidence of Mr King’s experience in dealing with discrimination law matters. It is simply a letter notifying a complainant of an upcoming conciliation conference in relation to allegations of race discrimination, racial harassment and victimisation in the Equal Opportunity Commission. It does not prove that Mr King was representing the complainant, or that he was any more than the contact person for correspondence to be sent to. Further, whilst Mr King deposed to the fact that he had hidden all information in the letter capable of identifying the complainant, it is a matter of concern to the Court that the name of the complainant was actually left in the letter’s salutation, thus enabling the complainant, at least as to gender and surname, to be identified.
[65] Affirmed 14 June 2010.
Mr King claims extensive experience and much success in mediation of matters before FWA and the WAIRC. However, even if there was evidence to support Mr King’s assertions with respect to his experience and success in mediation, experience and success in mediation is not experience in litigation. It is trite to observe that the two are fundamentally different means of resolution of disputes. Furthermore, mediation before arbitral bodies not bound by forms, technicalities or rules of evidence (insofar as the latter would ever apply to mediation) cannot, in the Court’s view, be relied upon as experience relevant to having to appear as a representative of a party before a federal court exercising judicial power, albeit doing so as informally as is practicable in this Court,[66] but nevertheless still requiring compliance, or substantial compliance, with relevant procedural rules, and the Evidence Act 1995 (Cth). Furthermore, mediation does not require a representative of a party to examine, cross-examine and re-examine witnesses, as will be required in any hearing in these proceedings (albeit that evidence-in-chief will be in affidavit form).
[66] See FM Act, ss.3 and 42.
In the Court’s view, whatever Mr King’s experience in mediation (and there is no real evidence of it in these proceedings beyond unproven assertion) it is not experience that is relevant for the purposes of his having to appear as Mr Reynolds’ representative in a contested multi-day hearing in this Court.
There is also brief reference in Mr King’s Affidavit to a matter which “will be in” the Federal Court, and which is now being handled by an immigration specialist. Again, that does not indicate any experience in actually appearing in a federal court in relation to a relevant matter.
Mr King was granted leave to appear as a non-lawyer in the industrial matter of Hadgkiss v Aldin,[67] in which it was held that:
12. … I accept that this present case could be complex, certainly from the perspective of the seventy-second respondent, a carpenter by trade. It could therefore give rise to genuine difficulties for him, although he has no language difficulties. While Mr King would not have the overall duty of a barrister or solicitor to the Court, he is subject to certain codes which, even though not extending the role for which he seeks leave to perform, could be adversely affected if he were to mis-perform if leave were granted by the Court. There is evidence that Mr King has professional indemnity insurance. Further, from his knowledge of and experience in industrial law he may be able to protect the person whom he would represent. He would, in my view, assist the effective, efficient and expeditious disposal of the litigation in respect of the seventy-second respondent. That is, he would assist the interests of justice.[68]
[67] (2006) 155 FCR 499; [2006] FCA 1638.
[68] Hadgkiss FCR at 502-503 per Nicholson J; FCA at para.12 per Nicholson J (“Hadgkiss”).
Aldin is a discretionary judgment based on the particular facts of the case, and therefore not strictly binding on this Court.[69] There are, in any event, other factors which make Aldin distinguishable, and which, in the circumstances, mean that this Court will not follow it, notwithstanding that it is a judgment of the Federal Court in relation to the same non-lawyer seeking a right of appearance in these proceedings.
[69] Federal Court of Australia Act 1976 (Cth), s.23 (“FC Act”), under which the Federal Court may make orders of such kind as it thinks appropriate.
First, Aldin is distinguishable because it was an industrial law proceeding under the Workplace Relations Act 1996 (Cth),[70] whereas these proceedings are disability discrimination proceedings under the AHRC Act and DD Act.
[70] “WR Act”.
Second, whatever might be said of Mr King’s experience as an industrial advocate (and there is little evidence of any actual experience as an industrial advocate tendered in these proceedings), it cannot be said that he has any relevant experience as an advocate in any court in discrimination, or disability discrimination, proceedings.
Third, with respect to complexity, it was said in Aldin that the case was complex from the point of view of the 72nd respondent, a carpenter by trade whom Mr King sought to represent in Aldin. However, the test of complexity in relation to the appearance of a non-lawyer in proceedings is whether the case is too complex to allow a particular non-lawyer to appear as a representative, not whether it is too complex for a party to understand.[71] Were the latter the case, there would be few cases in which this factor would not be met, and the factor would effectively be redundant.
[71] Damjanovic NSWLR at 162 per Stein JA; NSWCA at para.70 per Stein JA (“[w]hether the case is one of complexity … “) and cases there cited; Melaleuca at para.14 per Bennett J.
Fourth, with respect to professional indemnity insurance, in Aldin it was said that there was evidence that Mr King had professional indemnity insurance. Likewise, in this case, there is evidence that Mr King has professional indemnity insurance. A complete copy of the relevant insurance policy is not in evidence. However, on the basis of the Schedule of Insurance annexed to Mr King’s Affidavit, the professional indemnity policy is limited to the professional business practice of “Industrial Relations and Workers’ Compensation Advocate”. For reasons set out above, this case is not an industrial relations case. Therefore, the professional indemnity insurance does not apply to this work, which is not industrial relations work. Further, the Schedule of Insurance provides that the insurer is not liable under the policy to provide indemnity “in respect of any Claim … based upon, attributable to, or in consequence of any advice given that should be provided by a qualified solicitor.” It might be arguable that the work undertaken by Mr King in relation to these proceedings includes advice which should have been given or provided by a qualified solicitor. It is unnecessary to decide that point because it is clear that the professional business practice insured does not cover Mr King for work as an advocate which is not industrial relations or workers compensation work. Aldin is therefore distinguishable in this respect.
Fifth, in relation to Mr King’s duty to the Court and the applicability of the relevant code of conduct for an industrial agent, it was observed in Aldin that Mr King did not have the overall duty of a barrister or solicitor to a court. However, it was said that he was “subject to certain codes”, which “could be adversely affected if he were to misperform if leave were granted” for him to appear. In Aldin, the provisions of the relevant code of conduct were not expressly examined.
Section 112A(1) and (3) of the IR Act provide as follows:
Registration of industrial agents
(1) In this section a reference to carrying on business as an industrial agent is a reference to carrying on business as a person who does either or both of the following —
(a)    appears as an agent under section 31, 81E or 91;
(b) provides advice or other services in relation to industrial matters.
(1a) Despite subsection (1), a reference to carrying on business as an industrial agent does not include —
    (a) carrying on business by an organisation, the Council, the Chamber or the Mines and Metals Association;
(b) carrying on business as a person who acts as a bargaining agent within the meaning of section 42B(4); or
(c) carrying on business as a person who —
(i) appears in proceedings as provided by section 97WJ; or
(ii) provides advice or other services in relation to industrial matters, in the capacity of a bargaining agent under section 97UJ.
…
(3) For the purposes of section 12 of the Legal ProfessionAct 2008 a person who is —
(a) registered under this section;
(b) acting under a contract of employment for a person who is registered under this section; or
(c) an employee or officer of any organisation, the Council, the Chamber, the Mines and Metals Association, or a prescribed body or class of body, acting on behalf of that body,
is authorised to —
(d)       appear for a party, person or body under section 31, 81E or 91; and
(e) provide advice and other services in relation to industrial matters.
Thus, an industrial agent is only one who carries on business which involves appearing as an agent in the WAIRC, an industrial magistrates court or the Western Australian Industrial Appeal Court, or who provides advice or other services in relation to industrial matters, which must mean “industrial matters” as defined in s.7(1) of the IR Act. These proceedings are not proceedings in any of the aforementioned bodies, and are not, perhaps except in some minor respects, “in relation to industrial matters” as defined in s.7(1) of the IR Act. Therefore, in appearing before this Court Mr King would not be carrying on the business of an industrial agent for the purposes of s.112A(1) and (3) of the IR Act.
The code of conduct, which is Schedule 1 to the Industrial Agents Regulations, gathers its force from reg.8 of the Industrial Agents Regulations, which provides as follows:
8 . Code of conduct
(1) The code of conduct set out in Schedule 1 is prescribed for industrial agents.
(2) It is a condition of every registration that the industrial agent is to comply with the code of conduct.
Registration as an industrial agent under the IR Act does not carry with it any general right to appear in courts or tribunals. The rights granted are restricted to the WAIRC, industrial magistrates courts (in Western Australia) and the Western Australian Industrial Appeal Court, and to the giving of advice concerning industrial matters. Because of that references in the code of conduct to the “Commission” and “a court” must be references to the WAIRC, and to the industrial magistrates courts (in Western Australia) and the Western Australian Industrial Appeal Court. The code of conduct only applies in relation to the rights granted under the IR Act, and does not bind the industrial agent in his conduct outside of the WAIRC, industrial magistrates courts (in Western Australia) and the Western Australian Industrial Appeal Court, and to the giving of advice concerning industrial matters.
In the Court’s view, the code of conduct can have no application to the work performed by Mr King in relation to these proceedings, because, for reasons set out above, he is not carrying on business as an industrial agent when conducting these proceedings, and because the code of conduct is limited in its application to the appearance and advice rights granted by the IR Act. Therefore, not only does Mr Reynolds not owe the same duty to the Court as would a lawyer, the code of conduct has no application to his conduct before the Court, and cannot be utilised to discipline him in relation to any conduct by him before this Court.

Conclusion – disciplinary measures, etc and protection of client and opponent

Having regard to the above matters the Court has concluded that Mr King:
a)is not qualified in any relevant sense;
b)is not experienced in any relevant sense, particularly with respect to advocacy in courts exercising judicial power in relation to discrimination matters;
c)is not insured in relation to the conduct of this litigation; and
d)would have no professional duty to the Court were he to appear as a representative for Mr Reynolds, and be subject to none of the usual professional disciplinary consequences in the event of misconduct before the Court.
The above conclusions all constitute good reasons for Mr King not being granted leave to appear as Mr Reynolds’ representative in these proceedings.

Lay advocates in inferior courts and tribunals

The Court takes into account the following observation in Damjanovic in relation to this principle:
81. There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.
82. The authorities however suggest that higher courts should be very chary at giving leave. See G J Mannix (at 314); Hubbard (at 343); Bay Marine (at 111); Scotts Head (at 3-4) and D v S (see Paragon (at 2369)).[72]
[72] Damjanovic NSWLR at 163 per Stein JA; NSWCA at para.81-82 per Stein JA.
Mr Reynolds submits that this principle should have no bearing in the Court’s decision whether to grant leave for Mr King to appear. The respondents dispute that the principle has no bearing in relation to this application.
This Court shares concurrent jurisdiction with the Federal Court in relation to applications made under s.46PO(1) of the AHRC Act. The only apparent point of differentiation is that representative proceedings may be brought in the Federal Court, but not in this Court.[73] Thus, this Court, like the Federal Court, has the ability to award the full range of remedies provided for in s.46PO(4) of the AHRC Act, including damages, unlimited in quantum. In this case the application seeks the payment of compensation in an unspecified amount.
[73] FC Act, s.33C(1).
Whilst this Court is not a superior court, as the Federal Court is, it nevertheless in this case exercises concurrent jurisdiction with the Federal Court.[74] Nor is this Court a court of specialist jurisdiction: rather it is a federal court of limited and associated jurisdiction. In those circumstances, the principles outlined in Damjanovic suggest that, as this Court is exercising concurrent jurisdiction with the Federal Court, it ought therefore “be very chary at giving leave”.[75] Further, for reasons set out above,[76] this is not a straightforward uncomplicated matter, nor is it a matter where Mr Reynolds is, on the evidence, under such a disability as to necessarily prevent him from presenting his own case.
[74] Skipworth v State of Western Australia (No 2) (2008) 218 FLR 16 at 27 per Lucev FM; [2008] FMCA 544 at para.37 per Lucev FM.
[75] Damjanovic NSWLR at 163 per Stein JA; NSWCA at para.82 per Stein JA.
[76] See paras.45 and 50-51 above.
In the circumstances, a non-lawyer ought not to appear in this matter on the basis that it is one to be determined in:
a)an inferior court, because the Court shares concurrent jurisdiction with the Federal Court in the matter;
b)a court of specialist jurisdiction, because the Court is not a court of specialist jurisdiction,
and, further, on the basis that the matter is not a straightforward uncomplicated matter, but one where the proceedings are complex, and the damages available are unlimited.
These are all good reasons for Mr King, a non-lawyer, not to be granted leave to represent Mr Reynolds in the proceedings.

The interests of justice

In Damjanovic the New South Wales Court of Appeal said:
83.    What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.
…
85.    Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.
86.    Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is…the proper administration of justice and the protection of the parties…Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice …[77]
[77] Damjanovic NSWLR at 163-164 per Stein JA; NSWCA at paras.83 and 85-86 per Stein JA.

This principle was further espoused in Groundwater, as follows:
46. …The general public has an interest in justice being done and being seen to be done. The public has an interest in the effective, efficient and expeditious disposal of litigation in the court. The best way of this being achieved is if both parties to an action have qualified lawyers to represent them. The adversarial system, which prevails in this country, assumes that both parties are represented by skilled professionals of equal competence…[78]
[78] Groundwater at para.46 per Brown FM.
Generally, it is a lawyer for a party, or an individual who is a party, who appears in proceedings in this Court. Granting leave for a representative other than a lawyer, or a person who is a party, to appear is a matter to be approached with caution. In the circumstances of this case, where, on the evidence, Mr King:
a)has no qualifications;
b)has no relevant experience;
c)is not insured for the services is he providing;
d)is not subject to any professional disciplinary consequences for any misconduct in the course of the proceedings; and
e)has demonstrated by way of the:
i)style, form and contents of the SMF;
ii)failure to lead evidence of matters fundamental to proof of assertions made in the application in a case;
iii)lack of understanding of the nature and purpose of the concept of “unjustifiable hardship” under the DD Act; and
iv)lack of understanding of the role and nature of proceedings before a Federal Magistrate in this Court,
that, when considered against the complexity of the proceedings, both as to fact and law, it is not in the interests of justice for Mr King to be granted leave to appear as Mr Reynolds’ representative in these proceedings. Given the above matters, and notwithstanding Mr Reynolds’ submissions concerning his view of Mr King’s capabilities, the Court is not necessarily satisfied that Mr King would, in any event, be better able to conduct the proceedings, or conduct them in a manner conducive to Mr Reynolds’ best interests. The Court is also not satisfied that allowing Mr King to represent Mr Reynolds would expedite the proceedings. Advocacy in a federal court exercising judicial power in a factually and legally complex disability discrimination case requires skill and aptitude which, on the evidence, Mr King simply has not demonstrated.
There is a further very good reason why it is not in the interests of justice for Mr King to appear in this case. That is, that he is a likely witness. The SMF discloses that Mr King’s involvement extends to participation in the meetings, the drafting of correspondence, and advising the respondents of threatened proceedings or complaints in various fora which are likely to be the subject of factual dispute in the proceedings. In this case, it is clear that Mr King would be a witness called in Mr Reynolds’ case in the normal course of events, or is at least a potential material witness. He cannot be both advocate and witness.[79]
[79] Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land and Agency Co Ltd & Ors (unreported Supreme Court of South Australia, Perry J, 4 February 1993) at paras.3-18; Pittorino v Meynert & Ors [2001] WASC 245 at paras.7-10 per Bredmeyer M; Ipp J “Lawyers’ Duties to the Court” (1998) 114 LQR 63 at 92.
For all of the above reasons, it is not in the interests of justice that Mr King be given leave to represent Mr Reynolds in these proceedings.

Procedural fairness – natural justice

In the course of the hearing of the application in a case Mr Reynolds said that he wished to raise a matter of procedural fairness and natural justice.[80] Mr Reynolds said that at the first directions hearing when orders were made for the filing of affidavits in support of the application in a case it was understood that those affidavits would be able to be expanded on by way of oral evidence.[81] When it was put to Mr Reynolds that:
a)that was not the Court’s understanding;
b)that was an unusual occurrence in an application in a case;[82] and
c)he had said at the outset of the hearing of the application in a case that no further evidence apart from the affidavit evidence of Mr King and himself was to be led,[83]
the matter was not pursued.[84]
[80] Transcript, page 15.
[81] Transcript, page 15.
[82] Freehill Hollingdale & Page v Bandwill Pty Ltd & Anor [2000] WASCA 150 at para.29 per Owen, Steytler and Miller JJ; Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at para.18 per Kenny J.
[83] Transcript, pages 2-3.
[84] Transcript, page 16.
Procedural fairness is the opportunity to adequately and properly present a case.[85] In this case that opportunity was afforded to Mr Reynolds by the Court providing for the filing of affidavit evidence (which the respondents did not cross-examine on) and the ability to make submissions in relation to that evidence and the matter generally. In the Court’s view, the complaint (if indeed it be that) concerning procedural fairness has no substance.
[85] Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.

Conclusion

The Court does not consider it appropriate to grant Mr King leave to represent Mr Reynolds in these proceedings for the various reasons set out in detail above.

Mediation and McKenzie friend

The above conclusion extends to mediation in this Court, especially because of the lack of insurance. It does not however preclude Mr King from being a “McKenzie friend”, subject to the usual limitations.[86]
[86] McKenzie v McKenzie (1970) 3 All ER 1034; Melaleuca at para.11 per Bennett J.

Orders

The application in a case will therefore be dismissed.
The Court will hear the parties as to costs.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date: 5 November 2010