Ricupero v Peter Barrett Corporation Pty Ltd
[2018] FCCA 2784
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICUPERO v PETER BARRETT CORPORATION PTY LTD & ANOR | [2018] FCCA 2784 |
| Catchwords: PRACTICE AND PROCEDURE – Whether to grant leave to a company not to be represented by a lawyer – consideration of factors. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 361, 548, 550, 570 Fair Work (Registered Organisations) Act 2009 (Cth) Federal Circuit Court Rules 2001 (Cth), rr.1.03, 6.01, 9.04 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 44 Federal Court Rules 2011 (Cth), r.4.01 |
| Cases cited: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878 Alcantara v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 Anying Group Pty Ltd v Wang [2012] FCA 702 Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; (2012) 90 ATR 24; (2012) 127 ALD 64 Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583; (2012) 88 ATR 833; (2012) 292 ALR 83 Fair Work Ombudsman v Darna Pty Ltd [2014] FCCA 595 Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 |
| Applicant: | MARIA RICUPERO |
| First Respondent: | PETER BARRETT CORPORATION PTY LTD ACN 603 100 778 |
| Second Respondent: | PETER STANLEY BARRETT |
| File Number: | PEG 27 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 September 2017 and on the papers |
| Date of Last Submission: | 29 September 2017 |
| Delivered at: | Perth |
| Delivered on: | 27 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Mostivsky |
| Solicitors for the Applicant: | MKI Legal |
| First Respondent: | Mr P Barrett (by leave on the first respondent’s application in a case to be represented by a non-lawyer) |
| Second Respondent: | In person |
ORDERS
The Application in a Case filed by the second respondent on 12 August 2017 seeking leave for the second respondent to appear as a non-lawyer for the first respondent be dismissed.
The first respondent file and serve an address for service, being the address of a lawyer acting for the first respondent, by 30 November 2018.
If the first respondent does not comply with order (2) above then the applicant has liberty to apply, by 14 December 2018, for summary judgment against the first respondent.
Otherwise the matter is to be adjourned to 10.00am on 24 January 2019 for further directions.
Costs, if any, be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 27 of 2017
| MARIA RICUPERO |
Applicant
And
| PETER BARRETT CORPORATION PTY LTD ACN 603 100 778 |
First Respondent
| PETER STANLEY BARRETT |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an Application in a Case filed on 12 August 2017 which the Court has taken to be, in part, an application for the second respondent, Mr Peter Stanley Barrett (“Mr Barrett”), to be granted leave to appear on behalf of the first respondent, Peter Barrett Corporation Pty Ltd ACN 603 100 778 (“Barrett Corp”) (together the “Respondents”) in these proceedings. Pursuant to r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) a corporation, like Barrett Corp, must be represented by a lawyer unless the Court gives leave otherwise. The applicant, Ms Maria Ricupero (“Ms Ricupero”), opposes the grant of leave to Mr Barrett to appear for Barrett Corp.
Substantive Application
Ms Ricupero filed an application (“Substantive Application”) in this Court alleging Barrett Corp dismissed her in contravention of a general protection and thereby breached s.340 of the Fair Work Act 2009 (Cth) (“FW Act”). Ms Ricupero is represented in these proceedings by the lawyers who filed the Substantive Application (namely, MKI Legal). The Substantive Application alleges Mr Barrett is accessorily liable pursuant to s.550 of the FW Act by virtue of his involvement, as a director of Barrett Corp, in Ms Ricupero’s dismissal. It is not necessary for the Court to go into the detail of the Substantive Application, save to note that Ms Ricupero alleges:
a)she was employed by Barrett Corp at the Carnarvon Motel as a waitress on a casual basis between 20 July 2016 and 28 September 2016 when she was terminated by Mr Barrett by telephone after allegedly having made two oral complaints that she was being subjected to abusive and bullying behaviour in the workplace;
b)the first complaint was made orally to a co-owner and manager who took no action;
c)the second complaint was made to a bar manager who is said to have spoken to Mr Barrett about the issue and said it was “all sorted”, but the behaviour complained about did not change and things became tense with Ms Ricupero feeling frightened and intimidated in the workplace;
d)Mr Barrett terminated Ms Ricupero’s employment by telephone stating colleagues had been complaining about her and that he knew there had been problems, but he had to choose between Ms Ricupero and the chef she had complained about, and he had chosen to let Ms Ricupero go because he needed his chef. Ms Ricupero did not have an opportunity to speak further with Mr Barrett after the termination; and
e)she was terminated as a result of exercising a workplace right to make a complaint pursuant to s.340 of the FW Act.
In response to the Substantive Application, the Respondents filed a Response and a Defence. In the Defence the Respondents pleaded that the sole reason for the termination of Ms Ricupero was that the business of Barrett Corp did not have enough work for Ms Ricupero. At the time of preparing the Defence the Respondents were represented by lawyers (namely, Gilchrist Connell), but those lawyers withdrew from the record on 17 May 2017.
Application in a Case for Barrett Corp to be represented by other than a lawyer
On 30 June 2017 the matter came before the Court for directions. There was no appearance on behalf of Barrett Corp. By telephone, Mr Barrett appeared on his own behalf. The Court made an order that any Application in a Case for Barrett Corp to appear other than by lawyer was to be made by 21 July 2017 and supported by an affidavit. On 25 July 2017 the Court received correspondence from Mr Barrett (“July 2017 Correspondence”): as follows:
1. I, Peter Barrett request to become the second respondent in the Maria Ricupero v Peter Barrett Corporation Pty Ltd ACN 603 100 778 Case Number PEG27/2017. The reason we are no longer requiring the first respondent, Gilchrist Connell Lawyers is because of the astronomical fees that they were charging Peter Barrett Corporation Pty Ltd. We are only a small company and with the estimated costs of over $100,000.00 to take the case to a final hearing we were forced to represent ourselves in this matter. After advice from our accountant that keeping the first respondent as our representative our company could become insolvent. We have also made this choice because of the defeatist attitude from the first respondent who said we could not win the case and will be forced to pay their fees and any other payouts and other fees that may be applied. We have seven witnesses that will be appearing on behalf of Peter Barrett Corporation Pty Ltd to prove that the applicant was not bullied at any time of employment by Carnarvon Motel WA.
2. The request for affidavit’s we were unable to complete at this stage as two of our witnesses are overseas and we have been in our peak period of the holiday season. The other five of our witnesses all work at the Carnarvon Motel WA and there was just no time to complete the request. We would like to request another adjournment or to have a trial date set in regards to this matter. If a trial date is chosen we would like to request that the matter is heard at the Carnarvon Court House by all parties.
3. We would like to request that any material that MKI Legal have regarding the case be forwarded Attention: Peter Barrett PO Box 1093, Carnarvon, WA, 6701 as the first respondent failed to send any information to us.
It does not appear that the July 2017 Correspondence was accepted for filing, no doubt because, although it was received by the Court’s Registry, it was not in the form required by the Court’s orders or the FCC Rules.
The matter returned to the Court on 28 July 2017 for further directions. No Application in a Case for Barrett Corp to appear other than by a lawyer had been filed, and there was no appearance at the 28 July 2017 directions hearing by or for the Respondents. The Court made the following orders:
1. The time for compliance with order 1 of the courts orders of 30 June 2017 be extended to 7 August 2017.
2. The matter be adjourned to a further directions hearing at 9.45am on 9 August 2017.
3. If there is no application made pursuant to order 1 of the Court’s orders of 30 June 2017 as varied by order 1 of these orders, or no appearance for either of the first or second respondents at the further directions hearing on 9 August 2017, the applicant may make an application for summary judgment at the further directions hearing on 9 August 2017.
4. The applicant to serve a copy of these orders on each of the first and second respondents by prepaid post within 7 days.
5. Costs, if any, of today be reserved.
On 4 August 2017 the Court received further correspondence from Mr Barrett (“August 2017 Correspondence”) relevantly as follows:
Item 1: I Peter Barrett made application to become the second respondent on the 23rd of July 2017 and received confirmation via email on the 25th of July 2017 that the submission was received. I apologise for my ignorance as I was unaware that I should advise Mr Nicholas Marouchak of MKI that these were submitted. I will forward the stamped applications in the future.
Item 2: … I would like to put to the courts attention that I am situated in Carnarvon, Western Australia and will only be able to attend via telephone… I was waiting for a call on the 28th of July 2017 to link in and I apologise for the mix-up. I assumed this would happen automatically as per the directions hearing that I attended via telephone link up on the 28th of June 2017. I would like to request that this is noted that I attend each hearing via telephone link…
3. Item 3: Application was marked as received on the 25th of July 2017 as per the orders on the 28th of June 2017. There was a delay because I was unaware that the replies need to be submitted via a porthole and needed to make an account with the Federal Circuit Court website that caused a two-day delay in my submission. My account is now in place and all submissions will be on time in the future and copies of my stamped submissions will be forwarded to Mr Marouchak. I would like to object to a summary judgment by the applicant on the 9th of August 2017 and would like to pursue future directions and request a hearing date.
The matter came before the Court for further directions on 9 August 2017. Still no Application in a Case for Barrett Corp to appear other than by a lawyer had been filed by Barrett Corp.
At the directions hearing on 9 August 2017 the Court ordered that Barrett Corp be given a further opportunity to comply with the orders to file an Application in a Case for a person other than a lawyer to appear for Barrett Corp and a supporting affidavit.
A document headed “Application in a Case” was filed on 12 August 2017 (“August 2017 Application in a Case”). The August 2017 Application in a Case seeks orders in the following terms:
Orders sought on 09/08/17
1. The time for compliance with order 1 of the Court’s order of 30 June 2017 be extended to 16 August 2017. Application made by the second respondent Peter Stanley Barrett on the 12/08/2017 before the nominated date being the 16/08/2017.
2. The matter be adjourned to a further directions hearing at 3.00pm on 1 September 2017, and if there is no application made pursuant to order 1 of the Court’s orders of 30 June 2017, as varied by the Court’s orders of 28 July 2017 and today, or there is no appearance by either the First Respondent or the Second Respondent at the further directions hearing on 1 September 2017, the Applicant may make an oral application for summary judgment at the directions hearing on 1 September 2017. Application has been made by the Second Respondent Peter Stanley Barrett before the nominated date being the 16/08/2017. The Second Respondent would like to request to attend on the 1st September 2017 by telephone link…. The Second Respondent would like to oppose any oral application for a summary judgement at the directions hearing on the 1st September 2017.
3. Affidavit from Peter Stanley Barrett and on behalf of Peter Barrett Corporation will be forwarded before the directions hearing nominated for the 1st September 2017.
The August 2017 Application in a Case was supported by an affidavit sworn 16 August 2017 from Mr Barrett (“Mr Barrett’s August 2017 Affidavit”). There is an oddity in relation to Mr Barrett’s August 2017 Affidavit. Like the August 2017 Application in a Case Mr Barrett’s August 2017 Affidavit was lodged electronically with the Court at 12:10:45AM AWST on 12 August 2017. The oddity with respect to Mr Barrett’s August 2017 Affidavit arises because it provides that it was sworn on 16 August 2017, and not only in the jurat at the end of the affidavit, but also in the space provided for the date sworn at the beginning of the affidavit, and also in the initials of what appear to be Mr Barrett and the witnessing Justice of the Peace at the foot of each page of Mr Barrett’s August 2017 Affidavit. It suffices for present purposes to note the oddity, rather than to pursue it any further. Mr Barrett’s August 2017 Affidavit contained three paragraphs in which Mr Barrett said that:
a)Ms Ricupero was employed on a casual basis as a waitress by Barrett Corp trading as “Carnarvon Motel WA”;
b)he did not dismiss Ms Ricupero because of oral complaints she had made; and
c)Ms Ricupero was not subjected to bullying and abuse by any staff member while employed at the Carnarvon Motel WA.
On 1 September 2017 the matter was adjourned to a further directions hearing on 29 September 2017.
The Court heard from the parties on 29 September 2017 as to whether leave ought to be granted for Barrett Corp to be represented by a non-lawyer. Ms Ricupero opposed the Court granting leave for a non-lawyer to appear for Barrett Corp, but made no substantive submissions on the issue. Mr Barrett submitted the costs of legal representation were significant and that Barrett Corp was not able afford those costs.
Consideration
Legislative provisions
Section 44 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) provides as follows:
A party to a proceeding before the Federal Circuit Court of Australia 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.
Rule 9.04 of the FCC Rules is as follows:
Except as provided by or under an Act or regulations made under an Act, or with the leave of the Court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.
Save for r.9.04 of the FCC Rules there is no regulation or other law of the Commonwealth which would authorise another person, a non-lawyer, to appear on behalf of Barrett Corp. The FW Act does deal with the appearance of lawyers, both generally and for corporations, but only for the purposes of small claims proceedings, which these are not: FW Act, s.548(5)-(7).
In Wong v Dong Lai Sun Massage Pty Ltd T/A Dong Lai Sun Massage & Beauty [2016] FCCA 18; (2016) 305 FLR 423 at [17] per Judge Lucev (“Wong”) this Court observed that:
a)there is nothing in the FW Act or the Fair Work (Registered Organisations) Act 2009 (Cth) which precludes a corporation from seeking leave to appear other than by a lawyer under r.9.04 of the FCC Rules: Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189; (2011) 63 AILR 101-337 at [16]-[23] per Lucev FM; and
b)the requirement that a corporation must not proceed other than by a lawyer “cannot be ignored”: Anying Group Pty Ltd v Wang [2012] FCA 702 (“Anying Group”) at [19] per Flick J.
The purpose underlying restrictions on appearance
The purpose underlying legislative provisions such as s.44 of the FCCA Act and r.9.04 of the FCC Rules is to ensure that in accordance with the interests of justice and the administration of justice the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the courts: Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] FMCA 626; (2010) 199 IR 73 at [10] per Lucev FM (“Alcantara”). Lawyers may also be of considerable assistance to the Court in the proper assessment of fact: Re Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 (“Molnar Engineering”) at 74 per Smithers J. Incorporation confers many benefits on those connected with a corporation; and also imposes some corresponding burdens, one of which is that in litigation a corporation must normally be represented by a lawyer: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 (“Termi-Mesh”) at [14] per French J; Wong at [18] per Judge Lucev.
Discretion of the kind contained in r.9.04 of the FCC Rules must be exercised judicially and having regard to all relevant considerations: MolnarEngineering FCR at 73 per Smithers J; Wong at [20] per Judge Lucev. In the exercise of such discretion it is not necessary for each factor to be given equal weight: Wong at [20] per Judge Lucev.
There is no exhaustive list of factors for the Court to consider, but the following factors have been identified by the Court as relevant to determining if leave ought to be granted to a corporation to appear other than by lawyer:
a)the relative complexity or simplicity of a matter;
b)whether a non-lawyer appears, or has previously appeared, for any of the parties;
c)the objects and purposes of the FCCA Act and the FCC Rules, including the impact of those objects and purposes on case management considerations;
d)whether a party can be effectively represented without a lawyer appearing, and whether prejudice will be suffered by any party by reason of the appearance or non-appearance of a lawyer for a party;
e)whether there has been appropriate opportunity to arrange legal representation;
f)the financial position of a party; and
g)whether the granting of leave to appear is opposed,
see Wong at [19] per Judge Lucev.
A provision equivalent to r.9.04 of the FCC Rules is found in r.4.01(2) of the Federal Court Rules 2011 (Cth) (“FC Rules”). In Deputy Commissioner of Taxation v Compumark Pty Ltd [2012] FCA 583; (2012) 88 ATR 833; (2012) 292 ALR 83 (“Compumark”) at [20] per Murphy J the Federal Court referred to the following factors when considering r.4.01(2) of the FC Rules:
(a) the manner in which the case has progressed to date;
(b) the manner in which the case can proceed in the future without a solicitor;
(c) the complexity of the issues involved in the case;
(d) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice;
(e) whether the case can be conducted in an orderly and responsible fashion without a solicitor;
(f) whether there are financial considerations which would inhibit a company from obtaining legal representation;
(g) the stage which the case has reached;
(h) whether the defendant is likely to expend more funds in defending the claim absent a solicitor acting for the company; and
(i) the effect, if any, on court resources and in particular on other litigants in the Court list if the company were to appear without a solicitor.
Complexity
Based upon the Substantive Application and the Defence that have been filed the Court notes the following issues which are likely to arise:
a)whether Ms Ricupero made any complaints which constituted the exercise of a workplace right;
b)if complaints constituting the exercise of a workplace right can be proven to have been made, and which by virtue of s.361 of the FW Act put the Respondents to proof that the adverse action was not a result of Ms Ricupero exercising that workplace right, that is that the adverse action was not taken for a prohibited reason, then the Respondents will be required to adduce evidence that the adverse action was not causally linked to, or that the reason why the adverse action was taken was not because of, the exercise of a workplace right: Board of Bendigo Regional Institute of Technical & Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”) at [41]-[45] per French CJ and Crennan J; and
c)if Ms Ricupero is successful in establishing the adverse action was taken for a prohibited reason she seeks:
i)compensation for lost income; and
ii)damages for distress, anxiety and depression caused by the termination of employment.
This is not a case of undue simplicity, but nor is it a case which is unusually complex. It is rather a case which has the usual complexities of a typical or run-of-the-mill application alleging contravention of a general protection under the FW Act.
There may be some issue as to whether Mr Barrett understands the relevant legal test and issues in relation to the alleged contravention. The Court notes that in the July 2017 Correspondence Mr Barrett suggested that he would be leading evidence to prove that Ms Ricupero was not bullied at any time during her employment by Barrett Corp. That is not the issue, but rather whether or not Ms Ricupero was terminated from her employment as a result of making a workplace complaint. There is some indication that Mr Barrett might be aware of that as the relevant issue in Mr Barrett’s August 2017 Affidavit where he says that he did not dismiss Ms Ricupero because of oral complaints that she had made. It is trite to observe that it is extremely difficult to displace the statutory presumption in s.361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer: Barclay at [45] per French CJ and Crennan J. Mere assertion is, however, not enough and whether an employer took adverse action for a prohibited reason is a question of fact for a primary Judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason, the onus of proving that which lies peculiarly within the employer’s own knowledge being part of the legislative purpose of s.361 of the FW Act: Barclay at [45] and [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J; and in this Court see Maslin v Core Drilling Services Pty Ltd & Anor [2013] FCCA 460 at [17] per Judge Lucev.
The mere fact that in addition to Mr Barrett’s August 2017 Affidavit there have been a further nine affidavits filed (without leave), including a further affidavit from Mr Barrett, in relation to the circumstances of this matter, indicate that it is going to be a matter of some complexity at an evidentiary level, and that with nine witnesses for the Respondents, and Ms Ricupero to give evidence on her own behalf, plus some possible other evidence referred to below, the case will likely be one of two, and possibly three, days duration.
If, as appears to be the case, the Respondents are asserting that they did not have sufficient work to continue employing Ms Ricupero, or possibly could not afford to continue employer her, it is plain that evidence of a lack of work, perhaps evidenced by materials such as guest and booking registers, work rosters and employment records for relevant periods for the Carnarvon Motel, and financial statements, profit and loss accounts, taxation returns or other forms of relevant financial data for the business of Barrett Corp, may have to be put into evidence by the Respondents, and some of that evidence can probably only be put in, and commented upon, by an expert witness such as an accountant. Further, the Court can envisage that there may be an application for production of documents of the type set out above by Ms Ricupero to which Barrett Corp may be required to respond.
In relation to Ms Ricupero’s claims, and in particular her claim for damages for distress, anxiety and depression caused by the termination of employment, in order to prove that claim there will need to be expert evidence from a medical specialist who may have to be cross-examined in relation to that evidence.
If, as appears necessary for the parties’ respective cases, there needs to be expert evidence led from accountants and medical specialists, as well as an application for production of documents, that adds a layer of evidentiary and procedural complexity which does not favour the grant of leave to a non-lawyer to appear for Barrett Corp.
Although this is a typical kind of alleged general protection contravention case, it is not, for reasons set out above, one which is without, in particular, evidentiary complexities, but, in any event, having regard to the overall nature and complexity of the case the Court is of the view that this is not one of those relatively simple cases in which a non-lawyer might appear for a corporation: London City Equities Ltd v Penrice Soda Holdings Ltd (No 3) [2012] FCA 361 at [4]-[8] per Robertson J; Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; (2012) 90 ATR 24; (2012) 127 ALD 64 at [4]-[8] per Robertson J; Alcantara at [25] per Lucev FM; and see also McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239. The Court is therefore of the view that the complexity of the proceedings does not weigh in favour of the grant of leave to Mr Barrett to appear for Barrett Corp. Indeed, although the case is not unusually complex, it is of sufficient complexity to preclude the grant of that leave on this basis alone.
Effectiveness of representation and prejudice to Barrett Corp
The Court makes the following observations with respect to Mr Barrett’s conduct in the matter since the withdrawal of the lawyers formerly acting for the Respondents:
a)Mr Barrett failed to file a notice of address for service in accordance with r.6.01(1) of the FCC Rules upon the withdrawal of his former legal representatives, and, to the extent that he was responsible for so doing in his capacity as a director of Barrett Corp, failed to cause Barrett Corp to file a notice of address for service in accordance with r.6.01(1) of the FCC Rules upon the withdrawal of its former legal representatives;
b)Mr Barrett failed to comply with the orders made by the Court on 30 June 2017 regarding the timing of the filing of this Application in a Case;
c)in the July 2017 Correspondence and the August 2017 Correspondence Mr Barrett asked to be added as the second respondent to the proceedings, and in the July 2017 Correspondence stated that the first respondent, being Barrett Corp, was no longer required. Barrett Corp is, however, a “required” party being the employer of Ms Ricupero, and the alleged primary contravener in these proceedings. Likewise, Mr Barrett has always been a party to these proceedings, as the second respondent, and as a person who is alleged to be accessorily liable for the alleged contravention by Barrett Corp. It is plain from the July 2017 Correspondence that Mr Barrett considered Barrett Corp’s lawyers to be the first respondent, and in this respect was proceeding on a complete misapprehension. It appears Mr Barrett lacks, or lacked, an understanding of the necessary parties in the proceedings;
d)Mr Barrett was initially unaware of the necessity to serve documents on Ms Ricupero’s legal representatives;
e)the Application in a Case effectively fails to comply with the Court’s orders of 30 June 2017 in that Mr Barrett completed the Application in a Case without expressly making the application for a non-lawyer to appear for Barrett Corp; and
f)on 31 October 2017, after judgment on the Application in a Case was reserved and the matter adjourned for delivery of these Reasons for Judgment, Mr Barrett filed nine affidavits, all of which go to the merit of the Respondents’ case, without leave of the Court.
Having regard to the July 2017 Correspondence and the August 2017 Correspondence, and to Mr Barrett’s Affidavit, it is not apparent that Mr Barrett understands that Barrett Corp is, and always has been, the first respondent in these proceedings. For some unexplained reason Mr Barrett appears to have confused Barrett Corp’s respondency with its representation, at least initially, by Gilchrist Connell. Moreover, it is also the case that Mr Barrett does not appear to have understood that he is, and always has been, the second respondent in these proceedings. That dual confusion does not warrant any degree of confidence by the Court that Mr Barrett will during the course of the proceedings, particularly any hearing, exhibit an understanding of the distinction between Barrett Corp, as a corporation respondent to these proceedings, and his position as an individual respondent to these proceedings said to be accessorial liable as a consequence of Barrett Corp’s alleged contraventions. It is notable that it simply does not appear that the potential for conflict between the position and interests of Barrett Corp and Mr Barrett personally as a director of Barrett Corp is understood, or if understood, no submission was made as to why the Court ought to disregard that matter in this instance.
Unlike Alcantara this matter is not straightforward, and Mr Barrett has not exhibited a sufficient understanding the relevant legal processes and procedures. Having regard to the processes which remain to be conducted in this litigation, including mediation, and if that is unsuccessful, the usual directions as to preparation for hearing, and the hearing itself, the Court is not confident that Mr Barrett is capable of properly dealing with the practice and procedural elements and requirements of this matter as it progresses to mediation, and, if necessary, hearing.
The Court notes that in Fair Work Ombudsman v Darna Pty Ltd [2014] FCCA 595 (“Darna”) notwithstanding a relative lack of complexity leave to a non-lawyer to appear was not granted where the non-lawyer had demonstrated a fundamental misunderstanding of the nature of the proceedings and an inability to understand the requirements of the FCC Rules and such was likely to incur unnecessary costs, delay and an undermining of the administration of justice: Darna at [17] per Judge Hartnett. This is a matter of particular concern in these proceedings because it appears that the Court will be asked to hear the matter in Carnarvon, a large regional centre some 890 kilometres north of Perth. It would add considerably to Ms Ricupero’s costs, and would be a not inconsiderable waste of the resources of a busy first instance trial court, if a listed two to three day hearing of this matter in Carnarvon were to go off part-heard by reason of difficulties caused by Mr Barrett’s apparent lack of understanding of this Court’s practices and procedures or his inability to deal with the complexities of the case: Compumark at [20(i)] per Murphy J.
Resolving the issue as to whether the alleged adverse action was taken for a prohibited reason is likely to require Mr Barrett to appear as a witness. It is plain from both the documents filed thus far and from Mr Barrett’s albeit brief appearances in the various directions hearings, that he is very personally invested in the outcome of these proceedings. In those circumstances, Mr Barrett’s ability to appear as both an advocate and a witness is likely to be compromised such that the independence and objectivity usually required of an advocate (and in particular a lawyer because of their role as an officer of the Court) which is necessary for truly effective representation of a party will be absent: Wong at [54] per Judge Lucev. The difficulties that may arise are many, and referred to in Sheahan v Northern Australia Land & Agency Co Pty Ltd (unreported, Supreme Court of South Australia, Perry J, No S3815, 4 February 1993) at [3]-[18] and Pittorino v Meynert [2001] WASC 245 at [7]-[10] per Bredmeyer M.
Mr Barrett will effectively be “a witness in his own defence and also making submissions and presenting evidence for the companies” Australian Competition and Consumer CommissionvDataline.net.au Pty Ltd [2004] FCA 1361 at [3] per Kiefel J (“Dataline”), a situation described by the Federal Court in Dataline at [3] per Kiefel J as “hardly … a satisfactory state of affairs” where the person concerned was also sought to be made accessorily liable for a corporation’s contraventions (albeit in that case in very complex proceedings). In this case where there may well be difficult and potentially serious forensic choices to be made in relation to issues concerning:
a)the terms and conditions of any settlement which might be negotiated at mediation (including who should be parties to any such settlement, and whether, and if so to what extent, any liability imposed upon the Respondents by such a settlement ought to, or ought not to, be attributed to Mr Barrett);
b)evidentiary issues at hearing, including evidence as to whether Mr Barrett was acting within the scope of his duties and authority at the time he terminated Ms Ricupero’s employment and decisions as to the examination and cross-examination of possible expert witnesses; and
c)any penalties that may be imposed on Barrett Corp and, Mr Barrett accessorily, if Ms Ricupero is successful on liability,
having a professionally trained advocate who can exercise their independence and be objective, whilst fulfilling their duty to the Court as an officer of the Court, is likely to be of real importance for the proper conduct of the hearing (and before that the mediation), and in that respect to be of assistance to the Court. Those circumstances weigh toward the Court refusing the application for Barrett Corp to be represented by a Mr Barrett in these proceedings.
To deny Mr Barrett leave to appear for Barrett Corp is not to deny Barrett Corp the ability to exercise its right to appear, particularly so bearing in mind that the primary legislative purpose of s.44 of the FCCA Act and r.9.04 of the FCC Rules is that a corporation must ordinarily be represented by a lawyer. If, as appears likely, Mr Barrett were to appear and be ineffective in his appearance, it will lack utility, and arguably be prejudicial to Barrett Corp, and as such Mr Barrett’s appearance for Barrett Corp would be neither meaningful nor workable for the benefit of Barrett Corp: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878 at [35] per Collier J. The Court is not satisfied Mr Barrett would be competent to represent Barrett Corp in the proceedings given the issues are of some complexity and his previous conduct in the matter raises significant doubt as to his abilities to properly deal with and defend the claims made against Barrett Corp by Ms Ricupero.
Having regard to all of the above circumstances the Court is of the view that Mr Barrett is not likely to be capable of effectively representing Barrett Corp, and that this factor favours a refusal of a grant of leave for Mr Barrett to represent Barrett Corp.
Financial Capacity
A corporation that is impecunious is not automatically entitled to be represented by a non-lawyer: Dataline at [4] per Kiefel J; Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 (“Finetune Holdings”) at [41] per Lucev FM. Assertions of impecuniosity do not suffice: evidence is required: Finetune Holdings at [42]-[45] per Lucev FM. It is well acknowledged that a burden of incorporation is that in litigation a corporation must normally be represented by a lawyer: Termi-Mesh at [14] per French J.
As stated above, the Respondents were legally represented when the Substantive Application was filed, however those lawyers withdrew from the record.
Mr Barrett’s bare assertions from the Bar table and in the July 2017 Correspondence about legal costs and Barrett Corp’s financial position are insufficient to establish any relevant facts in relation thereto, and proper documentary and corroborative evidence is required to demonstrate the quantum of the alleged legal costs and that the financial position of Barrett Corp is such that it could not be legally represented: Fair Work Ombudsman v Sona Peaks Pty Ltd [2015] FCCA 437 at [9] per Judge O’Sullivan; Fair Work Ombudsman vKoojedda Carpentry Pty Ltd ATF The Gumley Trust & Ors [2016] FCCA 2221 at [65] per Judge Lucev. There is in evidence no documentation from Gilchrist Connell indicating any estimate of costs for these proceedings. That is important in this case because the assertion that there are estimated costs of over $100,000 in relation to a matter of this type in this Court is, frankly, quite extraordinary. Nor is there any evidence that Barrett Corp made inquiries of any other lawyers concerning an estimate of costs in relation to these proceedings, nor is there any evidence that there was any impediment to Barrett Corp doing so. Further, in relation to Barrett Corp’s financial position, there are, for example, no bank statements, no financial statements, no profit and loss accounts, no taxation returns or any other form of relevant financial data, which would allow the Court to make findings as to Barrett Corp’s financial position. Nor is there, in the absence of the evidence referred to above, any scope for the Court to draw a “reasonable and definite” inference that had Barrett Corp the financial capacity to retain a lawyer, then it is probable that Gilchrist Connell would not have ceased to act for Barrett Corp: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466; (2007) 242 ALR 643; [2007] ATPR 42-177 (“Communications Union”) at [38] per Weinberg, Bennett and Rares JJ.
In the circumstances, the Court finds that with no evidence of financial capacity or incapacity, the Court cannot make a finding that Barrett Corp is not in a financial position to be represented by a lawyer in these proceedings, and this factor does not therefore weigh in favour of granting Mr Barrett leave to appear on behalf of Barrett Corp.
Case management and prejudice
The objects and purposes of the FCCA Act in ss.3 and 42 and the FCC Rules in r.1.03 mean that this Court is intended to operate in a manner which:
a)is as informal as possible in the exercise of judicial power;
b)is not protracted in its proceedings;
c)resolves proceedings justly, efficiently and economically;
d)uses streamlined procedures; and
e)avoids undue delay, expense and technicality.
In terms of case management these proceedings are now at a stage where they would normally be referred to mediation, and if mediation were unsuccessful, return to the Court for directions to be made for programming to final hearing. A determination that Barrett Corp ought be represented by Mr Barrett may affect the ongoing case management of these proceedings for the reasons referred to at [22]-[37] above.
Since Barrett Corp’s former lawyers have withdrawn from the proceedings, the proceedings have become unnecessarily protracted. It took three listings before the Court before there was compliance (to the extent there was compliance: see [4]-[13] and [30(e)] above) with the Court’s order that an Application in a Case supported by affidavit be made for a non-lawyer to represent Barrett Corp. On each of those occasions Ms Ricupero’s solicitors were required to attend the Court. Whilst fair work proceedings are generally no costs proceedings: FW Act, s.570(1), it is arguable that if Mr Barrett is permitted to represent Barrett Corp there may be further delays caused by Mr Barrett’s inability to satisfy Court’s orders or adequately complete what is required of him on behalf of Barrett Corp, and that that may see some costs incurred by Ms Ricupero come within the ambit of s.570(2) of the FW Act and be capable of being awarded against Barrett Corp. Plainly a potential for costs to be awarded against Barrett Corp in what is essentially a no-costs jurisdiction by reason of the possible conduct of Mr Barrett if he were to represent Barrett Corp is a factor which weighs against the Court granting leave for Mr Barrett to represent Barrett Corp in these proceedings.
The fact that Ms Ricupero is legally represented will no doubt be of some assistance to the Court in relation to case management and the minimisation of any prejudice to Ms Ricupero. It is, however, unlikely to be of major assistance in relation to possible case management difficulties and the possible incurring of costs by Barrett Corp arising from the conduct of Mr Barrett in relation to the proceedings.
In all of the above circumstances, the Court considers that case management considerations do not weigh in favour of the Court granting leave for Mr Barrett to represent Barrett Corp in these proceedings.
Interests of justice
Importantly, the Federal Court has held that the requirement that a corporation be represented by a lawyer should not be ignored, or taken lightly: Anying Group at [19] per Flick J. The purpose of r.9.04 of the FCC Rules is to ensure that in accordance with the interests of justice and the administration of justice, the Court is assisted by those qualified and experienced in arguing legal disputes and who have ethical duties to clients and the Courts: Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 at [74]-[77] per Stein JA; Wong at [18] per Judge Lucev.
It is indisputable that the interests of justice would be better served by having a lawyer, who has ethical obligations as well as duties to the Court, appear for Barrett Corp, as those obligations and duties will require the lawyer to not impede the interests or administration of justice in the disposition of the matter.
A consideration of the interests of justice and the administration of justice in this matter does not weigh in favour of leave being granted to Mr Barrett to represent Barrett Corp in these proceedings.
Whether a non-lawyer appears or has appeared previously for any of the parties and the opportunity to be legally represented
As indicated at [3] above Barrett Corp was represented earlier in these proceedings by Gilchrist Connell. They withdrew from the record, and since that time Mr Barrett has purported to act for Barrett Corp, or acted and appeared for it by leave of the Court on some limited occasions.
There is no evidence that Barrett Corp has taken steps to avail itself of alternative legal representation, including obtaining alternative costings for representation by a lawyer in these proceedings. There is no evidence of any impediment to Barrett Corp seeking alternative legal representation, or alternative costs for legal representation, in these proceedings. In the first instance, Barrett Corp instructed lawyers from the Perth CBD, and there is no evidence as to why they could not do so again.
In the circumstances, the Court does not consider that the fact that Mr Barrett has appeared and acted for Barrett Corp on limited occasions in these proceedings has been of assistance to the Court (for reasons outlined extensively above: see [30]-[37] above), nor does it consider that Barrett Corp has been denied any opportunity to be represented by lawyers. In those circumstances those factors, whilst of relatively minimal weight, do not weigh in favour of the grant of leave to Mr Barrett to act for Barrett Corp in these proceedings. The Court can allow sufficient time for legal representation for Barrett Corp to be arranged, and factor that into any orders it makes: Darna at [21] per Judge Hartnett.
Whether leave to appear is opposed
As indicated at [1] above Ms Ricupero opposes the Court granting leave to Mr Barrett to appear for Barrett Corp. Nothing of any substance was said by Counsel for Ms Ricupero in this regard, and thus although the factor does not weigh in favour of a grant of leave to Mr Barrett to appear for Barrett Corp, nor does it carry, in the circumstances described, much weight in that regard.
Conclusion and orders
Having regard to the views it has expressed in relation to the factors set out above, the Court has concluded that none of the relevant factors favour, or weigh in favour of, Mr Barrett being granted leave to appear for Barrett Corp, and the Application in a Case, insofar as it seeks leave under r.9.04 of the FCC Rules for Mr Barrett to represent Barrett Corp, must be dismissed. Indeed, the Court is of the view that if leave were granted to Mr Barrett in this case to represent Barrett Corp, then there would hardly be a case where leave to a non-lawyer to represent a corporation in proceedings under the FW Act would not be granted. That is plainly contrary to the intent of s.44 of the FCCA Act and r.9.04 of the FCC Rules.
Pursuant to rr.6.01 and 9.04 of the FCC Rules Barrett Corp must, therefore, if it is to appear (including any appearance at mediation) in these proceedings, file and serve an address for service, being the address of a lawyer acting for Barrett Corp, and do so by 30 November 2018. If Barrett Corp does not file and serve an address for service by 30 November 2018 Ms Ricupero will have liberty to apply by 14 December 2018 for summary judgment against Barrett Corp. Otherwise, the matter will be adjourned to a directions hearing at 10.00am on 24 January 2019. Costs, if any, will be reserved. There will be orders accordingly.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 27 September 2018
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