Singh v Total Active Placement Pty Ltd (No 1)

[2019] FCA 1203

FEDERAL COURT OF AUSTRALIA

Singh v Total Active Placement Pty Ltd (No 1) [2019] FCA 1203

File number:

ACD 30 of 2019

Judge:

GRIFFITHS J

Date of judgment:

2 August 2019

Catchwords:

PRACTICE AND PROCEDURE – corporate respondent – interlocutory application for dispensation of the requirement that corporations be represented by a lawyer – dispensation granted

Legislation:

Fair Work Act 2009 (Cth)

Federal Court Rules 2011 (Cth) r 4.01(2)

Cases cited:

Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306

Date of hearing:

On the papers

Date of last submissions:

1 August 2019

Registry:

Australian Capital Territory

Division:

Fair Work Division

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

5

Counsel for the First Respondent:

Mr D Krcelj, a director of the first respondent, appeared on its behalf

ORDERS

ACD 30 of 2019

BETWEEN:

HARPREET SINGH

Applicant

AND:

TOTAL ACTIVE PLACEMENT PTY LTD

First Respondent

PUBGAS COUNTRY AND COAST PTY LTD
Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	2 AUGUST 2019

THE COURT ORDERS THAT:

1.Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) dispensation is granted to the first respondent from compliance with r 4.01(2), such that Mr Damir Krcelj may appear in the proceeding on behalf of the first respondent.

2.The material provided by the first respondent in support of its interlocutory application dated 6 June 2019 remain confidential under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the basis that the interests of justice so require. No person is to have access to the material without the Court’s leave.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1. By an interlocutory application dated 6 June 2019 the first respondent, which is a corporation, seeks the Court’s leave to be given dispensation from compliance with r 4.01(2) of the Federal Court Rules 2011 (Cth) (2011 FCRs).  This rule requires a corporation to be represented by a lawyer.  The Court indicated that it would determine the matter on the papers and take into account confidential material provided by the first respondent in support of its interlocutory application.  The Court is satisfied that the material is confidential, relating as it does to the state of health of one of the company’s directors, as well as being sensitive financial information.  The Court will make an appropriate order regarding that material. 

2. By way of general background, the proceedings involve a claim by the applicant that he was dismissed by the first respondent in contravention of Pt 3-1 of the Fair Work Act 2009 (Cth) (the Act).  He seeks orders for compensation and damages, reinstatement of his employment and a formal apology.  The applicant claims that he found employment with a company called Pubgas Country and Coast Pty Ltd (the second respondent, who has not yet been served) through the first respondent.  He says that his work included driving heavy trucks and delivering gas bottles.  He alleges that his employment was terminated on 4 December 2018 due to his actions in ensuring a safe work environment and his insistence that he be given appropriate rest breaks. 

3. The relevant principles guiding the issue whether or not leave should be granted as sought by the first respondent are set out in Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 at [16] to [18] per Griffiths J and need not be repeated here.

4. I am satisfied that this is an appropriate case in which leave should be granted to enable the first respondent to be represented by Mr Damir Krcelj.  I accept that the company cannot afford legal representation in its current financial circumstances.  I also accept that Mr Krcelj has adequate qualifications to represent the company, of which he is a director.  He graduated from the University of Sydney in 1988 with a degree in Human Resources and has been working in the recruitment and labour hire industry for 30 years.  He is familiar with the Act and has some knowledge and familiarity with legal processes having been involved in litigation over his 30 year career.  I also take into account the fact that the applicant is a litigant in person and that the issues in the proceeding do not appear to be particularly complex. 

5. For these reasons, I consider that this is an appropriate case to order that r 4.01(2) of the 2011 FCRs be dispensed with so as to enable Mr Krcelj to represent the first respondent. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       2 August 2019