Spears v South Australian Wine Group Pty Ltd (No 2)
[2025] FedCFamC2G 1677
•9 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spears v South Australian Wine Group Pty Ltd (No 2) [2025] FedCFamC2G 1677
File number(s): ADG 367 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 9 October 2025 Catchwords: PRACTICE AND PROCEDURE – Application in a proceeding – whether leave to be granted for a non-lawyer to appear for a corporation Legislation: Evidence Act 1995 (Cth) s140
Fair Work Act 2009 (Cth) ss 125, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 175, 176, 190
Federal Magistrates Court Act 1999 (Cth) s 44
Work Health and Safety Act 2012 (SA)
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules2021 (Cth) r 9.04
Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025 (Cth) rr 1.10, 1.08, 4.01
Federal Magistrates Court Rules 2001 (Cth) r 9.04
Cases cited: Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314
Ample Source International Ltd v Bonython Metals Group Pty Ltd(No 6) [2011] FCA 1484; (2011) 285 ALR 488
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Associated Leisure Ltd (Phonographic Equipment Company Ltd) v Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754; [1970] 3 WLR 101
Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361
Australian Metropolitan Life Assurance Company Ltd v Ure [1923] HCA 29; (1923) 33 CLR 199; (1923) 30 ALR 53
Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587
Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 386; (1993) 25 IPR 33
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
Davy v Garrett (1877) 7 Ch D 473
Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442
Fair Work Ombudsman v Finetune Holdings Pty Ltd [2010] FMCA 889
Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431
Fundit Ltd v Jonesys Earthworx Pty Ltd (in liq) [2025] FedCFamC2G 1574
Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Mills v The Major North Pty Ltd [2025] FedCFamC2G 1531
Molnar EngineeringPty Ltd v Burns (1984) 3 FCR 68
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449
Pugliese v Paull [2011] FMCA 95; (2011) 202 IR 351; (2011) 248 FLR 358
Sims v Jooste QC [2013] WASCA 245
Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031
Spears v South Australian Wine Group Pty Ltd [2024] FCA 948
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423
Allsop CJ, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Australian Bar Review 29
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 9 October 2025 Date of hearing: 9 October 2025 Place: Perth (by videolink and telephone) Applicant: In person (via videolink) Representative for the Respondent: Mr D Harris ORDERS
ADG 367 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALANA SPEARS
Applicant
AND: SOUTH AUSTRALIAN WINE GROUP PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
9 OCTOBER 2025
THE COURT ORDERS THAT:
1.For today’s purposes only, Mr D Harris be granted leave to appear for the respondent to argue the respondent’s application in a proceeding filed 26 September 2025 to appear by a non-lawyer in future proceedings in this matter.
2.The respondent’s application in a proceeding filed 26 September 2025 for leave to appear by a non-lawyer at further proceedings in this matter:
(a)be dismissed in relation to the hearing of the applicant’s application in a proceeding on 20 October 2025; and
(b)otherwise, be adjourned.
3.Costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from the transcript)JUDGE LUCEV
INTRODUCTION
Before the Court is an application in a proceeding filed 26 September 2025 by the respondent, the South Australian Wine Group Pty Ltd (“Respondent”), for leave to appear by a non-lawyer. Leave is sought for the Respondent to be represented by one of its directors, Mr David Harris. The application for leave for the Respondent to be represented by a non-lawyer is neither opposed nor acceded to by the applicant, Ms Spears, who made no submissions on this application in a proceeding.
BACKGROUND
The substantive application was one made under the Fair Work Act 2009 (Cth) (“FW Act”) and solely under and in relation to the FW Act. The issues in contention in relation to the substantive application as it was argued before the Court included:
(a)whether there was adverse action in relation to Ms Spears by reason of her dismissal on the basis of an alleged redundancy;
(b)whether a redundancy payment was payable by the Respondent, and whether it was an employer with fewer than 15 employees and thus a small business employer, and whether other companies were associated entities;
(c)an allegation of a failure to provide payslips;
(d)an alleged breach of an award; and
(e)an allegation of a failure to provide a Fair Work Information Statement, which was admitted by the Respondent.
In the judgment in Spears v South Australian Wine Group Pty Ltd [2023] FedCFamC2G 1031 (“Spears”), the Court made declarations and orders including the following:
(1)Declares that the Respondent contravened s 125(1) of the Fair Work Act 2009 (Cth) by failing to give the Applicant a Fair Work Information Statement, but otherwise orders that the application filed 1 December 2020, as amended by an amended application filed 15 February 2021, be dismissed.
(2)The parties are to confer forthwith with respect to penalty and a penalty hearing.
(3)The matters otherwise be adjourned to a directions hearing at 12.00pm on 2 February 2024.
On 2 February 2024 an order was made adjourning the matter sine die, with liberty to apply on seven days notice, and as the Court recalls that was done on the basis that there had been an application for special leave to appeal made by Ms Spears to the High Court in respect of Spears which had been rejected, possibly by the Registry of the High Court, and then a subsequent application for an extension of time in which to appeal Spears was made to the Federal Court and was pending.
On 23 August 2024 the application for an extension of time in which to appeal was dismissed by the Federal Court in Spears v South Australian Wine Group Pty Ltd [2024] FCA 948. For reasons which are not apparent to the Court, the matter was not relisted before this Court until 6 June 2025, and on that date the Court made orders listing the penalty hearing for 21 October 2025, which has subsequently been relisted to 28 October 2025, and made certain procedural orders including the filing of affidavit evidence in relation to the penalty hearing.
Consequent upon the orders for filing of affidavit material, Ms Spears filed an affidavit on 4 August 2025, and another on 18 September 2025. Those affidavits do contain some factual material, but primarily contain submissions and seek orders relevant for the discussion of the matter as to whether a non-lawyer ought to appear.
The issues raised in the affidavits concern the provenance of, and evidence given, concerning a document which was annexure DH5 to one of Mr Harris’ affidavits, which has been called in Spears the “Business Impact Analysis”, and the current application in a proceeding by Ms Spears seeks discovery of the original of that document. Ms Spears’ affidavits also allege ineffective legal representation resulting in matters being omitted from her general protections claim in the substantive application and subsequent pleadings, which were seemingly prepared by lawyers then acting for Ms Spears, although those lawyers withdrew from these proceedings as early as July 2021, it would appear, and she says that there are five matters supported by the evidence but not expressly pleaded, which were omitted from relevant documents by her lawyers.
Ms Spears asserts that there are breaches of three separate legislative frameworks:
(a)the FW Act;
(b)the Work Health and Safety Act 2012 (SA) (“WHS Act”); and
(c)what she describes as the Protection of Public Participation Bill 2008 (SA) (“PPP Bill”).
The breaches alleged will be outlined in a little more detail later on, but essentially, Ms Spears seeks orders that this Court also consolidate those matters, that is, the WHS Act matters and the PPP Bill matters into a consolidated proceeding in this Court and have them (and the FW Act claims) determined in a single forum, and the orders sought in that regard are as follows:
(a)an order for discovery requiring the Respondent to produce the original electronic version of the Business Impact Analysis, including all associated metadata;
(b)leave to amend the pleadings in the general protections application to include the additional claims outlined;
(c)an order for consolidation of related claims under the:
(i)FW Act;
(ii)WHS Act;
(iii)PPP Bill,
or in the alternative, an order for directions or referrals to enable the matters to be adjudicated in a single forum;
(d)that the Court take into account the Respondent’s alleged abuse of process and breaches of the PPP Bill in initiating two separate defamation proceedings during these proceedings; and
(e)such further or other orders as the Court considers appropriate.
On 18 September 2025 Ms Spears filed the application for discovery of the Business Impact Analysis, and in relation to that application in a proceeding the applicant alleges, it would appear, issues going to discovery, fraud, and perjury by company officers, amongst other things.
The Respondent subsequently filed an affidavit from Mr Harris dated 24 September 2025 in advance of the application in a proceeding for leave for a non-lawyer to appear. It is unnecessary to set that out in any detail. It simply sets out the details of the earlier legal representation that the Respondent had, and that Mr Harris seeks leave to appear for the purposes of Ms Spears’ application in a proceeding for discovery and reopening, and also for the penalty hearing.
For the purposes of the argument today, leave has been granted to Mr Harris to appear for the Respondent and to argue whether or not he ought to be given leave to appear for the Respondent at the hearing of Ms Spears’ application in a proceeding for discovery and reopening, and the penalty hearing, which are listed for 20 and 28 October 2025, respectively.
The Court notes that whether or not the penalty hearing listed for 28 October 2025 proceeds might be dependent upon the outcome of Ms Spears’ application in a proceeding for discovery and reopening, because that application in a proceeding in seeking to reopen the proceedings, would, if granted, probably require an adjournment of the penalty hearing.
LAW
Appearance by a non-lawyer for a Corporation
In relation to the relevant legislation, the Court notes that s 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides as follows:
A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 2) is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practice 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.
Clearly, paragraphs (a) and (b) of s 175 of the FCFCOA Act do not apply, Mr Harris not being a barrister or solicitor, and there being no relevant authorised representative under the regulations as, for example, there might be in relation to registered organisations in proceedings under the FW Act. The question therefore becomes whether, under s 175(c) of the FCFCOA Act, there is another law of the Commonwealth that authorises a person, here Mr Harris, to represent a party, here the Respondent.
The Court notes also that the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (“2025 GFL Rules”) provides at r 4.01(2) as follows:
A corporation must be represented in the Court by a lawyer.
Rule 1.10 of the 2025 GFL Rules provides that:
The Court may dispense with compliance with any of these Rules at any time.
And rule 1.08 of the 2025 GFL Rules provides:
The Court may make any order that the Court considers appropriate in the interests of justice.
The effect of rr 4.01, 1.10 and 1.08 is not significantly different to that of the former r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“2021 GFL Rules”), which provided 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.
The combined effect of rr 4.01, 1.10 and 1.08 is such that they meet the requirements of s 175(c) of the FCFCOA Act in that that paragraph constitutes another law of the Commonwealth that authorises a person other than a barrister or solicitor to appear for a corporation if the Court is satisfied that compliance with r 4.01 ought to be dispensed with.
In relation to the 2021 GFL Rules, the dispensing with compliance with the rules or the granting of leave in that case for a non-lawyer to appear enabled a similar conclusion to be reached with respect to r 9.04 of the then Federal Magistrates Court Rules 2001 (Cth) and s 44(c) of the then Federal Magistrates Act 1999 (Cth), the latter being in essentially the same terms as s 175(c) of the FCFCOA Act: Pugliese v Paull [2011] FMCA 95; (2011) 202 IR 351; (2011) 248 FLR 358 at [19] per Lucev FM.
It is necessary to say something about the purpose of the underlying restrictions on appearance, and in this respect the Court notes what was said in Wong v Dong Lai Sun Massage Pty Ltd [2016] FCCA 18; (2016) 305 FLR 423, firstly at [17] per Judge Lucev where the Court observed that:
...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 at [19] per Flick J.
and, secondly, what was said in a lengthier passage at [18]-[20] per Judge Lucev, which is as follows:
18.The purpose underlying such legislative provisions 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] 183 FLR 437; (2004) 183 FLR 437 at [40] per Brown FM; Alcantara & Anor v Buildpower Pty Ltd [2010] 199 IR 73; (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 at [74] per Smithers J (Molnar Engineering). 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 at [14] per French J; Fair Work Ombudsman v Konsulteq Pty Ltd & Ors [2013] FCCA 1315 at [11] per Judge Lucev (and cases there cited).
19.In determining whether to grant leave under r 9.04 of the FCC Rules, the applicability of a number of factors, including the following, are to be considered:
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 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.
Konsulteq at [12] per Judge Lucev (and the cases there cited).
20.Discretion of the kind contained in r 9.04 of the FCC Rules must be exercised judicially and having regard to all relevant considerations: Molnar Engineering FCR at 73 per Smithers J; Alcantara at [12], per Lucev FM. In the exercise of such discretion, it is not necessary for each factor to be given equal weight.
CONSIDERATION
Turning then to those factors, the nature of the matter and the complexity of this matter. Ostensibly on the face of the application in a proceeding the matter is simple. It seeks discovery of a document already in evidence, annexure DH5 to Mr Harris’ affidavit, in evidence from the liability hearing which was used in Spears in consideration of whether the alleged adverse action was for a prohibited reason.
Ordinarily, the answer to that application in a proceeding might be simple, given the terms of s 176(2) of the FCFCOA Act which provides that discovery is ordinarily not allowed in proceedings in this Court unless the Court declares it appropriate in the interests of the administration of justice to allow discovery, and the Court refers to the well-known and oft-cited authorities in that regard, including Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116; Abrahams v Qantas Airways Ltd (No 2) [2007] FMCA 639; (2007) 210 FLR 314, and Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54] per Lander J. Further, discovery of a document already in evidence and already adjudicated upon for liability purposes would not be likely to contribute to the fair and expeditious conduct of a proceeding in which, as it presently stands, only a penalty for a single contravention under the FW Act remains to be determined.
This case is, however, not that simple. A reading of Ms Spears’ two affidavits that the Court has referred to makes it apparent that what she seeks to have the Court do is not just obtain discovery of the Business Impact Analysis, but also to entirely reopen the liability part of these proceedings, the subject of the judgment in Spears, and in the course of doing so, raises an array of matters for consideration, including, as best and as shortly as the Court can summarise:
(a)in relation to the creation of the Business Impact Analysis, that it was not created, as asserted at the liability hearing, on or between 20 and 25 August 2020, but in October 2020 after the filing of the substantive application;
(b)that the Respondent, and in a practical sense here that means Mr Harris, engaged in perjury and misled the Court in relation to the Business Impact Analysis, and falsely used contemporaneous Chinese anti-dumping allegations as a pretext for Ms Spears’ dismissal, and contradicted her alleged redundancy by indicating to Ms Spears on or about 24 August 2020 that the Respondent intended to hire another full-time employee;
(c)that her legal representation was ineffective and resulted in significant matters being omitted from the substantive application and subsequent pleadings, noting that Ms Spears’ lawyers withdrew as her lawyers in July 2021 in circumstances where the liability hearing did not occur until November 2022, and consequently, certain matters were omitted from the substantive application and subsequent pleadings, including:
(i)three instances of alleged adverse action relating to her dismissal, which she says relates to a pay inquiry in December 2019, and two alleged instances of workplace bullying involving Mr Harris, and a Mr Hourigan who was an employee of the respondent; and
(ii)two alleged breaches of the WHS Act in relation to failure to consult and the causing of psychological injury and coercion;
(d)a request for alleged breaches of the FW Act, the WHS Act and the PPP Bill, so-called, to be consolidated and adjudicated in a single forum, presumably this Court, although it is not expressly said so, and noting that allegations of breach of the PPP Bill appeared to relate to defamation actions brought in relation to Ms Spears, seemingly by at least Mr Harris, and which Ms Spears submits are an abuse of process; and
(e)that if discovery, and it would seem production, of the “original electronic version” of the Business Impact Analysis is not provided, then:
(i)the Business Impact Analysis “be expunged from the record as evidence”; and
(ii)the liability judgment in Spears be set aside to enable a comprehensive review of the case.
It might be apparent, even to the lay observer, that it is likely that there are going to be significant legal and factual complexities associated with the hearing of the application in a proceeding for discovery and in relation to reopening, dealing with the following issues - and the Court here only deals with the major issues, it not being necessary to go down every rabbit hole which might appear - and those major issues are:
(a)fraud or misrepresentation;
(b)the reopening of the liability case and the re-agitating of the issues already argued, and the raising of new issues; and
(c)whether the Court has associated jurisdiction to hear and deal with matters which have either been determined by, seemingly, State courts in South Australia, or are in the process of being so determined.
First, dealing with the question of fraud, and including therein the alleged misrepresentations and perjury, the complexities associated with such allegations are well recognised by the courts, and it is said that allegations of fraud or misrepresentation must be distinctly alleged and distinctly proved: Davy v Garrett (1877) 7 Ch D 473 at 489 per Thesiger LJ. Hence, allegations of fraud and misrepresentation should not be pleaded at all unless there is clear and sufficient evidence to support them: Associated Leisure Ltd (Phonographic Equipment Company Ltd) v Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754; [1970] 3 WLR 101, QB at 456 per Lord Denning MR.
The use of the word “fraud” in a pleading is not sufficient where it is nothing more than a bald assertion pleaded without particulars or reasonable particularity of the circumstances said to constitute the fraud: Australian Metropolitan Life Assurance Company Ltd v Ure [1923] HCA 29; (1923) 33 CLR 199; (1923) 30 ALR 53, CLR at 219-220 per Isaacs J. In Sims v Jooste QC [2013] WASCA 245 the majority in the WA Court of Appeal observed, at [12] that:
It is well established that such allegations should not be made unless there is a proper factual basis for them, and where such allegations are made, they must be clearly and distinctly alleged. A party should not be obliged to defend any legal proceedings for any period based on generalised allegations of dishonesty or impropriety. It is improper for a party to make generalised allegations of fraud: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 at [24].
Also, the seriousness of the issue can be ascertained from the fact that the more serious the issue of which proof is required, the more cogent and clear the evidence needed to establish it: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449, ALJR at 171-172 per Mason CJ, Brennan, Deane and Gaudron JJ, and s 140(2)(c) of the Evidence Act 1995 (Cth).
Allegations of fraud, etcetera, therefore raise very serious issues, requiring a significant standard of proof to be met, but moreover, having serious consequences, particularly for the Respondent (and possibly Mr Harris), if Ms Spears is allowed to reopen or re-agitate or bring new allegations in relation to the liability issues in these proceedings.
Allegations of this kind are ones which the Court would ordinarily expect a lawyer to be available to deal with even, and perhaps particularly so, at this point in these proceedings, which, as the Court has already noted, have seen a determination of liability but no determination yet in relation to penalty.
That leads naturally to the second major issue in respect of the reopening and re-agitating of issues, and the raising of new issues. As Ms Spears makes clear in her affidavits, she seeks to essentially reopen this case in its entirety.
In that regard, in determining whether or not to reopen a case and allow further evidence to be led, the Court has regard to certain principles which are set out in the Federal Court judgment in Ample Source International Ltd v Bonython Metals Group Pty Ltd(No 6) [2011] FCA 1484; (2011) 285 ALR 488. Part of that test is the relevance of the proposed material, as indicated at [355] per Robertson J, where the Federal Court said as follows:
Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 must now inform the principle.
The Court further observes that the decision to reopen a case and allow further evidence is a discretionary one, and refers to Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 (“Rich”) at [18] per Austin J. In Rich the New South Wales Supreme Court said that the following factors are relevant to the exercise of a Court’s discretion to reopen:
(a)the degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(b)the nature of the proceeding;
(c)the extent to which a party embarking upon this course is calling further evidence during the hearing;
(d)whether calling further evidence ought reasonably to have been foreseen;
(e)what explanation is offered for not having called further evidence during the hearing;
(f)the consideration of fairness that a respondent is entitled to know all the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence to be adduced on the matters in question; and
(g)the prejudice to a respondent in terms of the delay in the completion of the proceeding and consequential costs.
And regard must also be had, the Court observes, to the public interest in the finality of litigation: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 386; (1993) 25 IPR 33, CLR at 302-303 per Mason CJ.
Looking then at those principles and applying them here, the allegations of fraud and misrepresentation, and whether those issues were dealt with or ought to have been foreseen by Ms Spears arises and gives rise to the question also of whether or not it might be necessary indeed to re-plead aspects of the case if it were to be reopened, and also to a reopening of the evidence. There are also allegations of incompetence and, seemingly, possibly negligence by lawyers in the drafting of the substantive application.
In terms of case management issues, the matter is complicated by the fact that this is not an application for reopening after the proceedings have been dealt with completely, but rather for reopening after liability has been dealt with but before penalty has been determined, and the Court also notes that there is prejudice to the Respondent in further delay in the completion of proceedings and further costs to be incurred if a lawyer is to be retained, which is a relevant consideration given the terms of s 570 of the FW Act.
It is, the Court considers, not usual for an application for reopening, which is complicated and complex and involves consideration of the above myriad of issues, and arguably an entirely new liability case by Ms Spears which might itself involve consideration by the parties and the Court of the transcript of a two-day hearing at first instance to be considered without lawyers being involved. In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] per French J the Federal Court refused a non-lawyer leave to appear because of, amongst other things:
(a)the potential factual complexities of the case; and
(b)the obvious difficulties that the director concerned would have in dealing with the legal and factual issues involved where allegations of untruth and misleading and deceptive conduct arose.
Having regard to the principles that have been outlined and having regard to the issues set out both in relation to the fraud matters set out above and also the reopening issues that the Court has just discussed, it is plain that this is a case where it is more appropriate that the Respondent be represented by a lawyer.
The third major issue raised by Ms Spears in her affidavits is the issue of associated jurisdiction, that is, that the proceedings be consolidated with proceedings in other places, and that the Court exercise associated jurisdiction under the FCFCOA Act to determine all those matters.
Associated jurisdiction can be a difficult and complex issue, and has been the subject of recent disagreement in this Court: see, for example, Fundit Ltd v Jonesys Earthworx Pty Ltd (in liq) [2025] FedCFamC2G 1574 at [47]-[75] per Fary J; Mills v The Major North Pty Ltd [2025] FedCFamC2G 1531 at [20]-[30] per Judge Zipser; and see generally Allsop CJ, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Australian Bar Review 29 at 47. The Court ought to have the assistance of a lawyer for at least one of the parties when dealing with contested issues of associated jurisdiction.
It follows that the nature and complexity of the matters raised, at least in relation to Ms Spears’ application in a proceeding for discovery and reopening, are complex and sufficiently so as to warrant the Respondent, as a corporation, being represented by a lawyer.
So, it is apparent from the foregoing that the nature of this matter is significantly more complicated than it would appear at first glance. A number of significant legal issues are likely to arise for determination, but at least in relation to the application in a proceeding for discovery and reopening, it is apparent from what the Court said that in relation to most, if not all of those issues, the assistance of a lawyer for at least one of the parties, if not both, would be of significant assistance to the Court, as well as the party or parties concerned. The nature of the matter is therefore one in which a corporate Respondent ought not, unless it is utterly unavoidable, be represented by a non-lawyer.
In terms of the question of lawyers having previously appeared, the Court notes, as it has done earlier, that Ms Spears had lawyers until they withdrew, apparently on 26 July 2021. The Respondent was properly and competently represented by lawyers who appeared at the liability hearing, who appear to have withdrawn after the delivery of the liability judgment: Spears. The Court notes that on 6 June 2025, when it made orders in respect to the penalty hearing, there was no appearance by any of the parties.
Given the nature of and complexities associated with the legal principles in relation to the issues discussed above: fraud, reopening and associated jurisdiction, and the fact that the Respondent had previously been represented by lawyers at the liability hearing, this factor weighs in favour of lawyers, rather than a non-lawyer, appearing for the Respondent in these proceedings.
Turning then to the objects of the relevant legislation, the Court notes that the overarching purpose of the civil practice and procedure provisions in the FCFCOA Act are set out at s 190(1) and (2) of the FCFCOA Act, as follows:
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
The Court notes that these provisions reflect the modern approach to case management: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“Aon Risk Services “) at [30] per French CJ, [97]-[98] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431. The paramount consideration remains that justice be able to be properly done between the parties, and to do it, it is necessary for a proper balance to be struck between competing considerations based on a judicial consideration of the issues: Aon Risk Services at [30] per French CJ, [97]-[98] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Molnar EngineeringPty Ltd v Burns (1984) 3 FCR 68 at 74 per Smithers J.
The Court is concerned that the allegations of fraud, etcetera, made by Ms Spears have the potential to prolong proceedings unnecessarily if both parties remain unrepresented by a lawyer. A lawyer appearing, at least for the Respondent, may assist in the more expeditious resolution of the issues, and if not more expeditious, in the event that the allegations have some substance, then the proper presentation to and resolution by the Court of the allegations in the interests of justice ultimately. So, at least for the purposes of an application in a proceeding for discovery and reopening, the Court is of the view that a lawyer may assist the Court with respect to the issues that the Court has indicated need to be addressed at that stage of the proceedings.
At this stage, the Court considers that the usual rule, and it is the usual rule, that a corporation be represented by a lawyer outweighs any issues with respect to the objects of the relevant legislation and case management considerations and thus favours the Respondent being represented by a lawyer.
In terms of effectiveness of representation and prejudice, the Court notes that today Mr Harris has chosen to appear by telephone, the Respondent having been on notice of the proceedings. He does so from a vehicle in Tasmania on the way to the airport to catch a plane to Adelaide. The Court has brought this matter on quickly because of the other proceedings that follow, but the mere fact that Mr Harris chooses to appear in this way is an indicator or a factor to be considered in terms of the effectiveness of his possible representation of the Respondent in future proceedings. Furthermore, the Court notes that when invited to make oral submissions and the factors having been previously outlined to him, Mr Harris, apart from dealing with the expense of the proceedings and the fact that there is a judgment already in terms of liability primarily in the Respondent’s favour, did not address the other factors which were required to be addressed (and of which the Court advised the parties at the outset of the hearing). That said, having seen Mr Harris at the liability hearing, albeit as a witness, the Court has no doubt that he would be a blunt and forceful advocate in the Respondent’s cause. That, however, is not enough. Equally doubtless, the Court considers that the complexity of the legal issues that might arise on the application in a proceeding for discovery and reopening, and the potential factual and evidentiary issues concerned, are, it is fair to say, likely to be beyond the capacity of Mr Harris to deal with as a non-lawyer in the best interests of the Respondent, and on that basis this factor favours a refusal of leave for Mr Harris to appear for the Respondent. The Court notes that there is still a reasonable opportunity for the Respondent to arrange legal representation prior to the hearing of the application in a proceeding in relation to discovery and reopening, etcetera, on 20 October 2025.
In terms of prejudice, there does not appear to be any prejudice to Ms Spears if a lawyer appears for the Respondent. Indeed, given that lawyers are officers of the Court, there may be an advantage to a lawyer appearing for the Respondent so far as matters in favour of Ms Spears which otherwise might not be drawn to the attention of the Court, might be drawn to the attention of the Court by those lawyers, even if only arguing against them during the course of any submissions. The Court also considers that there would be a greater prejudice to the Respondent if a non-lawyer appears for it because appropriate matters that are necessary to be considered might not be considered, might not be raised, might be mistaken or misconstrued, and the nature and brevity of the submissions made today confirm the Court’s view that that might be the case.
In terms of the financial position of the Respondent, the Court notes there is a bare assertion by Mr Harris that the Respondent can no longer afford to go to Court and that some $40,000 has already been spent on this litigation. A corporation that is impecunious is not automatically entitled to be represented by a non-lawyer: Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [4] per Kiefel J, and Fair Work Ombudsman v Finetune Holdings Pty Ltd [2010] FMCA 889 at [41] per Lucev FM, in which the Court observed that assertions of impecuniosity do not suffice and that evidence is required [42]-[45] per Lucev FM.
In this case, there is no particular evidence of the Respondent’s financial position, and certainly no affidavit evidence as to its financial position. There is no evidence that the Respondent no longer remains registered or is not trading, both of which might be considerations in terms of financial position, if only for the purposes of drawing an inference that the corporation was impecunious or insolvent. The position is that there is insufficient evidence to demonstrate that the financial position of the Respondent is such as to prevent it from being legally represented: 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 at [38] per Weinberg, Bennett and Rares JJ.
The final factor is whether leave is opposed. Invited to make submissions Ms Spears made no submissions today and therefore it is not apparent that leave to appear for a non-lawyer is either opposed or not opposed, and this factor therefore carries little weight in those circumstances.
CONCLUSION AND ORDERS
In conclusion, and having regard to the views that it has expressed in relation to the factors set out above, and giving particular weight to its views in relation to the nature and complexity of the matter, the Court considers that the application in a proceeding by the Respondent for leave to appear by a non-lawyer ought to be dismissed insofar as it relates to the application in a proceeding by Ms Spears to be heard for discovery and reopening. Once that matter is dealt with, it might be necessary to reconsider the question with respect to the penalty hearing, given that that is perhaps something which might be conceivably simpler for a non-lawyer to deal with.
The Court orders that:
(1)The respondent’s application in a proceeding filed 26 September 2025 for leave to appear by a non-lawyer at further proceedings in this matter:
(a)be dismissed in relation to the hearing of the applicant’s application in a proceeding on 20 October 2025; and
(b)otherwise, be adjourned.
(2)Costs, if any, be reserved.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 9 October 2025
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