FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spears v South Australian Wine Group Pty Ltd (No 2) [2025] FedCFamC2G 1677
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- AGLC
- Spears v South Australian Wine Group Pty Ltd (No 2) [2025] FedCFamC2G 1677
- Case
- [2025] FedCFamC2G 1677
- Decision Date
CaseChat Overview and Summary
BETWEEN:
Alana Spears
Applicant
AND:
South Australian Wine Group Pty Ltd
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
9 OCTOBER 2025
REASONS FOR JUDGMENT
The Court considered the application filed by the South Australian Wine Group Pty Ltd (the Respondent) for leave to be represented by a non-lawyer, Mr David Harris, one of its directors. The application was neither opposed nor acceded to by Ms Spears, the applicant, who made no submissions on the application. The substantive application related to claims under the Fair Work Act 2009 (Cth). The issues in contention included adverse action, redundancy payments, failure to provide payslips, alleged breaches of an award, and failure to provide a Fair Work Information Statement. In a prior judgment, the Court found the Respondent had contravened the Fair Work Act by not providing a Fair Work Information Statement but dismissed the substantive application otherwise. The matter was adjourned sine die and subsequently relisted for a penalty hearing.
The Court examined whether a non-lawyer could appear for a corporation under s 175 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which requires a party to be represented by a lawyer unless another Commonwealth law authorises otherwise. The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) provide that a corporation must be represented by a lawyer, but the Court may dispense with this requirement and make appropriate orders in the interests of justice. The Court concluded that dispensing with the rule for a non-lawyer to appear met the requirements of s 175(c) of the FCFCOA Act.
Considering the nature and complexity of the matter, the Court dismissed the application for leave to appear by a non-lawyer for the hearing of Ms Spears’ application for discovery and reopening but adjourned the matter for reconsideration in relation to the penalty hearing. The Court ordered that Mr Harris could appear for the Respondent for today’s purposes only and that the application for leave to appear by a non-lawyer be dismissed in relation to the hearing of Ms Spears’ application for discovery and reopening, and otherwise be adjourned. Costs, if any, were reserved.
Orders
Orders of the court
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
1.
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
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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”).
9.
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.
10.
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.
11.
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.
12.
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.
13.
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
14.
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.
15.
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.
16.
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.
17.
Rule 1.10 of the 2025 GFL Rules provides that:
The Court may dispense with compliance with any of these Rules at any time.
18.
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.
19.
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.
20.
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.
21.
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
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.LAWAppearance 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.