Toby Tucker v State of Victoria (State Revenue Office)
[2020] FWCFB 6354
•26 NOVEMBER 2020
| [2020] FWCFB 6354 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Toby Tucker
v
State of Victoria (State Revenue Office)
(C2020/7705)
VICE PRESIDENT CATANZARITI | SYDNEY, 26 NOVEMBER 2020 |
Section 596 Representation by lawyers and paid agents
[1] This decision concerns an application by the State of Victoria (the Respondent) for permission to be legally represented in this appeal proceeding. On 15 October 2020, Mr Toby Tucker (the Appellant) lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act) against a Decision 1 of Deputy President Young issued on 30 September 2020.
[2] The Decision dealt with an application filed by the Respondent to dismiss the Appellant’s application for an unfair dismissal remedy pursuant to s 399A(1)(c) of the Act. In the Decision, the Deputy President was satisfied that the Appellant’s application had no reasonable prospects of success and therefore dismissed the Appellant’s application pursuant to s 578(1)(c) of the Act.
[3] On 2 November 2020, the Appellant indicated in email correspondence that he opposed the Respondent being granted permission to be legally represented. On 10 November 2020, following the consent of both parties, the Chambers of Vice President Catanzariti vacated the directions pending, amongst other matters, the Full Bench determining the Respondent’s application for permission to be represented at the hearing by a lawyer. On 11 November 2020, the Respondent filed submissions seeking permission to be represented at the hearing of the matter by a lawyer. On 16 November 2020, the Appellant filed submissions opposing the Respondent’s application for permission to be represented at the hearing of the matter.
[4] In support of its application to be represented at the hearing, the Respondent submits:
• The matter involves complexity given the factual contest, the technical analysis required of the words used by parties in the context of their negotiations and applications filed by the Appellant to rely on further evidence on appeal;
• Mr Forbes is experienced counsel in matters before the Commission and Mr Forbes has been counsel for the Respondent in various proceedings commenced by the Appellant against the Respondent since 2017;
• it would be unfair not to allow the Respondent to be represented, having regard to the fact that the Respondent has relied on external legal resources for numerous legal contests between the parties; and
• granting the Respondent permission to be legally represented will not result in any real or perceived injustice or unfairness to the Appellant, considering the Appellant’s background as an experienced solicitor.
[5] The Appellant objects to the Respondent being represented on the following grounds:
• the Respondent has access to its own internal legal representation in the matter;
• the Full Bench ought to have regard to the Respondent’s obligations to abide by the Model Litigant Guidelines which requires it to keep its costs in litigation to a minimum;
• the issues in the appeal, including the principles of Masters v Cameron and evidence surrounding the settlement agreement, are neither complex nor novel; and
• the Respondent has its own internal legal department employing over 130 lawyers, meaning that the Respondent has the capacity to represent itself.
Consideration
[6] Section 596 of the Act relevantly provides as follows:
“Section 596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter… ”
[7] Justice Flick considered the application of s 596 of the Act in Warrell v Walton (Warrell) 2 as follows:
“24 A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...” The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.
25 The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008…” 3
Complexity/Efficiency – s 596(2)(a)
[8] The Appellant contended in substance that it would be unjust for the Respondent to be granted permission to be represented for the purposes of efficiency, having regard to the Victorian Model Litigant Guidelines and the requirement to keep litigation costs to a minimum. We do not agree with this submission. This matter has a lengthy history with a complex array of issues in dispute. This includes, whether the Deputy President’s findings were sound in light of the evidence before her. Critically, we note that the Respondent was granted permission to be represented in the matter at first instance. Accordingly, the matter before us would be dealt with more efficiently were the Respondent represented, having regard to counsel for the Respondent’s familiarity with the issues in these proceedings.
[9] Furthermore, the Appellant has filed an application for an order requiring a person to attend before the Commission as well as an application for an order for production of documents, records or information to the Commission. We accept the Respondent’s submission that the complexity of the proceeding before us is increased by the aforementioned applications made by the Appellant to rely on further evidence on appeal. Overall, this factor provides support for granting permission for the Respondent to be represented by Counsel in the matter.
Fairness – s 596(2)(b)-(c)
[10] Having regard to the capacity of the Respondent to effectively represent themselves, we accept the Respondent’s submission that employees of the Respondent are not experienced advocates in contested matters of the kind present in this proceeding. We also accept that the Respondent has had to rely significantly on external legal resources in the many legal contests between the Appellant and the Respondent.
[11] To the extent that the Appellant contends that if the Respondent were to be represented at the hearing it would result in unfairness between the parties, we do not accept this submission. Whilst we note the Appellant is self-represented, he is an experienced solicitor. There is no real or perceived injustice or unfairness to the Appellant that will result from granting permission for the Respondent to be represented.
Conclusion
[12] Accordingly, having reached the following conclusions in respect of each of the relevant aspects of s 596(2) of the Act, permission for the Respondent to be legally represented at the hearing before us is granted.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR724899>
1 Toby Tucker v State of Victoria (State Revenue Office)[2020] FWC 5252 (the Decision).
2 (2013) 233 IR 335.
3 Ibid at 24 and 25.
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