Wong v Dong Lai Sun Massage Pty Ltd
[2016] FCCA 18
•15 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WONG v DONG LAI SUN MASSAGE PTY LTD | [2016] FCCA 18 |
| Catchwords: PRACTICE AND PROCEDURE – Whether leave for corporation not to be represented by a lawyer – consideration of factors. PRACTICE AND PROCEDURE – Whether to issue a pro bono referral certificate for a corporation – consideration of factors – whether an administrative function – whether necessary to make orders. |
| Legislation: Evidence Act 1995 (Cth), ss.56(2), 59(1), 140(2) Fair Work Act 2009 (Cth), ss.352, 570(2) Fair Work (Registered Organisations) Act 2009 (Cth) |
| AA Shi Pty Ltd v Avbar Pty Ltd (No.4) [2010] FCA 878 Bartucciotto v Western Health Care & Ors [2007] FMCA 26; (2007) 94 ALD 38 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 Deputy Commissioner of Taxation v Bayconnection Property Developments Pty Ltd [2012] FCA 363; (2012) 127 ALD 64 Fair Work Ombudsman v Finetune Holdings & Anor [2010] FMCA 889 Fuller v Toms [2012] FCA 27 Groundwater v Territory Insurance Office [2004] FMCA 381; (2004) 183 FLR 437 Hall v Cadillac Transport Repairs Pty Ltd [2011] FMCA 189 McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239 |
| Applicant: | MAN WONG |
| Respondent: | DONG LAI SUN MASSAGE PTY LTD T/A DONG LAI SUN MASSAGE AND BEAUTY |
| File Number: | PEG 145 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 9 April 2015 |
| Date of Last Submission: | 9 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 15 January 2016 |
REPRESENTATION
| For the Applicant: | Ms M Wong (with the assistance of an interpreter) |
| For the Respondent: | Ms DT Vong (a director of the respondent, by leave to argue the application in a case) (with the assistance of an interpreter) |
ORDERS
That in relation to the Application in a Case filed by the respondent on 3 March 2015 it be dismissed insofar as it seeks leave under r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for a non-lawyer to carry on these proceedings for the respondent.
There be no order as to costs.
There be liberty to apply.
AND THE COURT NOTES that under r.12.02 of the FCC Rules pro bono referral certificates are to be issued to both the applicant and respondent to be provided with legal advice and representation at the hearing of the application on 13 April 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 145 of 2014
| MAN WONG |
Applicant
And
| DONG LAI SUN MASSAGE PTY LTD T/A DONG LAI SUN MASSAGE AND BEAUTY |
Respondent
REASONS FOR JUDGMENT
Application in a Case
The Court has before it an Application in a Case filed 3 March 2015 by the respondent Dong Lai Sun Massage Pty Ltd T/A Dong Lai Sun Massage And Beauty (“Dong Lai”) for:
a)leave to be granted by the Court under r.9.04 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for Dong Lai, to carry on these proceeding otherwise than by a lawyer; and
b)the granting of a pro-bono referral certificate under r.12.02 of the FCC Rules for Dong Lai.
The Application in a Case is supported by an affidavit by Dai Thu Vong, a director of Dong Lai, sworn on 20 February 2015 (“Vong’s Application in a Case Affidavit”), in which she seeks permission to represent Dong Lai in the proceedings: Vong’s Application in a Case Affidavit at [14].
Substantive application
In order to assess whether Dong Lai ought to be granted leave to carry on the proceedings other than by a lawyer it is necessary to set out, in some detail, the nature of the substantive application (“Application”).
The applicant, Man Wong (“Ms Wong”) claims in her Claim Form 2 (“Form 2”) that she was dismissed from employment in contravention of s.352 of the Fair Work Act 2009 (Cth) (“FW Act”) because of a temporary absence due to an injury she sustained in the course of her employment. The remedy sought is $43226.10 in total. That sum is said to be calculated on the following basis:
$30 per/hour x 1.5 loading overtime @ 364 hours = $13137.00
Design of treatment and massage price list @ 8.2hours = $295.80
Open and manage facebook and instagram sites @ 344 hours = $9128
Poster and coupon and notice design @ 8 hours = 288.60
Total = $22849.40
Underpayment of normal pay $17634.70
Money borrowed from applicant by employer = $2742
Total in full = $43226.10
(Transcribed from Form 2 without amendment.)
The Application is supported by an affidavit sworn by Ms Wong on 14 January 2015 (“Wong’s January 2015 Affidavit”).
In support of the Application Ms Wong asserts that:
a)she entered into a contract of employment (“Employment Contract”) as a Therapeutic Massage Therapist on a full time basis, for a period of at least four years from the commencement date, with the commencement date under the Employment Contract being the date of the grant of the requisite visa (nominally a “457 Visa”, being a visa granted under cl.457 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”)) by the Department of Immigration and Citizenship (as it then was) (“Department”): Wong’s January 2015 Affidavit at [8] and Annexure “A”;
b)she performed additional duties outside of the scope of her Employment Contract and was not paid any remuneration for them: Wong’s January 2015 Affidavit at [9]-[10];
c)she was not payed the salary agreed in the Employment Contract: Wong’s January 2015 Affidavit at [11];
d)she was issued with a cheque by Dong Lai, asked to give the amount indicated on the cheque back to Dong Lai in cash, and then was paid back a lesser amount in cash as her wages. Ms Wong asked why she was not being paid the amount set out in her Employment Contract, and was told it was standard practice and the money deducted was a kind of bond: Wong’s January 2015 Affidavit at [12]-[13];
e)just before Christmas 2013 Ms Wong loaned Dong Lai four weeks wages ($3656 in total): Wong’s January 2015 Affidavit at [16];
f)on 31 January 2014 she was repaid $914 (being one week’s wages): Wong’s January 2015 Affidavit at [17];
g)on 8 February 2014 after serving one client Ms Wong noticed red swelling on her right elbow. This become progressively worse after serving two further clients and after the third client the pain was unbearable and Ms Wong asked to leave work early. She saw a doctor the following Monday (10 February 2014) who told her she had inflammation in her muscles and advised her to take a break from work. Ms Wong then rang Dong Lai and requested sick leave, which was granted and she was asked to bring a “sick note” when she returned to work. She saw the doctor two or three times a week: Wong’s January 2015 Affidavit at [19]-[21];
h)she “bumped into” Ms Vong on several occasions and showed her “receipts” from her doctor: Wong’s January 2015 Affidavit at [21];
i)her elbow had not recovered by the time she received a letter terminating her Employment Contract on 14 March 2015 (“Termination Letter”), and she had difficulty getting assistance cover from WorkCover because Dong Lai told WorkCover the injury was not work related: Wong’s January 2015 Affidavit at [22];
j)she attended her doctor from 24 February 2014 to 1 August 2014, and the “receipts” indicate those attendances were a “result of workers compensation”, and that she also attended physiotherapy, acupuncture, and had an ultrasound: Wong’s January 2015 Affidavit at [23]-[24];
k)she had received a text message from Ms Vong’s daughter, had had calls from private numbers, and heard knocking sounds at her door, and this had all made her anxious: Wong’s January 2015 Affidavit at [27] and Annexure I; and
l)due to the termination of her Employment Contract she had to “switch to” a student visa in order to remain in Australia: Wong’s January 2015 Affidavit at [28].
In its Defence filed on 4 July 2014 Dong Lai states that:
a)in December 2013 Dong Lai informed Ms Wong that the business was not doing well financially and was not in a position to employ her after her 457 Visa was granted;
b)Ms Wong’s 457 Visa was granted on 5 February 2014;
c)on 8 February 2014 Ms Wong said that she was leaving work early because she was going out with friends who were visiting Perth and she was not coming in the next day as she wanted to show them around Perth, and also that since she had woken up that morning her arm had been slightly red and sore;
d)on 11 February 2014:
i)Ms Wong failed to attend for work, but met with Ms Vong, at the latter’s house;
ii)Dong Lai advised Ms Wong that her 457 Visa had been granted but that Dong Lai was not in a position to employ her;
iii)Ms Wong offered to buy Dong Lai’s business, and Dong Lai said it would organise the paperwork and enquire about the process; and
iv)Dong Lai asked Ms Wong why she had not come to work, and Ms Wong said that her arm was sore, she had a stomach ache and her boyfriend was unwell;
e)between 12 and 17 February 2014 Ms Wong did not attend work or offer any explanation for her absence;
f)between 18 and 22 February Ms Wong visited Dong Lai’s business premises approximately three times, and on each of these occasions:
i)did not undertake any work;
ii)told Dong Lai she was organising the takeover of the business and requested documents related to council approval for small business development;
iii)when asked about her absence from work, stated her arm was sore; and
iv)when asked for medical certificates, said that she would bring them;
g)between 23 February 2014 and 14 March 2014 Ms Wong again did not attend work nor offer any explanation for her absence;
h)at no point between 8 February 2014 and 14 March 2014 did Ms Wong advise Dong Lai that she was not fit for work because of injury or provide any medical certificates;
i)after Ms Wong’s Employment Contract was terminated she provided Dong Lai with a worker’s compensation claim form signed on 1 March 2014, which annexed medical certificates dated 5, 11, 18 and 28 March 2014;
j)Ms Wong had adequate earlier opportunity to provide the medical certificates but did not do so;
k)Ms Wong was employed on a casual basis by Dong Lai until the grant of her 457 Visa on 5 February 2014;
l)Ms Wong signed weekly timesheet records that recorded her hours of pay, rate of pay, tax and superannuation;
m)Ms Wong never worked overtime;
n)Ms Wong was never asked to perform any design or social media work for Dong Lai; and
o)Ms Wong has never lent any money to Dong Lai.
On 3 March 2015 Ms Vong, in her capacity as a director of Dong Lai, filed an affidavit sworn 20 February 2015 in support of Dong Lai’s Defence (“Vong’s February 2015 Affidavit”). Ms Vong asserted the following:
a)there had been a prior relationship in which Ms Vong had been employed at a business called Dong Lai Fu which Ms Vong and her husband had operated, and in which Ms Wong had been casually employed: Vong’s February 2015 Affidavit at [8]-[26];
b)in or around May 2013 Dong Lai was established as a new business in premises in Wembley: Vong’s February 2015 Affidavit at [34]-[37];
c)Ms Wong frequently visited Ms Vong at home and on one occasion, seemingly around early June 2013, Ms Vong mentioned to Ms Wong that she had started a new business, being Dong Lai, which would be a massage parlour, and Ms Wong asked if she could be sponsored under a 457 Visa by Dong Lai: Vong’s February 2015 Affidavit at [38]-[40];
d)there were discussions between Ms Vong and Ms Wong concerning the requirements for a 457 Visa, and Ms Wong utilised the services of a migration agent recommended by Ms Vong, with whom Ms Wong, her boyfriend, Ms Vong and her husband met at Ms Vong’s home to discuss the 457 Visa process and conditions: Vong’s February 2015 Affidavit at [41]-[46];
e)an arrangement was entered into between Ms Wong, and the migration agent, in relation to which Ms Vong says that she paid approximately $3,000 for “government fees” to the migration agent, and that she understands that Ms Wong covered the remaining fees, which would appear to be a sum slightly in excess of $9,000: Vong’s February 2015 Affidavit at [47]-[51] and Annexure C;
f)on or around 24 June 2013 the Employment Contract was entered into, and Ms Vong understood that it would not come into effect until the grant of the 457 Visa: Vong’s February 2015 Affidavit at [52]-[54] and Annexure D;
g)Dong Lai commenced business on 1 August 2013: Vong’s February 2015 Affidavit at [55];
h)she considers that Ms Wong’s first day at work at Dong Lai was 17 September 2013 this being the day that she filled out a Tax File Number Declaration: Vong’s February 2015 Affidavit at [58] and annexure E;
i)she agreed to pay Ms Wong a casual rate of $30 an hour for the work that Ms Wong performed as an employee on a casual basis pending the outcome of her 457 Visa application, and thereafter Ms Wong came to work on a regular basis usually between the hours of 11.00am to 6.30pm for about two weeks: Vong’s February 2015 Affidavit at [61]-[62];
j)from on or around October 2013 Ms Wong began to work less frequently and less consistently at Dong Lai: Vong’s February 2015 Affidavit at [67];
k)in or about mid-December 2013 Ms Vong spoke to Ms Wong and told her that Dong Lai was not doing very well financially and that it would not be able to employ her full time when her 457 Visa was granted: Vong’s February 2015 Affidavit at [74]-[75];
l)Ms Wong was offered a termination payment of two weeks’ salary, to which she agreed with one week paid in or around late December 2013, and the remaining week to be paid later when funds became available to Dong Lai: Vong’s February 2015 Affidavit at [76]-[77];
m)as a result of approaches from Ms Wong in January 2014 Ms Vong agreed to assist Ms Wong in obtaining work until she found another sponsor for her 457 Visa: Vong’s February 2015 Affidavit at [78]-[79];
n)consequently, on 8 February 2014 Ms Wong serviced two customers for about 60 minutes each, and between those two services Ms Wong approached Ms Vong and asked if she could leave early from work as she wanted to go out to dinner with her boyfriend and some of her friends who were visiting Perth. She also showed Ms Vong, just before she left work that day, that she had some redness on her arm which she thought was an insect bite, and which she told Ms Vong she had first noticed in the morning when she got out of bed: Vong’s February 2015 Affidavit at [80]-[84];
o)Ms Wong also told Ms Vong that she would be having 9 February 2014 off as well as she wanted to show her friends around Perth: Vong’s February 2015 Affidavit at [87];
p)on 11 February 2014 Ms Vong was informed that Ms Wong’s 457 Visa had been granted as at 5 February 2014, and Ms Vong called Ms Wong at about 5.00pm on 11 February 2014 to inform her of the 457 Visa approval, and to invite her to meet at Ms Vong’s home to discuss it: Vong’s February 2015 Affidavit at [88] and [91];
q)at around 9.30pm on 11 February 2014 Ms Vong and her husband, and Ms Wong and her boyfriend, met at Ms Vong’s home and Ms Vong told Ms Wong that she would need to look for another sponsor as Dong Lai was not financially able to employ her full time, and because of her previous work ethic and behaviour being unreasonable: Vong’s February 2015 Affidavit at [92]-[93];
r)there were subsequent discussions in which Ms Vong says that Ms Wong pleaded to be employed on a full time basis, and suggested that she could be paid her salary by cheque and then repay the money to Dong Lai in cash to make the finances better, a proposition which Ms Vong says she rejected as illegal and because she did not want to do something like that: Vong’s February 2015 Affidavit at [94]-[95];
s)there was also discussion according to Ms Vong about Ms Wong purchasing part of the business of Dong Lai and the arrangements surrounding how that might be achieved, with Ms Vong saying that she told Ms Wong that she would have to arrange this, and all of the relevant approvals, herself: Vong’s February 2015 Affidavit at [96]-[101];
t)Ms Wong did not attend for work subsequently, but on various dates in February 2014 was in contact with Ms Vong concerning Council approval and regulation documents in relation to the business and the possibility of Ms Vong purchasing the business, in whole or in part: Vong’s February 2015 Affidavit at [105]-[116];
u)during the course of the discussions in February 2014, Ms Vong enquired, on or around 18 February 2014, as to why Ms Wong had not come to work and was told that Ms Wong’s arm was sore, as a consequence of which Ms Vong requested medical certificates or documentation for Ms Wong’s absence from work, and suggested that there were other things that she could do in the business such as answering the telephone and attend the front desk: Vong’s February 2015 Affidavit at [109]-[110];
v)she says that Ms Wong subsequently made contact with the migration agent, as a consequence of which Ms Vong was ultimately informed by the migration agent on or around 2 March 2014 that Ms Wong was intending to open a massage shop at another shopping centre, but that Ms Vong should wait a week or so before taking any action to see if Ms Wong would return to work: Vong’s February 2015 Affidavit at [123]-[124];
w)the migration agent subsequently assisted Ms Vong to prepare the Termination Letter which was sent to Ms Wong on or around 15 March 2014, the terms of which were as follows:
I refer to the offer of employment for you to work as a massage therapist at Dong Lai Massage, on which you based your application to the Immigration Department for a subclass 457 temporary working visa. You will recall that it was stipulated in the Contract of Employment signed by us both on 24 June 2013, that you were to commence employment immediately your visa was granted by the Immigration Department.
Whilst waiting for the visa to be granted I did employ you on a casual basis, and your visa was eventually granted on 5 February 2014.
From the time you were advised that the visa was granted, you have not attended for work. You did advised me that you had a sore arm, but have not produced any doctor’s certificate to substantiate this, and you have not indicated during the past five weeks when you would be prepared to attend for work.
As you have not attended for work at all under the terms of the Contract of Employment, I consider that the Contract is not now applicable and I now formally advise you that your services are no longer required. As it happens, the business has not been viable and has been losing money since establishment so that I would not, in any event, be in a position to employ you.
I am required to inform the Immigration Department that you are no longer employed, but as you know, your working visa could continue if you are able to find another sponsor. I wish you success in continuing with your visa to work in Australia, and in your future employment as a massage therapist.
Transcribed without amendment: see Vong’s February 2015 Affidavit at [127]-[128] and Annexure I;
x)there were subsequent discussions between Ms Vong, Ms Wong and Ms Wong’s boyfriend concerning the Termination Letter and a termination payment, and in respect of the latter a dispute as to whether or not Dong Lai owed Ms Wong one additional week in accordance with the agreement that Ms Vong says was entered into, or an additional two weeks in addition to that week: Vong’s February 2015 Affidavit at [134]-[135];
y)following advice from the migration agent Dong Lai sent a letter to the Department on or around 25 March 2015 which seemingly reported the termination of Ms Wong’s Employment Contract to the Department: Vong’s February 2015 Affidavit at [136]-[139];
z)a meeting was arranged and took place on or around 30 March 2014 between Ms Wong and her boyfriend, and Ms Vong and her husband, at which there were discussions concerning transferring the 457 Visa to a new business if the business was sold, and there were further discussions concerning the termination payment Ms Vong alleged she was owed, and a demand from Ms Wong’s boyfriend that payment of $2,742 be made immediately: Vong’s February 2015 Affidavit at [144]-[147];
aa)during the course of the discussion Ms Vong confirmed that she had reported the termination of Ms Wong’s Employment Contract to the Department and that she further understood that the 457 Visa had been cancelled as from 25 March 2014: Vong’s February 2015 Affidavit at [146];
bb)she did not meet the demand for payment made by Ms Wong’s boyfriend, and Ms Wong’s boyfriend then referred to a stack of papers which he and Ms Wong had brought to the meeting and indicated that Dong Lai would have to lodge those papers, which related to workers’ compensation, or otherwise deal with the consequences: Vong’s February 2015 Affidavit at [148]-[149];
cc)upon looking at the papers Ms Vong discovered that they related to medical certificates and a workers’ compensation claim form signed by Ms Wong dated 1 March 2014, which Ms Vong says is the first time that she knew of any workers’ compensation claim or alleged injury, and it was the first time she had sighted any medical certificates or other documentation relating to the alleged injury or treatment of Ms Wong: Vong’s February 2015 Affidavit at [150]-[151];
dd)the workers’ compensation claim was subsequently settled between Ms Wong and the workers’ compensation insurer, the insurer advising Dong Lai as follows:
We have agreed to settle the claim with Nikki Wong for $14,600. The settlement includes part of her wages and medical expenses in relation to her alleged injury. The settlement is purely commercial as we have not made a decision on liability.
Vong’s February 2015 Affidavit at [155] and Annexure M;
ee)she denies that Dong Lai ever required Ms Wong to perform additional tasks relating to marketing and Facebook and material designs or that she was ever approached for additional wages for any such work, or that any bond money was taken from Ms Wong’s wages, or that Ms Wong was entitled to overtime payment on casual employment, or that Dong Lai (or Ms Vong) borrowed any money whatsoever from Ms Wong: Vong’s February 2015 Affidavit at [158]-[163];
ff)that she agreed to pay the termination payment, even though Ms Wong was a casual worker, because she considered her to be a friend and treated her like a daughter and wished to help her out: Vong’s February 2015 Affidavit at [164];
gg)that Ms Wong was sometimes paid in cash and sometimes by cheque as recorded in the wages sheet signed by Ms Wong: Vong’s February 2015 Affidavit at [166];
hh)that no medical certificate was ever received by Dong Lai until the meeting of 30 March 2014: Vong’s February 2015 Affidavit at [167]; and
ii)that Ms Vong did not ask her daughter to send any messages to Ms Wong, and did not know anything about the message sent until after it was sent, and that she never called Ms Wong on silent or private numbers or knocked on her door at all: Vong’s February 2015 Affidavit at [168]-[169].
Ms Wong swore a further affidavit on 31 August 2015, filed on 8 September 2015, in accordance with orders made by the Court in relation to the substantive application (“Wong’s August 2015 Affidavit”). It suffices to observe that it takes issue with much of the factual matrix set out in Vong’s February 2015 Affidavit, and Ms Wong alleges that:
a)she was on a working holiday visa and therefore already had a “requisite visa” allowing her to be employed for the purposes of the Employment Contract: Wong’s August 2015 Affidavit at [9];
b)an E-Tax File Number Declaration held by Dong Lai has been altered, as to the date of signature by the payee (that is Ms Wong): Wong’s August 2015 Affidavit at [11];
c)the E-Tax File Number Declaration form shows that she was working on a full time and not a casual basis: Wong’s August 2015 Affidavit at [12];
d)she did endeavour to present a medical certificate to Dong Lai as early as 18 February 2014, but it was not accepted: Wong’s August 2015 Affidavit at [25], and there were several subsequent attempts to submit medical certificates, and Dong Lai asked that they all be submitted together after recovery: Wong’s August 2015 Affidavit at [33]; and
e)a superannuation payment account was not established until after Ms Wong had her Employment Contract terminated: Wong’s August 2015 Affidavit at [54].
Otherwise, as observed above, Wong’s August 2015 Affidavit not only disputes most of the significant matters of fact in issue between the parties, but also contains material which is arguably by way of submission in relation to the matters in issue.
Vong’s Application in a Case Affidavit
In support of Dong Lai’s Application in a Case, Ms Vong swore a further affidavit on 20 February 2015, also filed on 3 March 2015 (“Vong’s Application in a Case Affidavit”) in which she relevantly asserts that:
a)she is a director of Dong Lai: Vong’s Application in a Case Affidavit at [1];
b)a law firm has previously been engaged to represent her (by which she presumably means Dong Lai) in these proceedings, however, their engagement was terminated prior to the mediation conference before a Registrar of this Court on 16 September 2014 due to costs: Vong’s Application in a Case Affidavit at [5];
c)she did not have sufficient money to pay outstanding accounts with the law firm or to pay an additional retainer for further representation: Vong’s Application in a Case Affidavit at [7];
d)she has been “receiving general legal advice” (from whom is not specified), but due to costs no further lawyer has been formally engaged: Vong’s Application in a Case Affidavit at [8]-[9];
e)she works as an office cleaner one shift a night from 8.00pm to 1.00am and earns approximately $550 a week: Vong’s Application in a Case Affidavit at [10] and [12];
f)she lives with her daughter and has car finance expenses of $480 per month: Vong’s Application in a Case Affidavit at [13];
g)she has endeavoured to secure legal aid (presumably for Dong Lai) but has been unsuccessful: Vong’s Application in a Case Affidavit at [15];
h)she has been unable to obtain sufficient legal advice and cannot afford to do so: Vong’s Application in a Case Affidavit at [16]; and
i)concedes that the matters raised are complicated but asserts that Ms Wong is using the proceedings for vexatious and frivolous purposes: Vong’s Application in a Case Affidavit at [17].
Submissions
At the hearing of the Application in a Case Ms Vong was granted leave to appear and argue the Application in a Case for Dong Lai.
Ms Vong sought to rely on Vong’s Application in a Case Affidavit. Ms Vong made no submissions relevant to whether or not Dong Lai should be represented other than by a lawyer or granted a pro bono referral certificate.
Ms Wong said she had “[n]o objection” to Dong Lai’s Application in a Case.
The transcript, brief as it is, does indicate that there may be difficulties at hearing, particularly insofar as Ms Vong had difficulty in addressing the relevant issue as to whether Dong Lai should be represented other than by a lawyer or be granted a pro bono referral certificate. It is also not immediately apparent that Ms Wong, in stating that she had no objection to the Application in a Case by Dong Lai, understood what the import of doing so might be.
Consideration – leave to appear other than by a non-lawyer
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 Magistrates Court 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 provides 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.
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 at [16]-[23] per Lucev FM. Indeed, 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.
The purpose underlying restrictions on appearance
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] 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 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 (“Konsulteq”) (and the other cases there cited).
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 cases there cited)
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; Alcantara at [12] per Lucev FM. In the exercise of such discretion it is not necessary for each factor to be given equal weight.
Nature of the matter
Ms Wong’s primary claim is that she was dismissed from employment with Dong Lai in contravention of s.352 of the FW Act because of a temporary absence due to an injury sustained in the course of her employment. Section 352 of the FW Act provides that:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Relevantly, reg.3.01(2) of the Fair Work Regulations 2009 (Cth) (“FW Regulations”) provides that a prescribed kind of injury exists if the employee provides a medical certificate for the illness or injury within 24 hours after the commencement of the absence or “(b) such longer period as is reasonable in the circumstances.” Ms Wong relies on reg.3.01(2)(b) of the FW Regulations to establish the prescribed kind of injury resulting in the alleged temporary absence from work. For Dong Lai to have acted in breach of s.352 of the FW Act there must have been an awareness that the absence was because of Ms Wong’s alleged injury, and the absence must be the reason for the termination of the Employment Contract. Dong Lai will succeed in avoiding an adverse finding under s.352 of the FW Act if it proves either that it did not know the reason for the absence or that it did not terminate the employment by reason of the absence: Sperandio v Lynch [2006] FCA 1648; (2006) 160 IR 360 at [91] per Jessup J, provided that the medical certificate was provided within a reasonable time after the first 24 hours of the absence, as is contended by Ms Wong, who says that the medical certificate was provided on 10 February 2014: Claim Form, Part G. Ms Wong also contends that ongoing medical certificates were periodically offered to Dong Lai thereafter, but rejected. There is a fundamental factual dispute in this regard as Dong Lai says that no medical certificate was provided until after the Termination Letter had been sent to Ms Wong. There is, therefore, a fundamental, and significant, dispute on a critical issue of fact, which, on the evidence as it presently stands, will probably fall to be determined on the credibility of either Ms Wong or Ms Vong. Whilst determining what is reasonable in the circumstances is a question of fact, the failure to provide a medical certificate, if that be the fact, until after an employee’s employment is terminated may be unreasonable: see Picos v HealthEngine Pty Ltd & Anor [2015] FCCA 1983 at [42] per Judge Lucev. The Court notes that no reliance appears to be placed on reg.3.01(4) of the FW Regulations to establish the existence of a prescribed kind of injury for Ms Wong.
Were the Application limited to the claim of a contravention of s.352 of the FW Act by Dong Lai, the matter might be of such a nature as to allow the Court to determine it without any legal assistance, notwithstanding the significant factual dispute about whether or not, and when, a medical certificate or certificates was or were provided by Ms Wong. However, the mix of pleadings and affidavits in this case, gives rise to a number of issues, the nature of which adds significant complexity. Those issues include, but may not be limited to, the following:
a)firstly, whether or not for that part of the employment prior to the granting of the 457 Visa, Ms Wong was entitled to work, as is asserted by her in Wong’s August 2015 Affidavit at [9], or not, and if the latter, then whether any alleged Employment Contract might be voided, in whole or in part, by reason of illegality;
b)secondly, whether or not, if there was employment, it was on a full time or casual basis, and if so, from what date the Employment Contract took effect having regard to the claim by Ms Wong that she was entitled to work under her existing working holiday visa prior to the granting of the 457 Visa;
c)thirdly, there appear to be significant disputes over the hours worked, whether Ms Wong was entitled to overtime, and whether, in fact, hours have been recorded properly, or recorded at all, in the context of a claim for underpayment of wages and non-payment of overtime, over a period of more than seven months;
d)fourthly, whether, and to what extent, Ms Wong is entitled to payment on termination of the Employment Contract which did exist, noting that termination by Dong Lai on not less than four weeks’ notice in writing under clause 15 of the Employment Contract can only occur in the limited circumstances set out in clause 15, and, relevantly, where Ms Wong is “in breach of any of the terms of this Contract”: Employment Contract, clause 15(i). Whether Ms Wong was in breach of the requirement to work full time for a maximum of 38 ordinary hours per week might be dependent upon whether or not notice of any alleged injury was in fact given by Ms Wong to Dong Lai, and might therefore be bound up with the answer to the issues in relation to the claim under s.352 of the FW Act;
e)fifthly, whether Ms Wong has any entitlement to payment for additional duties, and whether or not she performed those duties, and if so how or on what basis they are to be remunerated, presuming that the Court has jurisdiction to deal with the issue within the scope of its ancillary jurisdiction;
f)sixthly, whether or not a loan was made by Ms Wong to Dong Lai, and whether Ms Wong is entitled to an order for repayment of the loan, again assuming that this is a matter within the Court’s ancillary jurisdiction;
g)seventhly, subject to the outcome of the claim under s.352 of the FW Act, and the issue as to whether any notice of the injury was given to Dong Lai by Ms Wong, whether Ms Wong might, if no such notice had been given, have repudiated or abandoned her employment, and therefore forfeited her right to be paid wages under the Employment Contract: Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; and
h)finally, the effect of the payment of a sum of $14,000 by way of a workers’ compensation settlement to Ms Wong, paid, on the basis of the evidence as it stands, both in relation to lost wages and medical expenses, and how much, if any, of the settlement might be attributed to, or offset against, any wages held to be owing to Ms Wong by Dong Lai, if the Court determines that Ms Wong has been underpaid.
In relation to the issue of abandonment of employment referred to in subparagraph (g) of the preceding paragraph, the Court notes that in a small claims matter under the FW Act, a dispute concerning abandonment of employment led, in part, to the Court being satisfied that it was appropriate to grant leave to lawyers to appear in small claims proceedings under the FW Act: Cangemi v Specialist Diagnostic Pathology Services Pty Ltd T/as Western Diagnostic Pathology [2014] FCCA 187.
There may also be complications in relation to the admissibility of evidence at hearing. At this stage, no objections to the admissibility of evidence have been foreshadowed, and in the absence of an appearance by a lawyer for either of the parties, it may be that the Court has to determine whether evidence is relevant or hearsay, and therefore inadmissible: Evidence Act 1995 (Cth) (“Evidence Act”), ss.56(2) and 59(1). In circumstances where neither party, or even one party, was not represented by a lawyer, it would be left to the Court to explain the nature of the evidence and the possible reasons for it not being admitted. Effectively, the Court might be put in the position of both advocate and Judge.
A further complication with the evidence is that Vong’s February 2015 Affidavit and Ms Wong’s August 2015 Affidavit do not arguably comply with the terms of r.15.27 of the FCC Rules as, on the evidence to date, neither Ms Wong nor Ms Vong are capable of reading or understanding English, and the relevant translator’s certificate does not appear as an alternative form of jurat to those affidavits. In the case of Ms Vong’s February 2015 Affidavit that is concerning given that it has apparently been sworn before one Soo Yong Yoon, said to be a qualified solicitor, in which case the requirement for a translator’s jurat in accordance with the FCC Rules ought to have been known and explained by the solicitor, and complied with.
In ING Bank (Australia) Ltd v Haddad [2008] FMCA 1695 at [30] per Barnes FM the affidavit of a witness who did not have an adequate command of English, and in which the relevant translator’s certificate did not appear in the form of an alternative jurat, was not accepted for the purposes of providing evidentiary support for matters related to a notice of intention to oppose a creditor’s petition.
In MZYIZ v Minister for Immigration & Anor (No.2) [2010] FMCA 755 at [11] per Turner FM (“MZYIZ (No.2)”) the Federal Magistrates Court of Australia held affidavits filed in support of an extension of time by a Tamil speaking applicant for judicial review of a decision of the Refugee Review Tribunal to be inadmissible in circumstances where the applicant was not able to read the material, which was in English, and no translator’s certification was included in the relevant affidavits. Later, however, the affidavits were read to the applicant in Court through an interpreter and he gave evidence that the contents were true and correct: MZYIZ(No.2) at [12] per Turner FM.
In Shible & Mead [2010] FMCAfam 354 (“Shible”) the Federal Magistrates Court of Australia admitted into evidence an affidavit which did not comply with r.15.27 of the then Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”), but did so where:
a)there was evidence that an interpreter had assisted in the preparation of the affidavit; and
b)the evidence was very brief referring to a single comment made by a person prior to departing Australia: Shible at [36] per Scarlett FM.
In SZNMB v Minister for Immigration & Anor [2009] FMCA 647 an affidavit filed by an applicant in judicial review migration proceedings did not comply with r.15.27 of the FMC Rules and was held by the Court to be “of no benefit to the Applicant”: SZNMB at [29] per Scarlett FM.
In SZIHH v Minister for Immigration & Anor [2006] FMCA 736 at [12] per Scarlett FM the affidavit of an applicant in judicial review migration proceedings which did not comply with r.15.27 of the FMC Rules was not able to be used in those proceedings.
The problem might simply be overcome by following the process in r.15.27 of the FCC Rules, and having appropriate affidavits filed by an accredited translator in relation to each of the affidavits prior to the hearing date, but neither party has, as yet, sought to do so, presumably because they are unaware of the problem.
There is, therefore, a very real issue as to whether Vong’s February 2015 Affidavit and Wong’s August 2015 Affidavit will be admissible in evidence in these proceedings.
Although not formally pleaded, each party’s affidavits raise serious allegations of forgery and alteration of documents on the part of both parties, including in relation to Tax File Number Declaration forms and timesheets. Ordinarily, these are matters which would be pleaded with appropriate particularity having regard to the seriousness of the allegations. Further, the strength of evidence required having regard to s.140(2) of the Evidence Act, is not presently before the Court: Neat Holdings Pty Ltd v Karajan Holdings (1992) 67 ALJR 170; (1992) 110 ALR 449; ALJR at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Qantas Airways Ltd v Gama [2008] FCAFC 69; (208) 167 FCR 537; (2008) 247 ALR 273 at [139] per Branson J. The current “proof” consists of unsubstantiated assertions, which are not supported by any independent, corroborative or expert evidence. With neither party represented by a lawyer, and both parties being non-English speaking and requiring the assistance of an interpreter, and based on the their appearance before the Court, seemingly having little or no knowledge of the Australian legal system or procedure, such particulars of alleged forgery or alteration are unlikely to be forthcoming in the absence of the appearance of a lawyer for each of the parties.
From the foregoing, it is apparent that the nature of this matter is significantly more complicated than it would appear at first glance. A number of significant legal issues, including issues in relation to fair work law, contract law, and the law of evidence and procedure, are likely to arise for determination in these proceedings. Furthermore, it is apparent from the foregoing 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 one in which a corporate respondent, such as Dong Lai, ought not, unless it is utterly unavoidable, be represented by a non-lawyer.
Whether a non-lawyer appears or has appeared previously for any of the parties
Dong Lai was previously represented by Birman & Ride. Birman & Ride filed a Response and Defence on behalf of Dong Lai on 4 July 2014. On 9 July 2014 Ms Sun from Birman & Ride appeared at a directions hearing for Dong Lai. On 15 September 2014 Birman & Ride sent to Dong Lai a Notice of Intention to Withdraw as Lawyer, and Birman & Ride withdrew from the Court Record on 1 October 2014. On 16 September 2014, the day after Birman & Ride gave to Dong Lai the Notice of Intention to Withdraw as Lawyer, Ms Vong appeared for Dong Lai at a mediation before a Registrar of this Court. Subsequently, no lawyer has appeared for Dong Lai, and Ms Vong appeared at a directions hearing on 5 December 2014. There was no appearance for Dong Lai at a directions hearing on 3 March 2015. As noted above, Ms Vong appeared by leave of the Court to argue the Application in a Case for leave to appear as a non-lawyer for Dong Lai at the final hearing of this matter.
Ms Vong’s February 2015 Affidavit says she has been receiving “general legal advice”, but there is no further detail as to the nature or content of that advice.
Ms Wong commenced the Application herself and remains self-represented, although it is evident that she has received some legal assistance via a community based legal centre: Wong’s August 2015 Affidavit at [9].
This factor neither weighs for nor against leave to be represented by a non-lawyer being granted to Dong Lai.
Objects of relevant legislation and case management considerations
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.
This approach reflects much of the modern approach to case management, and especially the need to take into account the paramount consideration of doing justice between the parties whilst observing that a just resolution must have regard to any relevant legislative purpose or object: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ (“Aon Risk Services”); Fair Work Ombudsman v Nerd Group Australia Pty Ltd [2010] FMCA 569; (2010) 197 IR 431 (“Nerd Group”).
The possibility of delay in the hearing of the Application is a concern if the Application in a Case for Dong Lai to be represented by Ms Vong is refused. A lawyer coming to this matter might consider that there was a need:
a)for further and better affidavit evidence to be provided by Dong Lai;
b)for particulars of the calculation of the quantum claimed by Ms Wong to be provided; and
c)for further time for:
i)a) and b) above to occur; and
ii)the lawyer to become familiar with the case.
Whether the above would necessitate an adjournment of the case presently listed for 13 April 2016 it is not presently necessary to determine, in the absence of a lawyer presently being prepared to act for Dong Lai.
Whilst delay and protraction of proceedings is not consistent with the underlying intent of the FCCA Act or FCC Rules, the paramount consideration remains that justice be able to be properly done between the parties, and to do it is necessary for a proper balance to be struck between competing considerations based on proper judicial consideration of the issues: Aon Risk Services at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Molnar Engineering at [74] per Smithers J.
The Court is also concerned that allegations of forgery and alteration of documents made by both Ms Wong and Dong Lai have the potential to prolong proceedings unnecessarily if both parties remain unrepresented by a lawyer. A lawyer appearing for at least Dong Lai may assist in the more expeditious resolution of these 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.
The Court must also bear in mind that ultimately no lawyer may be found, or be prepared (in the case of a pro bono referral under r.12.02 of the FCC Rules: as to which see below), to act for Dong Lai. In that event it may therefore ultimately be necessary, if only for Dong Lai to be heard, to grant Ms Vong leave to represent Dong Lai. That point, has not however been reached, and for reasons set out below, the Court is not yet persuaded that the opportunity to arrange legal representation has been fully explored by Dong Lai.
At this stage the usual rule that a corporation be represented by a lawyer outweighs any issues with respect to the objects of the FCCA Act and FCC Rules (and to the extent relevant the FW Act) and case management considerations, and thus favours Dong Lai being represented by a lawyer.
Effectiveness of representation and prejudice
At the hearing of the Application in a Case Ms Vong either failed to recognise or did not understand the nature of the Application in a Case being dealt with by the Court and made no relevant submissions. In the Court’s view it is unlikely that Ms Vong will be able to assist the Court or effectively represent Dong Lai insofar as she would be required to:
a)deal with the legal issues, some of which are complex, and factual issues, in respect of which there is substantial dispute, as outlined above: see [21]-[35] above;
b)make opening and closing submissions in relation to the law and facts; and
c)effectively cross-examine Ms Wong (and any other witnesses who might be called for Ms Wong).
The difficulties inherent in Ms Vong representing Dong Lai are not made easier by the fact that she will require an interpreter. Likewise, Ms Wong will require an interpreter. Interpretation will be required both for submissions and cross-examination. At least insofar as there is a necessity to interpret submissions made which would not be required if a lawyer represented Dong Lai, the proceedings will be more protracted than would otherwise be the case. The extent to which they may be protracted may however depend upon Ms Vong’s capacity to cross-examine Ms Wong, which may not be significant if Ms Vong’s representation of Dong Lai at the hearing of the Application in a Case is indicative of her capacity to represent Dong Lai.
The Court notes that Vong’s February 2015 Affidavit notionally demonstrates that she understands at least the core of Ms Wong’s claim. The Court notes, however, that:
a)Ms Vong indicated that that affidavit was created with the assistance of lawyers: Vong’s February 2015 Affidavit at [5]-[7], which is consistent with its form and content, and the fact that it was witnessed by a person said to be a solicitor: Vong’s February 2015 Affidavit at page 12;
b)any alleged understanding of the claim must be viewed through the prism of the assistance referred to in (a) above; and
c)Ms Vong’s understanding of the content of Vong’s February 2015 Affidavit may in fact be limited, given that there is no indication that the content of the affidavit was translated for her, and the alternative jurat for a non-English speaking person has not been completed, which on the face of it is contrary to the requirements of r.15.27 of the FCC Rules for reasons set out above: see [26]-[33] above.
It might be argued that to deny leave to Ms Vong to appear for Dong Lai would be to deny Dong Lai the ability to exercise its right to appear, and even though Ms Vong may not be entirely effective and Dong Lai may suffer some prejudice if leave is granted, greater prejudice would be suffered if Dong Lai were to not appear. This ignores the primary position that a corporation must be represented by a lawyer, and also assumes that Ms Vong’s representation may be in some way effective on behalf of Dong Lai. If Ms Vong appears and is ineffective her appearance may in fact lack utility and be prejudicial to Dong Lai, in that the Court is not confident that Ms Vong will be able to conduct the hearing in a manner both meaningful and workable for the benefit of Dong Lai: see AA Shi Pty Ltd v Avbar Pty Ltd (No.4) [2010] FCA 878 at [35] per Collier J. On the basis of the hearing of the Application in a Case, and the absence of any other steps taken by Dong Lai or Ms Vong without being represented by a lawyer, or without the seeming assistance of a lawyer, the Court is not prepared to assume that less prejudice would be suffered by Dong Lai if Ms Vong were to represent it at the final hearing. In the Court’s view it is self-evident that a lawyer is more effectively able to represent Dong Lai than is Ms Vong, and it is not necessarily the case that Dong Lai would be less prejudiced by allowing Ms Vong to appear for it in the event that it is unable to obtain legal representation.
In relation to the question of prejudice it is not only prejudice to Dong Lai that must be considered, but prejudice to Ms Wong.
It is not to the point that Ms Wong might suffer prejudice if the Court does not grant leave to Ms Vong to represent Dong Lai, because Dong Lai may then be represented by a lawyer. It is not to the point because that is the normal mode of representation where the respondent is a corporation and the applicant is self-represented. It is also a very regular occurrence in proceedings in this Court.
In the circumstances of this case, no prejudice accrues to Ms Wong if Ms Vong is given leave to represent Dong Lai. For reasons set out above, that representation may be ineffectual, and, therefore, if anything, favour Ms Wong, or at the very least, be neutral in its effect: contrast Alcantara where leave to appear was granted under r.9.04 of the then FMC Rules for the director of the respondent corporation to appear for that corporation. The relevant director was, in the Court’s view, sufficiently able to effectively represent the corporation because he knew and understood the facts, comprehended the competing contentions, was able to articulate them sufficiently, and had done so in written submissions filed for the corporation, and in those circumstances was able to effectively represent the corporation in a “relatively simple case”, the latter being a fact which again distinguishes that case from this case: Alcantara at [25] per Lucev FM. In circumstances similar to Alcantara the Federal Court has granted leave for a non-lawyer to appear for a corporation: London City Equities 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) 127 ALD 64 at [4]-[8] per Robertson J. In those circumstances the Court was satisfied that denying the director the right to appear for the corporation would result in greater prejudice to the corporation than in the director not appearing: Alcantara at [26] per Lucev FM. See also McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239 where similar considerations resulted in a grant of leave to appear to the managing director of the respondent corporation.
One other hurdle to effective representation by Ms Vong is that she would be both advocate and witness in the proceedings. It is evident from the content of Vong’s February 2015 Affidavit that she has as much regard to her personal position as she does to that of the corporation: witness, for example, her setting out of her own financial position, but not that of Dong Lai. The undesirability of a person being both witness and advocate in a case such as this where the facts are not simple, and where serious allegations of impropriety are likely to arise, means that there may be that confusion between a person’s role as a witness and an advocate which would colour 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: Alcantara at [23] per Lucev FM, and the cases there referred to.
In circumstances where the Court is of the view that Ms Vong is not capable of effectively representing Dong Lai, for the reasons set out above, this factor favours a refusal of a grant of leave for Ms Vong to represent Dong Lai.
Opportunity to arrange legal representation
Dong Lai was represented by Birman & Ride from at least 4 July 2014 to 15 September 2014. Although Birman & Ride remained formally on the record until 1 October 2014, they did not appear at the mediation conference on 16 September 2014, where Ms Vong appeared for Dong Lai before a Registrar of this Court.
Although Ms Vong asserts that she contacted “legal aid” there is no evidence as to whether Dong Lai has made any enquiries with:
a)any private law firms other than Birman & Ride, or
b)the Law Society of Western Australia or the Western Australian Bar Association, or any of the relevant university or community law centres that might be able to provide further low cost or free legal assistance.
In the absence of such evidence it is not possible to determine whether Dong Lai has availed itself of all available opportunities to arrange legal representation, and it may be that if the opportunity is taken that further legal representation, either paid or on a low cost or free legal assistance basis, might be forthcoming. At this stage, therefore, this factor does not favour the grant of leave to Ms Vong to appear for Dong Lai at the hearing of the Application.
Financial position
A corporation that is impecunious is not automatically entitled to be represented by a non-lawyer: Australian Consumer & Competition Commission v Dataline.net.au Pty Ltd [2004] FCA 1361 at [4] per Kiefel J; Fair Work Ombudsman v Finetune Holdings Pty Ltd & Anor [2010] FMCA 889 at [41] per Lucev FM (“Finetune Holdings”). Assertions of impecuniosity do not suffice: evidence is required: Finetune Holdings at [42]-[45] per Lucev FM.
Vong’s February 2015 Affidavit asserts that:
a)representation by Birman & Ride ceased because “she” did not have enough money to pay for outstanding accounts or any additional retainer: Vong’s Application in a Case Affidavit at [6]-[7];
b)Dong Lai was struggling to make a profit: Vong’s February 2015 Affidavit at [74];
c)Ms Vong earned $550 per week, and had vehicle expenses of $480 per month: Vong’s Application in a Case Affidavit at [12]-[13]; and
d)she sought legal aid but was unsuccessful: Vong’s Application in a Case Affidavit at [15].
These were bare assertions. No documentary or corroborative evidence was provided. There is no affidavit evidence as to the financial position of Dong Lai. Nor is there any evidence of whether Dong Lai remains registered, or whether it is still trading, both of which might be relevant to a consideration of its financial position, even if only for the purposes of drawing an inference that because it was still registered and trading it was not, or should not be, insolvent.
The Court’s view is that there is insufficient evidence to demonstrate that the financial position of Dong Lai is such as to prevent it from being legally represented. The absence of evidence referred to above is such that no “reasonable and definite” inference may be drawn that had Dong Lai had the financial capacity to retain a lawyer then it is probable Birman & Ride would not have ceased to act for it: 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 at [38] per Weinberg, Bennett and Rares JJ.
Whether leave to appear is opposed
Representation of Dong Lai by a non-lawyer is not opposed by Ms Wong. Ms Wong indicated that she had no objection to the merits of Dong Lai’s application to be represented other than by a lawyer. Although this is a factor that the Court must weigh in determining whether leave for Dong Lai to appear other than by a lawyer ought to be granted, the Court does not in this case attribute to it much weight in the overall consideration of the factors, as the importance of Ms Wong’s lack of opposition is significantly outweighed by the other factors which the Court must consider.
Conclusion – leave to appear by a non-lawyer
Having regard to the views 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, and whether or not a non-lawyer (in particular Ms Vong) can effectively represent Dong Lai, the Court has concluded that Dong Lai’s Application in a Case, insofar as it seeks leave under r.9.04 of the FCC Rules for a non-lawyer (that is Ms Vong) to represent it, should be dismissed.
Consideration – pro bono referral
Legislative provisions
Dong Lai purports to have made an application for a referral pursuant to r.12.02 of the FCC Rules, which provides as follows:
(1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with the approved form.
(2) When making a referral under subrule (1), the Court may take the following matters into account:
(a) the means of the party;
(b) the capacity of the party to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
(3) The referral certificate may state the kind of legal assistance for which the party has been referred.
(4) The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.
Law
Dong Lai has no right to apply for a referral: FCC Rules, r.12.03, although, that does not prevent a party from raising the question as a means of initiating the Court’s consideration of the exercise of its discretion: Fuller v Toms [2012] FCA 27 at [94] per Barker J (“Fuller”). (There was an unsuccessful appeal from Fuller, but the appeal did not go to the issue of the pro-bono referral: Fuller v Toms [2012] FCAFC 155.) In that respect, the rules were amended, with effect, from 23 May 2012 to preclude such applications being made: Federal Magistrates Court Amendment Rules 2012 (No.1) (Cth), r.1, sch.1 item 6. The issuance of a pro bono referral certificate is, therefore, an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner ofTaxation (No. 2) [2000] FCA 1734; (2000) 106 FCR 134; (2000) 181 ALR 597, and an exercise of a discretion of the broadest type by the Court in which the Court is not restricted to the specific factors listed in r.12.02(2)(a)-(c) of the FCC Rules: Fuller at [96] per Barker J; Bartucciotto v Western Health Care & Ors [2007] FMCA 26; (2007) 94 ALD 387 at [24] per Lucev FM (“Bartuciotto”).
Consideration
Ms Vong’s Application in a Case Affidavit addressed the relevant factors. There is a significant factorial, and hence factual, overlap with the consideration of whether to grant leave to Dong Lai to appear by a non-lawyer.
Means
The Court adopts the view expressed at [62] above that there is insufficient evidence to determine the financial capacity of Dong Lai.
Capacity to otherwise obtain legal advice
The Court adopts the view expressed at [58] above that Dong Lai may not have exhausted or not fully utilised available means of obtaining legal advice.
Nature and complexity of the proceeding
The Court adopts the view expressed at [21]-[35] above that these proceedings are complicated, and observes that the appearance of a lawyer, even for one party, would be of significant assistance to the Court: cf Bartucciotto at [35]-[37] per Lucev FM.
Other appropriate matters
The Court is entitled to take any other matters it considers relevant into consideration as to whether to issue the pro bono referral certificate.
The Court has taken into account:
a)whether the matter may be delayed if a lawyer acted for Dong Lai and the matter was to be further adjourned; and
b)the likely ineffectiveness of Ms Vong as an advocate for Dong Lai.
Conclusion – pro bono referral
Having regard to all relevant factors, but in particular to the nature and complexity of the proceeding and the necessity for effective representation of Dong Lai, the Court has concluded that it is appropriate to issue a pro bono referral certificate for a lawyer to provide legal advice to Dong Lai, and to represent Dong Lai at the hearing on 13 April 2016.
Given that the issuance of a pro bono referral certificate is an administrative function the Court has also considered whether a pro bono referral certificate ought to issue for Ms Wong to be provided with legal advice and representation at the hearing on 13 April 2016. The Court has decided, for essentially the same reasons that it has determined to issue a pro bono referral certificate to Dong Lai, namely the nature and complexity of the proceeding and the necessity for effective representation, that a pro bono referral certificate ought to issue to Ms Wong, notwithstanding that she has not sought one.
In the above circumstances, the Court will issue pro bono referral certificates for both Dong Lai and Ms Wong for the provision of legal advice and representation at hearing on 13 April 2016. Given the terms of r.12.03 of the FCC Rules it is unnecessary for the Court to make orders with respect to the pro bono referral certificates, and they will issue administratively from the Court.
Orders
Having regard to the conclusion set out at [64] above the Court orders that Dong Lai’s Application in a Case be dismissed insofar as it seeks leave under r.9.04 of the FCC Rules for a non-lawyer to carry on these proceedings for Dong Lai.
As Ms Wong is self-represented, and as Dong Lai was not legally represented, and having regard to s.570(2) of the FW Act, there will be no order as to costs.
As indicated above, the issuance of pro bono referral certificates is an administrative function of the Court, and it is unnecessary to make orders in regard to the issuance of pro bono referral certificates for both Dong Lai and Ms Wong. There will be an order for liberty to apply.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 January 2016
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