Wong v Dong Lai Sun Massage Pty Ltd

The Federal Circuit Court of Australia considered an application by the respondent, Dong Lai Sun Massage Pty Ltd (Dong Lai), for leave to be represented by a non-lawyer and for a pro bono referral certificate. The applicant, Man Wong, had brought proceedings alleging dismissal in contravention of section 352 of the Fair Work Act 2009 (Cth) due to a temporary absence from work caused by injury, and also claimed underpayment of wages and overtime, and other contractual claims. Dong Lai sought to have its director, Ms Vong, represent it in the proceedings.

The court was required to determine whether to grant Dong Lai leave to be represented by a non-lawyer, considering the complexity of the substantive claims and the relevant rules of the Federal Circuit Court. Additionally, the court had to consider whether to issue a pro bono referral certificate for Dong Lai, which is an administrative function to facilitate legal advice and representation. The substantive application involved significant factual disputes regarding the nature of Ms Wong's employment, the reasons for her absence from work, the provision of medical certificates, and the calculation of her entitlements.

In its reasoning, the court applied the principles governing the exercise of discretion under Rule 9.04 of the Federal Circuit Court Rules 2001, which requires corporations to be represented by a lawyer unless leave is granted. Factors considered included the complexity of the matter, the financial position of the party, the potential prejudice to other parties, and the objects of the Act and Rules. The court found that the substantive application, involving multiple complex legal and factual issues such as the interpretation of employment contracts, statutory contraventions, and the impact of a workers' compensation settlement, was too complex to be effectively managed without legal representation. The court also noted potential issues with the admissibility of evidence due to the affidavits not appearing to comply with translation requirements.

Consequently, the court dismissed Dong Lai's application for leave for a non-lawyer to represent it. However, the court noted that pro bono referral certificates were to be issued to both parties to provide legal advice and representation at the hearing. No order was made as to costs, and liberty to apply was granted.