Complete Windscreens (SA) Pty Ltd v Fair Work Ombudsman

CHARLESWORTH J: 1 The appellant, Complete Windscreens (SA) Pty Ltd, applied for leave to appear on this appeal other than by a lawyer. It proposes that it be represented on the appeal by its operations manager and shareholder, Mr Hadyn Dean. 2 I dismissed the application. I gave oral reasons for doing so and said that I would publish written reasons at a later time. These are my written reasons.

The appeal 3 The appeal is against a judgment of a single judge of this Court. On the application of the Fair Work Ombudsman, the learned primary judge made declarations that Complete Windscreens had contravened various provisions of the Fair Work Act 2009 (Cth), the Workplace Relations Act 1996 (Cth) and other statutory provisions safeguarding its employees' entitlements. His Honour further declared that Mr Lindsay Dean, being the company's sole director, was involved in Complete Windscreens' contraventions. His Honour ordered Complete Windscreens to pay civil penalties totalling $73,425 and to pay compensation to specified employees for underpayment of their employee entitlements. The learned primary judge also ordered Mr Lindsay Dean to pay civil penalties in the amount of $11,220. 4 The company was legally represented in the proceedings below by a firm of solicitors and experienced counsel. 5 Complete Windscreens did not make an application to be represented by a person other than a lawyer at the time that it filed the notice of appeal. The notice of appeal was not drafted by a lawyer. So much was acknowledged by Hadyn Dean and is apparent on the face of the document. There are some anomalies in the document, including: (1) although Lindsay Dean was a party to the proceedings below, he is not named as a party on the appeal; (2) the orders sought to be appealed against include orders made against Lindsay Dean; and (3) the error alleged in the single ground of appeal is one that, if established, could not on any view justify the Court on appeal disturbing all of the orders appealed against. By way of example, the learned primary judge determined that Complete Windscreens had failed to issue payslips to employees. His Honour's impugned factual finding is not one that could bear in any way on that contravention. 6 Not all of these anomalies affecting the notice of appeal are acknowledged by Hadyn Dean on this application.

Conduct of the appeal to date 7 The dealings between the parties in connection with the appeal were deposed to in an affidavit of the respondent's solicitor Ms Nikki Haig affirmed on 13 April 2017. The following narrative of facts is drawn largely from that affidavit. 8 The appeal was filed on 2 February 2017 and listed for a case management hearing on 23 March 2017. 9 Prior to that hearing, Ms Haig sent a letter directed to the proper officer of Complete Windscreens. Among other things, Ms Haig identified the apparent anomalies in the notice of appeal and brought the company's attention to a rule of this Court requiring that a body corporate be represented by a lawyer. Ms Haig also drew the company's attention to the obligations of an appellant in conducting an appeal, including in respect of the preparation and filing of appeal books. Complete Windscreens did not respond to that letter. When contacted by the respondent's solicitor, Hadyn Dean stated he would not be responding. 10 Hadyn Dean has explained in oral submissions on this application that he considered that the disputes arising on the appeal ought be the subject of submissions in open court and that he was therefore not obliged to respond to the letter. Ms Haig also sent a letter, directed to Lindsay Dean. She received no response. When she telephoned Lindsay Dean in relation to that letter, he said, "I have paid my penalty, I am not part of it". 11 Hadyn Dean made oral submissions to the Court to the effect that Lindsay Dean is suffering from a serious illness and that he seeks to have him protected from the stress that might be attended with the prosecution of the appeal. No evidence has been adduced in support of the allegation that Lindsay Dean is ill. 12 Hadyn Dean appeared at the case management hearing on 23 March 2017 without first making an application to do so. He asserted that he had the authorisation of Lindsay Dean to represent the company on the appeal. No affidavit had been filed to that effect and Hadyn Dean did not produce any other form of written notification evidencing authorisation by the company's sole director for him to appear on the company's behalf. 13 I granted Hadyn Dean leave to appear on behalf of the company for the purposes of that hearing only. I made an order requiring him to file and serve an affidavit evidencing his authority to act on behalf of Complete Windscreens in respect of the filing of the notice of appeal and to appear on behalf of the company at the first case management hearing. 14 I then made an order requiring Complete Windscreens to either appoint a lawyer or file and serve an application for leave to proceed other than by a lawyer. 15 Complete Windscreens did not appoint a lawyer. Instead, it has filed two applications. By one application it seeks orders to the apparent effect that the orders requiring Complete Windscreens to pay civil penalties and compensation be stayed pending the hearing and determination of the appeal. The application is said to have been prepared on behalf of the company by Hadyn Dean. It may be put aside for the moment. 16 The second application seeks an order expressed in the following terms: Leave for the Applicant to proceed to act in this matter without a lawyer. 17 That application is also said to have been prepared by Hadyn Dean. I proceed on the basis that Hadyn Dean is the non-lawyer proposed by the company to represent it. The application is supported by affidavits sworn by Hadyn Dean on 24 March 2017 and 31 March 2017. The latter affidavit relevantly states (original spelling and retained): 3. The Applicant is seeking an Application to Act without a lawyer as set out in section one of the Interlocutory Application. 4. The Applicant sights they have a better knowledge and understand of the evidence lodged in this matter which to date despite previous attempts all solicitors / Barristers and His Honor Judge Basenko have failed to fully understand the relationship between the GPS Records, Day books and the claimants time book records which has an effect on Judge Basenko decision in this matter. 18 Hadyn Dean made submissions on this application substantiating that claim and submitting that he was in the best position of all people to explain to a Full Court the nature of the asserted appealable error and the basis for it. At times, his submissions on this application strayed into the merits of that argument, however I accept that Hadyn Dean was at those times attempting to demonstrate to the Court that he did indeed have the skills to present oral arguments in connection with the appeal and the matters arising on it. No other substantive reasons are given in support of the application for Complete Windscreens to appear on the appeal, other than by a lawyer.

Rule 4.01(2) 19 A corporation must be represented by a lawyer in proceedings in this Court: r 4.01(2) of the Federal Court Rules 2011. The Court may, in its discretion, dispense with that requirement: r 1.34. The discretion is to be exercised having regard to all relevant considerations. Although it is not necessary for a company to establish "special or exceptional circumstances", the Court should be satisfied that there is a reason to depart from the ordinary rule. 20 In her written submissions, Counsel for the respondent has distilled from the authorities a number of factors that may be taken into account in the exercise of the discretion. I gratefully reproduce that part of Counsel's submissions as a correct but not exhaustive statement of the matters that may be taken into account: (a) the ability of the proposed representative to display the objectivity expected from a legal practitioner; (b) the skills, training, qualifications and experience of the proposed representative and their capacity to conduct the proceedings effectively; (c) the factual complexities of the case and the capacity of the proposed representative to conduct it effectively; (d) whether the lack of disciplinary measures in relation to the person seeking to represent the company will affect the administration of justice; (e) the overarching purpose of civil practice and procedure set out in section 37M of the Federal Court of Australia Act 1976 (Cth), that is, the just resolution of disputes in accordance with the law and as quickly, inexpensively and efficiently as possible; (f) whether the case can be conducted in an orderly and responsible fashion without a solicitor; (g) the manner in which the case has progressed to date; (h) the manner in which the case can proceed in the future without a solicitor; (i) the effect on court resources and in particular on other litigants in the court list if the company were to appear without a solicitor; (j) whether the company in question is the Respondent, in which case a more liberal approach to dispensing with the requirement may be warranted; (k) the financial capacity or lack of capacity of the corporation and those standing behind it; and (l) whether there are financial considerations which would inhibit a company from obtaining legal representation.

Consideration 21 I am not satisfied that there is a sufficient basis for the grant of leave to Complete Windscreens to appear on the appeal, other than by a lawyer. Although Hadyn Dean submitted that there were financial to reasons to justify the grant of leave, he acknowledged that the Court could not proceed on the basis of assertions of fact made from the bar table. The company has not produced any evidence as to its financial position. 22 The company has not deposed to there being any financial or practical reason as to why a lawyer ought not be engaged. Had it done so, any financial difficulty that might be suffered by the company would have weighed heavily in the exercise of my discretion. I would consider that circumstance to give rise to an access to justice issue and one that would ordinarily justify a grant of leave subject to other considerations being met. 23 Rather, assuming the subjective opinion of Hadyn Dean to reflect that of the company, Complete Windscreens takes the view that it may more capably represent its interests on the appeal by appearing through a non-lawyer rather than solicitor and counsel. In the absence of evidence of financial restraints, I do not consider the company's preference in this regard to be a sufficient reason to grant leave, irrespective of the identity of the non-lawyer proposed by the company to represent it. Moreover, the company's claim that no solicitor or barrister is capable of understanding the position it seeks to advance on the appeal should not be accepted as a matter of common sense. To the extent that Complete Windscreens might be dissatisfied with any legal services it has received in the past, that circumstance may be addressed by the engagement of alternative solicitors or alternative counsel. 24 As to the proposal that Complete Windscreens be represented by Hadyn Dean, I am not satisfied that he has the necessary degree of objectivity and skill that may reasonably be expected of the representative of a corporation in proceedings before this Court. In arriving at that conclusion I have weighed in the balance the following factors. 25 The ground of appeal was drafted by Hadyn Dean. It asserts an error of fact. It does not, however state the precise basis upon which the finding of fact should be disturbed. In his submissions on this application, Hadyn Dean did not appear to appreciate the necessity to address principles concerning the exercise of appellate restraint in respect of impugned findings of fact. 26 Counsel for the respondent submitted that the lack of particularity in the ground, as presently expressed, is one that affects the proper conduct of the appeal, and not merely its determination on the merits. I accept that submission. The lack of particularity has consequences that bear on the fairness of the conduct of the appeal and the efficiency of its preparation. The respondent is entitled to know the factual and legal basis upon which the appeal is brought. Hadyn Dean demonstrated an unwillingness to address these issues, at least until submissions on the application had concluded. 27 Although he is not a lawyer, Hadyn Dean ought reasonably be expected to appreciate the necessity to respond to reasonable communications made by an opposing party in legal proceedings. His failure to respond to the respondent's correspondence or to take heed of any genuine concerns raised in the correspondence indicates an unwillingness to engage with the respondent in relation to the regular and efficient preparation of appeal materials. He submitted that although there was an initial failure to appreciate the importance of responding to correspondence and preparing documents for the appeal, he was now willing to comply with any order of the Court in relation to the progress of the matter to a hearing. I nonetheless consider Hadyn Dean's sense of responsibility to be wholly reactive. He has not, for example, done anything to regularise the notice of appeal in respect of those anomalies that he acknowledges do exist. Furthermore, he has not acknowledged that it is necessary, in the absence of an order to the contrary, that all parties to the proceedings below be joined as parties on the appeal. It is not conducive to the proper conduct of the appeal to have an appellant that only moves to prepare and regularise documents in response to orders from the Court itself. I am not satisfied that Hadyn Dean has familiarised himself with the rules of the Court that govern the obligation of an appellant. All of that adds an additional burden to the respondent and, indeed, to the Court itself. 28 Hadyn Dean acknowledged in submissions that he was intimately connected to the subject matter of the proceedings and emotional about the litigation. I infer from his submissions that he is angry and frustrated with the respondent in connection with the conduct of the proceedings before the learned primary judge. Whether or not those feelings are justified, I consider that they inform to some extent, the lack of progression of the appeal to date. 29 The deficiencies in the documents are such that the Court cannot in any event be satisfied that Lindsay Dean is aware of the applications that have been made or purportedly made on behalf of the company, nor that he has formally authorised Hadyn Dean to act on the company's behalf. Rather, it appears that Lindsay Dean has sought to distance himself entirely from the fact and conduct of the appeal. The Court cannot be satisfied that Lindsay Dean is furnishing Hadyn Dean with instructions concerning the proper conduct of the appeal at all. Written submissions relied upon on this application were not signed by Hadyn Dean but by another person, not being an officer of the company. The Court can have no confidence that any officer of the company authorised the commencement of the appeal prior to the notice of appeal being filed, nor that it has since ratified the decision to commence the appeal and approved the sole ground upon which it is brought. 30 Furthermore, it is a matter of some importance that Hadyn Dean was a witness in the proceedings below. He gave evidence on the very factual question to which the single ground of appeal relates. His evidence was said by the learned trial judge to be unsatisfactory. Even if there were a proper basis to permit Complete Windscreens to be represented by a person other than a lawyer, I am not satisfied in all of the circumstances, that Hadyn Dean is the appropriate person. 31 I decline to exercise my discretion, to dispense with the requirements of r 4.01(2). The application purportedly filed or purportedly filed on behalf of Complete Windscreens to be represented by a person other than a lawyer is dismissed.

Stay 32 As I have mentioned, the application for a stay of certain orders of the learned primary judge is one that was prepared and filed by Hadyn Dean purportedly on behalf of the company. As I have refused to grant leave to Complete Windscreens to appear on the appeal other than by a lawyer, I do not recognise the stay application as one that has properly been made on the appellant's behalf. That application should be struck out as a consequence of my dismissal of the company's application to be represented by a non-lawyer. It remains open to the appellant to file a competent application for a stay of the orders made in the proceedings below. In the absence of a stay, however, it remains obliged to comply with the orders of the learned primary judge. 33 The appeal should be set down for a further case management hearing, allowing a short period in which Complete Windscreens may arrange its legal representation. I will direct the respondent to bring the orders made today, together with these reasons, to the attention of the appellant by its director Lindsay Dean. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.