[44] Be that as it may, for the reasons earlier stated, we consider that s.596 is not confined to permission for courtroom advocacy, and indeed appears to have been drafted in a way that is deliberately distinct from the predecessor provisions and was intended to put beyond doubt that all aspects of representation in connection with a matter were to be encompassed. The only relevant limitation on the scope of representation identifiable in s.596(1) is that it must be in a matter before the FWC. That would naturally exclude legal and agency services provided in relation to a justiciable controversy under the FW Act before an application to the Commission is made, and would probably also exclude the provision of legal advice to a party, inter partes dealings and other activities which do not involve interaction with the Commission itself even after an application is made to the Commission.
[45] On that basis, s.596 operates in conjunction with rules 11 and 12 in respect of unfair dismissal applications in the following way. Where an applicant engages the services of a lawyer or paid agent, representation begins at the point that the application to the Commission is made on the applicant's behalf. All dealings with Commission undertaken on behalf of either party from that point onwards in connection with the application constitute representation. Rule 11(1) operates to require the lawyer or paid agent to lodge a "notice of representative commencing to act" as soon as representation in the sense discussed commences. However, notwithstanding that representation has commenced in relation to the application, permission under s.596(2) for any representational activities undertaken prior to or outside of a conciliation conference, determinative conference, or interlocutory or final hearing will generally not be required because rule 12(1) exempts, subject to any contrary direction made under rule 12(2), the making of written applications and written submissions, the lodgment of documents with the Commission and correspondence with the Commission from the general prohibition in s.596(1). If a party considers themselves to be prejudiced by such representational activity on behalf of the opposing party, the remedy is to apply for a direction under rule 12(2) which, if granted, would require the opposing party to seek permission for representation to the necessary extent under s.596(2).
[46] The Sparke Helmore tax invoice provided in support of Woolworths' costs application, which we have determined to take into account in our consideration of this appeal, demonstrates that Woolworths was being legally represented in relation to Mr Fitzgerald's unfair dismissal application from at least early February 2017. Sparke Helmore was involved in, among other things, corresponding with the Commission on behalf of Woolworths and the making of written submissions by way of their preparation. In the circumstances it should have, but did not, file a "notice of representative commencing to act" in accordance with rule 11(1). Notwithstanding that, it was not required to obtain permission for those representational activities undertaken prior to the hearing on 3 March 2017 because they were exempted by rule 12(1).
[47] That brings us to the role of Mr Bennett of Sparke Helmore at the hearing on 3 March 2017. It was conceded by Woolworths in the appeal that his activities at the hearing involved the provision of professional legal services to Woolworths in connection with Mr Fitzgerald's unfair dismissal matter before the Commission. Indeed it could not be otherwise given that Sparke Helmore charged Woolworths for the attendance in its tax invoice. The question is how Sparke Helmore could be said to be providing professional legal services to its client Woolworths by attending an arbitration hearing without being characterised as representing Woolworths before the Commission for the purpose of s.596.
[48] We have already rejected the proposition that s.596(1) is to be construed as being confined to representation by way of oral advocacy, so the fact that Ms Barclay undertook the advocacy and Mr Bennett provided assistance to her in the conduct of that advocacy is not demonstrative that legal representation was not being provided. His practical role appears to have been, at least, roughly analogous to that taken by an instructing solicitor and/or junior counsel assisting senior counsel in the conduct of a matter on behalf of a client. In that situation it could not seriously be suggested that only the senior counsel is representing the client before the Commission but the other members of the legal team are not.
[49] As earlier noted, Woolworths contended that Mr Bennett's role was that of a "McKenzie friend" providing assistance to a non-professional advocate rather than that of a legal representative. The role of a McKenzie friend was described in a decision of the Family Court (Lindenmayer J) in Watson & Watson[28] as follows:
