COLVIN J:
1 In June 2021, Mr Peter Wilkinson commenced a representative proceeding in this Court against Wilson Security Pty Ltd and Mr Jose Canadas, a manager employed by Wilson Security. Mr Wilkinson sought orders pursuant to s 545 of the Fair Work Act 2009 (Cth) and orders for the payment of pecuniary penalties. He claimed that security officers who had worked for Wilson Security had been underpaid and had not been given corrected pay slips. The application originally related to the period 31 March 2014 until 18 December 2019 but by amendment the commencement date for the period was changed to 31 March 2015.
2 The group members were described as people who had worked as fly-in fly-out security officers at four Woodside Petroleum sites located on the Burrup Peninsula in Western Australia, namely Karratha Gas Plant, Pluto LNG Park, King Bay Supply Base and Burrup Materials Facility. Subsequently, there was an amendment to the group description which added a condition to the effect that group members were those covered by the Security Services Industry Award 2020. It appears that there are over 200 members of the group as described (counting both existing and former employees of Wilson Security).
3 Mr Wilkinson is not a lawyer. He commenced the proceeding and continued to conduct them without any legal representation.
4 In March 2022, Wilson Security applied for an order that the proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth). They did so on the basis that it was not appropriate to allow Mr Wilkinson to continue to conduct the representative proceedings without legal representation. They identified certain respects in which it was said that despite the best efforts Mr Wilkinson there had been problems for the fair and just conduct of the proceedings.
5 Part IVA is silent on the question whether a representative applicant can conduct representative proceedings without being legally represented.
6 The application by Wilson Security relied upon the terms of s 33N(1)(d) of the Federal Court of Australia Act. Relevantly for present purposes, it provides that the Court may on application by the respondent to representative proceedings order that a proceeding no longer continue under Part IVA where it is satisfied that it is in the interests of justice to do so because 'it is otherwise inappropriate that the claims be pursued by means of a representative proceeding'.
7 Mr Wilkinson does not oppose the application. However, he has made submissions to the effect that there should be notification to group members that the proceedings are not continuing as a representative action, that the suspension of the limitation period for the claims effected under Part IVA will come to an end and informing group members that they can seek their own redress.
8 Wilson Security does not oppose the inclusion of conditions to any order that the proceedings no longer continue under Part IVA that would require notification to class members. It has proposed a form of order to reflect that position.
9 For the following reasons, I am satisfied that there should be orders substantially in the terms of the form of order provided by Wilson Security.
10 In Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583, I joined with Murphy J in describing certain characteristics of a representative proceeding. For present purposes, the following aspects are significant:
(1) the applicant in representative proceedings has fiduciary obligations to the group members (at [209]);
(2) the fiduciary obligations of a representative applicant will include responsibilities to inform group members of steps being taken that may affect the interests of group members (at [210]);
(3) under Part IVA the representative party nominates him or herself as applicant, the class member is not required to consent to the appointment of the applicant and has no choice in that regard, class members may have received no legal advice as to their interests or even be aware that the case has been commenced, and class members' claims are often an amalgam of common claims and claims which are individual to the class member (at [240]); and
(4) the representative character of the proceedings confers upon the applicant authority to conduct the proceedings as to the common question (the outcome of which will be binding on those who do not opt out) and to conduct settlement discussions so as to settle those common claims on agreed terms as approved by the Court (at [248]-[251]).
11 To these matters may be added the fact that representative proceedings are inherently complex. They require considerable care in the definition of group members, the notifications concerning opting out and the steps to be taken in the conduct of the common questions.
12 Where, as here, the representative proceedings are being conducted without legal assistance then the Court is placed in a position where, in effect, it is required to supervise the performance by the applicant of his fiduciary obligations in the conduct of the proceedings. The Court is unable to look to the lawyers for the representative applicant as independent officers with duties to the court to perform their obligation to act in the interests of the group members when dealing with the determination of the common questions by proceedings or settlement: as to which obligation, see Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323 at [220], [308] (Murphy J).
13 In its report on representative proceedings (described therein as grouped proceedings), the Australian Law Reform Commission dealt with whether a representative applicant should be legally represented. It said (at paras 199-201):
Legal representation
Existing Law. Should a principal applicant be required to have legal representation? An individual involved in court proceedings is not required to be legally represented but, except with the Court's leave, corporations must appear by a solicitor. The rationale for this distinction is that, while a person's access to the Courts should not be restricted by requiring costly legal representation, corporations can only appear by an agent. The most appropriate agent would, generally speaking, be a solicitor. Factors which have been taken into account by the Court in determining whether its discretion should be exercised in favour of allowing a corporation to appear, otherwise than by a solicitor include the financial state of the company, the identity of the shareholders and the spread of the shareholding and the capacity of the person intending to conduct the litigation. Given that the absence of legal representation may 'operate to the detriment of a company', shareholders' interests are more likely to be protected when a company appears by a solicitor. A similar policy consideration underlies the requirement that a tutor suing for or defending an infant or mentally disabled person must act by a solicitor.
Legal representation in grouped proceedings. Unless specific provision is made, the principal applicant could, under the normal Rules of Court, conduct his or her own proceeding and, as a consequence, group members' proceedings, without legal representation. The fact that a principal applicant has his or her own interests to consider as well as a duty to act in the interest of group members means that representation by qualified solicitors and barristers is likely to be the best way to preserve the interests of all affected. In addition, the technical and procedural requirements of grouped proceedings suggest that independent legal representation should be a requirement. Later recommendations provide a mechanism for legal costs to be shared among group members.
Recommendation. A principal applicant should not be able to conduct a group member's proceeding otherwise than by a solicitor or barrister who is not a group member except with the Court's leave …
14 As noted in the Commission's report, it has long been the case that, without leave, a corporation cannot proceed in court other than by a lawyer. In order to obtain leave, it is not necessary to establish 'special or exceptional circumstances'. The Court's power to dispense with the requirement that a company appear by a lawyer is exercised by reference to 'all relevant considerations': see Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 at [18]. The rationale for the rule was explained by French J in Simto Resources Ltd v Normandy Capital Ltd [1993] FCA 468; (1993) 10 ACSR 776 at 781 in the following terms:
… the rationale for the restriction which in large part is related to the proposition that persons should not be represented in superior courts other than by legally qualified agents who not only possess the relevant skills to conduct litigation but also are bound to observe certain duties to the court itself. Of course, any natural person may represent himself or herself. But a company being a fictitious legal person must always be represented by another. And that attracts the application of the principle that representation by an agent should be limited to legally qualified persons subject to the inherent and residual discretion of the court to waive the requirement in appropriate circumstances.
15 A similar position pertains to native title proceedings where leave is required for a person other than a barrister or solicitor to represent a party: see s 85 of the Native Title Act 1993 (Cth); and Miller v South Australia (Far West Coast Sea Claim) [2017] FCA 790 at [14]-[16] (White J). Such proceedings have been dismissed in circumstances where a party did not obtain legal representation: Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981; and Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411.
16 As to representative proceedings, in McIntyre v Eastern Prosperity Investments Pte Ltd (No 4) [2002] FCA 1133, French J dealt with an application to strike out a statement of claim in representative proceedings that had been on foot for some 20 months 'without yielding a viable statement of claim'. The proceedings were being conducted without legal assistance by Mr McIntyre and his wife as representative applicants. His Honour summarised the position as follows (at [25]):
In the present circumstances, there is no reason to believe that the position will be improved by the grant of further leave to replead. Mr McIntyre, acting on his own behalf and on that of the various Group Members, has shown sincerity, commitment and energy in pursuing his and their interests. The demands that the representative process makes of him are too great to enable him to respond adequately in the absence of competent legal representation. This means not only that he incurs successive costs orders which he may or may not be able to meet but also that there is unfair prejudice to the respondents.
17 His Honour made an order striking out the statement of claim and a further order to the effect that the proceedings no longer continue as a representative proceeding unless the applicant and the group members are able to engage a solicitor on the record to represent them: at [27].
18 In Boase as Trustee for Boase Family Trust v Brook [2015] WASC 23, Chaney J considered whether representative proceedings being conducted by representative applicants who were not legally represented should be allowed to be continued in that form. It appears that the applicants had legal representation at the outset, but lawyers were no longer acting. In circumstances where the representative applicants were not lawyers, where an issue had been raised as to whether Mr Boase should contribute to any damages on the basis that he was a concurrent wrongdoer if the claim was upheld and where Mr Boase would inevitably be a witness in the proceeding, his Honour required that all group members be notified of the possibilities for the future conduct of the proceedings (as set out in the reasons) and there be a further hearing to determine the future course of the proceeding: at [45]-[49].
19 Implicit in the reasoning in both McIntyre and Boase is an acceptance of the possibility that a person may have the conduct of representative proceedings as the representative applicant even though that person is not a lawyer. It treats such an applicant as being in the same position as an individual who acts on their own behalf and then looks to the overall power of the court to supervise the conduct of representative proceedings in the interests of justice, including by ordering that the proceedings no longer continue with that character, as the basis for ordering that such proceedings not continue.
20 With respect to those who have approached the issue on the basis that a representative applicant is to be treated in the same way as any litigant who acts on their own behalf, I have difficulty with viewing such an applicant in that way. Under Part IVA a representative applicant does not commence proceedings solely in the personal interest of the applicant. As has been explained, the representative applicant has the conduct of proceedings as to the common question for every group member. The representative applicant conducts the proceedings as a representative of all those group members who do not opt out. Each of those group members who does not opt out is bound by the determination of the common questions. It seems to me that it would be necessary to explain that position with great care in any opt out notice if a representative applicant was to have conduct of representative proceedings without legal assistance. In effect, a group member who did not opt out would, by failing to take the affirmative step of ceasing to be a group member, be treated as having appointed the representative applicant to conduct proceedings on their behalf without the involvement of lawyers to represent the interests of those group members. If lawyers are not involved then the forensic decisions in the proceedings conducted for group members are made by the representative applicant who also makes submissions for the group members. In a real sense, such a representative applicant conducts the proceedings as agent for the group members.
21 Lay people do not have the right to act as an advocate for another without leave of the court: Collier v Hicks (1831) 2 B & A 663 (Parke J); and O'Toole v Scott [1965] AC 939 at 952. As Malcolm CJ said in Schagen v The Queen (1993) 8 WAR 410 at 412:
It would be a rare and exceptional case … in which a person other than a duly qualified legal practitioner would be permitted to address the court or otherwise take an active part in proceedings.
22 Therefore, I have very real doubts as to whether, without leave first obtained, a representative applicant is able to take an active role in the making of submissions and otherwise undertaking the forensic conduct of representative proceedings on behalf of group members. I suggest that the appropriate course to be followed where a person seeks to do so is for leave to do so to be sought at the earliest opportunity. If leave is refused, as I expect it would be in almost all instances, then the proceedings will come to an end if legal representation is unable to be obtained.
23 However, given that the proceedings in the present case have been conducted for some time during which period the limitation period on the claims has been suspended, it is appropriate for notice to be given to group members so that they can consider whether any of them wishes to take steps to secure legal representation and appoint another representative applicant, thereby securing the continuation of the group proceedings. Alternatively, they may wish to commence their own individual proceedings before any order is made bringing the representative character of the present proceeding to an end. Otherwise, having regard to the period the subject of the claims, there is the prospect that certain of the claims will be out of time after the representative character of the proceeding is brought to an end. In that regard, I note that the proposed orders would allow a period of 14 days after the proceeding ceases to be a representative proceeding (which would occur if there was no objection from any group member) before the suspension of the limitation period would end. This would enable a group member to commence an individual claim if that person wishes to do so.
24 The orders proposed will afford appropriate protections to group members. In all the circumstances, there should be orders substantially in the terms proposed. In making those orders, I direct no criticism towards Mr Wilkinson. He has acted with sincerity, commitment and energy throughout. He has sought to do what he considers to be fair and proper and has been amenable to dealing with objections raised by those acting for Wilson Security and Mr Canadas. However, the task is considerable and, for reasons I have given, the instances in which it may be appropriate for a person who is not legally represented to have the conduct of representative proceedings will be rare and, in my view, should occur only where leave has been given for such a course.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.