FEDERAL COURT OF AUSTRALIA

Finch v Heat Group Pty Ltd [2014] FCA 236

THE COURT ORDERS THAT:

1.    The applicant’s application for a referral for legal assistance under rule 4.12 of the Federal Court Rules 2011 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This proceeding was listed today in court for the purposes of hearing the respondents’ interlocutory application filed on 3 May 2013. That application has been stood over in circumstances which do not need to be related. However, the applicant was permitted to use the occasion to raise for the consideration of the court the possibility that she might be referred to a lawyer pursuant to rule 4.12 of the Federal Court Rules 2011 (Cth), and, after excusing the respondents, I heard the applicant in support of that application.

2    Of the matters referred to in subrule (2) of rule 4.12, the applicant has not led any evidence under para (a) or para (b).

3    It is apparent from the Statement of Claim, and from the evidence filed in support of the interlocutory application referred to, that the applicant has in the past been involved in lengthy litigation in the Victorian Civil and Administrative Tribunal (“VCAT”) about matters which are at least germane, and probably quite central, to her allegations in this proceeding, and that she was in that proceeding legally represented. She has told me today that she has had a number of solicitors in recent times, but, for one reason or another, she has lost confidence in them and presently is unrepresented. She tells me that there is a member of the Victorian Bar who is prepared to appear for her, but that the sticking point, as it were, is that she needs a solicitor to give that barrister the instructions which the nature of the case requires.

4    Rule 4.12 contemplates that, if a referral under it is made, the Registrar will attempt to arrange for the provision of legal assistance from a pro bono lawyer. Having accepted a referral under that rule, the pro bono lawyer would then be required to continue to provide legal assistance unless he or she obtains the assisted party’s written agreement or the Registrar’s permission under rule 4.16. That is to say, once a lawyer has undertaken the obligations which are implicit in these provisions, there are limited circumstances only in which he or she may withdraw. It is evident that the provisions are substantially concerned with a party who has a case which warrants the attention of the court, but who is without the means to engage legal representation in the normal way.

5    Because of the evidentiary deficiency to which I have referred, I am in no position to form a conclusion that the applicant is without the means to engage a solicitor in the normal way. She does appear to have had a number of solicitors over the years, so I could not rule favourably to her under para (b) of subrule (2), notwithstanding that she claims to be having difficulty now finding a solicitor who would give the necessary instructions.

6    It is probably not irrelevant to point out that this case is concerned very substantially with the minutiae of the applicant’s relationships and interactions with other management and staff at the company for whom she used to work, the first respondent, the details whereof were the subject of the case before VCAT to which I have referred, and which was resolved adversely to her. That case was conducted under the Equal Opportunity Act 1995 (Vic), and the kind of discrimination which the applicant there alleged finds substantial reflection in the allegations that she makes in the present proceeding under the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). The applicant relies also upon the Trade Practices Act 1974 (Cth) and upon the Occupational Health and Safety Act 2004 (Vic) for causes of action which were not available to her in the VCAT proceeding, in addition to which she now makes, it would seem, a number of claims under her contract of employment.

7    Notwithstanding the incomplete overlap between the present proceeding and the completed proceeding in VCAT, the applicant cannot be described as someone whose inability to secure legal representation would leave unaddressed a substantial cause of injustice. I am bound to say that, although the remedies that are sought in this case are not, in all respects, the same as those which were sought in VCAT, broadly speaking the applicant should be treated as someone who has already had one pass at the target, as it were, and, at least so far as rule 4.12 is concerned, as someone who is now seeking to improve upon the outcome which she secured last time round.

8    The present application is made with respect to the proceeding as a whole and, therefore, when approaching para (c) of subrule (2), I am bound to look at the nature and complexity of that proceeding, not simply at the nature and complexity of the respondents’ interlocutory application. If the Statement of Claim is any indication, the proceeding undoubtedly involves a very large number of facts alleged at a level of detail which is not often seen in a pleading. The Statement of Claim runs to some 650 paragraphs and covers more than 90 pages. However, the case is not a complex one. It involves, as I have indicated, the minute details of the relationships and interactions of the applicant with those for whom she previously worked. Putting aside the prospective length of the case as such, I would not regard this as a particularly complex proceeding. The respondents’ interlocutory application does raise issues of some complexity, but the present application is not confined to that application and, as mentioned, I consider that I am bound to address it with reference to the proceeding as a whole.

9    Furthermore, as a practical matter, it would obviously be unsatisfactory for a legal representative to assume the obligation of defending the applicant’s pleading when he or she had not been engaged to conduct the proceeding itself. Without wanting to say anything about the attack which the respondents have foreshadowed on that pleading, I think I could permit myself the observation that very substantial surgery will be required before the court would permit the case to go forward by reference to that document. In fact, as much was conceded by counsel who represented the applicant on the last occasion this case was before me for directions. He assured me that an amended Statement of Claim, not containing the objectionable features which the then Statement of Claim apparently did, would be filed. But, when another Statement of Claim was filed, it had not been signed by counsel and, regrettably, it had not been purged of most of the features which were said to have made the previous version objectionable. The difficulty at that point, as explained to me by the applicant this morning, was that counsel told her that he would not be able to complete the task of redrawing the Statement of Claim within the time previously limited by the court, and the applicant indicated to him that that was not acceptable, and that it would do her reputation no good to be unable to comply with the time limit set by the court. Without getting into the rights and wrongs of the relationship between the applicant and her counsel, the fact is that, at that time, she was represented by counsel, and counsel had, at least ostensibly, taken it upon himself to put her pleading in order.

10    When I put together the absence of any evidence as to the means of the applicant, when I see that the applicant is an intelligent person who has engaged legal representatives in the past and clearly knows how to do so, when I see the fact that she was, at least for a time, so represented in this case, when I take into account the complexity of the case and the fact that the applicant has already ventilated a large number of the grievances which she wants to raise in this case in her earlier proceeding in VCAT, I am not persuaded that this is the kind of case which calls for the court to exercise the power of referral under rule 4.12.

11    The order I formally make is that the applicant’s application for a referral for legal assistance under rule 4.12 of the Federal Court Rules 2011 be dismissed.

Associate:

Dated:    3 April 2014