Federal Court of Australia

Wilkinson v Wilson Security Pty Ltd [2022] FCA 756

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33X(5) and s 33Y(2) of the Federal Court of Australia Act 1976 (Cth) (the Act), the form and content of the notices set out in Annexure A be approved (the Notice).

2.    Pursuant to s 33X(5) and s 33Y(3) of the Act, the Notice is to be given to group members no later than 8 July 2022 according to the following procedure:

(a)    the first respondent will cause the Notice to be sent to each of the 203 group members it has identified as falling within the group member definition set out in the further amended originating application filed 9 March 2022; and

(b)    such Notice to be sent by email to the most recent email or mail address held by the first respondent in respect of that group member.

3.    Pursuant to s 33X(5) and s 33Y(3) and (6) of the Act, 29 July 2022 be fixed as the date by which any group member who opposes the respondents' application must notify the parties and the Federal Court of Australia Registry of the basis of the opposition to the respondents' application and whether they wish to be heard by sending an email to:

(a)    the Federal Court Registry at waregistry@fedcourt.gov.au; and

(b)    Mr Chris Gardner at cgardner@seyfarth.com; and

(c)    Mr Peter Wilkinson at peterrapid@gmail.com.

4.    If no such notification is given pursuant to these orders then without further order:

(a)    pursuant to s 33N(1)(d) of the Act, on and from 5 August 2022, this proceeding shall no longer continue as a representative proceeding under Part IVA of the Act;

(b)    pursuant to s 33ZF of the Act, any limitation period that applies to the claim of any group member, to which the proceeding relates, shall begin to run again from 17 August 2022; and

(c)    there be no order as to costs of the representative proceeding.

5.    If any notification is given pursuant to these orders then a hearing will be convened on a date to be fixed to consider any application as to the further conduct of these proceedings and whether there should be an order pursuant to s 33N(1)(d) that this proceeding no longer continue as a representative proceeding under Part IVA of the Act.

6.    There be no order as to costs of the respondents' application dated 15 March 2022.

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

ANNEXURE A

PLEASE READ THIS NOTICE CAREFULLY

NOTICE THAT PROCEEDING MAY NO LONGER CONTINUE AS A REPRESENTATIVE PROCEEDING (OR 'CLASS ACTION')

This notice is provided pursuant to orders made by the Federal Court of Australia to inform you about the proceeding.

This notice contains important information about an application brought on behalf of the respondents which, may result in the proceeding no longer continuing as a representative proceeding (or 'class action').

You should read this notice carefully.

If you are unsure of whether you are a group member, or you do not understand the contents of this notice, you should seek your own legal advice without delay.

WHAT IS A CLASS ACTION?

(1)    A class action is a type of legal proceeding in which the claims of a group of people (that is, group members) are brought in a single proceeding. A class action is brought by one or more 'applicants' (also called 'lead applicants') on behalf of group members. A class action is also known as a 'representative proceeding'.

AM I A GROUP MEMBER?

(2)    A class action (also known as a 'representative proceeding') was commenced on 16 June 2021 by Peter Wilkinson in the Federal Court of Australia against Wilson Security Pty Ltd (Wilson Security) and Mr Jose Canadas on behalf of all persons who were, between the period 31 March 2015 and 22 July 2021 (Relevant Period):

(a)    covered under the Security Services Industry Award 2010 which became the Security Services Industry Award 2020 when it commenced on 18 June 2020;

(b)    employed by the first respondent (Wilson Security); and

(c)    worked at one or more of the following sites located on the Burrup Peninsula, near Karratha, namely:

(i)    Karratha Gas Plant;

(ii)    Pluto LNG Park;

(iii)    King Bay Supply Base; and

(iv)    Burrup Materials Facility;

(group members)

(3)    Group members in the class action include the estates of deceased persons who meet the criteria set out in paragraph 2(a) to (c) above.

WHAT IS THE CLASS ACTION ABOUT?

(4)    The class action has been commenced by Mr Wilkinson in his own capacity and on behalf of group members.

(5)    Wilson Security and Mr Canadas are the respondents to the class action.

(6)    The class action arises from Mr Wilkinson's employment by Wilson Security as a Facilities Protection Officer at:

(a)    Karratha Gas Plant;

(b)    Pluto LNG Park;

(c)    King Bay Supply Base; and

(d)    Burrup Materials Facility.

(7)    Wilson Security provided security services at these sites throughout the Relevant Period.

(8)    The claims against Wilson Security are set out in the further amended statement of claim dated 9 March 2022.

(9)    Wilson Security and Mr Canadas are defending the class action and Mr Wilkinson's personal claims.

(10)    In summary, the claims are that Wilson Security variously contravened the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Regulations 2009 (Cth) (Regulations), the Security Services Industry Award 2010 (and its replacement, the Security Services Industry Award 2020) by:

(a)    Roster claims: not providing the entitled minimum number of long breaks per roster cycle; rostering and directing employees to work more than 48 ordinary hours without a long break; directing employees to perform work outside rostered hours of duty without payment; failing to prepare rosters showing the times employees start and finish work; providing payslips which, it is alleged, Wilson Security 'knew to be materially misleading' and directing Mr Wilkinson and group members to work in excess of 12 hours per shift;

(b)    Payslips claims: not providing payslips containing information required by the Regulations; not correcting or updating payslips given to Mr Wilkinson and group members; and providing backpay payslips that omitted information required by the Regulations;

(c)    Classification claims: failing to classify in accordance with the relevant awards; and improperly classifying Mr Wilkinson at Level 2 classification rather than Level 4 or 5; and

(d)    Miscellaneous claim: not paying the permanent night shift allowance of 30%.

(11)    Of these contraventions, Mr Wilkinson alleges that five were 'serious contraventions' by operation of s 557A of the FW Act. It is also alleged that Mr Canadas was 'involved' in some of the contraventions of Wilson Security by operation of s 550 of the FW Act.

WHY AM I RECEIVING THIS NOTICE?

(12)    To date, Mr Wilkinson has not been legally represented and has been conducting the class action himself.

(13)    On 15 March 2022, the respondents made an application for orders under s 33N(1)(d) of the Act that the proceeding no longer continue as a representative proceeding (or 'class action') (this application is called a 'declassing application').

(14)    The basis of the respondents' declassing application is that it is inappropriate that the claims of group members be pursued by way of a class action because Mr Wilkinson and group members do not have any legal representation. The respondents' position is that Mr Wilkinson's lack of legal knowledge and training and his conduct of the proceeding to date means that he is not able to adequately advance group members' interests in the conduct of the class action.

(15)    Mr Wilkinson does not oppose the respondents' application.

(16)    The Court has ordered that Wilson Security give notice to group members of certain matters which we set out in more detail below.

WHAT HAPPENS IF THE PROCEEDING NO LONGER CONTINUES AS A REPRESENTATIVE PROCEEEDING/CLASS ACTION?

(17)    When this class action was started on 16 June 2021 by Mr Wilkinson, the limitation period that applied to the claim of a group member to which this class action relates was suspended. This means that any limitation period which applied to your claim as a group member in this proceeding was paused.

(18)    If the proceeding no longer continues as a class action, any limitation period that applied to your claim will re-start. This means whatever time you had available to commence your own claim as at the start of this proceeding remains available to you once the limitations period starts running again.

DO I NEED TO DO ANYTHING?

(19)    No, there is no requirement for you to do anything.

(20)    But if you oppose the orders taking effect in a way that will result in the proceedings no longer continuing as a class action, you must notify the parties and the Federal Court by 29 July 2022 of your objection and why you oppose those orders. You should also notify the Federal Court and the parties whether you want to appear at the hearing of the respondents' declassing application and whether you will be represented by a lawyer at that hearing.

(21)    Any notification of an objection should be made to the Federal Court and the parties by sending an email titled 'WAD 138/2021 Objection to Declassing Application' to:

(a)    Federal Court Registry: waregistry@fedcourt.gov.au;

(b)    Mr Chris Gardner: cgardner@seyfarth.com; and

(c)    Mr Wilkinson: peterrapid@gmail.com.

(22)    In the event that no objections are received, orders pursuant to s 33N(1)(d) of the Act will take effect, on and from 5 August 2022 and the proceeding no longer continue as a class action ('representative proceeding'). In that event any limitation period that applies to the claim of any group members to which this proceeding relates shall begin to run again from 17 August 2022.

(23)    However, if any objection(s) is received, the Court will timetable a hearing to consider the objection. The date of the hearing of that application, if it is necessary, has not been fixed. If a hearing is necessary, any party who has objected will be notified of the date of the hearing.

REASONS FOR JUDGMENT

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.

Associate:

Dated:    29 June 2022