Federal Court of Australia

Wilkinson v Wilson Security Pty Ltd (No 2) [2022] FCA 1161

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 33N(1)(d) of the Federal Court of Australia Act 1976 (Cth) on and from 21 October 2022 this proceeding shall no longer continue as a representative proceeding under Part IV of the Act.

2.    Pursuant to s 33ZF of the Act any limitation period shall begin to run again on and from 28 October 2022.

3.    There be no order as to costs of the representative proceeding.

4.    On or before 3 October 2022 the respondents do give notice of these orders to each of the 203 group members it has identified as falling within the group member definition set out in the Further Amended Statement of Claim filed 9 March 2022 by sending to each group member by email to the most recent email or otherwise to the most recent mail address held by the first respondent in respect of that group member.

5.    There be liberty to the respondents to apply as to the time for compliance for these orders.

6.    The case management hearing in these proceedings be adjourned to a date to be fixed after the conclusion of the mediation.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Peter Wilkinson commenced representative proceedings in this Court in 2021. The proceedings are against Wilson Security Pty Ltd and Mr Jose Canadas, a manager employed by Wilson Security. The application seeks relief under the Fair Work Act 2009 (Cth). Lawyers acting for the respondents have identified 203 group members falling within the group member definition.

2    Mr Wilkinson has been conducting the representative proceedings in person. Mr Wilkinson is not a lawyer although he has had past experience in preparing briefs for consideration by the Director of Public Prosecutions in criminal proceedings. Therefore, he has some experience of some aspects of what is involved in the forensic task that must be undertaken to prepare for court proceedings. Having said that, the task in conducting representative proceedings is very different.

3    In March 2022, Wilson Security applied for an order that the proceedings no longer continue as representative proceedings. I formed the view that the orders sought should be made subject to an opportunity being afforded to any group member to make submissions concerning the manner in which the proceedings should be conducted. I made provision for notice of the application to be given to group members and for a further hearing of the application to be convened if any group member wished to be heard. If there was no such notification then orders as sought by Wilson Security would take effect. I provided reasons for the view that it was generally inappropriate for representative proceedings to be conducted without legal representation: Wilkinson v Wilson Security Pty Ltd [2022] FCA 756.

4    In the result, written objections were filed by some 41 group members and 21 group members each provided a statement setting out reasons for the objection. Without wishing to understate or unduly simplify the concerns raised, for present purposes the reasons given can be summarised as (a) statements indicating considerable dissatisfaction with Wilson Security as an employer; (b) references to the acknowledgment by Wilson Security of past underpayment leading to back pay; (c) claims that there have not been updated payslips provided by Wilson Security and consequent claims of inability to determine the basis for calculation of wages; (d) allegations of further underpayment; and (e) allegations of bullying. The allegations made have not been scrutinised by the Court.

5    In addition, considerable confidence and trust was expressed by a number of group members in Mr Wilkinson and the steps he has taken in advancing the representative proceedings. The group members expressed a willingness to allow Mr Wilkinson to continue to conduct the representative proceedings on their behalf. A number of group members expressed a desire that Wilson Security be made to file a defence to the claims made in the proceedings.

6    A hearing was convened to consider the notifications from the group members. There was no appearance in person by any of the group members. No lawyer sought to appear. No group member proposed the possibility that lawyers may be appointed to conduct the proceedings or that steps might be taken to secure legal representation. Indeed, the general thrust of the objections was to the effect that they wanted Mr Wilkinson to continue to conduct the proceedings on their behalf. Mr Wilkinson did not oppose the application by Wilson Security but indicated that if the proceedings continued as representative proceedings then he was willing to devote the time needed.

7    In my earlier reasons, I explained why there were very real difficulties in a representative applicant appearing in person. The obligations of a representative applicant are considerable and complex.

8    The circumstances in which the Court will allow a person who is not a qualified legal practitioner admitted to practice in the jurisdiction to speak on behalf of another person for the purposes of the conduct of legal proceedings by that person are very limited. The starting position is that such a course is not permitted for the reason that the operation of the court system is dependent upon the assumed performance of the duties imposed upon members of the legal profession: Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 at [116] (Markovic, Derrington and Anastassiou JJ). Performance of those duties requires the detailed knowledge and skill necessary to confine the case to the real issues and ensure that the interests of the party are properly represented. The Court is not in a position to supervise the competence or appropriateness of actions taken by individuals who are not legally qualified in acting on behalf of parties to court proceedings. Such a practice would tend to undermine all of the protections afforded to litigants and the administration of justice by the requirements for lawyers to be admitted to practice and to be subject to ongoing regulation of their professional conduct.

9    Even where individuals are themselves willing to appoint a lay person to act on their behalf, the courts generally do not allow such a course. It is a safeguard for litigants and there must be good reasons for any exception: Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 at [3]-[4] (Steytler P). The relevant authorities and the reasons for them were surveyed in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149.

10    In the case of a representative proceeding these concerns are amplified considerably because the representative applicant does not act solely in that person's own interests, but rather acts in the interests of all group members.

11    In my view, the circumstances raised by group members are not exceptional.

12    Having taken account of the matters raised by the various group members, I remain of the view summarised in my earlier reasons as follows (at [24]):

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.

13    For those reasons, I made orders that the present proceeding no longer continue as a representative proceeding. It is open to individual group members to bring their own proceedings or to seek to obtain legal representation for a group proceeding. Of course, they should act promptly in doing so because the consequence of the orders made is that the suspension of limitation periods that operates during the currency of representative proceedings will come to an end and, on the orders made, will commence again from 28 October 2022.

Associate:

Dated:    28 September 2022