2025 WAIRC 00402
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00402



CORAM
:
INDUSTRIAL MAGISTRATE C. TSANG



HEARD
:
MONDAY, 23 JUNE 2025



DELIVERED
:
MONDAY, 23 JUNE 2025



FILE NO.
:
M 51 OF 2025



BETWEEN
:
NIGEL BRUCE SMITH


CLAIMANT





AND





CFC CONSOLIDATED PTY LTD AS TRUSTEE FOR THE CFC EMPLOYMENT TRUST


RESPONDENT

CatchWords : Application for leave to be represented in proceedings by lawyer under section 548(5) of the Fair Work Act 2009 (Cth)
Legislation : Fair Work Act 2009 (Cth)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust – Perth Linehaul Enterprise Agreement 2019
Cases referred
to in reasons: : Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598
Annese v General Crane Services Pty Ltd [2019] FCCA 2661
Arnold v Fletcher International WA [2025] WAIRC 00030
Cangemi v Specialist Diagnostic Pathology Services Pty Ltd [2014] FCCA 187
Corcoran v Bansley Pty Ltd [2011] FMCA 440
D’Sylva v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171
Evans v Oxford Shop Pty Ltd [2020] FCCA 2730
Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025
Kotaidis v Fujitsu Australia Ltd [2020] FCCA 3334
Renouf v RAC Finance Ltd [2017] FCCA 142
Transport Workers’ Union of Australia v Transit Systems WA Pty Ltd [2012] FMCA 637
Result : Application granted
Representation:
Claimant : On his own behalf
Respondent : Mr K Hodge (of counsel) with leave



REASONS FOR DECISION
(Given extemporaneously at the conclusion of the hearing and edited by her Honour to insert headings and include complete citations)
1 On 30 May 2025, the respondent (CFC) applied for leave for it to be legally represented in the proceedings pursuant to s 548(5) of the Fair Work Act 2009 (Cth) (FW Act) (Application).
2 The Application was supported by an affidavit, affirmed by Giles Lenz, CFC’s Executive General Manager – People & Capability (Affidavit), outlining the reasons for the Application as including:
(a) CFC anticipating multiple similar claims being made against it for which legal representation will be of assistance.
(b) Assistance to the court, including to:
(i) Demonstrate that the CFC Consolidated Pty Ltd as Trustee for the CFC Employment Trust – Perth Linehaul Enterprise Agreement 2019 (Agreement) does not apply to 2Up Drivers, including the claimant (Mr Smith).
(ii) Illustrate the custom and practise that has applied to 2Up Drivers since 23 September 2019.
(iii) Analyse the alleged ‘hours deducted’ and the alleged underpayment calculation.
(iv) Narrow the issues given the claim involves contested facts and interpretation.
(c) CFC not having inhouse industrial experience to satisfactorily represent itself.
(d) The cumulative exposure, given Mr Smith’s allegations apply to 84 other 2Up Drivers, and the potential prejudice to CFC if legal representation was refused.
3 The Application was opposed by Mr Smith, for reasons including:
(a) The unfair power imbalance between him and CFC.
(b) The amount claimed making it unviable for him to seek legal representation.
(c) Legal representation may lead to technical legal arguments, when the claim is a simple one involving:
(i) Whether or not an employee should be paid for all work completed or not?
(ii) His reliance on CFC’s Perth Depot Human Resources Manager agreeing ‘that we should be paid for all work carried out and all unlawful deductions were ceased and have been ceased ever since.’
Principles
4 I have had regard to the following decisions:
(a) Hughes v Mainrange Corporation Pty Ltd [2009] FMCA 1025.
(b) Corcoran v Bansley Pty Ltd [2011] FMCA 440.
(c) Transport Workers’ Union of Australia v Transit Systems WA Pty Ltd [2012] FMCA 637.
(d) Cangemi v Specialist Diagnostic Pathology Services Pty Ltd [2014] FCCA 187.
(e) Renouf v RAC Finance Ltd [2017] FCCA 142.
(f) Al Jorany v AHG Services (WA) Pty Ltd [2019] FCCA 2598.
(g) Annese v General Crane Services Pty Ltd [2019] FCCA 2661.
(h) D’Sylva v Ellenbrook Family Medical Centre Pty Ltd [2020] FCCA 1171.
(i) Evans v Oxford Shop Pty Ltd [2020] FCCA 2730.
(j) Kotaidis v Fujitsu Australia Ltd [2020] FCCA 3334.
(k) Arnold v Fletcher International WA [2025] WAIRC 00030.
5 In Corcoran [27], Lucev FM of the Federal Magistrates Court of Australia (citing McShane v Image Bollards Pty Ltd [2011] FMCA 215 [39]–[42]), stated that there is no closed list of factors to be considered by a court in exercising the discretion to grant leave; with the factors which might be considered including:
(a) The relative complexity or simplicity of the matter.
(b) The objects and purposes of the legislation establishing the court and the court’s rules, including the impact on case management considerations.
(c) Whether a party can be effectively represented by the proposed representative, and whether prejudice will be suffered by any party by reason of the appearance or nonappearance of the proposed representative.
(d) The objects and purposes of the provisions concerning small claims proceedings in the FW Act.
6 In Al Jorany [9]–[12], having canvassed Corcoran, Cangemi and Renouf, Judge Kendall of the Federal Circuit Court of Australia stated: (citations omitted)
9. There are no mandatory considerations when determining whether leave to be represented should be granted pursuant to s.548(5). Having canvassed the authorities the respondent has referred to, the following factors for consideration are relevant (though not definitive):
a. the objects and purposes of the Small Claims Division and also of this Court to provide quick, informal and just resolutions of disputes without undue technicality;
b. the complexity of the matters that arise on the face of the application, be it factual or legal, and whether a lawyer by reason of their training and expertise, might be of assistance to the Court;
c. whether the other party (here the applicant) is represented by a lawyer and any prejudice or unfairness the other party may suffer if leave is granted;
d. the familiarity, and competence, of the proposed legal representatives to provide assistance to the Court on the complexities or technicalities that arise; and
e. whether the party seeking leave to be represented has an in-house lawyer or employee capable of conducting the matter satisfactorily.
10. Section 548(5) of the FW Act is an ‘exception’ to the norm. Leave for a lawyer to appear in the Small Claims division in most cases will not be necessary and will be assumed not to be required.
11. These provisions are designed to enable selfrepresented litigants greater access to the legal system and to provide more accessible procedures that operates informally and without regard to legal forms and technicalities: FW Act, s.548(3).
12. Overall, the respondent must satisfy the Court that it is necessary for the Court to exercise the discretion to grant leave in circumstances where the intention of the small claims procedure appears to be that legal representation is normally not necessary.
7 The factors in Al Jorany [9] were cited in Annese [15], D’Sylva [21], Evans [8], Kotaidis [10], and Arnold [3].
Consideration
8 Section 548(3)–(7) of the FW Act states:
Procedure
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
(4) At any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.
Legal representation
(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.
(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.
(7) For the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
9 Relevantly, by s 548(7) of the FW Act, a lawyer who is an employee or officer of a party to a small claim proceeding does not need to seek the leave of the court to represent that party in the proceedings.
10 Consequently, and applying Al Jorany [9(a)] and [10]–[12], CFC has the onus of satisfying me that it is necessary that I exercise the discretion to grant leave for it to be represented by its external lawyers, Squire Patton Boggs (SPB), in these proceedings.
11 Applying Al Jorany [9(b)] and considering the complexity of the proceedings, I note that:
(a) In the Originating Claim, Mr Smith seeks orders for CFC to pay $21,000 for failing to comply with the Agreement.
(b) In the Response, CFC denies that the Agreement covered or applied to Mr Smith’s employment; contending that his employment is governed by a common law employment contract.
(c) Implicit in [11(a)–(b)] above, is an issue of whether the court has jurisdiction to hear Mr Smith’s claim.
(d) In Mainrange [2], Lucev FM of the Federal Magistrates Court of Australia stated that a jurisdictional objection ‘is a pure legal issue’ and that: (emphasis added)
[T]he Court takes the view, for better or worse, that a lawyer, by reason of training and expertise, ought to have the ability to provide the Court with the appropriate and logical arguments based on research to be of assistance to the Court in a case such as this, where a legal issue of this type, namely jurisdiction, arises.
12 Considering the matters at [11] above, coupled with that at [3(c)(ii)] above, I disagree with Mr Smith that the proceedings involve a simple underpayment claim. Rather, the proceedings will involve a mixed question of fact and law, including but not limited to the interaction of the Agreement and the common law employment contract, and pertinently whether the Agreement covers and applies to Mr Smith’s employment.
13 Applying Al Jorany [9(c)], I have considered Mr Smith’s submissions at [3(a)–(b)] above and in the entirety of his Response to Respondent’s Application.
14 In Arnold [13], this court differently constituted, in circumstances where the facts were largely uncontentious and it was common ground that Mr Arnold was covered by the relevant award, found that:
Mr Arnold has not submitted that he will be prejudiced by the granting of leave. I do not consider Mr Arnold would be prejudiced as, if Mr Arnold remains unrepresented, the Court is able to assist him to participate in the proceedings meaningfully and fairly.
15 While in Arnold, Mr Arnold had not submitted that he would be prejudiced by the granting of leave; the findings at Arnold [13] are apposite in these proceedings, specifically where, unlike Arnold, there lacks common ground in these proceedings regarding the coverage and applicability of the underlying industrial instrument.
16 Applying Al Jorany [9(d)], I note that while the Affidavit does not appear to address the competence of SPB to provide assistance to the court in these proceedings, the following filed documents suggest that SPB have familiarity with these proceedings:
(a) On 15 May 2025, Kim Hodge of SPB (Mr Hodge) prepared and lodged on behalf of CFC, a Form 23 – Notice of Appointment of Lawyer or Agent (Form 23).
(b) On 16 May 2025, CFC filed its Response, which ‘was prepared and filed by [Mr Hodge].’
(c) On 26 May 2025, CFC filed a Form 3 – Affidavit of Service on a Person in which a Law Graduate of SPB (SPB Law Graduate), affirmed to serving Mr Smith with a sealed copy of the Response and the Form 23.
(d) On 30 May 2025, CFC filed the Application ‘prepared by [Mr Hodge]’ and the Affidavit ‘prepared and lodged by [CFC] by [Mr Hodge].’
(e) On 6 June 2025, CFC filed a Form 3 – Affidavit of Service on a Person in which the SPB Law Graduate, affirmed to serving Mr Smith with a sealed copy of the Application, Affidavit and Orders issued by the court on 30 May 2025.
17 Applying Al Jorany [9(e)], Mr Lenz stated the following in the Affidavit [16], which was not challenged by Mr Smith:
Due to staff turnover and availability the Respondent does not have the necessary in-house industrial experience to satisfactorily represent itself in the Court regarding this claim.
18 The court is bound by reg 5 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA):
5. Court’s duties in dealing with cases
(1) The court must ensure that cases are dealt with justly.
(2) Ensuring that cases are dealt with justly includes ensuring –
(a) that cases are dealt with efficiently, economically and expeditiously;
(b) so far as is practicable, that the parties are on an equal footing; and
(c) that the court’s judicial and administrative resources are used as efficiently as possible.
[Regulation 5 amended: SL 2022/100 r. 7.]
19 Considering each of the factors in Al Jorany [9], on balance, I find that when considered as a whole, and in the absence of a finding of any significant prejudice to Mr Smith, given the court’s concerns with the complexity of the issues that arise, and the court’s obligations to ensure that proceedings are dealt with in accordance with reg 5, the court will be aided by the grant of leave for CFC to be represented by SPB.
20 Accordingly, the court will issue an order on the following terms:
Pursuant to s 548(5) of the Fair Work Act 2009 (Cth), the respondent has leave to be represented in the proceedings by a lawyer until further order.





C. TSANG
INDUSTRIAL MAGISTRATE