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Fair Work Act 2009
s.604 - Appeal of decisions
Mr Ross Kennedy
v
Qantas Ground Services Pty Ltd
(C2018/2983)
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT MASSON
COMMISSIONER CIRKOVIC MELBOURNE, 23 JULY 2018
Application under Rule 12(2) – application dismissed
[1] Mr Ross Kennedy has made an application for a direction under Rule 12(2) of the Fair
Work Commission Rules 2013. The background to the application is as follows.
[2] Mr Kennedy lodged an appeal under s.604 of the Fair Work Act 2009 (Act) against a
decision of Deputy President Kovacic to decline to issue certain orders for production of
documents sought by Mr Kennedy under s.590(2)(c).1 The appeal is listed for hearing before
us on Wednesday, 25 July 2018.
[3] On 14 June 2018, the Full Bench issued directions for the filing of materials in the
appeal. Paragraph 3 of the directions stated:
“3. Any party that wishes to apply for permission to be represented at the hearing of the
matter by a lawyer or paid agent shall file in the Commission and serve on the other
party a document, not exceeding one A4 page in length, which identifies the lawyer or
paid agent the subject of the application and the reasons why such permission should
be granted having regard to the grounds in s.596(2) of the Act by 5.00pm Friday, 6
July 2018.”
[4] On 6 July 2018, the respondent, Qantas Ground Services Pty Ltd (QGS), advised the
Commission that its solicitors, Herbert Smith Freehills (HSF), had commenced acting as a
lawyer for QGS in the matter. HSF separately filed in the Commission a Form F53 Notice of
Representative Commencing to Act, in accordance with Rule 11. QGS further advised that it
did not seek permission to be represented by a lawyer at the hearing of the appeal. QGS stated
that, as it did not intend to be represented in the appeal for a purpose for which permission is
required under s.596 of the Act, it would not be filing any document contemplated by
direction 3 above.
1 [2018] FWC 2689
[2018] FWCFB 4319
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 4319
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[5] By email message to the Commission dated 10 July 2018, Mr Kennedy made an
application under Rule 12(2) for a direction, the effect of which would require QGS to seek
the Commission’s permission for representation in respect of matters otherwise falling within
Rule 12(1), including representation for the purpose of preparing written submissions.
[6] We directed Mr Kennedy to provide a brief submission in support of his application by
5.00pm on Tuesday, 17 July 2018. QGS was directed to provide a brief submission in reply
by Friday, 20 July 2018. The parties complied with these directions.
[7] Mr Kennedy contended that the Commission had ‘failed to ensure’ that QGS made an
application to the Commission for permission to seek advice from HSF or to have HSF
prepare any written submissions. He contended that QGS and HSF have not acted consistently
with various provisions of the Act and the Rules.
[8] These submissions are misconceived. A party does not need the permission of the
Commission to seek legal advice. Rather, a party needs permission to be represented by a
lawyer or paid agent. Further, s.596(1) states that this restriction operates ‘except as provided
by … the procedural rules.’ Rule 12(1) provides that a person may be represented in a matter
before the Commission for various purposes, including the preparation of a written
application or written submissions. Rule 12(1) is subject to a direction by the Commission to
the contrary under Rule 12(2).
[9] Accordingly, a party does not need the permission of the Commission to be
represented in a matter before the Commission by a lawyer or paid agent for the purposes of
preparing a written submission, unless the Commission has made a direction under Rule
12(2). Mr Kennedy has now made such an application.
[10] Mr Kennedy submitted that as a result of QGS not making an application for
permission to be represented, he has suffered and would suffer prejudice in the appeal. He
contended that any submission that has been prepared by HSF on behalf of QGS should be
disregarded by the Commission.
[11] Rule 12(2) does not identify any considerations that the Commission is to take into
account in considering an application for a direction under Rule 12(2). The Commission has a
broad discretion as to whether to issue a direction.
[12] Having considered Mr Kennedy’s application, his submissions, and all of the
circumstances, we are not persuaded that the Full Bench should exercise its discretion to make
a direction under Rule 12(2).
[13] Mr Kennedy asserts that he has suffered or will suffer prejudice from the respondent
being represented by counsel in respect of the preparation of written submissions, however he
does not substantiate why this is so. Prejudice is not established simply by the fact that one
party might be assisted in the preparation of written submissions but not the other. We note
that Mr Kennedy has demonstrated that he is most able to advance arguments and prepare
written material on his own behalf. We do not apprehend any prejudice or unfairness being
suffered by Mr Kennedy through the continuation of the default position prescribed by Rule
12(1).
[2018] FWCFB 4319
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[14] Furthermore, we note that, although the appeal concerns an interlocutory decision in
respect of orders to produce documents, Mr Kennedy has filed a very large amount of
material, comprising some nine volumes. In light of this, even a company that is part of a
large corporate group, such as QGS, might reasonably require assistance in preparing written
submissions in relation to the appeal and the materials filed in support of it. This
consideration also tells against the making of the direction sought by Mr Kennedy.
[15] We decline to exercise our discretion to issue a direction under Rule 12(2).
DEPUTY PRESIDENT
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