Fair Work Ombudsman v Doll House Training Pty Ltd (r 4.01 Application) [2021] FCA 882

Federal Court of Australia

Fair Work Ombudsman v Doll House Training Pty Ltd (r 4.01 Application) [2021] FCA 882 File number: NSD 503 of 2021

Judgment of: PERRAM J

Date of judgment: 29 July 2021

Catchwords: PRACTICE AND PROCEDURE – application for dispensation with Federal Court Rules 2011 (Cth) r 4.01(2) requiring corporation to be represented by lawyer – where proposed representative has been referred to Legal Services Commission for acting as 'litigation process consultant'

Legislation: Federal Court Rules 2011 (Cth) rr 1.34, 4.01

Cases cited: Rich v Auswide Constructions Pty Ltd [2020] QDC 327 Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330 Rich v Auswide Constructions Pty Ltd (No 3) [2021] QDC 2

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 6

Date of last submissions: 27 July 2021

Date of hearing: Determined on the papers

Solicitor for the Applicant: Office of the Fair Work Ombudsman

Counsel for the Respondent: Mr S Arulogun (seeking permission to appear for the Respondent)

ORDERS NSD 503 of 2021

BETWEEN: FAIR WORK OMBUDSMAN Applicant

AND: DOLL HOUSE TRAINING PTY LTD ACN 634 366 411 Respondent

order made by: PERRAM J DATE OF ORDER: 29 JULY 2021

THE COURT ORDERS THAT:

1. The Respondent file within 7 days further affidavit evidence from the proposed representative, Mr Stephen Arulogun. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 The Applicant Fair Work Ombudsman seeks the imposition of civil penalties on the Respondent ('Doll House') for forcing its employees to be engaged as independent contractors, correspondingly failing to pay them at least monthly and failing to produce employment records when required by a Fair Work Inspector to do so. The case has only recently been filed. A director of Doll House, Heidi Meuwissen, has affirmed an affidavit in which she says Doll House cannot afford a lawyer to defend itself in the proceeding. Rule 4.01 of the Federal Court Rules 2011 (Cth) provides: 4.01 Proceeding by lawyer or in person (1) A person may be represented in the Court by a lawyer or may be unrepresented. (2) A corporation must not proceed in the Court other than by a lawyer. Note 1: Corporation and lawyer are defined in the Dictionary. Note 2: A notice of address for service for a corporation must be filed by a lawyer―see rule 11.02. Note 3: The Court may dispense with compliance with this rule—see rule 1.34. 2 The effect of this rule is that Doll House must appoint a lawyer to represent it unless the Court dispenses with the operation of r 4.01 by means of r 1.34: 1.34 Dispensing with compliance with Rules The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises. 3 Doll House applies for such a dispensation from r 4.01. The proposed representative is Mr Stephen Arulogun. He became a director of Doll House on around 22 June 2021. He conducts a consultancy business under the name IR Advocates through which he provides dedicated industrial relations advocacy. It is his intention that he will conduct Doll House's defence of the Ombudsman's case as a director of Doll House. 4 Mr Arulogun disclosed in his affidavit that Judge Barlow of the Queensland District Court had referred him to the Queensland Legal Services Commission following his involvement in litigation in that court. There are three decisions. In the first Judge Barlow refused Mr Arulogun leave to represent the plaintiff but did permit him to act as his McKenzie friend: Rich v Auswide Constructions Pty Ltd [2020] QDC 327 ('Rich (No 1)'). In the second, which followed the trial, Judge Barlow expressed concern that Mr Arulogun had overstepped the mark as a McKenzie friend and invited submissions from the parties and Mr Arulogun as to whether he should refer him to the Legal Services Commission: Rich v Auswide Constructions Pty Ltd (No 2) [2020] QDC 330 at [109]-[114]. In the third, having heard Mr Arulogun's submissions his Honour referred the matter to the Commission: Rich v Auswide Constructions Pty Ltd (No 3) [2021] QDC 2 at [26]-[34]. That occurred on 21 January 2021. His Honour's basic concern was that Mr Arulogun was carrying on business as a 'litigation process consultant' in a manner akin to a legal practitioner. Mr Arulogun gives evidence in this Court that he does not know whether the Commissioner is investigating the matter or not. 5 Mr Arulogun has a law degree and applied to the Queensland Supreme Court to be admitted as a solicitor. However, in July 2020 he adjourned his application with the consent of the Admissions Board. He does not explain why he did that. The first judgment of Judge Barlow suggests that Mr Arulogun was formerly a pharmacist and had been disciplined by the Queensland Civil and Administrative Tribunal and the Pharmacy Board of Australia for taking drugs from the pharmacy and supplying them to other persons: Rich (No 1) at [7]. He also was sentenced to 18 months in prison with a non-parole period of 6 months following a conviction on two counts of supplying a dangerous drug, two counts of possessing a dangerous drug and one count of possessing codeine. I do not think that Judge Barlow's judgment is admissible evidence of those facts but the fact that the judgment exists heightens my concern to know why Mr Arulogun has adjourned his admission application to the Queensland Supreme Court. 6 I do not think it would be appropriate to refuse Doll House's application outright although I do not think that I would err if I did so. What I will do instead is to give Doll House a further 7 days to address these matters by filing further affidavit evidence from Mr Arulogun. It would be useful too if he were to inquire of the Legal Services Commission where it is up to with Judge Barlow's referral. I will finalise the application when these steps have been taken. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.