Hughes ats Mainrange Corporation Pty Limited [2009] FMCA 1025 (9 October 2009).

This decision of Federal Magistrate Lucev gives some guidance concerning legal representation in cases heard under the small claims procedures found in the Fair Work Act, 2009 (Cth).  The court said that this was the first occasion on which the right to appear by a lawyer under the small claims procedures had arisen. [2]  In particular, the provision dealing with lawyers under small claims procedures is s 548(5) and (6), which reads,

 “(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.”

The reason advanced as to why a lawyer ought to be permitted to represent his client in these proceedings, was to object to the jurisdiction of the court.  In that regard, the Magistrate was persuaded to permit the representation. This was because there was a pure legal issue to be determined. The court said “for better or worse” it might be assisted by a lawyer by reason of training, expertise, and assistance by way of argument and research to be provided to the court. [2]. Leave was also granted to the other side, should they so wish to be represented by a lawyer.  Further, any determination, if jurisdiction was found, to permit a lawyer to continue to appear would be determined later.

* Henry VI, Part 2, Act 4, Scene 2, 71-78 – Shakespeare.