Judge finds it inappropriate for lead plaintiff to conduct class action without legal representation

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This is a class action on behalf of more than 200 fly-in fly- out security officers at four Woodside Petroleum sites located on the Burrup Peninsula in Western Australia. The applicant alleged that the respondents, Wilson Security Pty Ltd and one of its managers, contravened the Fair Work Act 2009 (Cth), the Fair Work Regulations 2009 (Cth), and applicable Industry Awards by underpaying class members and not providing them with accurate pay slips.

The applicant (who is not a lawyer) commenced the proceeding and has conducted it without any legal representation. The respondents applied for an order under s 33N(1)(d) of the Federal Court of Australia Act 1976 (Cth) that the proceeding no longer continue as a representative proceeding, on the basis that it was not appropriate or in the interests of justice for the applicant to conduct the class action on behalf of class members without legal representation.

Justice Colvin found that a de-classing order ought to be made. After reviewing previous decisions which suggested that a person may have the conduct of representative proceedings as the representative applicant even though that person is not a lawyer, his Honour concluded that he had difficulty accepting that proposition. His Honour observed that representative proceedings are different to cases in which an individual acts on their own behalf in ordinary non-representative proceedings. In representative proceedings, the representative applicant has the conduct of proceedings as to the common question for all class members who do not opt out, and each of those class members is bound by the determination of the common questions. Further, without the involvement of lawyers, the representative applicant would make forensic decisions for class members and make submissions on their behalf. In effect, then, the representative applicant would conduct the proceeding as agent for the class members.

In these circumstances, and given that lay people do not have the right to act as an advocate for another without leave of the court, his Honour said (at [22]):

Therefore, I have very real doubts as to whether, without leave first obtained, a representative applicant is able to take an active role in the making of submissions and otherwise undertaking the forensic conduct of representative proceedings on behalf of group members. I suggest that the appropriate course to be followed where a person seeks to do so is for leave to do so to be sought at the earliest opportunity. If leave is refused, as I expect it would be in almost all instances, then the proceedings will come to an end if legal representation is unable to be obtained.

However, because the proceeding had been on foot for some time, before making the de-classing order his Honour ordered that notice be given to class members of the proposed de-classing and its consequences (including that the suspension of the limitation period for class members’ claims would come to an end). The orders provided that the proceeding will be de-classed on 5 August 2022, unless any class member notifies the Court of their opposition to that order being made.

Wilkinson v Wilson Security Pty Ltd [2022] FCA 756

Federal Court of Australia, Colvin J,
29 June 2022

Applicant’s Solicitors: The Applicant appeared in person
Respondents’ Solicitors: Seyfarth Shaw Australia Applicant’s Funder: N/A

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