The employees allegedly encountered difficulties in obtaining alternative legal representation
The Federal Court dismissed an interlocutory application by Qantas Airways employees seeking permission for a non-lawyer to represent them at the trial.
The dispute in Ferrigno v Qantas Airways Limited [2023] FCA 1044 stemmed from the termination of employment due to non-compliance with a COVID-19 vaccination policy imposed by Qantas Airways on its employees. The employees alleged that the vaccination policy was not lawful and reasonable, that Qantas failed to comply with consultation requirements under relevant enterprise agreements, and that the policy breached the Human Rights Act 2019. They claimed declaratory orders, reinstatement of their employment, compensation, and damages.
Originally, this case involved 24 applicants and five respondents. However, as the proceedings evolved, only five applicants and three respondents remained. The applicants became dissatisfied with the quality of their legal representation and decided to proceed unrepresented.
In an interlocutory application, the applicants requested permission to designate Spiros Kalitihos, who is not a lawyer, as their representative through an Enduring Power of Attorney. They argued that his extensive experience would expedite court proceedings and eliminate the need for separate cross-examinations of witnesses on multiple occasions. The applicants emphasised their ethical rights to choose their advocate.
Kalotihos deposed that he was in control of several legal and paralegal companies providing various legal services, including representation in court, preparing, filing, and serving legal documents, and attending court in all jurisdictions. Kalotihos admitted that he was not admitted to the bar but is "familiar with and have consistently complied with the court's code of conduct."
The representation the employees sought to have Kalotihos provide included cross-examining witnesses and making submissions. They proposed to pay him $2,000 for his expenses.
The federal court ultimately rejected the application, emphasising that an Enduring Power of Attorney does not transform the attorney into the alter ego of the principal. The court cited previous legal precedents and statutory prohibitions against non-lawyers engaging in legal practice, particularly in Queensland, where the trial was to be conducted.
The court stated that the enduring powers of attorney granted by the applicants could not authorise a non-lawyer to engage in legal practice, including cross-examining witnesses and making submissions. The enduring powers of attorney do not operate to make Kalotihos the alter ego of the applicants. Furthermore, it does not operate to confer upon Kalotihos any entitlement to represent the applicants at the trial.
The court noted that the terms of the enduring powers of attorney purport to authorise Kalotihos to "represent" the applicants in the proceeding. However, the court said such authority is subject to the restriction under s.22(1) of the Powers of Attorney Act, that an eligible attorney can only be authorised to do that which a person "can lawfully do by an attorney." The court emphasised that an enduring power of attorney cannot authorise a non-lawyer to represent a person in a court proceeding because of statutory prohibitions or restrictions.
The court observed that Kalotihos would cross-examine witnesses and make submissions at the trial for payment of a fee. The court said he would effectively be acting as a barrister. In the court's opinion, he would be engaging in legal practice. The court explained that the enduring powers of attorney can only authorise the attorney to do anything "that a person can lawfully do by an attorney". They cannot authorise a non-lawyer to engage in legal practice.
The federal court highlighted the importance of qualified lawyers in legal proceedings. He emphasised the duty of lawyers to the court, ethical considerations, and the interests of justice in maintaining a qualified legal representation system.
The court further said a barrister or solicitor had the overall duty of candour, and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The court also said that training, qualifications, and experience are important.
While acknowledging the applicants' difficulties in obtaining alternative legal representation and expressing sympathy for their situation, the court observed that the applicants had provided little information about their attempts to obtain alternative legal representation.
The federal court ultimately concluded that granting leave for Kalitihos to represent the applicants would not serve the interests of justice or the efficiency of the trial. The applicants' request was consequently denied, and the interlocutory application was dismissed.
