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Investigated and Written by Julie Brown



Minister misleads NSW parliament over legal representation claim


20 June 2009


I have learned that on 5 May, 2009 John Hatzistergos as minister representing Verity Firth, NSW Education Minister, mislead the NSW Legislative Council on questions relating the the representation of a government contractor before the NSW Industrial Relations Commission. The concerns relate to Brian Carter, a former employee of Carenne Support Limited who dismissed him six days before christmas on 19 December, 2008. It claims to be a charity which supports people with a disability in Bathurst and has sought funding from the government on that basis [SEE] . It is now defending itself by using a technical defence in the Industrial Relations Commission by claiming to be a "trading corporation" as it provides bus services under contract to the Department of Education and Training, earning some $15,000 per month. In late February, Mr Carter received a letter from the NSW Department of Education and Training's Legal Services Directorate claiming that they would be representing the contractor in the Industrial Relations Commission [SEE] . The letter from Patrick Quinn at the Legal Services Directorate claimed that he had sent a copy of the Notice of Appearance and Employer's response with the letter, the Notice of Appearance was not enclosed. Mr Carter told me that he contacted the Industrial Relations Commission, which faxed him a copy of the Notice of Appearance [SEE] which listed the Director-General of Education and Training as appearing on behalf of Carenne Support Limited. Shocked with this, Mr Carter sought answers from the education minister herself who ignored his correspondence. He then sought advice from the opposition education minister, who delayed his reply. He then contacted Dr John Kaye MLC for the Greens who placed the questions on the Legislative Council notice paper on 31 March 2009. On 5 May 2009 a response was entered by Mr Hatzistergos on behalf of Ms Firth. Mr Hatzistergos said:


"The Department is not providing legal representation to Carenne Support Ltd before the Industrial Relations Commission of NSW. However the Legal Services Directorate of the Department from time to time provides legal support to non-profit school based organisations that assist in the delivery of education programs,"


"It is understood that Carenne Support Ltd has sought advice from a private solicitor."


It is clear that Mr Hatzsitergos on behalf of Ms Firth clearly misled the parliament. It is clear that the NSW Department of Education and Training was in fact providing legal representation to Carenne Support Limited at the government's expense. This is clearly not appropriate use for government funds. It appears that because a state school benefits from Carenne Support Limited that the government will do favours for it to avoid legal costs. Nathan Rees, Verity Firth and John Hatzisergos all refused to make comment when contacted.


Investigated and written by Julie Brown. Document evidencing that the Minister misled parliament



One of several comments published on above article:


Re: Minister misleads NSW parliament?


On June 25th, 2009 captain swing says:


If you look closely at the letter from Mr Quinn, it says they act as 'agent', not as 'solicitors', a very important distinction in law. The Notice of Appearance clearly shows the DG of DET as  the entity appearing on behalf of the employer, but as an 'agent', not solicitor. That's why the letter says the DG of DET is the 'agent'.  In a real 'court' only a legal practitioner in private practice could validly 'appear' on behalf of a client, but in the NSW IR Commission in an unfair dismissal case an 'agent' can be appointed, whether a practising solictor or not, because the Commission when sitting in a UD case is an 'arbitral' body, not a 'judicial' one. That's why Commissioners don't have the status of 'judges' and aren't called Your Honour, as they are not even required to hold legal qualifications, though a number of them do. Mr Carter should formally object to the employer being represented by this type of 'agent'. A specific provision in the NSW IR Act allows for this objection.


 On the substantive issue of jurisdiction, the Carenne Support Ltd may well be a 'trading corporation', just as the Shoalhaven Community Tenancy Scheme was found by Commissioner Connor to be a 'trading corporation', with the result that the learned Commissioner was forced to throw that case out, as a UD claim against a 'constitutional corporation' can only be brought before the Federal Commission ( because of Work Choices) where the employer had at least 100 employees as at the date of termination. I bet Carenne Ltd had less than 100 employees as at the date of termination. On that jurisdictional point, Mr Carter would unfortunately be sunk.  Nearly have to be a constitutional lawyer to sort out which system you are in, if you are employed by anything with "Limited" after its name. This includes the NGO's known as 'incorporated associations'.  Mr Carter must prove that the $15,000 in payment Carenne receives from DET is something like a 'grant', not payment for its services and/or that this payment does not truly make it a 'trading corporation', as the trading activity is not a significant part of Carenne's overall activities ( either as a proportion of its total revenue or by reference to its 'non-profit' status or the importance of the bus service to the total activities Carenne conducts. Unfortunately this case would make a good exam problem for employment law students. Unfortunately Mr Carter may be in no better position than any employee of a small business under Work Choices. The evil of that legislation was not just a beat up by the unions & Labor Party to help them win an election - just ask anyone still covered by a 'post-reform' AWA i.e. pre 'fairness test'. I hasten to add that this is not 'legal advice', just 'legal information. Mr Carter needs a 'pro bono' lawyer to fight his case. If Legal  Aid won't take the case, then he needs to approach the Law Society - there are some 'public spirited' law firms with specialist expertise in employment law who offer their services at little or no cost. Whilst the larger ones use these cases as 'training' for junior lawyers, they are supervised by more senior lawyers ( and have to treat the case just as seriously as the ones they take for paying clients).


Cheers, The Captain.



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