1. In August 2014, whilst the Federal Court proceedings were being progressed to trial, Ms Bashour issued an application for an injunction in the Federal Circuit Court. She said she did so because she was told that she could get an earlier hearing in that jurisdiction than in the Federal Court.
2. The basis for that application was that she feared she was about to be sacked. She wanted an urgent hearing to prevent this happening.
3. The bank appears to have been the only respondent named in that claim.
4. Her description of the grounds of her claim in the Circuit Court proceeding run to 27 paragraphs. The issues canvassed include allegations of unfair treatment, breach of contract, and a claim of discrimination, and a claim that the bank was by various means attempting to punish her for having instituted the Federal Court proceedings. Significantly, these allegations covered the period when Bashour was pregnant with her second child, a time period common with the VCAT claim.
5. After an initial hearing in the Circuit Court, this proceeding was referred to the Federal Court to be heard by Justice Tracey in conjunction with the existing Federal Court claim.
6. However, Bashour discontinued the Circuit Court application when she resigned from the bank in October 2014. Three weeks later she issued the VCAT proceeding.

1. The proceeding in VCAT was issued in late October 2014. The ANZ Bank is also a respondent to that claim, but there are three other respondents as well. The first is Susie Babani. Ms Babani is the Global Chief Human Resources Officer for the ANZ Bank. As I understand it, the ANZ Bank has a significant global presence, so Ms Babani oversees the human resources policies for this global organisation.
2. The next respondent is Jennifer Evans. She is the Chief Risk Officer for Australia for the ANZ Bank.
3. The third respondent is Phillip Chronican. He is the Chief Executive Officer of the ANZ Bank in Australia.
4. Mark Shaw is not an individual respondent to this proceeding.
5. There is little hint in the proforma application filed as to the facts supporting the joining of the second, third and fourth respondents, except for a fleeting reference in that document to those respondents having failed "to provide a safe and healthy place of work".
6. An attachment to that application asserted that she had complained to those respondents about a serious health risk she was facing and that the health of her unborn baby was at risk if workplace conflict was not resolved. She claimed these respondents had not taken reasonable measures in response to that information.
7. I received no further assistance as to the foundation of the claim against these respondents during the hearing, or in the applicants written submissions, save for a bare assertion that they were personally involved in the alleged contraventions by the bank.
8. The Federal Court proceeding makes claims arising out of the way in which the applicant says she was treated on her return from maternity leave after having her first child.
9. The VCAT proceeding is superficially different, in that it makes claims against different individual respondents, and relates to a later time period when she was pregnant with her second child. The VCAT proceeding covers the time period from about August 2014 until the applicant resigned from the ANZ Bank on 1st October 2014.
10. It also involves an allegation by the applicant that she suffered from a temporary disability during her second pregnancy - namely a condition of pelvic instability, caused by that pregnancy.
11. Her claim as she described it to me in submissions was that the ANZ Bank should have made reasonable adjustments because she had this pregnancy related pelvic condition, and that the bank failed to do so.
12. As far as I can understand, those reasonable adjustments should have been to allow her the ability to work from home over that period, or to have had the benefit of flexible working hours.

1. Clearly I have power to make the orders sought. The authorities tell me that the power is discretionary and must be exercised judicially. I accept also that a high level of satisfaction is required before such an order can be made, given that it essentially deprives an applicant of the benefits that would otherwise be available of having the matter dealt with in this Tribunal.
2. It is the respondents who bear the onus of persuading me that this course should be followed, and I would have to be amply persuaded firstly that the Court or Tribunal to which the proceedings were to be referred has the jurisdiction to deal with the proceeding in its totality, and that the dispute would be more appropriately dealt with in that jurisdiction.
3. There have been many examples where the Tribunal has made an order under section 77, and of course many examples of cases where it has refused to do so.
4. In my view there is very little assistance to be gained by a comparison of cases. Each case must be dealt with on its merits.
5. I am not bound to transfer a proceeding just because there are related Court proceedings on foot in another jurisdiction. I may have regard to the considerations of cost and convenience to the parties, whether the proceeding is oppressive to a respondent, the position the proceeding has reached in VCAT and in the other forum, the fact that the applicant has chosen to proceed at VCAT and whether the applicant's choice of forum is made in an attempt to gain an inappropriate tactical advantage or as the flip side to that argument the question of whether VCAT is considered to be a first port of call for the type of proceeding in question.
6. Running through the authorities is the common sense principle that if there is a significant risk of inconsistent findings in relation to exactly the same subject matter, this is a powerful consideration supporting the transfer. It is not in the interests of justice that substantially the same set of facts be litigated in different courts.

ARE THE CLAIMS AT VCAT ARISING OUT OF THE SAME SUBJECT MATTER AS THE FEDERAL COURT CLAIM?

1. The respondents' submission was that each one of the matters about which the applicant complains at VCAT were practically identical with complaints which she has made in proceedings filed in the Federal Court and in the discontinued Federal Circuit Court proceeding.
2. One of the difficulties in assessing whether this is so is that the applicant acts on her own behalf and so has expressed herself in narrative language, rather than having prepared a statement of claim or particulars of demand which can be easily compared with the pleadings in the Federal Court.
3. I explored this matter in some depth in discussion with the applicant at the hearing.
4. I have reached the conclusion that the facts on which both the applicant and the bank rely in each of these proceedings are inextricably intertwined.
5. Although Babani, Evans and Chronican are not respondents in the Federal Court proceeding, the behaviour of each which appears to be relied on in the VCAT proceeding (failure to intervene to prevent discrimination) is also relied on in the Federal Court proceeding. In truth, her claim in each proceeding is that the bank has refused to make appropriate flexible arrangements to allow her to work from home during one or other of her pregnancies, and has spurned or victimised her because she complained about this.
6. Apart from the allegation of pelvic instability, which relates only to the second pregnancy, these complaints are based on exactly the same bank policies and procedures, and the same alleged failings and inadequate responses of bank employees.
7. Of course the medical condition of pelvic instability will require supplementary medical evidence of a different character than the medical evidence of the other consequences of pregnancy which are alleged to require the provision of flexible working hours, or of allowing the applicant to work from home. However it seems clear that this medical evidence will come from the same expert medical witness or witnesses who would be giving evidence in the Federal court proceedings in any event - that is, her treating doctors.
8. The applicant placed much emphasis on the concept of "reasonable adjustments" in the VCAT claim. However, what she appears to mean by that is simply that the bank should have put into effect policies or procedures to allow her either flexible working hours or to be able to work from home during the course of her pregnancy. This issue is also fundamental to her Federal Court claim.
9. I accept the respondents' submission that all of the claims which she makes in both proceedings form part of one controversy between the parties.
10. Given that the claims of discrimination and victimisation are so closely entwined with the claims in relation to employment, I find that it is a significant prospect in this case that inconsistencies in fact finding will arise if the two proceedings are litigated in two different jurisdictions.
11. This will give rise to a significant risk of inconsistent verdicts.

DOES THE FEDERAL COURT HAVE JURISDICTION TO HEAR THE VCAT DISPUTE?

1. The respondents asserted that the transfer could be effected in one of three ways.
2. Firstly the present claim under the Fair Work Act 2009 could be amended to include the attributes relied on by the applicant under the Equal Opportunity Act.
3. Secondly, the jurisdiction of the Federal Court could be invoked by the applicant under its statutory jurisdiction in associated matters. This jurisdiction arises under section 32 of the Federal Court of Australia Act 1976. This would enable the Federal Court to exercise jurisdiction under the Equal Opportunity Act 2010.
4. Thirdly the applicant could make her claim under the Disability Discrimination Act 1992.
5. The respondents have indicated that they would not stand in the way of any of these pathways, and indeed have been suggesting that transfer to the applicant ever since the proceedings in this Tribunal were instituted.
6. In her written submissions, the applicant asserted that this Tribunal has exclusive jurisdiction under the Equal Opportunity Act, and that it was not possible for the Federal Court to hear the claim she has made under that Act.
7. Her argument is that the Equal Opportunity Act bestows exclusive jurisdiction on VCAT, and that therefore that jurisdiction could not be exercised by the Federal Court.
8. I do not see this as an impediment to a transfer under section 77 of the Act. There are many jurisdictions which are exclusive in the sense that they are bestowed on VCAT and in respect of which proceedings are not able to be initiated in other Victorian Courts or tribunals.
9. There is no reason to read down section 77 of the Act so that any matter in respect of which VCAT is given exclusive jurisdiction cannot be transferred. It is the very purpose of section 77 the Act that the Tribunal should have the power to transfer matters which are otherwise solely within its jurisdiction if the subject matter of the proceeding would be more appropriately dealt with by another Tribunal or Court.
10. The applicant also submitted that section 77 only empowers the Tribunal to refer matters to other State bodies, not to Federal bodies. The applicant says that this is so because the Victorian Parliament is not constitutionally empowered to affect or interfere with the jurisdiction of any Federal Court or body.
11. I agree with the respondents' submission that section 77 does not interfere with or purport to create a jurisdiction in the Federal Court. Were this argument to succeed, it would mean that VCAT could never have the power to refer matters to an interstate court or to the Federal Court. It is the subject matter of the dispute which is referred under section 77, not the jurisdiction.
12. The question of the jurisdiction of the Federal Court to deal with that subject matter is another issue.
13. The applicant has submitted that the claims made by her under the Equal Opportunity Act would not be able to be dealt with by the Federal Court.
14. I am satisfied that this issue is addressed by section 32 of the Federal Court Act which gives the Federal Court clear power to do so.
15. In so far as the applicant suggests in her written submissions that the subject matter of the VCAT dispute is significantly different from that of the Federal Court dispute I reject that submission for the reasons I have earlier identified.

IS THERE ANY PREJUDICE TO THE APPLICANT IF THE PROCEEDING IS TRANSFERRED TO THE FEDERAL COURT?

1. The next question is whether there is any prejudice to the applicant in the transfer.
2. The applicant asserted that she would not be able to continue with her claim if it was transferred to the Federal Court, as she could not afford the cost of amending the Federal Court proceedings.
3. The proceeding listed in this Tribunal is still in its infancy. The matter could not proceed to a hearing on the documents so far lodged by the applicant. She has not clearly set out the grounds of her claim. If it was to proceed in this Tribunal, she would have to undertake much the same work as would be required to amend the Federal Court proceeding, and the respondent would have to file material in response. In the Federal Court she has the advantage of a certain date for trial in the near future, and a judge allocated to case manage the dispute to trial.
4. In my view it will be to the advantage of both the applicant and the respondents that material in one jurisdiction is not duplicated in another, and that the claim is dealt with as quickly and efficiently as possible.
5. The VCAT proceeding is still in its infancy. It is unlikely to be listed for trial before the end of this year. It is surely to the applicant's great advantage to have all of her claims dealt with as quickly as possible, subject of course to allowing appropriate time for preparation.
6. I was unable to discern any prejudice to the applicant at all from the transfer, given that the respondents have indicated that they will consent to her amending her Federal Court documentation to include these claims and to filing further affidavits if required. There is still sufficient time to do so before the end of April when the Federal Court proceeding is listed to be heard.
7. The respondents have claimed that the initiation of proceedings at VCAT is an abuse of process, being an attempt to inconvenience the respondents to the greatest extent possible.
8. I do not find it necessary to determine this issue. As I have pointed out, the applicant does not have the benefit of legal advice and it is understandable that significant overlap between the two applications has occurred. The VCAT application is in its early stages. The argument might have had more weight if formal particulars of claim had been filed, as opposed to the filling in of a proforma claim form by an unrepresented litigant.

1. I am persuaded that for the reasons outlined the subject matter of the claim at VCAT is more appropriately dealt with in the Federal Court. I therefore propose to make an order that the proceeding be struck out and the subject matter of the proceeding referred to the Federal Court.
2. The respondents have sought the striking out of the claims against the individual respondents. Given that the subject matter of the proceeding is to be transferred to the Federal Court, it is my view that the appropriateness of joining these parties should be a matter for the Federal Court judge hearing the case.