Consideration
26 There are a number of points that should be observed in response to this.
27 First, nothing in the reasons indicates that the primary judge properly considered the mandatory considerations listed in r 8.02 of the FCFCOA Rules. His Honour instead described the position as follows:
[6] The question is whether the FCFCOA has the resources to deal with the matter, and whether the matter is of such complexity that it is matter that should be dealt with by the Federal Court.
28 By then addressing the position by reference to the question as he has described it, his Honour touches on some matters relevant to the factors enunciated in r 8.02, but without sufficient particularity.
29 For example, there is no discussion of whether the proceedings are likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue. His Honour does discuss the alleged complexity of addressing the circumstances of employment of a PhD student and the absence of a written contract, but the discussion is about complexity, rather than general importance.
30 There is no discussion as to whether if the proceedings are transferred, they are likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred, other than the potential that Mr Chambers referred to of accessing pro bono legal services.
31 There is no discussion as to the availability of particular procedures appropriate for the class of proceeding in either Court.
32 The failure to address these matters indicates that the judge misunderstood his task under the FCFCOA Act and the FCFCOA Rules and did not have regard to mandatory considerations: KDSP v Secretary of the Department of Home Affairs [2022] FCA 1406 at [29], [32] (Kenny J). Where an order is not made in conformity with those provisions, and there is a failure to have regard to a mandatory consideration, then such error may be one going to jurisdiction. Regardless of the parties' current consent to the transfer in this case, the position as to the legal force of the FCFCOA order of 11 November 2022 is left 'tolerably unclear', and in such circumstances it would be inappropriate to confirm the order, consistent with the reasons and outcome in KDSP at [32]. Notably in KDSP, the parties either consented to or did not oppose the transfer at the time the confirmation orders was considered and declined by Kenny J (at [22]-[24]).
33 Similarly, in Panagiotidis v IProsper Financial Planning Pty Ltd [2022] FCA 1508, Raper J declined to make a confirmation order, observing that the FCFCOA judge should have given attention to each of the prescribed factors (at [27]).
34 I also have regard more generally to the interests of the administration of justice, as referred to in s 153(3)(d) of the FCFCOA Act.
35 In this regard, and noting the comments of the primary judge quoted at [25] above, it is not apparent that the primary judge had been or would be allocated the trial of the matter, as against its case management. It may well be that a FCFCOA judge located in the Perth registry or readily able to travel to the Perth registry could or would be allocated the trial for hearing. Such practical issues are not uncommon in a Commonwealth Court. Absent further information, this issue is not of any significant weight.
36 Second, I do not assess the case as one which raises questions of general importance. It appears to be one which wholly turns on facts peculiar to it.
37 Third, as to the alleged complexities, it is to be borne in mind that the FCFCOA routinely hears and determines adverse action and breach of contract claims and hears and determines matters involving serious contraventions under the FW Act. Certainly some work should be undertaken in order to streamline the various claims but there is no reason this could not be done with proper case management, the filing of agreed statements of fact and bundles, and the use of a registrar as appropriate to assist (all of which can be undertaken in the FCFCOA). Similarly, both Panagiotidis and Van den Berg v Monash Health [2022] FCA 796 (O'Callaghan J) involved a number of claims under the FW Act. In Van den Berg, there were some 41 separate alleged contraventions. The nature and number of the claims did not prevent confirmation of the transfer orders being declined in both cases.
38 Fourth, it can be accepted that the FCFCOA undertakes high volume work. However, there is nothing in the reasons that indicates the likely length of trial. Instead general expressions are used, such as the work required being likely to occupy 'quite a long time'. It can safely be assumed that judges in the FCFCOA and this Court operate under listing and writing pressures. That is not to say that this Court could not deal with the matter more speedily - but his Honour's generalised assessment of the time that might be occupied in addressing the proceedings does not assist in undertaking a measured comparison of how the proceedings might be pursued in the different courts. In any event, even if it were considered that trial dates would exceed five days, that length of itself is not a sufficient basis for ordering a transfer: Van den Berg at [16]. It should not be assumed that a proceedings such as this would be heard and determined at less cost and more convenience in the Federal Court: Van den Berg at [32]-[33].
39 Fifth, the fact that the parties do not oppose a transfer is relevant but not of itself determinative. I invited the parties to file submissions with respect to whether the transfer order should be confirmed. UWA filed brief submissions indicating that it consented to the transfer. Publication of these reasons was delayed at Mr Chambers' request as he sought extensions of time in which to file submissions. He filed detailed submissions on 4 April 2023. Mr Chambers focussed on the alleged complexity of the matter, the difficulties he has faced with pleading it and its importance from his perspective. He claims that the question of whether a PhD student is an employee is one of broader importance that should be considered by this Court and refers to other legal issues that might arise. He fears appealable error by the FCFCOA should it continue to hear his case and fears that this will add to the cost of the pursuit of his claims. He considers that a trial judge 'who is more specialised and experienced in the areas of dispute' would be of benefit to the management of the case. He expresses a preference for a trial by video hearing.
40 Having considered Mr Chambers' submissions, they do not alter the outcome in this matter. It remains the case that the task that was to be undertaken by the primary judge was not properly undertaken. For the reasons discussed in KDSP at [32], even if it were open to me to confirm the transfer order, it is not appropriate that it be confirmed. Therefore, the fact that Mr Chambers now seeks to retrospectively fill some of the gaps in the reasoning below does not assist with the decision I am asked to make.
41 In any event, I do not consider on the information available to me that there are sufficient grounds to warrant a transfer. I would give no weight to claims such as the need for an experienced trial judge or the alleged risk of appealable error. The FCFCOA, as I have already observed, routinely hears and determines adverse action and breach of contract claims, including matters involving serious contraventions under the FW Act. Further, as O'Callaghan J noted in Van den Berg at [30], the FCFCOA decides questions of general importance every day of the week. The FCFCOA also utilises the skills of registrars to assist with aspects of case management and mediation, and there is no reason to believe that the parties will not be assisted in that manner, regardless of the Court in which they proceed. A judge is required to utilise the tools of case management to do all that they can to ensure that parties act appropriately. I remain of the view that the proceedings issued by Mr Chambers largely turn on facts peculiar to them or of a nature the FCFCOA is well able to determine. Other difficulties to which Mr Chambers refers, such as defining facts in issue, identifying legal issues and pleading his case, will not dissolve simply by a transfer to this Court.