Jonak v Enscope Pty Ltd

Federal Court of Australia|2021-12-16|Before: Smith J

This proceeding be transferred to the Federal Circuit and Family Court of Australia pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 These proceedings were commenced on 25 October 2021 in this Court. 2 Mr Jonak has brought an adverse action claim against the respondent following the termination of his employment as a process engineer. His claim is brought under s 340, s 341(1)(c)(ii) and s 342 of the Fair Work Act 2009 (Cth) and he seeks compensation equivalent to two months' salary, being $12,000. 3 The Federal Circuit and Family Court of Australia (FCFCOA) has the jurisdiction to determine the applicant's claim: s 566 of the Fair Work Act (as amended since the formation of the FCFCOA). Mr Jonak does not have legal representation. I conducted a case management hearing on 22 November 20221 relevantly in order to ascertain from Mr Jonak whether the respondent had been served. At that time the respondent had not been served and accordingly no case management orders were made by the Court. I raised the question with Mr Jonak as to whether this proceeding should be transferred to the FCFCOA. Mr Jonak was content with such a course. It appears that the respondent has since been provided with a copy of the originating application but has written to Mr Jonak through its solicitors indicating it takes issue as to its form, and asserting that any application should have been brought in the FCFCOA.

Statutory context 4 By s 32AB of the Federal Court of Australia Act 1976 (Cth) the Court may on its own initiative transfer a proceeding to the FCFCOA. The section relevantly provides: 32AB Discretionary transfer of civil proceedings to the Federal Circuit and Family Court of Australia (1) If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit and Family Court of Australia. (2) The Court may transfer a proceeding under subsection (1): (a) on the application of a party to the proceeding; or (b) on its own initiative. … (6) In deciding whether to transfer a proceeding to the Federal Circuit and Family Court of Australia under subsection (1), the Court must have regard to: (a) any Rules of Court made for the purposes of subsection (4); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia; and (c) whether the resources of the Federal Circuit and Family Court of Australia are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. (7) If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit and Family Court of Australia. … (8B) The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction in a matter that: (a) is the subject of a proceeding transferred to the Federal Circuit and Family Court of Australia (Division 2) under this section; and (b) is a matter in which the Federal Circuit and Family Court of Australia (Division 2) does not have jurisdiction apart from this subsection. To avoid doubt, the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under this subsection is not subject to limits set by another provision. … 5 Although not strictly relevant to this application, because the jurisdiction of the FCFCOA is not in issue, it should be observed that s 32AB was amended with effect from 1 September 2021 to clarify the jurisdiction of the FCFCOA by the introduction of, relevantly, s 32AB(8B).

Consideration 6 In determining whether or not the Court should transfer the proceeding to the FCFCOA, the Court must have regard to the matters referred to in s 32AB(6) of the Federal Court of Australia Act. 7 The applicant has filed an originating application which was accompanied by a certificate issued by the Fair Work Commission dated 12 October 2021, which stated that the Commission was satisfied all reasonable attempts to resolve the dispute (other than by arbitration) had been unsuccessful. 8 It is apparent from the originating application that there is a dispute about whether the applicant exercised a workplace right to make complaints or inquiries about his employment which, the applicant alleges, resulted in his employment being terminated. The matter will therefore likely only involve the determination of the facts in dispute and the application of the law to the facts, rather than any question of broader application. 9 Although I recognise that the dispute and the sum of money potentially involved is important to the parties, there is nothing disclosed by the application that suggests that there are any questions of law of such general importance that they ought to be dealt with by this Court. I note that the respondent has not been heard as to its views on any transfer, but I take into account the respondent's indication, given to Mr Jonak, that it considers the FCFCOA is the appropriate court. 10 The matter is unlikely to require extensive judicial intervention, and resolution by mediation before a Judicial Registrar remains a real possibility. Having regard to s 37M(2) of the Federal Court of Australia Act, with its emphasis on the just and efficient use of judicial resources and on proportionate costs and expenses, it seems to me that the resolution of this matter might be dealt with justly and efficiently in the FCFCOA. 11 The parties may address further programming or the potential for mediation before the FCFCOA. I also note that in making this order I do not purport to prevent or prejudice the respondent in challenging the form of the originating application should it wish to do so: it may continue to pursue any such challenge before the FCFCOA. Whether or not any such challenge has substance will be a matter for the FCFCOA. It is not appropriate that I make further comment in that regard. 12 I note and endorse the following observation of Wigney J in Sampson as the trustee of the Bankrupt Estate of Wei Chen v Huang [2020] FCA 545: [28] Transferring proceedings to the Circuit Court should not, however, convey the impression that the Circuit Court only deals with matters of lesser significance. To do so would be to misunderstand the nature of the Circuit Court. Rather, transfers of proceedings are simply a reflection of 'the concept of more efficient and better administration of justice which underlies the creation of that court and underlies the arrangements for transfer of cases between the two courts': Sheikholeslami v University of New South Wales [2006] FCA 712 at [8]-[9]. 13 Having taken into account and weighed the various matters, I consider it is appropriate that this matter be transferred to the FCFCOA. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

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