McGregor v Admosis Media Group Pty Ltd [2025] FedCFamC2G 1481

Note: Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicant, Robyn McGregor, was employed by the respondent, Admosis Media Group Pty Ltd until 2024. This year the applicant commenced proceedings against the respondent in this Court under the Fair Work Act 2009 (Cth) (FW Act) for payment of $61,686.11, being unpaid wages, leave and superannuation initially using the small claims process. The applicant has since flagged her intention to amend her application and have the matter removed from the small claims process to join other potential respondents, and to seek other orders including penalties. The respondent has raised a cross claim, asserting a defence of equitable set off to the whole of the applicant's claim/s and alleged the applicant made false and misleading representations before she was employed. The respondent asserts the applicant contravened sch 2 s 18 of the Competition and Consumer Act 2010 (Cth) (ACL) and seeks orders for damages or compensation.
2. Because of this, and to provide some certainty as to how the matter should progress, the parties agreed to the respondent filing an application for the transfer of these proceedings to the Federal Court of Australia (FCA). The parties filed written submissions, and the application has been heard on the papers.

1. By way of background, in July 2024, the respondent acquired the assets of 360South Pty Ltd, the applicant's previous employer. The applicant was involved in the pre-sale contract discussions. The sale involved inter alia, the transfer of the applicant's employment to the respondent. However, the business that was sold was subsequently liquidated and applicant's employment with the respondent was terminated in late 2024.
2. As indicated, after the proceedings had been commenced at a case management hearing, the parties consented to the respondent filing an application in a proceeding on 24 July 2025 seeking:

An order pursuant to s.153(2)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r.8.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 that the proceeding be transferred to the Federal Court of Australia.

1. Both parties have filed submissions on the issue to which it will be necessary to turn presently. However, for the reasons set out below, it is in the interests of the administration of justice that these proceedings be transferred to the Melbourne Registry of the Federal Court of Australia.

1. Section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) provides:

153 Discretionary transfer of proceedings

(1) If:

(a) a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and

(b) the proceeding is not a family law or child support proceeding;

the Court may, by order, transfer the proceeding from the Court to the Federal Court.

(2) The Federal Circuit and Family Court of Australia (Division 2) may transfer a proceeding:

(a) on the application of a party to the proceeding; or

(b) on its own initiative.

(3) In deciding whether to transfer a proceeding to the Federal Court, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:

(a) any Rules of Court made for the purposes of subsection 154(2); and

(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and

(c) whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and

(d) the interests of the administration of justice.

1. Rule 20.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Rules) provides:

(1) Unless the Court otherwise orders, an application under paragraph 153(2)(a) of the Act to transfer a proceeding from the Court to the Federal Court must:

(a) be made on or before the first court date for the proceeding; and

(b) be included in an application or a response in accordance with the approved form; and

(c) be supported by an affidavit.

Note: Subsection 153(1) of the Act provides that the Court may, by order, transfer a proceeding that is pending in the Court and is not a family law or child support proceeding to the Federal Court. Subsection 153(2) of the Act provides that the Court may transfer the proceeding on the application of a party to the proceeding or on its own initiative.

(2) In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:

(a) whether the proceeding is 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;

(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;

(c) whether the proceeding will be heard earlier in the Court;

(d) the availability of particular procedures appropriate for the class of proceeding;

(e) the wishes of the parties.

(3) Before the Court makes an order under subsection 153(1) of the Act transferring a proceeding from the Court to the Federal Court:

(a) the Court must consult the Chief Judge of the Court in relation to the proposed transfer; and

(b) the Chief Judge of the Court must consult the Chief Justice of the Federal Court, or a delegate of the Chief Justice of the Federal Court, in relation to the proposed transfer.

(4) A failure to comply with this rule in relation to a proposed transfer of a proceeding under subsection 153(1) of the Act does not affect the validity of an order made under that subsection transferring the proceeding.

1. In broad summary, the respondent says the matter should be transferred whilst the applicant, who acknowledges there is a question of general importance, opposes the transfer. The respondent relies on the following affidavits in support of its application.

(1) the affidavit of Daniel Philip Copsey sworn on 27 March 2025; and

(2) the affidavit of Emma Pritchard sworn on 23 July 2025.

1. The respondent says the defence of equitable offset that they will rely on, introduces questions of general importance in this case which are both novel and complex with potential to have national implications in employment law. The respondent says this is so because:

(1) first, the question of whether an employer may sue an employee for the employee's preemployment misrepresentation/s; and

(2) second, where the answer to the first question is "yes", whether such a claim may be permitted as a defence of equitable set off to defeat an employee's claims for statutory entitlements under the FW Act.

1. The respondent's submissions were that this factor should be given greatest weight when considering its application. In any event, the respondent addressed all the mandatory factors attendant such an application, submitting that when balanced they did not tell against a transfer.
2. The applicant says the issues raised in the respondent's submissions are of general importance. However, the applicant said it was not yet possible to determine the extent of those issues due to insufficient evidence. The applicant's position was each of the other factors weighed against a transfer. The respondent filed submissions in reply taking issue with the applicant's claims in that regard, pointing to its response and affidavit material.

1. The mandatory considerations that are to be taken into account pursuant to sub-section 153(3) of the Act and rule 20.01 of the Rules.

Whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue

1. Both parties accept that the respondent's cross claim raises questions of general importance about; (1) whether an employer can sue an employee for the employee's pre-employment misrepresentations and (2) whether such a claim may be permitted as a defence of equitable set off to defeat an employee's claims for statutory entitlements.
2. I note in the respondent's submissions it was said:
   1. On the first question, the following cases (drawn to the parties' attention in the directions hearing of 5 June 2025) are apt:
      1. Dove v Everforex Financial Pty Ltd [2022] FedCFamC2G 752 (Dove 1);
      2. Dove v Xmeta Pty Ltd (formerly known as Everforex Financial Pty Ltd) (No 3) [2023] FCA 1320 (Dove 2);
   2. In Dove 1, Cameron J transferred a proceeding to the Federal Court which involved a cross-claim alleging inter alia losses arising out of misrepresentations made by the employee, Mr Dove, which had induced the employer to enter into an employment contract with him; and losses to the employer's business as a result of its reliance upon Mr Dove's misrepresentations. These facts are analogous to the present case where it is alleged that the reason the Respondent entered into an employment contract with the Applicant as a transferring employee was because she had made misleading representations to the Respondent which induced it to acquire the company that was then her employer.

16. Judge Cameron's reasoning at [34] and [36] included the following:

[34] I agree that whether an employer can sue an employee for the employee's pre-employment misrepresentations is a matter of general importance and that a decision of the Federal Court on that question would, with respect, be more authoritative than a decision of this Court...

[36] I conclude that it is in the interests of the administrative of justice that the proceeding be transferred to the Federal Court.

1. Thereafter the matter was transferred to the Federal Court where the employee attempted to strike out the misleading and deceptive conduct claim. In Dove 2, Goodman J rejected the strike-out application because his Honour did not agree that the arguments as to misrepresentation were without foundation or that it was appropriate to dismiss the cross-claim on an interlocutory basis: Dove 2 at [73], [84], [87], [90].

1. The applicant accepts the issues raised by the respondent are of general importance but did not warrant a decision at the FCA. The applicant said:

1. On the issue of general importance, it is accepted that two issues that might arise in the Respondent's cross claim are (a) whether an employer can sue an employee for the employee's pre-employment misrepresentations and (b) whether such a claim may be permitted as a defence of equitable set off to defeat an employee's claims for statutory entitlements. 2. However, given that there is presently insufficient evidence before the Court to give an indication of the alleged facts and assertions of law, including which of these the Applicant may admit or deny, it is not possible to determine whether those issues are indeed relevant or complex (either legally or factually). 3. It is also noted that, in relation to the affidavit of Daniel Copsey sworn on 27 March 2025:

(a) Paragraph 3 states that the Respondent will seek orders for the filing of a defence and cross claim in this matter, however no draft defence or cross claim has accompanied its current application, which would have provided the Court with greater insight into the relative complexity (or simplicity) of its claim. > > (b) Paragraph 11 and 12 allege that the 18 March 2025 letter (Annexure C) details the representations made by the Applicant at paragraphs 11 to 23. However, Annexure C at paragraph 17 refers to two defined terms ("July Correspondence" and "Verbal Representations") that are not defined in that letter, nor are they defined in either of the affidavits filed in support of the present application. The Court is not in a position to understand how many representations are alleged to have occurred and what those representations consist of. > > (c) Paragraph 16 alleges that the Respondent has suffered loss and damage by reason of the Applicant's contraventions, including the difference between the price paid for the assets of 360South Pty Ltd and the true market value of those assets. However, no further evidence has been provided to the Court in relation to the quantum of damages. It is noted that the purchase price under the sale and purchase agreement was only $20,000 exc GST.

1. In the absence of draft pleadings, how many representations occurred and what they consisted of, and quantum of damages, as well as a lack of explanation as to why this evidence has not been put before the Court, the Court should draw an adverse inference that this evidence would not have supported the Respondent's application for transfer. 2. Dove is also distinguishable from the current circumstances because the cross claim was 'expansive' and the Court had particulars of the cross claim which included allegations of constructive trusts, breaches of fiduciary duty and breaches of duties of the Corporations Act 2001 (Cth), which factored into the Court's decision to transfer the proceedings. There is nothing in the two affidavits relied on by the Respondent to suggest that its claim is expansive or complex.

24. Previous commentary of the Federal Court has also observed:

(a) "As to purported "factual complexity", it is routine for the FCFCOA to hear and determine underpayment cases involving multiple respondents, claims of accessorial liability, adverse action, breach of contract and Australian Consumer Law contraventions. Furthermore, the FCFCOA does hear and determine matters involving serious contraventions under the FW Act."

(b) "that is not to say...that the FCFCOA should not decide questions of general importance. It does so, with respect, every day of the week."; and

(c) "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".

25. This factor points against transfer.

1. The Dove 2 proceedings only reached the stage of a strike out application where Goodman J said inter alia, "...it cannot fairly be said that conduct prior to the creation of an employment relationship cannot be conduct in trade or commerce".[1] His Honour acknowledged there was a difference of opinion at a single-judge level in the FCA on this issue.
2. A decision of the FCA on these points of issue would not only be desirable in the administration of justice but would mitigate against differing opinions on the same point at a single-judge level and provide guidance to all involved. I accept that although this matter now encompasses issues which would be better dealt with in the FCA.

Whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred

1. The respondent submitted that this factor weighed in favour of the transfer.
   1. These proceedings are at a relatively early stage in litigation. The Applicant no longer seeks to use the small claims procedure in this jurisdiction and would therefore be exposed to similar legal costs and (in)convenience as if she were to pursue this claim in the Federal Court. Further, this proceeding originates in the Fair Work Division of both Courts such that the costs protection s.570 FW Act is likely to apply in any event to favour the Applicant's costs position save for any unreasonable act or omission she may commit that would cause the Respondent to incur costs.
2. The applicant submitted this factor points against a transfer.
   1. There is no evidence before the Court to support that the proceeding will be heard and determined more quickly or with more convenience to the parties than if the proceeding were not transferred.
   2. The Court has observed before that setting down and hearing fees are higher.
3. The applicant intends to amend her application further increasing the complexity of the proceedings. The benefit in terms of the cost and convenience of the parties in being transferred to the FCA, is that all matters which the parties seek to litigate, can be determined in the one court.

Will the proceeding be heard earlier in the Federal Circuit and Family Court of Australia (Division 2)

1. The respondent submitted that this factor was neutral as there was no evidence before the Court on this factor. The applicant submitted that "[i]n the absence of evidence by the Respondent that it could avail itself of a fast tracked trial in the Federal Court, it cannot be said that the proceedings would be heard earlier and, this consideration should be regarded as tending against the Application."
2. I am not in a position to do more than speculate on whether this Court could allocate an earlier trial date than the FCA could. I suspect that everything turns on the alacrity with which the parties prepare the case, rather than on the availability of trial dates.

The availability of particular procedures appropriate for the class of proceeding

1. Both parties agree there are no particular procedures appropriate for this class of proceedings. The respondent submits that this factor is a neutral consideration, whereas the applicant submitted this points against a transfer.
2. As far as I can tell, no particular procedures will be necessary to facilitate the preparation and determination of this matter, but the FCA has a national Employment and Industrial Relations practice area and there is the issue of differing opinions at a single judge level as to whether an employer can pursue an employee for pre-employment representations.

1. The wishes of the parties have already been set out above.

Whether proceedings in respect of an associated matter are pending in the Federal Court

1. It was not suggested that associated proceedings are pending in the FCA.

Whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding

1. Both parties' submissions addressed the question whether the resources of this Court are sufficient to hear and determine the proceeding. The applicant submitted that:
   1. The Respondent...has not identified the particulars of that claim in enough detail to give the Court a sense of how involved its claim may be or whether the Court has adequate resources to hear it. This is in contrast to Dove v Everforex Financial Pty Ltd [2022] FedCFAmC2G 752.... It can be inferred from Dove that the cross claim would prove resource-intensive, although it does not appear that this issue was raised by the parties and the Court did not consider resourcing factors expressly, other than to note that a global assessment of relevant factors had occurred.
2. The respondent said this consideration was neutral, the applicant said this consideration points against the transfer. The issues which the parties have indicated they intend to litigate, are better addressed in the FCA. The issues raise questions of general importance given the differing opinions at single judge level in the FCA,[2] which can only be properly addressed in the FCA. A transfer to the FCA will allow all issues in litigation to be addressed in the one court.

1. The applicant referred in submissions to Van den Berg v Monash Health [2022] FCA 796 and what was said about this factor in that decision. The applicant's submissions noted:
   1. Dove did not consider each of these issues expressly but concluded it was in the interests of the administration of justice to transfer the proceeding to the Federal Court.
   2. For the reasons set out above at paragraphs 20 and 21 above, this matter cannot be said to have "properly identified any serious and substantial issue about difficult points of legal principle", nor is it a significant question of public interest. The Respondent has provided no indication of what evidence may be adduced or an estimate of a hearing time.
   3. Noting that the interests of the administration of justice will "always depend on the nature of the case", another factor to consider is avenue of appeal. Here, if the matter is transferred to the Federal Court to be determined then the parties' appeal options are limited to the Full Bench of the Federal Court. Whereas if the matter stays in this Court, an appeal can be made to a single judge of the Federal Court.
2. The respondent submitted that due to the strength of the position on the question of general importance, the transfer was in the interests of the administration of justice.
3. The case sought to be made is novel and in more than one respect. Whether an employer can sue an employee for the employee's pre-employment misrepresentations is self-evidently a question of general importance. The issue of set off in the context raised is also novel. Whether an employer can sue an employee for the employee's (or former employee's) pre-employment misrepresentations is a matter of general commercial importance and a decision of the FCA on that question would be more authoritative that a decision of this Court.[3]
4. Presently, there is a divergence (and as a result uncertainty) about how those issues should be approached and determined. The absence of binding authority on those issues means in this matter there is an identified and serious and substantial issue about difficult points of legal principle, or some significant question of public interest. Given the issues raised (and flagged to be raised) by the parties, it is not possible to say that the matter can be limited or more narrowly focused in terms of issues or hearing time. A transfer to the FCA of these proceedings is in the interests of the administration of justice.

1. In accordance with r 20.01(3) of the Rules, the Chief Judge and the Chief Justice of the Federal Court have been consulted and have agreed to the transfer of this matter to the Federal Court.

1. For the above reasons, I have ordered these proceedings be transferred to the Federal Court of Australia at the Melbourne Registry.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.

[1] Dove v Xmeta Pty Ltd (formerly known as Everforex Financial Pty Ltd) (No 3) [2023] FCA 1320 at [54].

[2] Dove v Xmeta Pty Ltd (formally known as Everforex Financial Pty Ltd) (No 3) [2023] FCA 1320 at [47]- [74].

[3] Dove v Everforex Financial Pty Ltd [2022] FedCFamC2G 752 at [34].