Media, Entertainment and Arts Alliance v Australian Broadcasting Corporation [2025] FCA 1523

1. The applicant is an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 (Cth). Its registered federal office is in Redfern, New South Wales.
2. The respondent is a national broadcaster and a Commonwealth government entity. It has offices around Australia and overseas, but its head office is located in Ultimo, New South Wales.
3. The dispute between the parties concerns whether the respondent contravened s 333E of the Fair Work Act 2009 (Cth) by entering into a contract of employment that provided that the contract would terminate at the end of an identifiable period. The contract in issue was with an employee, Mr Tom Scott, to complete the specified task of Digital Producer/Associate Producer (TV) required for Playschool 2025. The contract provided that Mr Scott's employment would cease automatically upon completion of Playschool 2025. By way of defence the respondent claims that Mr Scott was engaged under the contract to perform only a distinct and identifiable task involving specialised skills, thereby engaging the exception in s 333F(1) of the Act. After the commencement of this proceeding Mr Scott was offered and accepted other employment with the respondent on a permanent basis.
4. A Court-ordered mediation of this proceeding has been conducted and was unsuccessful. The mediation was conducted in Sydney by Senior National Judicial Registrar Farrell, the New South Wales District Registrar.

1. In support of its application for a transfer, the respondent submitted that there are several factors in favour of a transfer, namely -

(a) The subject matter of the applicant's case concerns events and individuals located in New South Wales. For example, Mr Scott lives in Sydney, the employment relationship was entered into in Sydney and Mr Scott's position required him to attend the respondent's location in Ultimo.

(b) In contrast, there is no relevant connection between the subject matter of the proceeding and Victoria. The only relevance to Victoria appears to be that the applicant has chosen to conduct the matter using in-house solicitors based in Melbourne.

(c) The respondent proposes to call three lay witnesses, all of whom are based in New South Wales. If the matter were not transferred, those witnesses would need to travel to, and be accommodated in, Melbourne at the respondent's expense. All the respondent's proposed witnesses occupy positions which require them to attend work in Sydney, and the nature of their work means they are unable to do their jobs remotely.

(d) The applicant does not propose to call any witnesses who are based in Victoria.

(e) Because of the effect of s 570 of the Fair Work Act and the general position that matters brought under the Act are done so in a "no costs jurisdiction", it is unlikely that the respondent would be able to recover any of its costs of attending court in Victoria in the event it is successful. However, if the applicant is successful, its costs will likely be covered by any penalty that the respondent might be ordered to pay.

1. In opposition to the respondent's application for a transfer, the applicant submits that -

(a) The practical advantages claimed by the respondent in having the matter heard in New South Wales are "modest", given that the trial will not be prolonged and is estimated by the applicant to last no more than two days.

(b) Any lay witnesses will be precluded from attending to their normal work duties whether the final hearing occurs in Victoria or New South Wales.

(c) There are practical advantages for the applicant that support the matter being heard in Victoria, the principal advantage being that the staff responsible for the matter are based in Melbourne.

(d) Regardless of whether the matter is heard in Victoria or New South Wales, it will be necessary for some persons to fly to and be accommodated at one place rather than the other.

The proceeding should be transferred to the New South Wales Registry

1. Sub-section 48(1) of the Federal Court of Australia Act confers a largely unfettered power on the Court or a Judge to direct that a proceeding be conducted at a specific place. The exercise of the power is subject to the overarching purpose in s 37M and should be exercised flexibly, having regard to the circumstances of each case.
2. It is well established that the place of residence of the parties and their witnesses, any expense that would be caused if the proceeding were to be conducted in a particular place, the place where the cause of action arose, and the convenience of the Court itself are factors relevant to the exercise of the power: National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 133; (1988) 19 FCR 155 (Sentry) at 162 (Bowen CJ, Woodward and Lockhart JJ); and see Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2017] FCA 1616 at [10] (Lee J) in relation to the relevance of s 37M. In Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49, French J said at [7] -

The question of the Registry from which the proceedings should be conducted does not raise matters of high principle. It is essentially a matter of case management and proper recognition of the legitimate interests of each of the parties reflected, in part, in the balance of convenience as between them and, of course, the convenience of the Court and any economies and efficiencies that may attach to one choice or another.

1. In this proceeding, I am satisfied that the weight of the circumstances of the parties warrant an order that the proceeding be transferred to the New South Wales Registry. The starting point in considering whether to exercise the power in s 48(1) of the Act is that the applicant has commenced the proceeding in the Victorian Registry of the Court. As the Full Court held in Sentry, the question to be asked is "why should it be changed?": Sentry at 162. To answer that question, ultimately, "the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court": Sentry at 162.
2. I accept the respondent's submissions that there are several practical and logistical reasons why it is appropriate that the proceeding should be managed and heard in New South Wales. The federal office of the applicant and the head office of the respondent are in Sydney. The contract governing the employment relationship between Mr Scott and the respondent stated that the location of employment was Ultimo, Sydney. Mr Scott lives and works in Sydney. The proposed witnesses for the respondent live and work in Sydney.
3. The applicant is a national organisation registered under Commonwealth legislation with offices in the mainland States and a federal office located in Sydney. The Court is a national court that operates across the states and territories of Australia. The applicant's primary reason as to why it opposes the transfer of the proceeding appears to be that the in-house staff to whom it has allocated responsibility for the proceeding are located in Melbourne. I do not accord this consideration any weight: see generally Baxendale's Vineyard Pty Ltd v The Geographical Indications Committee [2007] FCA 22; 156 FCR 444 at [29] (Mansfield J). There is no evidence to suggest that the applicant could not conduct the proceeding in New South Wales by engaging in-house staff at its federal office and by retaining New South Wales counsel.
4. The overall balance of convenience to the parties, to potential witnesses, and to the Court lies in favour of the matter being heard in New South Wales. If the Court were to conduct the matter in Victoria, I am satisfied that the parties would likely incur greater and unnecessary costs and disruption in comparison to having the matter conducted in New South Wales.
5. For completeness, I give no weight to the respondent's reliance on a choice of law and jurisdiction clause in the contract of employment by which the parties to the contract agreed that the contract was governed by the law applicable in New South Wales and purported to submit to the exclusive jurisdiction of the courts of New South Wales. The subject matter of this proceeding is a claimed contravention of Commonwealth legislation, namely the Fair Work Act in respect of which jurisdiction is conferred on federal courts.

1. Accordingly, I am satisfied that the overarching objective in s 37M of the Federal Court of Australia Act and the balance of convenience in this particular case requires that the proceeding should be transferred to the New South Wales District Registry.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.