This matter comes before the Court today by way of a notice of motion filed by the defendant, Anthony Wyndham Sive ("Mr Sive"), on 8 November 2019 seeking an order pursuant to ss 5(1)(b)(i) or 5(1)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Act"), transferring the proceedings before this Court, with case number 2019/285206, to the Federal Court of Australia in its Fair Work Division, New South Wales District Registry.
The plaintiff, Nepean Building & Infrastructure Pty Ltd ("Nepean Building"), neither opposes nor consents to the orders sought.
Nepean Building is represented by Mr Balasubramanian and Mr Sive by Mr Darams. Mr Darams has helpfully provided an outline of submissions.
In the proceedings in this Court, Nepean Building seeks orders that a mortgage be specifically performed by giving it possession of certain property, that it sell the property by public auction, that it execute any transfer, and that the sale proceeds be applied as set out in para 1(d) of the relief claimed. In the alternative, Nepean Building seeks damages.
The background to these proceedings is that Nepean Building and Mr Sive were in a relationship which Nepean Building describes as an independent contractor type of relationship with Mr Sive carrying on a business known as the Canrock Asset Advisory.
Nepean Building asserts that it was a term of the appointment of Mr Sive as a contractor that he would receive bonuses if certain performance metrics were met in time. It asserts that Mr Sive requested that it pay benefits to Mr Sive, even though the performance criteria had not been met. It asserts that it made a number of advances prior to 7 March 2019, at which time the Mr Sive ceased acting as an independent contractor to it.
Nepean Building pleads a loan agreement and an unregistered mortgage over a property of which Mr Sive was the registered proprietor. Nepean Building pleads that the amount of $519,264.46 remains outstanding as at 31 August 2019 and that, in breach of the agreement, Mr Sive has refused or failed to pay the outstanding amount.
Mr Sive has filed a defence admitting certain matters, in particular that he would receive bonuses if certain performance metrics were met, but denying that he is liable for the amount claimed by Nepean Building. He says, in the alternative, that to the extent that he may have a liability to Nepean Building, he claims an equitable set-off for his loss or damage. In particulars at para 9 of his defence he pleads various paragraphs of a statement of claim which he has issued against Nepean Building in the Federal Court.
He thus denies that Nepean Building is entitled to the relief claimed and pleads a set-off having regard to his pleadings in the Federal Court.
On the application Nepean Building relies on an affidavit of Samuel Lavery, affirmed 7 November 2019, which sets out the nature of the dispute and the reason for the application. Exhibited to the affidavit are the Federal Court pleadings.
By way of a statement of claim filed on 16 April 2019 in the Federal Court, Mr Sive seeks relief against Nepean Building. Mr Sive asserts that he was employed by Nepean Building. In the Federal Court, Mr Sive asserts that he performed services for Nepean Building and that Nepean Building has failed to pay amounts owing to him. He further asserts that during the period of his performance of work for Nepean Building he was under the control of Nepean Building, such control ordinarily being exercised by a Mr Fuller, who is named as the second respondent in the Federal Court proceedings.
It is asserted that the appointment of Mr Sive, as pleaded in the Supreme Court proceedings by Nepean Building, was in the nature of sham contracting and that Nepean Building contravened s 357(1) of the Fair Work Act 2009 (Cth). It is further pleaded that the second respondent, Mr Fuller, who was the CEO of Nepean Building, should also be taken to have contravened the Fair Work Act on the basis of some form of accessorial liability.
During the hearing, I asked the parties as to whether there was any real difference between the amounts said to be owing by Mr Sive to Nepean Building in the proceedings in this Court and the damages claimed by Mr Sive against Nepean in the Federal Court. I understood that at least on one view there may not be any substantial difference, although it may be that there is a slight balance in favour of Nepean Building in the end.
The basis of the application is that it would be in the interests of justice that the proceedings in this Court be transferred to the Federal Court, as both proceedings involve very similar issues. In particular, fundamental to the proceedings will be a determination of the nature of the relationship between Nepean Building and Mr Sive, that is, whether he was an independent contractor or an employee. That must be fundamental to the outcome of the proceedings, because other than the denials pleaded in Mr Sive's defence in this Court, he relies on a set-off and pleads the set-off with reference to the Federal Court proceedings.
In determining whether to make the orders sought under s 5(1)(b)(i) and (iii) of the Act, I am required to have regard to the interests of justice. The relevant principles and purpose underpinning the cross-vesting legislation in Australia were summarised by Street CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714:
"As a very broad generality it can be said that the ordinary day to day administration of the cross-vesting scheme in its operation on a given proceeding is placed in the hands of whatever court it may be in which they are commenced. Ordinarily it could be expected that a single judge of that court would decide whether it is in the interests of justice to transfer the proceedings to one of the other nine courts. If such an order be made then in practical terms it effects what might be likened to an administrative re-direction of the proceedings to the other court selected. In the hands of that other court the proceedings will continue to attract the Australian wide jurisdiction and law which would have been exercisable and applicable by the court from which they were transferred.Viewed from this standpoint it can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute."
(See also Seven Network (Operations) Ltd & Anor v Amber Harrison [2017] NSWSC 405 at [29]).
If the Court is satisfied of the matters set out in s 5(1) of the Act, then the proceedings must be cross-vested. As set out in s 5(1), where a proceeding is pending in the Supreme Court of a State and it appears that those proceedings arise out of or are related to other proceedings pending in the Federal Court and it is more appropriate that the relevant proceedings be determined by the Federal Court having regard to the matters set out in ss 5(1)(b)(ii)(A)-(C), or it is otherwise in the interests of justice that the relevant proceedings be determined by the Federal Court, then the first court, being this court in the circumstances of this matter, shall transfer the relevant proceedings to the Federal Court.
Having regard to the defence pleaded by Mr Sive, the proceedings in this Court are related to other proceedings pending in the Federal Court: see Re Hamilton-Irvine (1990) 101 FLR 11 at 17.
In my view, it is in the interests of justice that these proceedings be transferred to the Federal Court. In particular, it is in the interests of justice that these proceedings be transferred to the Federal Court because it is appropriate to ensure that there is no inconsistency in judgments, in the sense that if the question of whether the relationship is one of principal and independent contractor or employer/employee in both proceedings, there is at least a risk of different results, depending on the evidence adduced in both proceedings: see, by way of example, the decisions of the District Court, the Court of Appeal and ultimately the High Court, in Grant Tomlinson v Ramsey Food Processing Pty Ltd [2013] NSWDC 64, Ramsey Food Processing Pty Ltd v Tomlinson [2014] NSWCA 237 and Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, respectively, and the earlier Federal Court decision in Fair Work Ombudsman v Ramsey Food Processing Pty Ltd (2011) 198 FCR 174; [2011] FCA 1176.
Further, as pointed out by Mr Darams, there is likely to be a duplication of time, costs and resources if the issue is to be litigated in different courts twice.
The Federal Court can hear the claims made in these proceedings in its associated jurisdiction. In all the circumstances, I am satisfied that the orders should be made. I thus order that pursuant to s 5(1)(b)(iii) of the Act the proceedings be transferred to the Federal Court of Australia in its Fair Work Division.
Nepean Building suggests that I should order that costs should follow the result of the Federal Court proceedings. I accept that position. Nepean building has neither opposed nor consented to the application. The relief sought by Nepean Building is of a type normally granted in this Court. The outcome of both cases must necessarily depend upon which of the competing assertions are accepted. That will now be determined in the Federal Court, and in the circumstances, I order that the costs of these proceedings abide by the costs orders in the Federal Court.
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Decision last updated: 06 December 2019