Consideration
25 For the following reasons, I decline to make an order confirming the transfer of the FCFCOA proceedings to this Court. I also decline, for the same reasons, apparently by submission of the respondents rather than application, to transfer the proceedings pursuant to s 32AC of the Federal Court Act.
26 A review of the transcript reveals that the judge did seek submissions from the parties as to whether her Honour make the transfer order. The parties were represented by counsel, who made submissions on their behalf and who did not seek further time to seek instructions. Accordingly, I do not accept the submission of the applicant that the judge did not have regard to the wishes of the parties as mandated by statutory command under r 8.02(4)(e) of the FCFCOA Rules. These circumstances are not akin to those in KDSP: at [29].
27 However, it is clear that the judge did not give consideration to each of the other factors her Honour was required to give consideration to under the FCFCOA Act and the FCFCOA Rules. Her Honour confined her consideration to the parties' estimate that the matter would go for longer than five days, the possibility of a split hearing, and her consequent view that the Federal Court was better placed to allocate hearing dates beyond four or five days.
28 Where the Court uses its uplift powers, pursuant to s 32AC of the Federal Court Act, the factors it must take into account are prescribed in s 32AC(6), namely the rules of court setting out the factors that are to be taken into account in deciding whether to transfer a proceeding from the FCFCOA to this Court, whether any associated proceedings are pending in this Court, whether the resources of this Court are sufficient to hear and determine the matter and the interests of the administration of justice.
29 I am of the view that with proper case management, including requiring the parties to file an agreed statement of facts, it may be that an estimate of ten days' hearing is overstated. However, I accept given there are two proceedings which raise different causes of action and do not involve all the same parties nor entirely the same factual matrix (though it overlaps in some respects), that it is likely that the proceedings could go for more than five days. Nevertheless, contrary to the view of the judge, the fact that the trial dates are likely to exceed five days is not a sufficient basis, on its own, for ordering a transfer: Van den Berg v Monash Health [2022] FCA 796 at [16].
30 Relevantly, neither party submits that the proceedings are likely to involve questions of general importance whereby it is desirous of there being a decision in the Federal Court on one or more of the points in issue, nor that the FCFCOA has insufficient resources to hear and determine the matter.
31 Furthermore, both parties accept that there will be additional costs borne by the parties if the matters are transferred.
32 In addition, both parties accept the unfortunate reality that it is unlikely that the matter will be heard and determined more quickly if the transfer occurs.
33 When considering the question of the "interests of the administration of justice", the factors taken into account are not confined by those matters in the FCFCOA Rules and will depend on the nature of the case and do include (not exhaustively), as identified Van den Berg at [19]-[22], whether the proceeding involves any properly identified, serious and substantial issue of legal principle or significant question of public interest (which these proceedings do not), whether the estimates of hearing times given by the parties are justified (which is difficult to discern in the absence of a defence but where it is accepted that it is possible that these matters combined could take more than five days to be heard), whether the issues apparently in dispute can be limited or more narrowly focussed and whether there is a need for expedition (which is not suggested here).
34 I note the respondents' submission that it is in the interests of the administration of justice that the proceedings be confirmed given the transfer was never confirmed and the matter has been overseen by the Victorian Registry of this Court for more than six months. During that time procedural orders have been made and there are interlocutory applications pending. I accept that certain procedural orders have been made including regarding the filing of amended pleadings. However, one assumes that those procedural orders would have been made by the FCFCOA had the matter remained there and I note that none of the interlocutory applications have been determined by this Court nor do the respondents suggest that they could not be determined by the FCFCOA. I accept that there may be delay in determining the interlocutory applications given new dates may need to be obtained in the FCFCOA. However, this is not a sufficient basis for confirming the transfer.
35 As to the quantum of the claim, the respondents do not submit that there is any limit on the FCFCOA's jurisdiction to hear and determine a claim of this size. 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.