The respondent's application for a transfer or change of venue
8 The application is made for transfer or change of venue of the proceeding under s 48(1) of the FC Act which provides:
The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.
9 It was submitted that r 2.02 of the Federal Court Rules 2011 (Cth) (FC Rules) was also available to the Court, but in a narrower way, as that rule only relates to transfer of proceedings. That rule provides:
A party may apply at the proper place for an order that the proceeding be transferred to another place.
10 Schedule 1, the Dictionary to the FC Rules, defines "proper place" as:
proper place, for a proceeding, means:
(a) the place where the proceeding is started; or
(b) if the proceeding is transferred to another place - the other place, from the date of transfer.
11 Accordingly, the respondent is able to ask, in Sydney, that the matter be transferred, or conducted, in Perth (whether by way of transfer under r 2.02 or conducting the hearing there pursuant to s 48).
12 The basis of Newmont's application can be stated, briefly, as follows. The factual basis for the submissions is found in the two affidavits of Ms Darcy Harwood, a solicitor in the employ of the solicitors for the respondent.
(a) The respondent is a corporation headquartered in Denver, Colorado. Its principal place of business in Australia is in Perth. It conducts some of its mining operations in New South Wales but has no commercial operations in Sydney.
(b) The respondent's internal Head of Legal, and its counsel and solicitors, reside and work in Perth.
(c) Four of the six proposed witnesses are principally based in Perth. This includes the two decision makers in relation to Ms Perrett's termination of employment. The other two witnesses are based overseas. The respondent does not envisage calling any witnesses based in New South Wales.
(d) The cause of action (in the sense that the claim arises out of the applicant's termination of employment) arose in Perth.
(e) Were the matter to be heard in Sydney, the applicant estimates that increased costs (being the respondent's counsel, solicitors, and witnesses, along with a representative of the respondent to give instructions), based on a 10-day hearing in 2025, would be an additional $48,000 in flights and accommodation.
13 Additionally, Ms Millar referred to s 37M of the FC Act and submitted that the proper administration of justice required a balancing of the interests of the two parties and the interests of the efficient administration of the court and, given the above factors, a direction that a transfer of proceedings be granted, or at least the substantive hearing of the proceedings be conducted in Perth.
14 In opposition to that course, Ms Perrett points to the following factors, based on her affidavit of 20 September 2024:
(a) She currently resides in Adelaide with her partner and children. She is unemployed, and has been since her ceasing employment with the respondent. She worked remotely from Adelaide from around December 2021 due to her family and carer responsibilities.
(b) Her legal representatives are based in Sydney.
(c) Only two of her twelve pleaded complaints occurred in Perth. The others were made in Adelaide or elsewhere, while travelling for work.
(d) Her employment was terminated in Perth. She was in Perth for a workshop for some three days and her employment was terminated before the workshop commenced. She found the circumstances of her termination very stressful and anticipated that she was unable to change her flights back to Adelaide, and so stayed in her hotel in Perth. She says that she underwent a significant deterioration in her mental health and wellbeing during that time.
(e) On return to Adelaide, she saw her GP and received treatment for her symptoms of anxiety and depression. She later lodged a general protections application through her lawyers, Harmers, in the Sydney Registry of the Fair Work Commission. The hearing in the Commission was held in Perth but she applied, successfully, to appear remotely rather than to travel to Perth on the grounds that travel to Perth would cause her significant stress.
(f) She suffers from Major Depression and Anxiety. She says that "I continue to experience significant stress and anxiety about being physically present in Perth". She sees her GP and a psychologist. Ms Perrett has annexed letters from each of the GP (RMP-2 and RMP-3) and the psychologist (RMP-4) to her affidavit.
(g) She will incur significantly higher costs were the hearing to be conducted in Perth than in Sydney. She says that air fares are approximately double the cost to fly to Perth from Adelaide than to Sydney, and if the hearing were in Sydney, she would have no accommodation costs as she would stay with a friend.
(h) She would need to provide airfares and accommodation for herself, her counsel and solicitor(s) in Perth.
(i) Most of the proposed witnesses for the respondent travel frequently within their employment, and four of the proposed witnesses have the NSW operation of the respondent within their responsibilities.
15 Ms Kumar, counsel for Ms Perrett, submitted that the estimated costs of the accommodation and travel for the respondent's lawyers, representative, and witnesses was "inflated", given that the trial may not last ten days, and she queried why the legal team needed to arrive in Sydney three days before the beginning of the trial, and why the witnesses needed to be in Sydney for four days each.
16 It should be noted that each of the parties' reasons given on affidavit in support of, or in resistance to, the orders sought were not the subject of cross-examination. The above summaries of the reasons are not findings of fact by me.