Plaintiff v Defendants

ADMINISTRATIVE LAW ― Judicial review ― Requirement to commence proceeding within 60 days after date on which grounds first arose ― Consideration of merits of proposed review on application for extension ― Interaction with strength of the explanation for the delay ― Supreme Court (General Civil Procedure) Rules 2015, r 56.02

1 Under this Court's procedural rules, a proceeding seeking judicial review of a judgment or order of a subordinate court or a tribunal has to be commenced within 60 days after the date when grounds for the grant of the relief or remedy first arose.[1] The time limit can only be extended in 'special circumstances'.[2] That is a phrase which is deliberately flexible to allow for cases which might not easily be anticipated by more prescriptive words.[3] The discretion to give this procedural indulgence will usually depend upon the duration of the default, an explanation for the default, and any prejudice to the respondent beyond that inherent in the continued pursuit of the matter. The exercise of the discretion ought to be made with a recognition that insistence on a strict adherence to a time limits may have to give way to accepting 'the fallible world in which legal disputes arise and in which they must be resolved'.[4]

2 The paramount concern in such an application is to ensure the attainment of justice. That attracts a consideration of the merits of the application for review. The showing of an error in the decision sought to be reviewed does not automatically result in special circumstances, otherwise there would be no point to the time limit.[5] But generally speaking it would be thought undesirable to let stand uncorrected a judgment or order shown to be impeachable (particularly for jurisdictional error); or, conversely, not unjust to refuse to extend time when it can be seen that the review application is weak or bound to fail. It all depends on the circumstances.

3 The approach to be taken by in assessing the substantive merits of a case for judicial review was squarely addressed by the Court of Appeal in Glass v The Chief Examiner.[6] The Court affirmed that the merits of a case are ordinarily to be taken into account, and in that regard[7] −

If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or the associate judge to give the appropriate weight to it. In some situations, all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.

4 Later, that court said something apposite to this application (with my underlining)[8] -

We would add the fact that an associate judge may not have power to hear and determine the ultimate application for judicial review (without an order made by a judge referring the substantive trial to an associate judge) does not mean that associate judges cannot and should not make an assessment of the prospects of success. In doing so they are not determining the ultimate matter. Rather they are simply making an assessment of the prospects of success for the purposes of the application before them for an extension of time. Whilst some care may need to be taken in analysing and describing the strength of the merits, it is nevertheless a task that more often than not will be necessary and should not be shied away from by judges and associate judges. (underlining added)

5 I have commenced with this overture because an assessment of the merits of an order made by the Victorian Civil and Administrative Tribunal (constituted by Vice President Judge Harbison) sought to be reviewed in this case played a dominant part in this application at a primary level, and peculiarly, the ramifications of the order were used to help explain much of the delay. Argument on the application before me endured for two days. There was a corpulent body of material, significant legal authorities and copious reference to transcripts at VCAT and in the Federal Court ― all fortified by Notices of a Constitutional Matter under s 79B of the Judiciary Act concerning federal jurisdiction and the invalidity of State laws for inconsistency with Commonwealth laws under s 109 of the Constitution. The elements of the case are, or have been made, quite complicated.

6 Such an intensively propounded and resisted application for an extension of time ends up being in effect a running of the substantive appeal. I do not complain. But, I take leave to make this remark for general consumption: as a matter of the efficient use of the Court's time or the parties' attention to the case and the reduction of delay, in cases of this calibre and level of contentiousness, it would be expedient if the question of the extension of time be deferred to be heard by a judge or associate judge (on referred power) to hear both the extension application and, if extended, the review application.

7 The judicial review application sought to be made in this Court, should the time limit be extended, concerns section 77 of the Victorian Civil and Administrative Tribunal Act. It provides (with my underlining) −

(1) At any time, the Tribunal may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subjectmatter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body.

(2) The Tribunal's power to make an order under subsection (1) is exercisable only by a judicial member.

(3) If the Tribunal makes an order under subsection (1), it may refer the matter to the relevant tribunal, court, person or body if it considers it appropriate to do so.

(4) An order under subsection (1) may be made on the application of a party or on the Tribunal's own initiative.

8 That is a discretionary power to strike out a proceeding having nothing to do with an adjudication on the merits of the case. As for judicial proceedings, to 'strike out' is not to dismiss; it means to remove the case from the list or body of cases entered on the Tribunal's list of cases for hearing.[9]

9 Underlying this application for judicial review is a fractious employment dispute. On 21 February 2014, Ms Bashour filed an application in the Federal Court against the ANZ Bank and a manager Mark Shaw alleging contraventions of the Fair Work Act, breaches of her employment contract, and statutory misleading and deceptive conduct. In essence her complaints arose out of the Bank's alleged wrongful treatment of her concerning flexible arrangements to work from home when she returned to work in April 2013 after taking maternity leave on the birth of her first child.

10 After commencing that case, Ms Bashour became pregnant with her second child. She took maternity leave. On 1 October 2014 she resigned in an highly aggrieved state saying among other things she was bullied into unfavourable new arrangements, was being deprived of work, and was forced to resign. In short, she said it was a case of constructive removal.

11 On 10 October 2014 her case in the Federal Court was fixed for trial before the docket judge Tracey J on 27 April 2015. On 20 October 2014 Ms Bashour filed a claim in VCAT under the Equal Opportunity Act against the ANZ Bank and three other senior managers. She claimed she was victimised and forced to resign because of the discrimination attributable to her second pregnancy, parental status and disability. Thus, whereas her Federal Court case concerned her work flexibility arrangements in the currency of her employment, her VCAT case concerned the alleged forced ending of her employment and its aftermath.

12 Her resignation meant that the ambit of her Federal Court case became reduced, leaving only a claim for damages. But there were two cases running in different adjudicating bodies at different stages of advancement. Even though there might be said to be a continuum of events spanning both grievances, in bringing two cases, Ms Bashour sought to make a demarcation between different types of wrongdoing at different times with different consequences, albeit referable to the same relationship.

13 On 20 March 2015, on the Bank's application, Judge Harbison of the Tribunal made an order under s 77(1) striking out the whole of Ms Bashour's VCAT claim. Her Honour also made an order under s 77(3) referring 'the subject matter of the proceeding' to the Federal Court. And it is that second order in particular that has agitated a serious question concerning VCAT's power, and the question of federal jurisdiction over non-federal matters. Under the s 77, the Tribunal might in a given case strike out, but not refer the matter to another place as an ancillary order, leaving it to a rejected claimant to bring the claim in that other place. But in this case there was a strike out and a referral to the Federal Court.

14 In written reasons of the same date, her Honour formed the view that the facts of the Equal Opportunity Act case were 'inextricably intertwined' with the pending Federal Court case and accepted the Bank's submission that both claims formed part of the one controversy. Her Honour rejected Ms Bashour's submissions that the VCAT had exclusive jurisdiction under the Equal Opportunity Act; that the Federal Court could not be given jurisdiction to hear that State case; and that any question of the Federal Court assuming jurisdiction over a State matter was a matter for the Federal Court, not the VCAT, and not on the Bank's invitation.

15 Most pertinently for present purposes, her Honour held that s 77 of the VCAT Act did not purport to confer a jurisdiction on the Federal Court, however, her Honour pronounced: 'I am satisfied that this issue is addressed by section 32 of the Federal Court Act which gives the Federal Court clear power to do so.'[10] And that is the eye of the storm in this case.

16 Section 32(1) of the Federal Court of Australia Act states -

To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked.

17 That may be conveniently referred to as associated jurisdiction. The problem is that section 32(1) has been read down authoritatively, faithful to Chapter III of the Constitution, to mean associated federal matters. That has to be distinguished from the accrued jurisdiction or pendent jurisdiction of the Federal Court, which is a very different legal basis under which the Federal Court may hear and determine a claim arising under a non-federal law when it is joined with a federal claim: see generally Cowen and Zines's, Federal Jurisdiction in Australia.[11] I say 'may' because whether a non-federal claim and a federal claim are within the scope of one controversy is a matter for the Federal Court to assess. That assessment is a matter of impression and practical judgment to be made by the Federal Court having regard to the pleadings, the factual elements of the disputes, the applicable laws, and the claims. Although it should not be seen as a discretionary assumption of jurisdiction, it does involve matters of fact and degree and is therefore something about which reasonable minds can differ: see Wakim.[12]

18 It was open for Ms Bashour to seek leave to appeal the VCAT order to this Court on a question of law under s 148 of the VCAT Act. She had 28 days to do so. She did not, and that makes for another issue. Instead, she filed this originating motion for judicial review on 17 August 2015 in antecedent circumstances I shall expose later. That was 154 days after the date of the VCAT order, and therefore 94 days out of time under Order 56. Her motion also seeks, within time, judicial review over a decision, so characterised, by a VCAT registrar, by a letter dated 18 June 2015 to disallow her request to reinstate the struck out VCAT case to enable her to contend in VCAT that the strike out and referral order should never have been sought and made by Judge Harbison as it purported, at the Bank's behest, to confer State jurisdiction on the Federal Court. The Registrar's letter said the Tribunal was functus officio.

19 The originating motion seeks judicial review on two fronts. It seeks an order in the nature of certiorari quashing Judge Harbison's orders. In the alternative, it seeks an order in the nature of certiorari and mandamus 'quashing the decision contained in the letter from VCAT dated 18 June 2015 in matter H245/2014 and requiring VCAT to make that decision according to law'. The motion contends that on the principal order, the Tribunal fell into jurisdictional error in purporting to transfer the case to the Federal Court under s 77 of the VCAT Act by exceeding or misconceiving the scope of its jurisdiction which was limited to strike out for the purposes of a referral to a Victorian State court or tribunal. Alternatively, as s 77 involves an exercise of discretion, the motion claims that the Tribunal erred in exercising that discretion by concluding the Tribunal had associated jurisdiction under s 32 of the Federal Court of Australia Act, and, erroneously concluding that the Federal Court would have jurisdiction to accept and hear the VCAT case by way of amended claim under the Fair Work Act and by way of a claim under the Disability Discrimination Act.

20 As for the Registrar 's communication on 18 June 2015, the motion claims that was a decision to refuse to reinstate the proceeding, and it was a decision that involved jurisdictional or legal error. The ground of review is that a strike out of a proceeding does not terminate the proceeding, and the Tribunal has the implied power in appropriate circumstances to reinstate a proceeding. In Herald & Weekly Times v VCAT[13] the Court of Appeal said the power to reinstate was 'incidental to its obligation to administer the Act and to deal fully with proceedings that are properly before it, including those that have been settled through the mediation process or otherwise, and notwithstanding that they have been struck out.'[14]

21 The applicant contends the merits of her case on this application, should time be extended, are certainly much more than arguable because the VCAT plainly cannot under s 32 or otherwise at all purport to confer State jurisdiction on the Federal Court. This is the basis of the Notices of a Constitutional Matter. Therefore, the Tribunal's order was said to be manifestly and fundamentally misconceived, and, Mr Harmer said repeatedly in submissions, the error was brought about by the 'grossly misleading and deceptive' submissions (a description about which I shall have something to say later) by counsel who appeared for the Bank at the Tribunal.[15] Furthermore, she contends the VCAT order then produced an uncertain situation with the Federal Court case, as acknowledged by the docket judge Tracey J who judiciously but overtly doubted the validity of the VCAT order and questioned accrued jurisdiction, that goes to well explain or extenuate the delay in filing the motion, from which the applicant seeks now to be excused.[16] More delay was then caused by an attempt to have a Registrar at VCAT facilitate the VCAT to entertain an application to have the struck out case reinstated.

22 The respondents, no less concerned with the merits, contended there was in the circumstances no substantial injustice if an extension was refused and if the decision remained undisturbed because the Tribunal may have got the wrong legal 'labelling' in identifying 'associated jurisdiction' and the reasons may have been 'poorly expressed',[17] but her Honour's evaluation of there being single controversy was submitted to be right. That amounts to saying: put aside the avowed basis of the decision under s 32 and see it as proper, just and efficient that both cases be heard in the one court in the one proceeding and the strike out or the referral (for the two are different) was, and remains the occasion for Ms Bashour, with the ready acquiescence of the Bank, to augment her Federal Court claim to include her State claim which could be competently done under the Federal Court's accrued jurisdiction if properly analysed for the Federal Court. Further, on the special circumstances test, the Bank says that although there was some later disorder or prolongation caused by the VCAT order, the applicant's reasons for being very late in filing her motion were, objectively, unpersuasive.

23 I shall proceed to expose set out in detail the matters to which I was taken that come to inform my view about the merits of the application, and as a digest of matters lest it be of any use hereafter. But at the outset I shall state my conclusions on the application.

24 First, although there are undeserving aspects of this application, I think it would be unjust to not extend the time for bringing this proceeding.

25 There are special circumstances most certainly from the time the order was made (20 March 2015) up to 19 May 2015 (when the 60 day time limit expired). The facts objectively show that Ms Bashour and her lawyers were preoccupied with the question and the quandary of how to replicate, federally, the basis of her claim in VCAT given the operation of statutory provisions in the Fair Work Act or the anti-discrimination federal laws that imposed procedural time limits that had already passed and precluded bringing claims federally that already been made under State laws. By that time Tracey J was troubled about the validity of the VCAT referral order under s 77(3).

26 Secondly, if one looks to 21 May 2015 being the date on which Ms Bashour gave instructions to reinstate the VCAT case, it is apparent that there was still deliberation in her camp on the question whether federal replication by recourse to federal statutes could or could not occur, and if not, the means to reinstate the VCAT proceedings. Things were becoming chaotic, but as there was a serious question about the validity of the VCAT order it was reasonable to take the view that a striking out of the VCAT case still left it open to seek to have that case reinstated and undo the referral. The difficulty was the means used by Ms Bashour's lawyers: a virulent letter writing campaign to the VCAT Registrar based on the grounds that the matter should be reinstated because of the Bank's alleged misconduct in procuring the VCAT order, rather than instigating the making of an application for a reinstatement by orthodox means.

27 Thirdly, upon the VCAT Registrar stating categorically on 18 June 2015 that the Tribunal was functus officio, the delay from that time on up to 17 August 2015 (when the motion was filed) takes on a different character. It is not clear why it took two months to then file the originating motion. The explanation about family illness cannot be rejected but it was a belated explanation given after the application before me had been underway. It is not said by Ms Bashour she was not in a position to give instructions to Mr Harmer on a reinstatement application. On the evidence she had previously instructed him on 21 May 2015 to proceed to seek reinstatement. The most I can distil from the objective facts is that Mr Harmer instead sought to persevere with correspondence with the Registrar and sent written submissions (until the Registrar called a halt on 14 July 2015), and there was still a directions hearing before Tracey J on 10 August 2015 to inform the judge about the state of affairs. Although a more convincing explanation to the Court for this last segment of the delay was called for, so much of the build up to this application is out of the ordinary and chaotic that allowances may be made to the shortcomings in that evidence in deference to the interests of justice having regard to the merits of the case on review concerning the order under s 77.

28 Fourthly, what prevails to my mind is the impeachability of the VCAT order made under s 77. I shall confine myself to saying that the applicants have much more than an arguable case that there was jurisdictional error in the Tribunal's order, or an error in principle in the exercise of discretion under s 77(1) or (3). It can be argued, and argued strongly in my opinion, that in making a referral under s 77(3) the Tribunal purported to confer State jurisdiction on the Federal Court ostensibly under s 32 of the Federal Court of Australia Act. It can be argued that was simply not possible. That is a Wakim type point, and is the reason for the Notices of a Constitutional Matter. I think the essential distinction between s 32 associated jurisdiction and accrued jurisdiction became muddled in a material way to misguide the exercise of discretion and misunderstand the legal basis for a referral under s 77(3). I think a strong case exists to say that the order made under s 77(3) was made on the erroneous view that s 32 gave the Federal Court jurisdiction to deal with the VCAT case because the federal matter and the non-federal matter were 'inextricably intertwined'. Section 32 does not confer associated jurisdiction over a non-federal matter.

29 Fifthly, in assessing special circumstances, I am unconcerned with the truculent and repeated accusations by Mr Harmer that the Bank's counsel at VCAT grossly misled and deceived the Tribunal. Great care must be taken by advocates (and judges no less) in making that type of sensational and injurious statement. I think a more responsible and less callous submission on behalf of Ms Bashour (coming from a party in substantial procedural default), would be to describe it as an erroneous submission which led to an erroneous determination. If there was a misunderstanding by the Bank's counsel at the VCAT about associated and accrued jurisdiction, he was not alone. For my part, I can see why the Bank would wish to move to have both cases heard together given the desideratum of avoiding a multiplicity of proceedings and achieving a uniformity of findings on the facts and a reduction of the pressures, trouble and anxieties of litigation, which I would presume to say was underlying her Honour's thinking. That is particularly so as the VCAT case was started 10 days after the Federal Court case was fixed for trial, and the Bank said it would agree to directions to have the Federal Court case timetables extended to enable a State case to 'catch up'. Despite all that, the paramount consideration is for this Court to be able to correct an order that is legally questionable on something as significant as VCAT jurisdiction and powers under s 77 of the VCAT Act particularly in this field of discrimination in employment which spans Federal and State laws.

30 Sixthly, I do not accept Ms Doyle's measured submission that even though there was, as she described it, a 'slip' in the Bank's submissions at VCAT or even though Judge Harbison 'misspoke' when it came to s 32, her Honour's outcome was right as a practical matter. That is, she submitted and sought to show, there was in truth a single justiciable controversy and a common substratum of facts. That means, it was submitted, there was no substantial injustice because it was open for Ms Bashour to take the initiative in the Federal Court and seek to bring her State claim under its accrued jurisdiction. Maybe it was; and maybe it still is; but Ms Bashour maintained at VCAT that it was not a single justiciable controversy. And Tracey J, as matter of impression at least, appeared to see there was a question whether the two cases were one controversy although in the disorder created, it appears to me that his Honour was not really called on to give deeper serious consideration to that question. But it was all part of the uncertainty.

31 I am unwilling to neutralise the impeachability of the order on something as significant as federal jurisdiction to say that legally or Constitutionally it was arguably wrong, but it matters not because as a practical matter the 'outcome' was right. But I will say this for the spirit of Ms Doyle's submission: if Ms Bashour was, as Mr Harmer asserted before me, truly interested in having the one legal forum deal with her employment grievances then, she, having started in the Federal Court could have, with the Bank's stated support, moved to persuade the Federal Court to assume accrued jurisdiction. Tracey J may have expressed his doubts but as I say, his Honour was not called upon to look closely into the elements of the two matters. Now, as I follow her intentions, she seeks to have the VCAT case reinstated and to then replicate her Federal claim in the VCAT under State law because it is a no-costs jurisdiction. Whatever might be said about the prolongation of this sorry saga, for present purposes I am concerned only with the legal validity of the VCAT order. Questions may arise ultimately about the Ms Bashour's pursuits when it come the discretion to grant relief by way of certiorari should she show grounds for relief.

32 Seventhly, criticisms can certainly be made about Ms Bashour's failure to appeal and the disqualifying effect that may have on the discretion of a supervisory court in granting certiorari: see Hoe v Manningham City Council;[18] Kuek v Victorian Legal Aid[19] and Aronson and Groves, Judicial Review of Administrative Action.[20] Relief on the prerogative writs was always discretionary but it is not a hard and fast rule that a failure to use statutory appeal disqualifies relief. For one thing, where there is a question of jurisdictional error or something as significant as State and federal jurisdiction, and the making of jurisdictional error, the Court may well take the view that it is a matter more apposite for judicial review as going to the legality of the decision and not as a matter concerning the merits of a decision which tends to be the basis for courts insisting on appeal procedures.

33 Eighthly, I think Ms Bashour's case in characterising the Registrar's letter as a decision or as being amenable to certiorari is fraught. Authorities support the view such communications as matters of the Tribunal's administrative affairs: see Goodman v VCAT.[21] But the motion on this 'decision' is within time and it will be matter for determination ultimately on review. However, I doubt whether it is correct to say that the appeal against the Registrar's 'decision' is, as it was expressed by Mr Harmer, the other side of the same coin of the impeachment of Judge Harbison's order in aid of an argument that as the challenge to the Registrar's 'decision' was within time then, as a corollary, the ground was already marked out within time for a challenge to the impeachable order under s 77.

34 What follows is an account of the matters to which the Court was taken and which inform those conclusions.

The employment relationship and the disputations:

35 Katherine Bashour, was employed by Australia and New Zealand Banking Group Limited in May 2009. She has been admitted to practice as a legal practitioner but her role with the bank was a managerial one. She had the designation of Compliance Manager, Regulatory Change and Policy. This is described as a senior position involving the responsibility of reviewing and writing policies and procedures, preparing and reviewing reports, and fielding policy and regulatory enquiries from bank staff and businesses. She says her position did not require any supervision and she did not have any supervisory responsibility. She describes herself as an exemplary employee and an outstanding performer. She also asserts: 'I had a very clear career trajectory until the announcement of my pregnancy in the first half of 2012 when I announced my first pregnancy, after which time I began to notice the discrimination'.[22]

36 She gave the Bank a letter of resignation dated 1 October 2014 giving four weeks' notice of her intended departure. She asserted she had no choice -

I had been forced to resign due to the ongoing and unacceptable conduct of ANZ towards me ... Since I raised workplace complaints after having my first child, I feel that senior management at the Bank have tried to force me out of work by orchestrating my exit with a series of objectionable and humiliating events, broken agreements, directions and bullying and harassment ... [23]

37 Underlying and preceding that letter were a number of grievances that had already led Ms Bashour to file proceedings under the Fair Work Act (Cth) in the Fair Work Division of the Federal Court. Those proceedings were filed on 21 February 2014 in the Victorian Registry. Until recent events, she has been legally self-represented. It aids narration of the elaborate facts (and on Ms Bashour's case, it is essential for proper analysis) to categorise that Federal Court case as involving her first pregnancy and how she says she was wrongfully treated on returning from maternity leave. According to the plaintiff's materials, her maternity leave started in September 2012. She returned to work in April 2013. So categorising it as the first pregnancy distinguishes it from her second pregnancy which, she alleges, gave rise to other wrongful conduct, that is, discriminatory conduct by the Bank against her which, she says, forced her to resign. Her action against the Bank for that discriminatory conduct was the VCAT proceeding which is the subject of this application. As my expose of the facts unfolds, this differentiation between the two pregnancies, even though they occurred throughout the continuum of the employment relationship until resignation, becomes legally very important to the issue of accrued and associated federal jurisdiction which is the dominant issue on this application.

38 The first respondent in the Federal Court case was the Bank. The second respondent was Mark Shaw. He was a manager at the Bank concerned with what has been described as a complex and high profile project known as the ANZ Storm Resolution Scheme, who reported directly to the General Manager of Mortgages. Avoiding details and straying into possibly contested facts, Ms Bashour alleges that Shaw offered her a temporary role in the Scheme which would guarantee her a permanent senior position with the Bank in the future, superior to her position as a Compliance Manager. She says she acted on the faith of that statement from him and took the temporary position even though it had a number of features that made it unattractive, and she also abstained from applying for any other promotion within, or outside, the ANZ organisation. She alleged this in the Federal Court -

At this time ANZ viewed the Applicant as a person on a longterm career path with ANZ who had good promotion prospects and was capable of performing at the next level within the Group classification structure. The Applicant was regarded by ANZ as a high achiever and top performer. She had consistently received salary increases and monetary incentives for each year of her employment with ANZ.[24]

39 I shall not recite copiously the allegations in her Federal Court statement of claim which has 107 paragraphs. In essence, she alleges in that case that after she announced her pregnancy in May 2012 her career prospects were stultified by the Bank at the hands of Shaw. She says -

After the announcement of the Applicant's pregnancy ANZ changed its view of the Applicant's career prospects with ANZ and no longer saw her as a person on a long-term career path with ANZ who had good promotion prospects and was capable of performing at the next level within the Group classification structure ... The Change in Career Prospects at ANZ occurred because the Applicant was about to become a mother.

40 Her Federal Court claim alleges that whilst she was on maternity leave (which commenced in September 2012) the Scheme or project was recognised as successful and given acclaim internally, and, she says she was acknowledged privately at least as deserving the credit for it. But on return from maternity leave in April 2013, she was told she would not be given a newly created role as expected but was told she would remain as a manager in the Compliance section. She then made arrangements on a trial basis, she says, to work from home two days per week under what is known as a 'flexi work' arrangement.

41 In September 2013, she was overlooked for promotion to a Senior Manager. She alleges the position was given to someone less qualified, trained and experienced than her. In her Federal Court case, she alleges that the appointee was given the promotion because Ms Bashour:

a. had a young child; and/or

b. had recently taken maternity leave; and/or

1. required flexibility in her work location and times because of her family responsibilities; and/or

1. was working from home two days per week; and/or
2. was likely to take maternity leave again in the future.

42 In September 2013, she then accepted a flexible work agreement which she alleges was a legal variation to her contract of employment, or, if not, one which she was led to think was a variation. This allowed her to work from home four days per week and one nominated day in the office. Ms Bashour felt she was being deprived of opportunities or activities that would be advantageous for her career path, which were being given to the appointee. She made complaints about this to Shaw in November 2013. She alleges that Shaw later told her the arrangement was not permanent. An internal dispute then arose whether the flexible work arrangement was or was not binding on the Bank. The Bank's internal human resources view was there was no flexible work agreement and the Bank had the entitlement to end it anyway. This led her on 15 January 2014 to make a general protection application in the Fair Work Commission which in substance sought to prevent the ANZ from breaching the flexible work arrangement. I am spared of the detail of that application as it was subsequently withdrawn either by reason of the filing of the Federal Court case (in February 2014) or her resignation in October 2014. It matters not. However, for completeness, an element of her Federal Court claim is that in January 2014 the Bank changed its Flexible Work Arrangements policy that limited its coverage to caregivers and permitted the Bank to unilaterally end flexible work arrangements. Part of her grievance is the 'false implication' advanced by the Bank that the amendment to its policy applied to her complaint at the Commission.

43 In March 2014, she returned after a period of sick leave and was directed to provide a certificate confirming she was fit to return to work. She says, in her Federal Court proceeding, that such a direction was not imposed on other ANZ employees taking sick leave in the same circumstances. Then, the appointee who previously obtained the position for which Ms Bashour says she was better qualified, Liana Edelman, told her that the Bank would undertake a flexible work arrangement assessment even though she had not made any request for such an arrangement. She then discovered that her name disappeared from a bank newsletter known as Forward Agenda which promotes an employee's profile within ANZ and directs business work requests to that employee.

44 Thus, in essence, her grievance is that she received less favourable treatment in favour of someone far less qualified; she was being bullied by Edelman into making a new flexible arrangement against her will and was not being allocated any work.

45 She had several heads of claim. The first was a claim that the Bank had taken adverse action against her for prohibited reasons in breach of s 351 of the Fair Work Act. The breach was discriminating between her and Edelman in giving the promotion to Edelman because of Ms Bashour's family responsibilities and because she had requested flexible work arrangements. The same statutory breach occurred, she alleges, by the Bank preventing her from working from home four days a week because of her internal complaints and by otherwise injuring her because she brought Federal Court proceedings. The case against Shaw is that he was involved in the contraventions. She also puts a claim for breach of contract alleging that the disavowal of the flexible work agreement by the Bank was a breach of an implied contractual requirement of mutual trust and confidence and a breach of her contract of employment. She also puts a claim for statutory misleading and deceptive conduct based upon the representations made to her about her future career prospects and representations about the enforceability of the flexible work arrangement. She seeks damages and exemplary damages.

46 Ms Bashour seeks to draw a demarcation line on that dimension of her dispute with the Bank, to then isolate a sequel concerning, she says, a dispute with the Bank which then attracted separate court proceedings. The discrimen is that the Federal Court challenge was a case about her ongoing employment and her workplace entitlement to see an ongoing flexibility within that ongoing employment. The subsequent and separate scenario, as it was put, concerns a second pregnancy and ultimately a forced and constructive dismissal. I shall maintain that demarcation.

47 I am not sure of the approximate date but I gather that by April 2014, Ms Bashour was pregnant with her second child. As a result of that pregnancy, she developed a pelvic condition. She says:[25]

Between the months of April and July 2014, I provided [the Bank] with a number of medical reports from my treating obstetrician and gynaecologist outlining the nature of my condition and the restrictions. ANZ failed to make reasonable adjustments and effectively would not allow me to be home based, although ANZ had medical evidence that my disability was temporary and would resolve after confinement. During this time I had complained to Ms Babani, Ms Evans and Mr Chronican and highlighted the serious health risks that I was being exposed to and that the welfare of my unborn child was at risk if work place conflict was not resolved. Effectively they failed to take reasonable measures in response to these claims and I ultimately became subject to the ANZ Unacceptable Behaviour process after my pleas for help.

Notwithstanding the series of medical reports provided to ANZ, and the fact that I was carrying out the duties of my role and I was also taking on jobs of the senior manager of the team, ANZ unreasonably refused to allow me to work from home for the period leading up to the time I would commence maternity leave. Not only did ANZ refuse to make reasonable adjustments, I was given a direction to attend a medical examination by a company appointed obstetrician/gynaecologist when I was approximately 30 weeks pregnant.

48 The materials in this application supports the view that the Bank gave what may be called a direction that Ms Bashour attend a medical examination with a practitioner arranged by ANZ. Internal documentation within the ANZ Bank reveals that the medical information provided by Ms Bashour's doctor was regarded as 'only a brief report regarding your condition which did not recommend a particular restriction in relation to your employment.' The documentation shows that she was asked to obtain her doctor's response to certain questions that had been raised and the doctor's response to some alternative workplace restrictions suggested by the Bank. The same document states that 'if you do not provide the information as directed, ANZ will direct you to attend a medical examination with a practitioner arranged by ANZ.'[26]

49 The next event was that on 5 August 2014, Ms Bashour filed an application in the Federal Circuit Court under the Fair Work Act to restrain the Bank from terminating her employment pending the final hearing of that Federal Circuit Court case. On 7 August 2014, Judge Riley of the Federal Circuit Court acted on an undertaking from the Bank which in effect gave the temporary relief she sought. On 7 August 2014 Her Honour also transferred the Federal Circuit Court proceeding to the Federal Court and it came to be allocated to the judge hearing the pending claim, Justice Tracey. The Federal Circuit Court case then became redundant by reason of that transfer and, of course, by reason of her resignation on 1 October 2014. In her letter of resignation, Ms Bashour stated that[27] -

This resignation is in response to the most recent action whereby ANZ issued a media release dated 8 August 2014 in relation to the bank's direction to me to attend a medical examination for my pregnancy related temporary pelvic condition. Not only was it extremely inappropriate for ANZ to issue a public comment regarding a matter that was being heard in the Federal Court, but the media release was misleading and inaccurate and insinuated that I am a liar.

50 The media release is in evidence. It seems that there was a newspaper report of the Federal Court proceedings on 8 August 2014 in which the ANZ Bank responded by seeking to 'clarify' the following:[28]

The primary purpose of the independent consultation with Ms Bashour was to assess the appropriateness of the support measures offered by ANZ to help Ms Bashour work safely from both the office and from home.

These measures included an offer by ANZ of a free on-site car park and a desk with a permanently allocated meeting room to ensure Ms Bashour did not have to travel around the building unnecessarily for meetings.

ANZ did not at any time request or require Ms Bashour to undertake a pelvic examination as part of this assessment.

51 On 10 October 2014, the trial of the Federal Court proceeding was fixed for 27 April 2015. Then, on 20 October 2014, Ms Bashour filed her application in the Anti-Discrimination List of the VCAT. The attribute by which she said she had suffered discrimination was disability, parental status as a carer, and pregnancy. The incidents forming the basis of her application were said to have occurred from May 2014 to midAugust 2014. In substance, her application to VCAT referred to a complaint that the Bank had failed to make reasonable adjustments to provide a safe and healthy place of work, and the public humiliation she felt about the press release. She stated that she had to resign because of the discrimination; that is a constructive dismissal. She sought a declaration that the Bank had contravened sections 18, 20 and 103 of the Equal Opportunity Act. It was a complaint of victimisation based upon her internal complaints against other staff members, issuing the Federal Court proceedings and being directed to attend a medical examination. She also claimed discrimination against a care giver in that the flexible work policy enabled the Bank to unilaterally end flexible work arrangements for care givers if there are reasonable business grounds.

52 On 9 December 2014, the ANZ Bank lodged its application at VCAT under s 77(1) of the VCAT Act to strike out the whole of the proceeding and to refer it to the Federal Court of Australia pursuant to s 77(3).[29] The grounds for the application were:

1. as there is a current and related proceeding in the Federal Court of Australia which relies (in whole or part) on a common substratum of facts, there is a risk of inconsistent findings between the courts;
2. parallel proceedings in the Federal Court of Australia and VCAT will subject the parties to unnecessary cost, inconvenience and procedural difficulties;

1. the VCAT Proceeding is oppressive to the Respondents, as witnesses will be common to the two proceedings and evidence will have to be given twice;

1. there is no prejudice to the Applicant in having the VCAT Proceeding referred to a court which is already seized with a significant part of the controversy between the parties;
2. the subject matter of the VCAT Proceeding has already been used by the Applicant to ground a claim in the Federal Circuit Court of Australia, which claim was discontinued before being re-agitated in this Tribunal;
3. the Federal Court Proceeding is well advanced, but not so far advanced that the Applicant cannot amend that claim to include claims now in the VCAT Proceeding; and
4. the Applicant has named as parties to the VCAT Proceeding, a number of individuals who have little involvement in the matter and against whom no direct relief is claimed. Those persons are not proper or necessary parties to the proceeding and their joinder is an abuse of process as it seeks to prejudice those individuals and inconvenience ANZ.

53 Ms Bashour's resistance to the application was to say first that the Federal Court proceedings were 'wholly unrelated' to the VCAT proceedings. She said: the matters were distinct and separate; the parties and witnesses were not common; and the Federal Court proceedings were ready for trial and only required the preparation of a court book and the filing of legal submissions. Pausing there, it seems that the fact of her resignation since the commencement of the Federal Court proceedings meant that much of that case came to be reduced. What remained it seems was a damages claim for her less favourable treatment and her deprivation of work. The relief she otherwise sought was all on the basis of a continuing employment relationship.

54 The transcript of the hearing of the Bank's application in VCAT is in evidence. Written submissions filed beforehand by the Bank contended that there was a 'single justiciable controversy' and determining whether matters arise out of the 'same justiciable controversy' requires close attention to the pleadings and to the factual basis of each claim. This is the language of accrued jurisdiction. It was submitted that both the Federal case and the VCAT case 'are contextualised by a common substratum of facts.' All of the authorities relied upon were those concerning accrued jurisdiction. There was no reference made in those submissions as far as I can see of associated jurisdiction under s 32 of the Federal Court Act. But it came later in a conspicuous way.

55 At the hearing of the application on 24 February 2015, there was a noticeable alteration at least in the expression of the grounds to move under s 77. What was said matters because it comes to inform the basis on which Her Honour decided the application. Counsel for the Bank at the VCAT stated to her Honour[30] -

Now the subject matter of the proceeding here, in my respectful submission, is a single ongoing controversy of various parts and various vignettes, if you like, but the employer and the employee have differences between them about the circumstances of Ms Bashour's employment, the way she has been treated in her employment, the application of flexible work arrangement policy, whether she has been treated unfairly or victimised because of a Federal Court proceeding and, in my respectful submission, it is as plain as day that there is a single ongoing dispute between the parties that ought be resolved finally between them.

56 Then it became explicit as stated in this passage of counsel's address to the Tribunal (with my underlining)[31] −

Now, Your Honour, the fact that the Equal Opportunity Act might give rise to certain courses of action, or certain remedies that this Tribunal can grant is not the answer because the Federal Court can exercise non-federal jurisdiction. So it's - there is - it is no answer to our application to say that the applicant is shut out of anything because the Federal Court clearly has the ability in its associated jurisdiction to exercise non-federal jurisdiction, whether it be common law in relation to breaches of contract or whether it be jurisdiction in relation to State legislation. The only circumstance in which that would not be the case would be if the State Act said only VCAT can deal with these matters and no other court or tribunal. And of course if that's what the legislation said s 77 would have no work to do.

Section 77 is there to enable VCAT to refer matters by the tribunal ... but the central point is this, VCAT is a tribunal where its powers are derived from an open legislation. But once that is invoked and an application is made to the tribunal, then the tribunal has its own jurisdiction in association - in open legislation, has its own jurisdiction to deal with the proceedings before it. And what Parliament has provided is the discretion for the tribunal to refer matters elsewhere, in circumstances where it is more convenient for that to occur, and that is what we rely on. If there be any doubt about the jurisdiction of the Federal Court to deal with an Equal Opportunity matter, it's...by s 32 of the Federal Court Act.

57 Counsel handed up a copy of s 32 of the Federal Court of Australia Act and went on to say[32] -

And Your Honour will see that the Federal Court has power - has jurisdiction in associated matters. So they are matters that are not otherwise within its jurisdiction but are associated with matters in its jurisdiction.

58 Section 32 commences with the words 'to the extent that the Constitution permits'. Her Honour was told by the Bank's counsel that those words were not a bar in this case.[33] Her Honour received affirmation from counsel that s 32 could therefore pick up jurisdiction under the Equal Opportunity Act on the basis that it was 'an associated matter' and that 'what the authorities say is that you read the associated matter widely so that it embraces the entire justiciable controversy between the matters.'[34] Later, the transcript shows that her Honour was looking to 'understand myself this concept of associated matters'.[35] Counsel said[36] -

So the Federal Court Act gives the Federal Court power in relation to associated matters but it doesn't say what an associated matter is. But an associated matter are really all those matters that come within the ambit of this concept of a single justiciable controversy.

59 Before me, senior counsel for the Bank described that as a 'slip'. That is, the Bank's counsel at the Tribunal was unequivocally relying on s 32 of the Federal Court Act but using language of 'single justiciable controversy' which is not contained in that section but which was submitted to be the test to be applied under that section. Yet, the test of single justiciable controversy is one of accrued jurisdiction as explained by the High Court in Fencott v Muller[37] to which counsel made reference at the Tribunal. The transcript makes plain that her Honour was trying to understand the meaning of an 'associated matter'. The submission was that an associated matter is something that comes within the ambit of a single justiciable controversy. And that was explained by reference to Fencott v Muller. The subsequent exchange with counsel I think makes it plain in my view that the Court was receiving and comprehending the Bank's submission to be that s 32 would confer federal jurisdiction for a matter under the Equal Opportunity Act to be heard by the Federal Court.

60 There appeared to be a commingling between accrued and associated jurisdiction; that is, simplistically that the associated embraces the entire justiciable controversy between the parties. To support that, counsel referred to and handed up a copy of Fencott v Muller which does not concern associated jurisdiction. That case concerns accrued jurisdiction. The overall submission was to ask whether the VCAT proceeding was completely separate or distinct. I am afraid to say that unless there was distinction made and explanation given to her Honour about the difference between (statutory) associated jurisdiction and accrued jurisdiction, they were erroneous statements about associated jurisdiction.

61 But there was more to it than 'associated jurisdiction' or (the unexpressed) accrued jurisdiction. The transcript also reveals that the Bank's counsel, as part of the pursuit to have both cases heard in the Federal Court, responded to a request by her Honour whether there were any differences between the antidiscrimination legislation in the Equal Opportunity Act and the antidiscrimination provisions of the Fair Work Act or other Commonwealth legislation.[38] Counsel in substance submitted that the grounds of disability, parental status and pregnancy were attributes that were capable of being the subject of a claim under the federal Fair Work Act and the Disability Discrimination Act.

62 As for Ms Bashour, who appeared in person at the Tribunal, it appears that she too was proceeding on the basis of s 32 of the Federal Court Act and she too followed the course of making submissions on Fencott v Muller and the single justiciable controversy test. Her case in substance was that there was a difference between what I have identified as the first pregnancy complaints and the second pregnancy complaints so as to fail the test of a single justiciable controversy.

63 After the completion of addresses, her Honour permitted further written submissions to be filed. The written submissions seemed to still not differentiate between accrued and associated jurisdiction but overall seemed to me to have proceeded on the basis of associated jurisdiction. Ms Bashour's written submission was that s 77 only empowered a referral to another State body because the Victorian Parliament is not empowered to affect the jurisdiction of Commonwealth courts by referring matters to them under State legislation. She said the Equal Opportunity Act could not be litigated anywhere except VCAT.

64 In written reply submissions, it is plain that the Bank was relying upon s 32 of the Federal Court Act. The submission was (with my underlining):

1. Section 32 of the Federal Court Act 1976 (Cth) confers jurisdiction on the Federal Court in respect of matters not otherwise within its jurisdiction which are associated with matters which are within its jurisdiction. It is submitted that this authorises the Federal Court to hear matters under the common law or state legislation which are 'associated' in the sense of being 'closely related' or because they have 'common transactions and facts' with the federal matters. These concepts are dealt with in the Respondents' earlier submissions.
2. Accordingly, without having to descend into a debate about whether there is federal legislation which is comparable to the EO Act, it is open to the Applicant to prosecute an EO Act claim within the associated jurisdiction of the Federal Court. The Respondents have already indicated that they would not stand in the way of the Applicant doing so.

65 This absence of a differentiation between accrued jurisdiction and associated jurisdiction permeates into her Honour's judgment. Senior Counsel for the Bank before me acknowledged that the 'associated jurisdiction question is very unfortunately expressed and has no doubt produced confusion'.[39] Elsewhere it was said that her Honour's reasons are poorly expressed and that her Honour appears to have even 'misspoken' in that even though her Honour is referring to associated jurisdiction what she really meant to refer to was accrued jurisdiction, which is the test she applied. The description of her Honour's judgment was in aid of an ultimate submission that even though there is confusion between associated and accrued jurisdiction, her Honour obtained the right result for the purposes of s 77 of the VCAT Act in exercising her discretion and referring the matter to the Federal Court, for on correct analysis, this was a case of a single justiciable controversy where the Federal Court could assume jurisdiction. Even that submission has its complications. It agitates a question of construction of s 77 of the VCAT Act whether referral should only take place where there is no doubt at all about the jurisdiction of the court or tribunal to which the referral is made, or, whether the correct course is to abstain as a matter of discretion from exercising the referral power unless it is plain there is jurisdiction. And what is the situation where no-one seeks to invoke the accrued jurisdiction of the Federal Court? Is it a matter for the Tribunal to decide if the Federal Court has accrued jurisdiction, or should that properly only be a matter for the Federal Court? In my view, accrued jurisdiction is something to be pursued not at the behest of a Court or Tribunal but is sought to be invoked at the instance of a party in the Federal Court who seeks to bring a non-federal matter into a federal matter by showing it to be part of a single justiciable controversy. There are certainly authorities which say that there is little point in striking out a proceeding under s 77(1) and then referring it to another court or body that lacks the jurisdiction to deal with the proceeding, and that such a course should not be taken if there is a risk that the body in question may lack the necessary jurisdiction.[40]

66 Her Honour's reasons have a number of complexions. But it is plain that the decision to strike out was predicated on s 32(1) and a view that the Federal Court had associated jurisdiction over the VCAT case. The view necessarily involved a conflation with the test of a single justiciable controversy which the Bank had submitted to be the test for associated jurisdiction. However, as part of the Bank's application to strike out, it was also contended, and her Honour apparently accepted, that there were pathways for Ms Bashour to bring her State case under federal laws, that is, to amend her pending federal court claim that was brought under the Fair Work Act to include her VCAT case and, or, to make her State claim under the federal Disability Discrimination Act. But that was not put as a matter of associated jurisdiction. The application was only about what to do with the VCAT case.

67 Her Honour first compared the Federal Court proceeding with the VCAT proceeding saying:

1. The Federal Court proceeding makes claims arising out of the way in which the applicant says she was treated on her return from maternity leave after having her first child.
2. The VCAT proceeding is superficially different, in that it makes claims against different individual respondents, and relates to a later time period when she was pregnant with her second child. The VCAT proceeding covers the same period from about August 2014 until the applicant resigned from the ANZ Bank on 1 October 2014.
3. It also involves an allegation by the applicant that she suffered from a temporary disability during her second pregnancy - namely a condition of pelvic instability, caused by that pregnancy.
4. Her claim as she described it to me in submissions was that the ANZ Bank should have made reasonable adjustments because she had this pregnancy related pelvic condition, and that the Bank failed to do so.
5. As far as I can understand, those reasonable adjustments should have been to allow her the ability to work from home over that period, or to have had the benefit of flexible working hours.

68 Her Honour then turned under a separate heading to 'the law'. Her Honour stated that she had the power to make the orders sought and that the power was discretionary and required a high level of satisfaction as, if exercised, it would deprive an applicant of the benefits of having the matter dealt with in the VCAT. Her Honour then said this (with my underlining) ―

It is the respondents who bear the onus of persuading me that this course should be followed, and I would have to be amply persuaded firstly that the court or tribunal to which the proceedings were to be referred has the jurisdiction to deal with the proceeding in its totality, and that the dispute would be more appropriately dealt with in that jurisdiction.

69 Her Honour then went on to consider the elements of the discretion:

1. I am not bound to transfer a proceeding just because there are related Court proceedings on foot in another jurisdiction. I may have regard to the considerations of cost and convenience to the parties, whether the proceeding is oppressive to a respondent, the position the proceeding has reached in VCAT and in the other forum, the fact that the applicant has chosen to proceed at VCAT and whether the applicant's choice of forum is made in an attempt to gain an inappropriate tactical advantage or as the flip side to that argument the question of whether VCAT is considered to be a first port of call for the type of proceeding in question.
2. Running through the authorities is the common sense principle that if there is a significant risk of inconsistent findings in relation to exactly the same subject matter, this is a powerful consideration supporting the transfer. It is not in the interests of justice that substantially the same set of facts be litigated in different courts.

70 Her Honour then reached the conclusion that 'the facts on which both the applicant and the bank rely in each of these proceedings are inextricably intertwined' and that:

In truth, her claim in each proceeding is that the bank has refused to make appropriate flexible arrangements to allow her to work from home during one or other of her pregnancies, and has spurned or victimised her because she complained about this.

...

I accept the respondent's submission that all of the claims which she makes in both proceedings form part of one controversy between the parties.

71 Then importantly, her Honour posed the question whether the Federal Court had jurisdiction to hear the VCAT dispute. It is to be kept in mind that s 77(3) of the VCAT Act involves a power of referral of a matter. Her Honour acknowledged two assertions by the Bank that Ms Bashour's claim under the Equal Opportunity Act could be made to form part of the pending Federal Court case by amending that claim to include the same attributes under the Fair Work Act 2009. Secondly, the applicant could also make a claim under the Disability Discrimination Act of the Commonwealth. But more pertinently, her Honour recited the contention that -

The jurisdiction of the Federal Court could be invoked by the applicant under its statutory jurisdiction in associated matters. This jurisdiction arises under s 32 of the Federal Court of Australia Act 1976. This would enable the Federal Court to exercise jurisdiction under the Equal Opportunity Act 2010.

1. There is no reason to read down s 77 of the Act so that any matter in respect of which VCAT is given exclusive jurisdiction cannot be transferred. It is the very purpose of s 77 of the Act that the Tribunal should have the power to transfer matters which are otherwise solely within its jurisdiction if the subject matter of the proceeding would be more appropriately dealt with by another Tribunal or court.

1. I agree with the respondent's submission that s 77 does not interfere with or purport to create a jurisdiction in the Federal Court. Were this argument to succeed, it would mean that VCAT could never have the power to refer matters to an interstate court or to the Federal Court. It is the subject matter of the dispute which is referred under s 77, not the jurisdiction.
2. The question of the jurisdiction of the Federal Court to deal with that subject matter is another issue.
3. The applicant has submitted that the claims made by her under the Equal Opportunity Act would not be able to be dealt with by the Federal Court.
4. I am satisfied that this issue is addressed by s 32 of the Federal Court Act which gives the Federal Court clear power to do so.

73 Associated jurisdiction under s 32(1) is not a synonym for accrued jurisdiction: see Macteldir v Dimovski[41] and see generally Cowen and Zines's Federal Jurisdiction in Australia.[42] Section 32 has been authoritatively interpreted to confer on the Federal Court additional jurisdiction 'in a federal matter which is associated with another federal matter in which the Federal Court has not otherwise been given jurisdiction': see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd.[43] That is, the section operates to attract jurisdiction on associated federal claims, not non-federal claims. That is informed by the introductory words 'To the extent that the Constitution permits' which were not overlooked by her Honour.[44] Those introductory words indicate that the operation of s 32 cannot exceed that permitted by the Constitution.

74 As analysed in Philip Morris, section 77(i) of the Constitution enables the Parliament to define the jurisdiction of the Federal Court but only with respect to matters in s 75 and s 76. Section 32 cannot confer on the Federal Court jurisdiction over matters other than under those sections. If jurisdiction is conferred on the Federal Court under a federal statute, and that jurisdiction is invoked, the Court's jurisdiction is extended by s 32 to associated matters which arise under other laws of the Commonwealth Parliament even though the Parliament has not, apart from s 32 conferred jurisdiction on the Federal Court over those matters. Thus in Philip Morris the Federal Court jurisdiction under the Trade Practices Act was extended by association to a claim for infringement under the Copyright Act. The problem was the Bank submitted to her Honour that 'What the authorities say is that you do read the associated matter widely so that it embraces the entire justiciable controversy between the parties.'[45] Her Honour took that to mean non-federal matters.

75 This is not the case for a disquisition on the topic of accrued jurisdiction. Its significance has lessened since the national scheme for the cross vesting of jurisdiction between the Supreme Courts and the Federal and Family Court in July 1988. But a little has to be said to comprehend what happened at the Tribunal.

76 The principles applicable to accrued jurisdiction were considered, and broadened, in Fencott v Muller,[46] to which the Tribunal was taken. The majority in Fencott revisited the differing views on the subject in Philip Morris and saw the ambit of a matter arising under a federal law as capable of extending beyond claims which arise under that law or which are to be determined by reference to that law alone.[47] The majority said[48] -

Subject to any contrary provision made by federal law and subject to the limitation upon the capacity of non-federal laws to affect federal courts, nonfederal law is part of the single, composite body of law applicable alike to cases determined in the exercise of federal jurisdiction and to cases determined in the exercise of non-federal jurisdiction.

It follows also that, though the facts upon which a non-federal claim arises do not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under a federal law.

77 The conceptual basis is that federal jurisdiction depends on the grant of authority to adjudicate rather than upon the law to be applied or the subject of adjudication. The phrase 'single justiciable controversy' comes from this passage in Fencott[49] -

The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. In identifying a s 76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the law which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

78 In Wakim[50] accrued jurisdiction was explained again by reference to Fencott and Stack v Coast Securities[51] to say that there is but a single matter if different claims arise out of common transactions and facts, or a common substratum of facts. If there is a single justiciable controversy, then the Federal Court has jurisdiction over the whole matter.

79 Associated jurisdiction is something completely different. It brings into consideration matters of a kind mentioned in s 75, s 76 and 77(i) of the Constitution. Once the jurisdiction of a federal court is invoked, its jurisdiction may be extended by s 32(1) to associated matters which arise under another law made by the Parliament even though the Parliament has not (except by s 32(1)) conferred jurisdiction on the Court in respect of those matters.[52] Mason J explained it this way in Philip Morris[53] -

[Section 32(1)] enables the Parliament to define the jurisdiction of a federal court, but only 'with respect to' matters in ss 75 and 76. Section 32 seems to proceed on the footing that a matter arising under nonfederal law may be 'associated' with a matter arising under federal law for the purpose of its determination in the exercise of federal jurisdiction. The remarks of Latham CJ in Carter (citation omitted) may have led to the use of the word 'associated' in s 32. If so, his Honour's remarks have been misunderstood; he was speaking of an association between two claims which led to the existence of one 'matter' in federal jurisdiction. He did not say that two matters, one federal, and the other nonfederal, might be associated so as to be both capable of determination in federal jurisdiction. There is of course no reason why s 32 cannot effectively confer jurisdiction on the Federal Court in a federal matter which is associated with another federal matter in which the Federal Court has not otherwise been given jurisdiction.

80 Thus the introductory words in s 32(1) 'to the extent the Constitution permits' indicate the operation is not to exceed constitutional limits. The section operates in relation to associated federal claims, not non-federal claims. Whether the facts can demonstrate such an association is a matter for the Federal Court to determine in the first instance.[54]

81 The problems with the order came to the surface in directions hearings before Tracey J in the Federal Court.

82 The starting point is 1 April 2015. That was when Ms Bashour engaged her lawyers to act. By that time Ms Bashour's Federal Court case had been fixed for trial by the docket judge, the Hon Justice Tracey, for 27 April 2015. A directions hearing in her Federal Court case occurred on 2 April 2015 to deal with some procedural defaults in a case described by Tracey J as having a chequered history. Before the Court was the question of what to do as a result of Judge Harbison's referral order. The VCAT case was still in its initiating stages ― no evidence, no discovery, no subpoenas ― and it involved a body of facts to be differentiated from the evidence for the Federal Court case. His Honour was told the State case concerned facts by which Ms Bashour said she was constructively removed from her employment by events subsequent to the facts in her Federal Court case and that a claim for damages referable to her removal was being made which would involve expert medical evidence of a gynaecological and obstetric nature and psychiatric nature.[55]

83 At that hearing his Honour was initially inclined to the view that the VCAT order would not have an impact on the trial of the Federal Court case because it arose out of the same evidence, and the only difference was some additional respondents in the Federal Court case. But the hearing goes on to reveal the first signs of his Honour's apprehension that Judge Harbison did not have the power to make the order under s 77(3) of the VCAT Act.[56] His Honour said 'I am not at all sure, for the moment, that state legislation can empower a state tribunal to refer a matter to a Federal Court',[57] and, 'really the moving party has got to effectively invite the jurisdiction'.[58] Addressing the Bank's counsel, Tracey J said[59] -

And that I've got to say worries me very much ... and I have great sympathy for Mr Harmer's position in that he needs to give advice to his client about how the matter gets into this court and how he can ensure that all of the matters that his client wanted to raise in the VCAT proceeding can be deal with in this court.

84 The transcript shows the judge was very concerned to agitate the question of the jurisdiction or foundation upon which the VCAT proceeding or jurisdiction under the State Act could find its way into the Federal Court. His Honour then questioned whether the second case was linked but discrete from the pending case, and questioned whether a new proceeding would have to be commenced which after commencement, would have to be heard concurrently or cumulatively with the existing proceeding. In the upshot, his Honour vacated the trial date and fixed another directions hearing on 16 April at which he said he expected to be advised on how the applicant could proceed to prosecute the VCAT claims in the Federal Court and the jurisdictional basis for any such claims.

85 At the directions hearing on 16 April, the question of federal jurisdiction became intensified. On behalf of Ms Bashour, it was submitted that the basis of the referral by Judge Harbison was under s 32 of the Federal Court Act in its associated jurisdiction which, it was submitted, was fundamentally misconceived. His Honour was prepared to proceed on the basis that the Federal Court simply did not have jurisdiction to entertain the referred matter. The suggestion from her counsel was to reinstate the dismissed VCAT proceeding, refer it to the Supreme Court and then have it crossvested to the Federal Court under crossvesting legislation. A convoluted and messy procedure. So, Ms Bashour's lawyers turned their thinking for a federal means to replicate her claim under the State case by agitating proceedings under the Fair Work Act or the Australian Human Rights Commission Act. Without going into details, each of those processes involve in one form or another procedures such as conciliation and processes which have to be exhausted before a body may certify that the matter can proceed to litigation.

86 What appeared to be descending was a recognition that the orders that were urged on VCAT to in effect force the VCAT proceeding into the federal sphere under federal laws were going to be problematic and certainly inflict delay and may not have achieved the outcome of replicating the VCAT proceeding. Hovering above this was the real question about the validity of Judge Harbison's order and the associated jurisdiction of the Federal Court.

87 At the directions hearing on 16 April, the question of accrued jurisdiction emerged from the Bank as a basis for the Court dealing with the VCAT matter. Tracey J expressed doubts whether the pendent jurisdiction arises because the Federal Court proceedings and the VCAT proceedings may not have arisen out of the same factual substratum. Although there was a continuum, his Honour questioned whether the issues between the two cases were discrete. The upshot was the matter was adjourned for further mention on 24 June 2015.

88 A directions hearing occurred on 1 June 2015 on an application put on behalf of Ms Bashour to adjourn the Federal Court proceedings because of difficulties that they had incurred in looking to replicate the VCAT claim in the Fair Work Commission. Without going into details, his Honour was informed that having investigated the availability of action under the Disability Discrimination Act, and the Sex Discrimination Act, any such application would be statute barred. Furthermore, the presence of double-dipping provisions in s 725 and 732 of the Fair Work Act meant that unless the VCAT proceeding has failed for want of jurisdiction or has been withdrawn, then there was a jurisdictional preclusion for making a fresh application before the Fair Work Commission.

89 The transcript of the hearing on this occasion showed that his Honour had given close attention to the question of jurisdiction. What emerges is real doubt about the validity of Judge Harbison's order. His Honour said variously:[60]

Well, I've had a closer look at it since this was raised on the last occasion and I have got to say to you that I am far from persuaded that VCAT had the power that it purported to exercise under s 77(3) of its Act.

...

Well, yes. I mean, they had power, I would have thought, to refer the matter to another appropriate, if there be one, State tribunal but I - the more I look at it, the more I doubt that there was any power to refer it here.

90 Later, his Honour expressed 'grave doubt' that VCAT had the authority to make the order and he saw the Court's task as being to 'try and unscramble the egg'. What is more, his Honour said he could not see how the Federal Court could obtain accrued jurisdiction[61] or would require considerable persuasion because -

this Court cannot just pick up allegations made under State enactments. If they arise out of the same substratum then I think there's an arguable case but ... by definition you're only in this court on a sub-stratum that concluded on the day that Ms Bashour made her complaint to the Human Rights and Equal Opportunity Commission, not on subsequent events.[62]

91 This demonstrates how unproductive or odious jurisdictional fights can be; no regard is being had to the merits of the case, and it produces delay. The tension that entered the case deepened, the Bank taking the position that if Ms Bashour was to return to VCAT to have her case reinstated then she should discontinue her Federal Court proceeding because s 734 of the Fair Work Act was a statutory impediment to her bringing the Federal Court dispute before VCAT for as long as the proceeding in the Federal Court remained alive. Yet to do that, would involve Ms Bashour falling between two stools. What she sought to do was to agitate with VCAT a reinstatement of the referred matter and investigate the prospect of the entire controversy, State and Federal, being dealt with by VCAT in which case the pending Federal Court proceeding could be withdrawn.

92 If the whole idea behind the referral was an acceptance by Judge Harbison of the Bank's submission that there was 'one controversy' that ought to be dealt with by one court in one place, then it was plain that the trial had to be vacated, and it was on 1 June 2015. His Honour gave Ms Bashour until 10 August 2015 to come to a position on how to proceed. By this time the 28 day limitation period for leave to appeal the VCAT order had expired on 17 April 2015. The 60 day time limit for judicial review of the order had expired on 19 May 2015. According to an affidavit sworn by Ms Bashour's solicitor, her instructions to seek reinstatement was given on 21 May 2015.

93 On 2 June 2015, Ms Bashour's lawyers contacted the VCAT registry and requested the Registrar to reinstate the proceeding. When told such a request would have to be in writing, they sent a letter to the Registrar dated 9 June 2015 requesting the struck out VCAT proceeding to be relisted and to enable the strike out order to be revoked. The letter went on to invite the Tribunal to deal with the entire controversy between the parties. The letter stated in essence that the grounds for seeking to have the matter relisted and the order revoked was that Judge Harbison had been 'grossly misled' and that the bank had failed in proceedings before her Honour to properly expose, or expose at all, all of the difficulties that had been experienced by the applicant in pursuing the federal claim, contrary to the way the Bank had conducted its case before Judge Harbison. I am bound to say that was quite a provocative approach which was, expectably, met with the Bank's opposition.

94 On 18 June 2015, the Registrar of the Human Rights Division of VCAT wrote to Ms Bashour's lawyers saying[63] -

The Tribunal has considered your correspondence and advises that VCAT has no power to revoke the orders made by her Honour Judge Harbison, Vice President, on 20 March 2015 or to reinstate the proceeding, as the Tribunal is functus officio.

95 In response, a written submission was sent on the question of VCAT's power of reinstatement in which it was contended such a power was enlivened 'because it [the Tribunal] was grossly misled by the misrepresentations made by the Respondents' various submissions in support of the Strike Out Application'.[64] The end of correspondence occurred on 14 July 2015 when the Registrar stated that:

Given that her Honour Vice President Judge Harbison has ordered that the proceeding be struck out and the subject matter of the proceeding be referred to the Federal Court, the registry is unable to process this application.

It is not appropriate for the registry to enter into further correspondence regarding this matter.[65]

96 That amounts to saying, as I construe the letter, that the proceeding sought to be reinstated had by effect of the strike out order in effect been referred to the Federal Court and thus was not able to be reinstated.

97 I have said this part of the application is fraught. Under the VCAT Act, the Tribunal consists of a President, Vice Presidents, Deputy Presidents, senior members and ordinary members and the principal registrar and registrars referred to in section 32 of the Act: see s 8(1). Section 32 of the Act states that:

(1) To assist in the administration of the Tribunal there are to be employed under the Public Administration Act 2004 -

(a) a principal registrar; and

(b) [Repealed]

(c) as many registrars and other staff as are necessary.

(2) The principal registrar -

(a) has the functions conferred by or under this or any other Act and the rules; and

(b) in carrying out those functions, is subject to the direction of the President.

(3) A registrar other than the principal registrar has, subject to the direction of the principal registrar, all the functions of the principal registrar.

(1) Rules under s 157 may include rules for or with respect to the functions of the Tribunal that may be performed by the Tribunal constituted by the principal registrar.

(2) Rules referred to in (1) cannot provide for the Tribunal constituted by the principal registrar to make any orders finally disposing of a proceeding, other than orders made with the consent of all parties to the proceeding.

(3) To avoid doubt, a reference in subsection (2) to orders finally disposing of the proceeding does not include any orders striking out a proceeding in circumstances where a party has a right to have, or to apply to have, the proceeding or part of it reinstated.

99 Under order 9 of the VCAT Rules 2008, there is a list of functions of the Tribunal which may be performed by the Tribunal as constituted by the principal registrar (which includes a registrar under s 32(3)) in proceedings in, relevantly, the Human Rights Division. That list includes:

(a) striking out of a proceeding with a right to apply for reinstatement where the parties have settled a matter;

(b) striking out of a proceeding with a right to apply for reinstatement for failure to pay the correct fee;

(c) striking out of a proceeding with a right to apply for reinstatement where service of an application has been effected;

(d) reinstatement of a matter struck out for failure to pay the correct fee where the correct fee is subsequently paid;

(e) reinstatement of a matter struck out for service of an application not being effected where the service is subsequently effected.

100 It appears there is no conferral of power to a registrar to reinstate the matter in the circumstances of this case. That supports the view that the Registrar was not exercising a power of the Tribunal in making the communication.

101 But as the originating motion seeking review on the Registrar's 'decision' is within time, there is no occasion to say any more about the merits of this part of it. There is no application for summary dismissal. The question ultimately will be whether the Registrar's communication is a decision or is amenable to judicial review. If Judge Harbison's order is quashed, then this part of the review application as against the Registrar proceeding will have no work to do. Likewise, it seems to me that if grounds for certiorari are not made out, or, if certiorari is refused on discretionary grounds, then the legality of the decision stands and therefore there would appear to be no basis for seeking a reinstatement.

102 The Registrar's 'decision' comes into play on the duration of the delay. The correspondence from the VCAT Registrar stating that there was no power to reinstate and that the Tribunal was functus officio was sent on 18 June 2015. Even if it be accepted that up to 18 June 2015 there was still a state of flux or uncertainty, it is plain that there was to be no reinstatement as at 18 June 2015. The originating motion was not filed until 17 August 2015, about two months later. The only evidence the Court has to explain that delay is an affidavit filed at the hearing by her solicitor, Amy Zhang.[66] She swore:

1. It was not until VCAT rejected, through the Functus Officio Decision ... the request for re-listing the matter for the purpose of seeking reinstatement that it became necessary to seek judicial review of the Strike Out Order and the Functus Officio decision.
2. ... During the period of 14 July 2015 [i.e. when the Registrar asked her solicitors to desist from sending correspondence] to 7 August 2015 [i.e. just before a directions hearing before Tracey J on 10 August 2015], while Harmers and the Plaintiff further reviewed and assessed the potential avenues available to the Plaintiff, the Plaintiff and her entire family were also extremely unwell and suffering from fevers and bacterial and viral infections until at least 24 July 2015, such that the Plaintiff could not further review and assess the potential avenues available and provide instructions until 6 August 2015.
3. ... Harmers sought to first obtain consent from his Honour Justice Tracey to adjourning VID 107/2014 so that the judicial review route could be pursued before actually making an application for judicial review.
4. On the morning of 10 August 2015, Harmers decided to pursue judicial review under order 56 ... primarily due to the fact that the Functus Officio decision cannot be appealed under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

103 I think the explanation for inaction after 18 June 2015 is weak. I do not see why the originating motion had to await the directions hearing in the Federal Court on 10 August. But as I said at the outset, and having now exposed the facts of this saga I make the judgment that the procedural default ought not eclipse the greater necessity in the interests of justice for the applicant to have this Court determine the validity of the Tribunal's significant order under s 77.

104 For those reasons, I shall make these orders (the third of which is on the Court's own motion) -

1. Pursuant to rule 56.02(3) the date by which the plaintiff may make her application for judicial review is extended to 17 August 2015 being the date on which the plaintiff filed her originating motion.

2. The costs of the application for the extension of time be reserved to the Court hearing and determining the application for review.

3. The proceeding is transferred into the Employment and Industrial List of the Common Law Division and the heading of the proceeding is amended accordingly.

4. The parties shall attend a directions hearing before the Judge in charge of the Employment and Industrial list on 12 September 2016 at 9.30am in a Court room to be announced.

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD (ACN 005 056 522)

[3] See Mann v Medical Practitioners Board of Vic [2004] VSCA 148, [57].

[4] See the statement of principles by Kirby J in Jackamarra v Krakouer (1997) 195 CLR 516, 539-543

[6] [2015] VSCA 127.

[9] See Herald & Weekly Times v State of Victoria [2006] VSCA 146, [19].

[12] [1999] HCA 27; (1999) 198 CLR 511, 583-588 (per Gummow and Hayne JJ).

[13] [2006] VSCA 146, [19].

[14] Herald & Weekly Times v VCAT at [19].

[15] Not the Senior Counsel that appeared on this application.

[16] See the applicant's written submissions, passim.

[18] [2013] VSC 195, [70], [74].

[19] [2001] VSCA 80; [2001] 3 VR 289,293.

[21] [2011] VSC 35, [45].

[30] See exhibit ASZ-12 at p 22, ln 5-10.

[37] (1983) 152 CLR 570.

[40] See The Tenth Proposition in Pizer's Annotated VCAT Act (5th Ed) at p 379.

[41] [2005] FCA 1528; (2005) 226 ALR 773, [67].

[43] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1980) 148 CLR 457, 516 (per Mason J) and see also 494-5 (per Gibbs J).

[46] (1983) 152 CLR 570.

[50] [1999] HCA 27; (1999) 198 CLR 511, 583-88 (per Gummow and Hayne JJ).

[51] (1983) 154 CLR 261.

[53] (1980) 148 CLR 457, 516.

[54] Phillip Morris at 538-9 (per Aickin J).

[60] See exhibit ASZ-19, p 6, ln 24-35.