Seven Network (Operations) Limited and Anor v Amber Harrison

Background facts

1. The background facts are comprehensively set out by McDougall J in Seven Network (Operations) Limited v Amber Harrison [2017] NSWSC 129 at [3]-[17]. For the purpose of the current proceedings, the relevant facts are as follows.
2. On 23 October 2013, Ms Harrison was employed by Seven as an executive assistant to Mr Chan, the then Chief Operating Officer. This followed Ms Harrison's employment as an executive assistant for Mr Chan in his capacity as Chief Executive Officer with Pacific Magazines Pty Ltd (Pacific Magazines), a related body corporate to Seven, from 1 July 2009 - 30 September 2013.
3. In or around December 2012, while employed by Pacific Magazines, Ms Harrison alleges she formed a sexual relationship with Mr Tim Worner, the now Chief Executive Officer of Seven. This relationship seems to have continued up to mid-2014.
4. On or about 11 July 2014, Seven began an internal investigation into expenses incurred by Ms Harrison on her and Mr Chan's corporate credit cards. During the investigation, Ms Harrison was allegedly directed not to attend work or perform duties of employment. At the same time as the investigation, Ms Harrison disclosed her relationship with Mr Worner to Seven senior human resources executives.
5. On 1 August 2014, Ms Harrison and Seven reached an agreement (First Deed) where Seven agreed to pay Ms Harrison $100,000 and employ her in a new role. Ms Harrison undertook to repay the $14,000 she conceded she spent on personal expenses using the corporate credit card.
6. On 1 August 2014, Seven commissioned Deloitte Touche Tohmatsu (Deloitte) to conduct a further investigation into the use of the corporate credit cards held by Ms Harrison and Mr Chan. In late September 2014, Deloitte reported it was likely Ms Harrison had charged about $180,000 worth of unauthorised personal expenses to those cards from October 2009 - July 2014.
7. On 14 November 2014, following mediation, the parties executed a further deed (the Second Deed). Relevant provisions of the Second Deed for the purpose of these proceedings include: Clause 1.1: Claims includes "all present and future actions, applications, causes of action, claims, complaints, demands, suits, proceedings, liabilities, sums of money, damages, debts due, determinations, inquiries, judgments, verdicts and costs arising, whether directly or indirectly from or in any way related to: (i) The matters recited; (ii) The Contract or any previous contract, agreement or understanding between the parties; (iii) The Employment; (iv) The Expenses; (v) The terms of Employment; (vi) The Position; (vii) The Redundancy; (viii) The Relationship; (ix) The Restructure; (x) The Termination; and (xi) The Disputed Expenses, Whether at law, in equity, arising under any statute, regulation or other legislative instrument or any award, enterprise agreement or other instrument made or approved under any law, except for claims for workers' compensation under applicable workers' compensation legislation from which the Employee cannot give release under this Deed." Clause 4.1: "Release by the Employee The Employee releases absolutely and forever discharges the Company, Beneficiaries and the Group Members from and against all Claims that the Employee has now or may have had in the future if the parties had not executed this Deed, except for any claims to enforce this Deed or any of its terms." Clause 7.8: "Governing Law (a) The law of this Deed is the law of the State of New South Wales, (b) The parties: (i) irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales; (ii) waive any rights to object to any proceedings being brought in the courts of New South Wales; and (iii) agree that any dispute arising out of or in connection with this Deed may be litigated in the State of New South Wales."
8. On each of 15 April 2015 and 15 May 2015, Ms Harrison alleges in the NSW Cross-Claim Seven did not pay her the amounts due and payable under the Second Deed, and that this amounted to a repudiation of the Second Deed. Seven alleges this was on the grounds they believed they were no longer obliged to pay her because she had refused to comply with a request made pursuant to clause 6 of schedule 1 of the Second Deed that she provide access to her electronic devices and records.
9. On 29 May 2015, Ms Harrison lodged a complaint with the Australian Human Rights Commission (AHRC) based on allegations of sexual harassment, discrimination and victimisation by Seven and certain Seven employees (AHRC Complaint). Ms Harrison alleges this amounted to an acceptance of the repudiation of the Second Deed.
10. In or about November and December 2016 Ms Harrison went public with her relationship with Mr Worner and alleged mistreatment by Seven, making statements to several print and online media outlets. Ms Harrison alleges this action was, in the alternative to the AHRC Complaint, an acceptance of the repudiation of the Second Deed.
11. On 17 March 2017, solicitors for Seven were informed by the AHRC Ms Harrison had been issued with a Notice of Termination in respect of the AHRC Complaint, following a failed conciliation conference on 13 May 2016 and decision by Ms Harrison not to withdraw the AHRC Complaint as requested by the AHRC on 11 January 2017.

Procedural history

1. Seven commenced the NSW Proceedings in this court on 13 February 2017 by summons before the Duty Judge, McDougall J, seeking interlocutory and final injunctive relief restraining Ms Harrison from breaching her alleged obligations under the Second Deed. This was supported by an affidavit of Ruveni Kelleher dated 13 February 2017.
2. On 13 February 2017, his Honour granted an ex parte injunction, enjoining Ms Harrison from, in short, disclosing, copying or reproducing confidential information under the Second Deed, talking to or through the media and to the public about any aspect relating to Seven, her agreements with Seven, her relationship with Mr Worner and her employment and termination, encouraging others to make such comments, and disclosing the contents of the Second Deed. On 14 February 2017, these orders were extended by McDougall J until 5pm on 21 February 2017.
3. On 21 February 2017, Ms Harrison contested the interlocutory orders but his Honour found in favour of Seven, granting the continuation of the orders, with the exception of no longer enjoining Ms Harrison from disclosure of the Second Deed. His Honour also ordered the parties to apply for expedition of final hearing of the proceedings.
4. The following day, on 22 February 2017, his Honour gave judgment with his reasons for the continuation of the orders; see Seven Network (Operations) Limited v Amber Harrison [2017] NSWSC 129. His Honour's findings included: 1. There was a strong prima facie case Ms Harrison breached a number of her confidentiality obligations under the Second Deed (at [37]); and 2. Unless she was restrained, Ms Harrison would continue to breach such obligations (at [46]).
5. The matter came before me in the expedition list on 3 March 2017, and on that date, with the consent of Ms Harrison's representatives, I granted expedition and fixed the matter for a four day final hearing commencing 10 July 2017 (Transcript of 3 March 2017, T1/20-25, T7/35-40).
6. At this hearing on 3 March 2017, it was also brought to my attention Ms Harrison wished to file a cross-claim, although Ms Harrison's representatives could not confirm the exact substance of this claim and relief sought because of an alleged issue with production of documents (Transcript of 3 March 2017, T2/10-T3/30). I made orders for Ms Harrison to file and serve "any cross claims" by 16 March 2017, before the matter returned to me for directions on 17 March 2017 (Transcript of 3 March 2017, T4/40-50).
7. On 17 March 2017 Ms Harrison commenced the Federal Court Proceedings in the Federal Court Fair Work Division of the Melbourne Registry by statement of claim (Federal Court Claim). The Federal Court Claim pleads Seven contravened various sections of the Fair Work Act including prejudicing her workplace rights, and engaging in adverse action. Ms Harrison claims compensation and penalties.
8. On 17 March 2017, the Duty Registrar of the Supreme Court of NSW accepted the NSW Cross-Claim for filing and directed the document be marked as filed on 16 March 2017. The NSW Cross-Claim pleads Seven breached the Second Deed, Ms Harrison's contract of employment for failure to provide a safe workplace and/or a safe system of work, and adverse action provisions under the Fair Work Act. By way of relief, Ms Harrison primarily claims a declaration Seven has breached, incurred or procured a breach, and repudiated the Second Deed, a declaration Ms Harrison is no longer bound by the Deed, and a declaration Seven have breached their common law obligations of confidence to Ms Harrison.
9. On 17 March 2017, Mr Burnside QC appeared for the Defendant/Cross-Claimant when the matter came before the court, and Mr Thomas of Counsel appeared for the Plaintiffs. Mr Burnside QC indicated in light of the NSW Cross-Claim, Ms Harrison would file an application for the matter to be transferred to the Federal Court, and that Ms Harrison had already commenced proceedings in that court (Transcript of 17 March T1/20-35).
10. On 30 March 2017, the parties appeared before Bromberg J in the Melbourne Registry of the Federal Court, where the matter was listed for a case management hearing on 28 April 2017.
11. On 3 April 2017, Ms Harrison made a formal application in the NSW Proceedings by way of a Notice of Motion to transfer the NSW Proceedings to the Federal Court pursuant to s 5 of the Cross Vesting Act (Transfer Application).
12. On 4 April 2017, Seven lodged an interlocutory application in the Federal Court Proceedings seeking summary dismissal of the Proceedings, or, in the alternative, a permanent stay of the Federal Court Proceedings, the striking out of the Federal Court Claim, or a temporary stay of the Federal Court Proceedings pending determination by this court of the NSW Proceedings.
13. On 6 April 2017, the Transfer Application came before me. Mr Bell SC and Mr Thomas of Counsel appeared for Seven, and Mr Burnside QC and Ms Kelly of Counsel appeared for Ms Harrison.

Legal principles

1. The principles and purpose underpinning the cross vesting legislation in Australia were summarised by Street CJ in Bankinvest A G v Seabrook (1988) 14 NSWLR 711 at 714: "As a very broad generality it can be said that the ordinary day to day administration of the cross-vesting scheme in its operation on a given proceeding is placed in the hands of whatever court it may be in which they are commenced. Ordinarily it could be expected that a single judge of that court would decide whether it is in the interests of justice to transfer the proceedings to one of the other nine courts. If such an order be made then in practical terms it effects what might be likened to an administrative re-direction of the proceedings to the other court selected. In the hands of that other court the proceedings will continue to attract the Australian wide jurisdiction and law which would have been exercisable and applicable by the court from which they were transferred. Viewed from this standpoint it can be seen to be highly desirable that the judicial administration of the day to day working of the cross-vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering making a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute."
2. Section 5(1) of the Cross Vesting Act provides: "Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court; (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Family Court; (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court; the first court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be."
3. If the court is of the view s 5(1) is satisfied, the proceedings must be cross vested. There is no question of judicial discretion on the issue; BHP Billiton Ltd v Schultz (2004) 221 CLR 400 (BHP v Shultz) at 481 per Callinan J (in relation to s 5(2) but equally applicable to s 5(1)).
4. The ordinary meaning of the words "related to" in s 5(1)(b)(i) was held by Beaumont J to be "associated" or "connected;" Re Hamilton-Irvine (1990) 101 FLR 11 at 17.
5. The question of whether a court is "more appropriate" (s 5(1)(b)(i)) turns on a consideration of the interests of justice. It is not necessary for the first court to be a "clearly inappropriate forum" as is required in applications to stay on grounds of forums non conveniens. Rather, the question turns on whether, in the interests of justice, the second court is more appropriate; BHP v Shultz at 421 per Gleeson CJ, McHugh and Heydon JJ. As noted by Brereton J in this court, a court must be more appropriate and not merely equally appropriate to the other court in question; HIH Insurance Ltd (in liq) [2014] NSWSC 545 at [7].
6. Further, as Gleeson CJ, McHugh and Heydon JJ observed in BHP v Shultz at 421, the interests of justice capture not just the interests of both the respective parties - competing or conflicting - but may also capture interests wider than those of either party. Brereton J discussed this aspect of BHP v Shultz in Valceski v Valceski (2007) 70 NSWLR 36 at [69]: "As BHP v Schultz makes clear, the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the "interests of justice" are to be judged by more objective factors, such as facilitate identification of the "natural forum", in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be: cf British American Tobacco v Gordon (at [47])."
7. Unsurprisingly, each case turns on the particular facts when determining the more appropriate court or "natural forum". Relevant factors identified in authorities have included the location of the alleged wrong, the location of the parties and witnesses, the substantive law by which the claim is to be determined, the inclusion of exclusive jurisdiction clauses, the stage of each proceedings, and the ability of the competing forums to dispose of the substantive dispute in a cost and time efficient way.
8. The term "interests of justice" (under provisions such as s 5(1)(b)(iii)) has been given a liberal construction. Wilcox J in Bourke v State Bank of New South Wales (1988) 22 FCR 378 at 394 held the expression: "ought to be read widely. Under that rubric the court is entitled to consider not only the ability of the particular court to deal with all aspects of the matter, and to make and to enforce all the orders to which a party may be entitled, but also adjectival matters such as the availability of particular evidence, the procedures to be adopted, the desirable venue for trial and the likely hearing date."

Ms Harrison's submissions

1. Ms Harrison submits this court should grant her Transfer Application on the grounds of the Federal Court Proceedings being a related proceedings in a "more appropriate" forum for the case to be heard (s 5(1)(b)(i)), or, in the alternative, it is in the interests of justice to have the NSW Proceedings transferred to the Federal Court (s 5(1)(b)(iii)).
2. Under s 5(1)(b)(i), Ms Harrison submits first that the Federal Court Proceedings should be accepted as "related to" the NSW Proceedings, on the grounds the subject matter of each proceedings stems from the continuous course of conduct relating to Ms Harrison's employment with Seven, the factual matter going to her allegations in the Federal Court Proceedings form part of the same factual matter she will rely on in the NSW Proceedings to support her claim for failure to provide a safe system of work, and the parties are the same and issues are substantially the same.
3. Ms Harrison maintains she intentionally chose not to seek relief for the Fair Work Act claims in the NSW Cross-Claim on the basis she submits this court does not have jurisdiction to grant such relief under that legislation.
4. Secondly, Ms Harrison raises the following points in support of the Federal Court (Melbourne Registry) being the more appropriate forum: 1. This court does not have jurisdiction to hear the Federal Court Proceedings, unlike the Federal Court which would have accrued jurisdiction over the whole of the proceeding, meaning the whole controversy could play out in a single court; 2. If the matter is not transferred, there is potential for conflicting factual findings between two courts which is "inimical to the interests of justice" since Seven's claim, the NSW Cross-Claim, and the Federal Court Claim, are bound together in the same questions of fact, namely whether the Second Deed is on foot; 3. Seven has indicated their defence to the NSW Cross-Claim will include the allegation Ms Harrison is precluded from bringing the Cross-Claim under the Second Deed, and it can be expected a similar defence will be made to the Federal Court Proceedings. Cost, expedience and convenience dictates the controversies should therefore be determined in a single action before a single court; 4. The costs of litigating related claims in two different courts will impair Ms Harrison's access to justice; 5. The NSW Proceedings are at a preliminary stage with Seven yet to file a defence to the NSW Cross-Claim; and 6. The Federal Court Proceedings have a directions hearing on 28 April 2017 where a timetable can be set.

Seven's submissions

1. Seven submits Ms Harrison's Transfer Application should be rejected on the grounds the Federal Court Proceedings are not genuinely related to the NSW Proceedings, and in any case, NSW remains the more appropriate forum to hear the substantive claims.
2. In challenging the nexus to the Federal Court Proceedings, Seven contends first the NSW Proceedings relate to the enforcement of the Second Deed and the NSW Cross-Claim, with "contrived" references to the Fair Work Act allegations raised in the Federal Court Proceedings. According to Seven, the references to the Fair Work Act in the NSW Cross-Claim are nothing more than "artful pleading" to adopt the idiolect of Chief Judge Meskill of the United States Court of Appeals, designed for the express purpose of supporting the transfer of proceedings. Seven points to the failure by Ms Harrison to seek relief under the Fair Work Act in the NSW Cross-Claim as evidence of a "device designed to create a pretext for a transfer of proceedings."
3. Even if the Proceedings are considered related, Seven's primary objection to the Transfer Application is on the grounds NSW is the more appropriate forum to continue hearing the NSW Proceedings.
4. By way of summary, Seven maintains the following considerations make NSW the more appropriate forum: 1. The Second Deed supports, and indeed requires proceedings take place in NSW, with the exclusive jurisdiction clause in favour of NSW courts, the waiver clause requiring parties to waive any rights to object to proceedings in NSW, and, while less powerful, the governing law clause in favour of NSW law. Seven also noted in oral submissions the exclusive jurisdiction clause, according to the doctrine of separability, is a separate contract which therefore remains on foot even if the Second Deed does not (Transcript of 6 April 2017 T18/25-35); 2. All the relevant parties and legal representatives except for Ms Harrison and her senior counsel are based in NSW, as are the majority of the witnesses likely to be called by both sides; 3. The NSW Proceedings are at a much more advanced stage than the Federal Court Proceedings; 4. The Federal Court Proceedings and the NSW Cross-Claim are in any case unlawful as they are in breach of the Second Deed where Ms Harrison releases Seven from claims including those raised by her in the Federal Court Proceedings and the NSW Cross-Claim (the Release Clause); 5. Even if the Second Deed is found to no longer be on foot, Ms Harrison's release to Seven is an accrued right which survives termination of the Second Deed; 6. The Federal Court Proceedings are also unlawful as Ms Harrison's lodgement of the AHRC Claim precludes her under s 734(1)(b) of the Fair Work Act from bringing her claims under the Act; and 7. Ms Harrison has offended rule 44.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) by not making the Transfer Application expeditiously, as soon as practicable after the commencement of the proceedings.
5. By way of orders, Seven's primary case is the Transfer Application should be dismissed with costs. Seven canvasses the following alternative and less preferred options in written and oral submissions: 1. The Transfer Application be adjourned pending the determination by Bromberg J of Seven's application for the summary dismissal and/or stay of the Federal Court Proceedings; or 2. As "very much an ultimate fall-back" (Transcript of 6 April 2017 T20/15-20) the pleadings relating to breach of the Employment Contract ([9]-[47] of the NSW Cross-Claim) be transferred to the Federal Court to avoid overlap with the Federal Court Proceedings, but this court retains the pleadings relating to breach of the Second Deed.

Additional submissions on this court's jurisdiction under the Fair Work Act

1. On the morning of this Transfer Application I raised with counsel some recent amendments to the Industrial Relations Act 1996 (NSW) (Industrial Relations Act) under the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (Industrial Court Amendment Act), effective from 8 December 2016. I asked for counsels' consideration on these amendments relating to the jurisdiction of the NSW Supreme Court, and whether they had any effect on this court's jurisdiction to hear matters under the Fair Work Act.
2. Both parties responded in writing in accordance with directions.
3. Seven initially maintained the NSW Supreme Court did have jurisdiction under the Fair Work Act by reason of the increased jurisdiction of the Supreme Court following the Industrial Court Amendment Act, which meant the Supreme Court met the definition of 'eligible State or Territory court' under the Fair Work Act. As an eligible State or Territory court, the Supreme Court can exercise Fair Work Act jurisdiction, as acknowledged by s 565(1) of the Fair Work Act.
4. Ms Harrison responded submitting the NSW Supreme Court did not have jurisdiction to hear Fair Work Act claims. Her submissions centred principally on two points. First, ss 355A and 355B of the Industrial Relations Act does not confer jurisdiction on the Supreme Court to hear matters under the Fair Work Act. The Supreme Court is given jurisdiction to hear 'industrial proceedings,' but industrial proceedings are defined as proceedings arising under 'industrial legislation,' and industrial legislation is defined as a string of exclusively NSW legislation. Further, s 4(4) of the Cross Vesting Act expressly excludes proceedings under the Fair Work Act from being heard by the NSW Supreme Court.
5. Secondly, under the Fair Work Act, the NSW Supreme Court is not an eligible State or Territory court as, in short, while it now performs some of the functions and powers of the Industrial Court of NSW, it does not perform all functions and powers. Therefore, Ms Harrison submits, reference to the Industrial Court of NSW in the definition of 'eligible State or Territory court' under s 12 of the Fair Work Act should not now be read as conferring jurisdiction on the Supreme Court of NSW.
6. Seven briefly responded to these points, accepting ss 355A and 355B of the Industrial Relations Act did not confer jurisdiction on the NSW Supreme Court under the Fair Work Act, and that the Supreme Court does not have jurisdiction to make orders in relation to contraventions of s 340(1). Nonetheless, Seven maintained Ms Harrison does not seek any orders under the Fair Work Act in the NSW Proceedings. Thus, Seven submitted, for the purpose of the NSW Proceedings, the Supreme Court still retains jurisdiction to determine each of the facts pleaded by Ms Harrison and matters arising in the NSW Cross-Claim, including whether Seven breached s 340 of the Fair Work Act.

Section 5(1)(b)(i) - "related proceeding"

1. I am satisfied the NSW and Federal Court Proceedings are "related" proceedings for the purposes of s 5(1)(b)(i). As "contrived" or "manufactured" as Seven alleges the NSW Cross-Claim may be, the fact remains both Proceedings involve the same parties, ventilating claims contingent on the same issue of whether or not the Second Deed should be set aside. In my view, this nexus is sufficient to enliven s 5(1)(b)(i) in the sense the Proceedings are plainly associated, connected and related.

Section 5(1)(b)(i) - "more appropriate"

1. However, I am satisfied it is in the interests of justice that proceedings remain in NSW, being the more natural forum in this case. Although it is generally desirable for all matters to be determined in one place, as a matter of practical reality in a Federation, this is not always possible. Where the interests of justice point to a court being more appropriate notwithstanding the existence of related proceedings in a separate court, a transfer to that other court must be refused. In my view, such a scenario arises here.
2. While this court's lack of jurisdiction to deal with claims under the Fair Work Act may weigh in favour of the Federal Court (Melbourne Registry) as an appropriate forum, there are, in my view, a combination of more powerful factors militating in favour of NSW being the more appropriate forum to hear the NSW Proceedings.
3. I am satisfied (1) this court's jurisdiction to determine the primary issue of the enforceability and status of the Second Deed, together with (2) the nature and (3) the progression of the NSW Proceedings, (4) the exclusive jurisdiction and waiver clause, and (5) considerations of geographical convenience, deem it in the interests of justice to continue the NSW Proceedings in this court. I will now address each of these factors in detail below.

Factors in favour of the Federal Court as the more appropriate forum Jurisdiction of this court under the Fair Work Act

1. I am satisfied I do not have jurisdiction to determine any claims of alleged breaches of s 340(1) of the Fair Work Act, including claims for compensation. For the purposes of this application, I shall proceed on that basis.
2. While it was not submitted expressly by either party, it is tolerably clear from item 11 of the table in s 359, and upon reflection, an 'eligible State or Territory court' does not have jurisdiction to hear applications for orders sought for the contraventions claimed by Ms Harrison (namely, contraventions of the adverse action provisions within 'Part 3-1 General Protections'). Further, I agree with Ms Harrison's submissions that under the Industrial Relations Act and s 4(4) of the Cross Vesting Act, this court does not have jurisdiction to determine matters under the Fair Work Act.
3. However, as has been pointed out by Seven (Seven's Further Supplementary Submissions Opposing Transfer dated 10 April 2017 [3], [6]), no relief has been sought in any event by Ms Harrison, whether it be relief by way of declaration or compensation, for any contravention of s 340. On this basis, there is currently no need to make any determinations on alleged adverse action contraventions under the Fair Work Act. Undoubtedly, in determining the various factual allegations, it may well be the case that some of the factual matters underpinning the s 340 breach, in part or in whole, will need to be determined. That would be serendipity.
4. In addition, as noted above in paragraph 51, Seven submits this court can determine if there has been an adverse action in contravention of the Fair Work Act, even if it cannot make any orders for relief (Seven's Further Supplementary Submissions Opposing Transfer dated 10 April 2017 [6]). I have not heard Ms Harrison on this matter, and I am proceeding on the assumption I do not have jurisdiction to make such determinations, based on the findings I have reached on the jurisdiction of this court under the Fair Work Act. However, if the issue arises at a later date, and Seven wishes to re-agitate the issue, I will hear further submissions on the point, if it becomes necessary to do so.
5. While this jurisdictional factor may militate in favour of the Federal Court which can undoubtedly determine the claims of adverse action, the significance of this point is undercut by the fact the NSW Proceedings presently do not require a determination of whether there has been adverse action under the Fair Work Act.

Factors in favour of the NSW Supreme Court as the more appropriate forum (1) Jurisdiction of this court to hear the main issue in dispute

1. The starting point, and indeed the focal point, of these proceedings is the status and enforceability of the Second Deed. Whichever jurisdiction hears the matter, the prelude to all other questions is whether the Second Deed remains in force between the parties and if so, the scope of its reach.
2. Should Seven satisfy the court the Second Deed remains in force, and the Federal Court Proceedings and the NSW Cross-Claim fall within the meaning of 'Claims' for the purpose of the Release Clause, then Ms Harrison would be precluded from pursuing her Federal Court Claim and the NSW Cross-Claim.
3. Further, even if Ms Harrison satisfies the court Seven has breached the Second Deed and she has accepted the repudiation, there is still a case to be argued - as raised by Seven - that the Release Clause constitutes an accrued right on and from the Second Deed's date of execution. The principle that a party to a contract is not permitted to take advantage of its own breach (see, for example, Alghussein Establishment v Eton College [1991] 1 All ER 267) may raise questions about Seven's argument, but it is nonetheless still an arguable issue which, if maintained by Seven, would need to be determined before any consideration is given to Ms Harrison's Federal Court Claim.
4. A further factor arguably standing in the way of Ms Harrison's Federal Court Proceedings is Seven's claim Ms Harrison is precluded from making Fair Work Act claims pursuant to s 734(1)(b) of the Act. Under this section, a person is precluded from making a general protections court application (which includes an application concerning adverse action) if an application under an anti-discrimination law in relation to the same conduct has not been withdrawn or failed for want of jurisdiction. According to Seven, the AHRC Complaint meets this criterion. While Mr Burnside QC rejected this characterisation in oral submissions (Transcript of 6 April 2017 T9/40-T10/10), he conceded this court has jurisdiction to determine whether the Fair Work Act allegations in the Federal Court Proceedings falls within the embargo set out in s 734 (Transcript of 6 April 2017 T7/1-20, T10/25-30).
5. In summary, Ms Harrison faces a number of arguably substantive hurdles with her Federal Court Claim, any of which could preclude her from proceeding in the Federal Court, and all of which will have to be determined before she is able to do so. If, but only if, she was entirely successful in the NSW Proceedings, would she be able to pursue her Federal Court Claim, as accepted by Seven (Seven's Outline of Submissions Opposing Transfer [5]).
6. In my view, this court's jurisdiction to determine the central issue in dispute, together with the uncertainty surrounding whether Ms Harrison can bring her Federal Court Claim, weighs heavily in favour of NSW, in the interests of justice, being the more appropriate forum to hear the NSW Proceedings. (2) Nature of the NSW Proceedings
7. Seven's prima facie entitlement to have its matter heard and determined without additional delay is a further factor leaning in favour of NSW being the appropriate forum for the NSW Proceedings.
8. On 3 March 2017, Seven made an application, supported by an affidavit of Ruveni Kelleher dated 24 February 2017 (later replaced with a re-sworn affidavit of 5 April 2017 on a confidentiality basis), that the NSW Proceedings be expedited. Ms Harrison did not object to expedition, and consent orders were agreed upon. Ms Harrison also agreed to the fixing of a hearing date and timetable for service of evidence (Transcript of 3 March 2017, T1/20-25, T7/35-40).
9. The first indication Ms Harrison was seeking to transfer the NSW Proceedings was on 17 March 2017 - two weeks after she had consented to an expedited hearing date. Such delay, particularly in expedited hearings, arguably goes against rule 44.5 of the UCPR raised by Seven, requiring a transfer application to be made "on or as soon as practicable after commencement of the proceedings."
10. Seven also have in their favour - albeit on an interlocutory basis - an injunction. Ms Harrison has not sought and has indicated she will not seek to have the interlocutory injunction dissolved (Transcript of 6 April 2017 T3/30-40). In my view, it is in the interests of justice to allow Seven to have its matter fully and expeditiously determined, as agreed to by both parties, before any consideration is given to Ms Harrison's Federal Court Proceedings.
11. In my view, the nature of the NSW Proceedings and the way they have advanced with the acquiescence of Ms Harrison, points favourably to NSW as the more appropriate forum to continue hearing the NSW Proceedings. (3) Progress of both Proceedings
12. The progress of the NSW Proceedings, particularly in comparison to the preliminary status of the Federal Court Proceedings, is an additional factor indicating the interests of justice lie in continuing these proceedings in NSW.
13. As stated, expedition was granted with consent of both parties over a month ago on 3 March 2017. Further, with the consent of both parties, this court has set a timetable for the service of evidence, and allocated a hearing date for four days commencing on 10 July 2016, with the possibility of an extension of time if the suit is enlarged due to the allegations raised in the NSW Cross-Claim.
14. In contrast to the NSW Proceedings, the Federal Court Proceedings are in their infancy. There has only been one hearing before Bromberg J and there is no indication of when a hearing date, if any, may be fixed with the first case management hearing not until 28 April 2017. Further, the only steps taken in the Federal Court Proceedings is Ms Harrison's filing of the originating application and Seven's filing of the interlocutory application seeking summary dismissal.
15. I am satisfied the relatively progressed nature of the NSW Proceedings is an important consideration going towards this court being the more appropriate forum to hear the NSW Proceedings. (4) Exclusive jurisdiction and waiver clause
16. A further powerful, albeit not determinative, factor in NSW being the more appropriate forum is the inclusion of the exclusive jurisdiction clause in the Second Deed, in particular when coupled with the waiver clause. Clause 7.8(b)(i) of the Second Deed expressly confers exclusive jurisdiction to the courts of NSW. This jurisdiction is reinforced by clause 7.8(b)(ii) which expressly waives any rights of the parties to object to proceedings brought in NSW, and on Seven's reading, positively contractually precludes the making of a transfer application. The operation of these clauses is of course predicated on the continued operation of the Second Deed as a whole, however, the risk of offending such express clauses if the Second Deed is found to be in force is a compelling reason for NSW being the more appropriate forum for such issues to be determined.
17. The choice of NSW law as the governing law, while less powerful than the exclusive jurisdiction clause reinforced by the waiver clause, is also a factor weighing on the appropriateness of NSW as a forum for these proceedings. (5) Geographical convenience
18. In this increasingly itinerant and digital age, the issue of geographical convenience when balancing the appropriateness of two domestic courts is not, perhaps, as relevant a factor as it would have been in the past. Nonetheless, it is worth noting the fact all the parties and legal advisors, save Ms Harrison and her senior counsel, reside in NSW, as do the majority of the witnesses likely to be called. Cost and time would therefore likely be saved by proceedings remaining in this court. I acknowledge a judge of the Federal Court (Melbourne Registry) could, of course, sit in NSW.

Conclusion of findings

1. In light of the above, I am satisfied that on balance, in my view, in the interests of justice NSW is the more appropriate forum for these proceedings to be heard. The only matter this court likely does not have jurisdiction to hear is the Fair Work Act claims, but Ms Harrison's ability to bring such claims hinges largely on the central issue of these proceedings - namely whether and to what extent the Second Deed remains in force. With proceedings on that issue already well progressed in this court, in compliance with an exclusive jurisdiction clause and with the consent of Ms Harrison up until the date of this application, and the majority of the relevant persons located in NSW, I am satisfied the interests of justice dictate NSW to be the more appropriate forum. I dismiss the Transfer Application under both s 5(1)(b)(i) and 5(1)(b)(iii) of the Cross Vesting Act. The NSW proceedings will therefore continue in this court.
2. In light of these findings, I will hear the parties on costs, if necessary.

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