Stevens v Barrett Property Sales & Administration Pty Ltd

1. Pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding is transferred from this Court to the Federal Circuit Court; and
2. Any question of costs pertaining to that transfer, or to any other aspect of the proceeding to date in this Court, is reserved for resolution by the Federal Circuit Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SNADEN J: 1 On 3 April 2019, the applicant in this proceeding filed an originating application in this Court seeking various remedies under the Fair Work Act 2009 (Cth), including compensation, penalties and damages, arising in connection with his employment by the respondent and, in particular, its termination. 2 The matter first came before the Court for case management on Monday, 20 May 2019. The Court on that occasion enquired of the parities as to the nature of the claim, the legal and factual issues that it presents, the number of relevant witnesses likely to give evidence at the trial, and the likely duration of that trial. 3 I am satisfied that the proceeding can properly be described as a simple general protections case that involves little, if any, factual or legal complexity, and that it will not require more than three days' hearing time. There are no other associated matters pending in the Federal Circuit Court. 4 By s 32AB of the Federal Court of Australia Act 1976 (Cth), power is conferred upon this Court to transfer a proceeding to the Federal Circuit Court of Australia. That power may be exercised by the Court on its own initiative: see s 32AB(2)(b). Section 32AB provides as follows: 32AB Discretionary transfer of civil proceedings to the Federal Circuit Court (1) If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court. (2) The Court may transfer a proceeding under subsection (1): (a) on the application of a party to the proceeding; or (b) on its own initiative. (3) The Rules of Court may make provision in relation to transfers of proceedings to the Federal Circuit Court under subsection (1). (4) In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1). (5) Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Circuit Court. (6) In deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1), the Court must have regard to: (a) any Rules of Court made for the purposes of subsection (4); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and (c) whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. (7) If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court. (8) An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1). (8A) The Federal Circuit Court has jurisdiction in a matter that: (a) is the subject of a proceeding transferred to the court under this section; and (b) is a matter in which the court does not have jurisdiction apart from this subsection. To avoid doubt, the court's jurisdiction under this subsection is not subject to limits set by another provision. (9) The reference in subsection (1) to a proceeding pending in the Court includes a reference to a proceeding that was instituted in contravention of section 32AA. (9A) This section does not apply to criminal proceedings. (10) This section does not apply to proceedings of a kind specified in the regulations. 5 The rules to which s 32AB refers are rr 27.11 and 27.12 of the Federal Court Rules 2011. Rule 27.12 relevantly provides as follows: 27.11 Transfer to Federal Circuit Court of Australia A party may apply to the Court to transfer to the Federal Circuit Court of Australia: (a) a proceeding other than an appeal; or (b) an appeal under the AAT Act. Note 1: AAT Act and proceeding are defined in the Dictionary. Note 2: The Court may make an order of its own motion - see rule 1.40. Note 3: For a party's right to appeal under the AAT Act, see section 44 of the AAT Act. 27.12 Factors to be taken into account (1) For an appeal under the AAT Act, the parties must address the matters mentioned in section 44AA(7) of that Act. (2) For a proceeding, the parties must address the matters mentioned in section 32AB(6) of the Act. (3) For an appeal under the AAT Act or a proceeding, the parties should address the following: (a) whether the appeal or proceeding is likely to involve questions of general importance; (b) whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred; (c) whether an appeal or proceeding would be determined more quickly if transferred; (d) the wishes of the parties. Note: If the Court makes an order transferring an appeal or proceeding to the Federal Circuit Court of Australia, a Registrar will send all documents filed and all orders made to the proper officer of the Federal Magistrates Court. 6 Pursuant to the power and rules outlined above, proceedings relating to claims of unlawful termination of employment have been transferred from this Court to the Federal Circuit Court: see, eg, Melville v Macquarie University [2006] FCA 1761 (Madgwick J) and Denison v Boart Longyear Pty Ltd [2011] FCA 881 (Flick J). 7 Neither party supports transfer of the present matter to the Federal Circuit Court. That said, neither strongly opposes it either. The proposed transfer arises at the Court's initiative. In the circumstances prevailing here, I consider that the interests of justice favour a transfer of the matter to the Federal Circuit Court. 8 In saying so, I've had regard to the matters referred to in s 32AB(6) of the Federal Court of Australia Act 1976. It is unlikely that any question of general application will arise in this matter, such as might otherwise warrant this Court retaining the proceeding. Given my own listing commitments, it's likely that the Federal Circuit Court could resolve the claim more quickly, or certainly as quickly as this Court. No relevant question of delaying the resolution of the proceeding arises, given that the originating application was filed in April of 2019 and no directions have yet been made. The resources of the Federal Circuit Court are, in my view, plainly sufficient to hear and determine the proceeding. Further, this Court has had no involvement in the management of the case to date, such as might otherwise warrant it being retained. It is a matter for the Federal Circuit Court to give directions from the outset as to how best it considers the claim should proceed. 9 In the circumstances, the discretion conferred by s 32AB warrants the making of an order transferring the matter to the Federal Circuit Court and such an order shall be made. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.