Wall v SBA Foods Pty Ltd

REASONS FOR JUDGMENT 1 At a directions hearing in this matter held on 22 October 1999, I directed the parties to deliver written submissions as to why the application should not be transferred to another court. 2 The applicant, Mr Wall, has applied to this Court claiming relief arising out of the termination of his employment by the respondent SBA Foods Pty Ltd ("SBA"). The statement of claim alleges contraventions of various provisions of the Trade Practices Act 1974 ("the TPA claims"), and breaches of a contract of employment ("the Contract claims") between Mr Wall and SBA. 3 The applicant alleges that his contract of employment with SBA included terms and conditions said to arise from representations made to the applicant shortly before 23 October 1996. He commenced employment with SBA on or about 2 January 1997, and asserts that his employment was terminated allegedly for reasons of redundancy on 31 July 1999. It is further pleaded that SBA contravened ss 52 and 53B of the TPA by its conduct in making the same representations which are relied on as constituting terms of the contract of employment. 4 The amount which the applicant claims as damages for the alleged breaches is not stated, but light is cast on the monetary aspects relevant to the choice of forum by the applicant's submissions which contend, in part, that the claim exceeds the pecuniary limits of relief available from each of the Australian Industrial Relations Commission and the Industrial Division of the Magistrates Court, and that it is more appropriate for the action to be tried in this Court rather than the County Court. The applicant further submits that if the matter is to be transferred, it should be transferred to the County Court. Accordingly, I have confined my consideration to whether the proceedings should be transferred to the County Court. The following observations of Gummow and Hayne JJ in another context in Re Wakim; Ex Parte McNally (1999) 163 ALR 270 at 312 can be paraphrased to apply to the valuation which the Court has to make in the present circumstances: "Considerations of impression and practical judgement are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large." 5 Proceedings involving matters to be determined under Part V of the TPA may be transferred from this Court to a state Court under s 86A of the TPA, or under s 10 of the Jurisdiction of Courts (Cross-Vesting) Act 1987. I propose for the purposes of the present exercise to apply s 86A, which provides, so far as is relevant: "(1) Where - (a) a civil proceeding instituted (whether before or after the commencement of this section) by a person other than the Minister or the Commission is pending in the Federal Court; and (b) a matter for determination in the proceeding arose under Part IVA, IVB or Division 1, 1A or 1AA of Part V, the Federal Court may, subject to sub-section (2), upon the application of a party or of the Federal Court's own motion, transfer to a court of a State or Territory the matter referred to in paragraph (b) and may also transfer to that court any other matter for determination in the proceeding. (2) The Federal Court shall not transfer a matter to another court under sub-section (1) unless the other court has power to grant the remedies sought before the Federal Court in the matter and it appears to the Federal Court that - (a) the matter arises out of or is related to a proceeding that is pending in the other court; or (b) it is otherwise in the interests of justice that the matter be determined by the other court. (3) Where the Federal Court transfers a matter to another court under sub-section (1) - (a) further proceedings in the matter shall be as directed by the other court; and (b) the judgment of the other court in the matter is enforceable throughout Australia and the external Territories as if it were a judgment of the Federal Court." 6 A Full Court of this Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511made the following observations at 520 on the effect of s 86A of the TPA: "7. A transfer under s 86A(1) is not of a proceeding, but is of the matter for determination in a proceeding. However, it is implicit in the statutory scheme that the exercise of the power to transfer a matter for determination in a proceeding will usually have the practical effect of transferring the further hearing and determination of the proceeding to the State or Territory Court to which the matter for determination has been transferred. 8. In using a 'matter' rather than a 'proceeding' as the subject matter for conferral, investment and transfer under ss 86 and 86A of the TPA, the legislature was referring to a matter in the constitutional sense used in Ch III. For present purposes it is sufficient to state that, in that sense, a 'matter' does not mean a legal proceeding but rather the justiciable controversy or dispute, or the subject matter for determination, in a legal proceeding. (See Re Judiciary Act 1903-1920 and Navigation Act 1912-1920 (1921) 29 CLR 257 at 265 and Fencott v Muller (1983) 152 CLR 570 at 602-610.)" 7 The effect of the passage cited above was, in my respectful view, accurately stated by Sackville J. in Crandell v. Servier Laboratories (Aust) Pty Ltd [1999] FCA 1461 where his Honour observed at para 11: "In my view, subject to satisfying the requirements in s 86A of the [TPA], s 86A(1) confers power to transfer to the Supreme Court the matters for determination in the present proceedings, insofar as they arise under Division 1 of Part V of the [TPA]. In addition, s 86A(1) confers power to transfer all other matters for determination in the proceedings. The practical effect is that the proceedings as a whole can be transferred to the Supreme Court." 8 It follows that the power conferred by s 86A of the TPA also enables, subject to the other requirements of that section, the whole of any proceedings to be transferred to the County Court. 9 The requirements that must be satisfied before a transfer of proceedings (in which a matter for determination arises under the relevant parts of the TPA) can be made are, first, that the County Court must have power to grant the remedies sought before the Federal Court in the matter, and secondly, that it is in the interests of justice that the matter be determined by the County Court. 10 The application claims relief for alleged breaches of ss 51, 51A, 51AA and 53B of the TPA, and the first (of two) paragraphs numbered 11(c) in the statement of claim appears additionally to allege a breach of s 52 of the TPA. The County Court has, by virtue of s 86(2) of the TPA, limited federal jurisdiction, subject to the pecuniary and geographical limits on its jurisdiction over any matter arising under Part IVA, IVB or Division 1, 1A or 1AA of Part V of the TPA in respect of which a civil proceeding is instituted. The County Court can therefore afford remedies in respect of each of the sections listed above, apart from s 51, because those sections are within the prescribed parts of the TPA. Although s 51 is not within the prescribed parts of the TPA, as the submissions on behalf of SBA have properly pointed out, it is not a section capable of being contravened and, hence, not a section in respect of which a proceeding may be properly instituted. 11 The application also claims, in the accrued jurisdiction of this Court, relief for breach of contract. The County Court's jurisdiction to grant remedies for that cause of action is conferred by s 49 of the County Court Act 1958, which, on the basis of the applicant's submissions, allows the County Court to grant the same remedies as are available in this Court. 12 The question then arises whether it is in the interests of justice for these proceedings to be transferred. The form of the pleadings will make it unnecessary to adjudicate on the applicant's claim under the TPA if he is successful in showing that the representations formed part of the terms and conditions of the contract of employment. That is because once a representation has become a term of a contract, in truth the complaint of the representee is that the contract has not been honoured (see for example Hollis v A.B.E. Copiers Pty Ltd (1979) 41 FLR 141). Thus, the primary remedy in the present case is for breach of contract by SBA. The TPA claims only become relevant if the applicant cannot establish (as he seeks to show according to the pleadings) that the representations were imported into the contract of employment. 13 In determining whether these proceedings should be transferred to another court it is relevant to ask which causes of action are central to the relief sought by the applicant. Although the applicant has, in further submissions, strongly contended that the principal claim is for breach of s 53B of the TPA, that is not supported by an examination of the pleadings in their present form. It is my clear impression that the central causes of action are those available at common law or equity in respect of which this Court has no jurisdiction apart from its accrued jurisdiction. 14 Adjudication on the causes of action pleaded by the applicant would, thus, involve the application of the resources of this Court primarily to matters in its accrued, and not its original, jurisdiction, in circumstances where another Court is properly able to deal with the whole of the matters raised. Further, there is no suggestion that the present application is a suitable vehicle for resolving issues of principle related to the application or interpretation of the TPA that have not been authoritatively determined in this Court. 15 The applicant, in advancing reasons against an order for transfer, has contended that this Court is the appropriate forum for the present action and has favourably compared this Court with the County Court, pointing specifically to: (i) the experience of this Court in applying industrial law and adjudicating on matters arising under the TPA; (ii) availability of opportunities for mediation, without burdening the parties with the fees and expenses of the mediator; (iii) costs of the proceedings and the prospects of a speedy hearing. 16 As well, it has been urged on behalf of the applicant in support of the retention of the proceedings in this Court that: (iv) delay and costs thrown away will attend the present proceedings as a result of their transfer to another Court; (v) the SBA is either estopped from asserting that the matter should not proceed in this Court, or has failed to avail itself of the opportunity to move on its own motion for the proceedings to be transferred; and (vi) provided the Applicant has been bona fide in his choice of forum, he should be allowed to pursue the litigation in the forum which he prefers. 17 The first point loses much of its significance once it is appreciated as pointed out above, that the claim on the pleadings is primarily for common law and equitable remedies for breach of contract. The second and third points although relevant to where the interests of justice lie, are not in this case supported by any assertions of objective fact in the applicant's submissions which would make them significant, much less decisive, in determining the question. Whatever force as they do have is relevant to the process of determining where the interests of justice lie in this case. 18 The fourth point carries little, if any, weight, given that the proceedings are not far advanced in this Court and, in any case, costs will not be thrown away if a direction is given, as I propose, that costs in this Court be costs in the cause. The fifth point cannot avail an applicant where, as here, the Court is considering, of its own motion whether to make an order for transfer under s 86A(1) of the TPA. I do not accept that point six has any significant merit. I addressed a similar issue in Overall v. Permanent Trustee Company Ltd [1999] FCA 1385 in these terms at paragraphs 14-15: "I doubt, with respect, that there is any prima facie force in the applicant's choice of forum which a respondent has the onus of overcoming by demonstrating some overriding objective factor. The existence of such a prima facie force was suggested by Wilcox J in Bourke v State Bank of New South Wales (1988) 22 FCR 378. However, Rogers J in Seymour Smith v Electricity Trust of South Australia (1989) 97 FLR 160, after referring to the observations of Wilcox J in Bourke, said, at 174: "With respect, I do not accept there is any weight to be ascribed to the fact that the court may be overriding the plaintiffs' choice of venue. The court is, in my view, required to carry out a balancing exercise to determine the appropriate court." In my view, no question of onus arises in cases of this kind. Rather the task of the court in which the proceeding has been instituted, as Rogers AJA with whom Street CJ and Kirby P agreed, observed in the well-known case of Bankinvest AG v Seabrook (1988) 90 ALR 407 at 421: "Mr Nicholas submitted that consideration of the question whether an order for transfer should be made should follow two steps. First, there is a prima facie presumption that the court, the jurisdiction of which was properly invoked, should exercise it. The litigant invoking the jurisdiction had an entitlement and the court had a corresponding obligation to exercise jurisdiction. Secondly, there is an onus resting on the person moving to transfer to show some positive basis on which it could be contended that the entitlement of the other party to the exercise of jurisdiction should be displaced. In my view, this approach should be firmly rejected. If accepted it would entrench the concept of one Australian jurisdiction being "foreign" to another. No allowance would be made for the fact that the Australian States are a federation. Most relevantly, the purpose of the legislation would be lost. The cross-vesting legislation does not call for this approach. Indeed, it positively rejects it. The only lodestar that a judge may steer by is what do the interests of justice dictate should be done? It is inapt to speak in terms of onus. Bearing in mind that the court may make an order of its own motion, the language of onus being discharged is inapplicable." 19 The County Court has ample power to deal with all matters in issue in these proceedings, and it does not appear that any significant evidentiary or forensic advantage would be gained or lost if the proceedings were transferred. As to pecuniary limits of jurisdiction, the applicant has indicated that he will, if necessary, undertake to amend the pleadings to reflect that he seeks damages not exceeding the jurisdictional limit of the County Court, a course which is open to him under the provisions of the County Court Act 1958. With respect to geographical limitations, the applicant's case relies heavily on a telephone conversation during which representations were allegedly made by SBA (apparently from Victoria) to the applicant who was in New South Wales at the time. I do not perceive any obstacle to the exercise by the County Court of jurisdiction to deal with any breach of the TPA arising from a representation made in Victoria, but received in New South Wales (see s 36 County Court Act 1958, and David Strike v. Dive Queensland Incorporated & Ors (1998) ATPR 41-605). In any event, the applicant in his pleadings asserts primarily that the representations made by SBA have been incorporated as part of the terms and conditions of his contract of employment. The resolution of that issue does not turn on where the representations were made. 20 In these circumstances, and in the absence of any demonstration by the applicant of compelling reasons for another view, I do not think that the interests of justice are served by the proceedings remaining in this Court. Accordingly, I shall order that the proceedings be transferred pursuant to s 86A of the TPA, and that the costs of both parties in this Court be costs in the cause as so transferred. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN J.