FEDERAL COURT OF AUSTRALIA

Transport Workers' Union v Bentley [2001] FCA 671

PRACTICE AND PROCEDURE – stay of proceedings – forum non conveniens -  contest between two Australian courts exercising jurisdiction under the Workplace Relations Act 1996 (Cth) – amount of claim relatively small - applicable principles

Workplace Relations Act 1996 (Cth) ss 178, 179A

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 applied

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 applied

Muller v Fencott (1981) 53 FLR 184 referred to

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 referred to

Pegasus Leasing v Balescope P/L (1994) 63 SASR 51 referred to

ZP v PS (1994) 181 CLR 639 referred to

CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390 referred to

Anglo-Australian Foods Ltd v Von Planta, P.V. & Ors (1988) 20 FCR 32 referred to

Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251 referred to

Dudinski v Kellow and Ors [1999] FCA 390 referred to

English v Ozbanski [2000] FCA 1479 referred to

Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) ATPR ¶41-794 applied

Down to Earth Springwater Pty Ltd and Ors v State Bank of New South Wales (1991) 31 FCR 81 referred to

Leigh-Mardon Pty Ltd v PRC Inc [1993] FCA 458 referred to

Vision Systems Ltd v Cincom Systems of Australia Pty Ltd [1999] FCA 120 referred to

TRANSPORT WORKERS' UNION OF AUSTRALIA and DESMOND GEORGE MUIR v ARTHUR BENJAMIN BENTLEY and JOAN MARY BENTLEY

V939 of 2000

WEINBERG J

6 JUNE 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for a stay of proceedings be refused.

2.                  The matter be listed for directions on a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Background

1                     This is an application pursuant to ss 178 and 179A of the Workplace Relations Act 1996 (Cth) (“the Act”). It concerns relief claimed by the first applicant, the Transport Workers’ Union of Australia (“the TWU”) on behalf of the second applicant, Mr Muir, in respect of an alleged underpayment of both overtime rates and meal allowance for the period 1 March 1993 until 27 June 1997.  The statement of claim particularises the amounts which are said to be owed by the respondents.

2                     The claim is for the recovery of the alleged underpayment in breach of the Transport Workers’ (Oil Agents/Contractors) Award 1981.

3                     The respondents, who are the proprietors of a business at Warracknabeal (near Horsham), known  at different times as Bentley’s Fuel and Service and/or Bentley’s Fuel and Tyre Service, employed Mr Muir from about 20 June, 1966 onwards. It is unclear in what capacity Mr Muir was first employed. However, it appears from the pleadings that he was at least later employed as the driver of a heavy-load articulated vehicle.

4                     The respondents, at the first directions hearing of the matter, foreshadowed, through their counsel, an oral application for a permanent stay of the proceedings

The general principles governing Stay of Proceedings

5                     In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, the High Court outlined the principles which govern applications for stays of proceedings based upon the doctrine forum non conveniens.

6                     The majority (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) approved the approach earlier taken by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 where his Honour said (at 247-248):

“…the power of a court in this country to order that proceedings which have been regularly instituted within the jurisdiction should be dismissed or stayed on inappropriate forum grounds…is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in  a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuance would be oppressive and vexatious to him.”

7                     The majority in Voth referred (at 554) to the judgments of the majority in Oceanic Sun (comprised of Brennan, Deane and Gaudron JJ) and stated briefly what they took to be the common ground between them:

“Firstly, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised ‘with great care’ or extreme caution’.”

8                     Their Honours went on to say (at 557):

“…the ‘clearly inappropriate forum’ test is to be preferred to the traditional test…”

9                     The traditional test to which their Honours referred was that adopted by Brennan J in Oceanic Sun, in which his Honour gave a narrow and precise operation to the adjectives “oppressive” and “vexatious”, in accordance with the approach taken by Lord Kilbrandon in The Atlantic Star [1974] AC 436 at 477.

10                  The majority in Voth said (at 556):

“The content of the “clearly inappropriate forum” test is more expansive than the traditional test applied by Brennan J. The former test, unlike the latter, recognises that in some situations the continuation of an action in the selected forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an  injustice to the defendant when the bringing of the action in some other available and competent forum will not occasion an injustice to the plaintiff…”

11                  The majority then continued (at 559):

“In a context where the relevant test will fall to be applied in accordance with the individual perception of a primary judge, the courts of this country are better adapted to apply a test which focuses upon the inappropriateness of the local court of which the local judge will have both knowledge and experience than to a test which focuses upon the appropriateness or comparative appropriateness of a particular foreign tribunal of which he or she is likely to have little knowledge and no experience…”

12                  Voth was concerned with an action brought in New South Wales for damages for negligent accounting advice given in the United States. The central issue to be determined in the present case is quite different. It arises in the context of an application having been brought in this Court in circumstances where the Victorian Magistrates’ Court, pursuant to ss 177A and 178(1) of  the Act, also has jurisdiction to entertain the matter. The question is whether the approach taken by the majority in Voth is applicable where there are two Australian courts which have jurisdiction over a matter, or whether the “traditional test” should be applied in such circumstances.

The respondents’ submissions

13                  It was submitted on behalf of the respondents that the approach taken by the High Court in Voth had no application in the present circumstances and that the correct test to be applied was that laid down in Muller v Fencott (1981) 53 FLR 184 per Toohey J (at 188):

“…to justify a stay of proceedings in the Federal Court, the respondents must at least show that the Supreme Court is a forum to whose jurisdiction they are amenable, in which justice can be done at substantially less inconvenience and expense and that a stay will not deprive the applicants of a legitimate personal or juridical advantage available to them in the Federal Court…”

14                  In Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, the House of  Lords adopted what has been described as the “more appropriate forum” test in relation to the doctrine of forum non conveniens.  That test remains the law in England and it differs significantly from the “clearly inappropriate forum test” first articulated in this country by Deane J in Oceanic Sun.  In Spiliada, Lord Goff (at 474) expressed doubt as to whether the Latin tag forum non conveniens was apt to describe the principle which was not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction.

15                  The approach taken by Lord Goff was endorsed by Wilson and Toohey JJ, in their dissenting judgment in Oceanic Sun (at 211):

“…He cited with approval, as expressing the principle applicable in Scotland and now England, the classic statement of Lord Kinnear in Sim v Robinow:

“[T]he pleas can never be sustained unless the Court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice”  (our emphasis)…

“…His Lordship detailed the approach which a court should take in determining whether or not to grant a stay. He did so on the basis that, notwithstanding the Latin, the object is to find, not the convenient but the appropriate forum. The court must first look for the forum with which the action has the most real and substantial connexion. …”

16                 It was submitted on behalf of the respondents that it was only after Deane J had formulated a different approach to that taken in Spiliada in Oceanic Sun, that the traditional test ceased to be regarded as generally applicable to applications for stays of proceedings.

17                  It was also submitted that the approach taken by Deane J in Oceanic Sun had to be viewed in the context of a contest between jurisdiction being exercised by an Australian court and that exercised by a court of another country. It was contended that different considerations should apply where the contest was between two Australian courts.

18                  Further support for that submission was said to be derived from a decision of the Full Court of the Supreme Court of South Australia in Pegasus Leasing v Balescope Pty Ltd (1994) 63 SASR 51. Perry J (with whom Bollen and Prior JJ agreed) said (at 56):

“In my opinion, the decision in Voth v Manildra Flour Mills Pty Ltd is of application only to situations where the competing courts are a court within Australia and a court outside of Australia. Although the court did not say so expressly, it does not seem to me that in that case the High Court was propounding principles of application to jurisdictional contests within Australia.”

19                  Perry J referred to ZP v PS (1994) 181 CLR 639, where (at 649) Mason CJ, Toohey and McHugh JJ said:

”…In Voth, this Court decided that, when an issue arises as to whether a foreign forum rather than an Australian court is the forum most convenient to determine a dispute, the Australian court should hear the matter unless it is satisfied that it is a clearly inappropriate forum. [My emphasis].”

20                  It was submitted that the most recent consideration by the High Court of this issue in CSR v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390 provided still further support for the respondents’ contention:

“The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd. In that case, this Court declined to adopt the more appropriate forum test laid down by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd and accepted, instead, the test propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay, namely, that a stay is only to be granted if the Australian court is a clearly inappropriate forum.” (emphasis added)

21                  There are several decisions in this Court in which, in a somewhat different legislative context, a distinction has been drawn between the principles governing a stay of proceedings based upon the doctrine of  forum non conveniens, and the principles which govern a transfer to a State court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), or other legislation authorising such a transfer.

22                  In Anglo-Australian Foods Ltd v Von Planta, P.V. & Ors (1988) 20 FCR 34 Lee J, dealing with the cross-vesting legislation, said (at 43):

“…The transfer of proceedings from one court to another, however, is quite different from a stay of proceedings in the denial of exercise of jurisdiction in favour of a foreign court…”

23                  Likewise, in Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251 an application had been brought in this Court under the Trade Practices Act.  Also alleged was a breach of fiduciary duty for which equitable damages were sought.  The question was whether the matter should be transferred to either the District Court or the Supreme Court of New South Wales (Equity Division).  Beaumont J said (at 252):

“It is now accepted that, as a matter of proper judicial administration, relatively small claims should not be dealt with by this Court unless there is a federal or other special element to warrant use of this Court’s jurisdiction…

It is true that, ideally, this Court should endeavour to exercise jurisdiction in every case that is properly before it; but, in terms of consistency of treatment as between litigants, it is essential that the Court have a policy in this area and that that policy be exercised consistently. If this matter were simply a claim under Pt V of the TPA, I would not have hesitated to order that it be transferred to the District Court. Not only would reasons of costs dictate that course, but in the present case, both parties are resident in southern New South Wales, and it is likely that all the witnesses will also reside in that area. Since the District Court offers the facility of a circuit court in the southern regions of New South Wales, there are obvious advantages of cost, and convenience to the witnesses, if the District Court were to assume jurisdiction in this matter. On the other hand, the Federal Court in not usually able to sit outside of Sydney…”

24                  It was submitted that the approach taken by Beaumont J was equally applicable to the respondents’ application for a stay in the present case. That submission was pressed even though there is no provision in the Act for an application under s 178 to be transferred from this Court to another court of competent jurisdiction.

25                  In Dudinski v Kellow and Ors [1999] FCA 390, Drummond J adopted a similar approach  to that taken by Beaumont J in Korn. His Honour emphasised the importance of ensuring that, wherever possible, relatively small claims be litigated in the lower courts in order to save costs.

26                  In English v Ozbanski [2000] FCA 1479the applicant sought to recover the sum of $5656.51, being the balance of unpaid wages, overtime, meal allowance, superannuation and termination pay.  Carr J referred with approval to what was said by Beaumont J in Korn and, no doubt conscious that there was no power under the Act to transfer a proceeding to a State court, ordered that the proceeding be stayed until further order.  His Honour observed that having regard to the small amount of the claim, and as a matter of proper judicial administration, the applicant should have an opportunity to institute proceedings in the Western Australian Industrial Magistrate’s Court which was itself a “court of competent jurisdiction” under s 177A.

27                  After dealing with the general principles governing the doctrine of forum non conveniens, counsel for the respondents turned to the particular circumstances which he contended warranted a stay in the present case. He submitted that there were several  factors which, taken together, made it clear that the Magistrates’ court at Horsham was a “more appropriate forum” for the hearing of the present application than this Court. These factors were identified as follows:

·                     The respondents’ solicitors are based in Horsham;

·                     Legal costs are likely to be significantly lower in the Magistrates’ court than if the matter were to proceed in this Court;

·                     If the matter were to be dealt with in the Magistrates’ court, the respondents would, in all likelihood, be represented by solicitors, and there would be no need  to engage counsel;

·                     Horsham is much nearer than Melbourne to where the parties and a number of prospective witnesses reside; and

·                     Documents relevant to the issues in dispute are located more closely to Horsham than Melbourne.

28                  During the course of argument, the question arose as to whether, if the present application were stayed, and had to be commenced afresh, some of the applicants’ claims would be time barred.  Section 178(7) of the Act provides that an order under s 178 shall not be made in relation to so much of an underpayment as relates to any period more than six  years before the commencement of the proceeding.  In order to overcome this difficulty, counsel for the respondents foreshadowed that, if a stay were granted, they would undertake not to plead, or otherwise rely upon, any defence available to them under s 178(7) not otherwise available in this Court in relation to the present proceeding.

The applicant’s submissions

29                  The applicant referred to the decision of the Full Court in Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) ATPR ¶41-794, where French J (with whom Beaumont and Finkelstein JJ agreed), said (at par 90):

“…While Voth and Oceanic Sun Line were concerned with the exercise of jurisdiction by an Australian domestic court in the case where a foreign court would also have jurisdiction, the propositions for which Voth is now authority grow out of the general principle recognised in both cases that a court having jurisdiction has an obligation to exercise it. The circumstances in which it may decline that obligation are exceptional…”

30                  It was submitted that Johnson Tiles established definitively that the approach to the doctrine of forum non conveniens taken by Deane J in Oceanic Sun Line, and favoured also by the majority in Voth, was of general application, and was not confined to cases where an Australian court and a foreign court both had jurisdiction.  It was further submitted that the test to be applied in determining a contest between two domestic courts was the “clearly inappropriate forum” test, and not the traditional  “more appropriate forum” test.

31                  It was submitted that having commenced proceedings in this Court in relation to a purely federal claim, the applicants were entitled to have the Court exercise jurisdiction over the matter.  It was contended that given that the Act expressly confers jurisdiction upon the Court in relation to claims under s 178, it could not be said that the Court was a “clearly inappropriate forum”.

32                  It was submitted that the principles outlined by Beaumont J in Korn were to be understood in the context of the particular facts of that case. In that regard, it was to be noted that the claim for equitable damages for breach of fiduciary duty (which formed a major part of the applicant’s case in Korn)was not a federal claim, but rather fell within the accrued jurisdiction of the Court. Moreover, the claim under the Trade Practices Act was not one which fell within the Court’s exclusive jurisdiction, but could, pursuant to s 86A, be transferred to a court of a State or Territory.

33                  It was further submitted that the approach of the majority in Voth had been followed on several occasions by judges of this Court in the context of applications for transfer under the cross-vesting legislation.

34                  In Down to Earth Springwater Pty Ltd and Ors v State Bank of New South Wales (1991) 31 FCR 81, Beaumont J considered an application for transfer from the Federal Court to the Supreme Court of New South Wales, where the substantive claim was for relief under the Fair Trading Act 1987 (NSW).  The applicants contended that this Court had jurisdiction to hear the matter by virtue of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). Beaumont J said (at 82):

“That Court is the natural forum for this dispute, concerned as it is  with the construction and application of the State statute and with a claim made against the State Bank. The jurisdiction of the Federal Court is primarily concerned with matters involving the interpretation and application of Commonwealth legislation, including proceedings against officers of the Commonwealth…[t]hat is to say that the Federal Court is not a court of general commercial jurisdiction.

…Moreover, this Court is a clearly inappropriate forum for a claim against a State Bank involving the interpretation and application of a State statute …”

35                  See also Leigh-Mardon Pty Ltd v PRC Inc [1993] FCA 458 per Beazley J and Vision Systems Ltd v Cincom Systems of Australia Pty Ltd [1999] FCA 120 per Sundberg J.

36                  It was submitted that the decision of Carr J in English v Ozbanski could be distinguished from the present case.  Prior to the application having been instituted in the Federal Court, the matter had already been the subject of a hearing and determination by the Industrial Magistrate in Western Australia.  It appeared that the Industrial Magistrate’s decision was seriously flawed and liable to be set aside. Moreover, the applicant was plainly  dissatisfied with the amount awarded to him.  It was also noted that the $5656.61 sought by the applicant in English was much less than the $45,180.76 sought by the applicants in the present case.

37                  In response to the factors identified by the respondents as warranting a stay, it was submitted that there were countervailing factors which favoured this matter remaining in this Court.  It was noted, for example, that on occasion the Court had sat in regional locations. This had been done in order to save the parties’ costs and to avoid unduly inconveniencing a large number of witnesses.

Conclusions

38                  In my view, the principles governing the doctrine of forum non conveniens are correctly stated by the Full Court in Johnson Tiles, in the passage to which I have referred. That decision is in any event binding upon me.

39                  It follows that the views expressed by Deane J in Oceanic Sun, as endorsed by the majority in Voth, represent the approach which must be taken when dealing with the present application for a stay.  That is so notwithstanding the fact that Oceanic Sun and Voth both arose in the context of a contest between Australian courts and foreign courts.

40                  The jurisdiction of this Court having been properly invoked, it would require exceptional circumstances for that jurisdiction to be declined.

41                  I am not persuaded that this Court is a “clearly inappropriate forum” for the determination of the present application.  That of itself is sufficient to refuse the application for a stay. However, even if I am wrong in applying that test, and the “more appropriate forum” test is correct, I would still refuse the application.

42                  It must be remembered that the claim brought by the applicants raises issues, both factual and legal, which arise out of the operation of a federal statute.  It is likely that questions will arise as to the proper interpretation of the Transport Workers’ (Oil Agents/Contractors) Award 1981.  This Court routinely deals with such questions and is therefore more suited to resolving them than is a State court, albeit one which is described in the Act as a “court of competent jurisdiction.”

43                  I am also concerned that the applicants may find some aspects of their claim time barred in the event that I order the present proceeding to be stayed and they are obliged to commence fresh proceedings.  It is by no means clear that the limitation period set out in s 178(7) of the Act can be waived, notwithstanding the respondents’ willingness to proffer an undertaking not to take the limitation point.

44                  I am mindful of the reasoning of Beaumont J in Korn, and of the need to ensure that the time of this Court is not taken up unduly by the hearing of relatively small claims which do not raise any question of principle and turn largely upon their own facts.  However, a claim for $45,180.76 is a substantial claim in the context of an alleged underpayment under s 178 of the Act.  There is little doubt that it represents a substantial sum to the second applicant.  I appreciate that in English Carr J considered that a claim for $5656.61 was so small as to warrant the application being stayed. I have no doubt that his Honour was correct in taking that course.  However, I do not regard the present claim as being relevantly comparable.

45                  It follows that the respondents’ application for a permanent stay must be refused. Although there was some discussion as to whether costs might be ordered in the event that I refused that application, I consider that there is no basis upon which any order as to costs should be made.

Associate:

Dated:              6 June 2001