FEDERAL COURT OF AUSTRALIA

Sheikholeslami v University of New South Wales [2006] FCA 712

ROYA SHEIKHOLESLAMI v UNIVERSITY OF NEW SOUTH WALES

NSD 486 OF 2005

MADGWICK J

11 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.          The proceedings be transferred to the Federal Magistrates Court.

2.          The conference before the Registrar scheduled for Monday 15 May 2006 is to proceed notwithstanding the order for such transfer, and the transfer is to take effect after the conclusion of that conference.

3.          The parties have liberty to apply in relation to these orders on seven days’ notice regarding the timing of the transfer in the light of what may occur in the conference before the Registrar.

4.          The parties have liberty to apply on seven days’ notice should any judge of this Court express the view that it would be desirable for this case to be heard in conjunction with any other case presently before this Court, and that the two cases should be heard in this Court.

REASONS FOR JUDGMENT

HIS HONOUR:

1                     The respondent asks that the proceedings be transferred to the Federal Magistrates Court.

2                     The applicant alleges unlawful termination of her employment by reason of the Workplace Relations Act 1996 (Cth) (‘Act’).

3                     Under the recent amendments to that Act it is clear from s 642(1), s 847 and other sections that the Federal Magistrates Court has jurisdiction with respect to the matters sought to be canvassed in these proceedings. Alternatively, it is clear that the Court has power under
s 32AB of the Federal Court of Australia Act 1976 (Cth) to transfer the proceedings.

4                     In deciding whether to transfer the proceedings pursuant to s 32AB, the Court must have regard to any Rules of the Court setting out the factors that are to be taken into account by the Court in making the decision: subs (6)(a), and relevantly, whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding (subs (6)(c)), and the interests of the administration of justice (subs (6)(d)).

5                     Order 82 r 7 of the Federal Court Rules sets out some additional factors. They include:

·        whether the proceedings are likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue (sub rule (a));

·        whether, if the proceedings are transferred, it is, in the opinion of the Court or the Judge, likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred (sub rule (b));

·        whether the proceedings are likely to be heard and determined earlier in the Federal Magistrates Court than in this Court (sub rule (c)); and

·        the wishes of the parties (sub rule (d)).

6                     Referring to those various matters, it seems clear that the resources of the Federal Magistrates Court are indeed sufficient to hear and determine the proceedings. So far as I can see, despite the case no doubt having great importance for the applicant personally, the proceedings are unlikely to involve any questions of general importance such that it would be desirable for this Court to rule on any one or more of the points in issue. So far as I can see, the conflict is entirely a factual one.

7                     It appears to me that it is likely that the proceedings could be heard and determined at less cost and more convenience to the parties than if the proceedings remained in this court. It is also likely that they will be heard and determined earlier in the Federal Magistrates Court than in this Court.

8                     Ms Sheikholeslami is vehemently opposed to the transfer of the matter. She says that the case is an important one and that to transfer it would be to brand it as a case of lesser significance.

9                     This is to misunderstand the nature of the Federal Magistrates Court, and the concept of more efficient and better administration of justice which underlies the creation of that court and underlies the arrangements for transfer of cases between the two courts. It is not the case that the Federal Magistrates Court only deals with matters of lesser significance. Cases of very great significance are now within the jurisdiction of that court, for example, applications for judicial review of decisions of the Refugee Review Tribunal, where questions of human fate itself might ultimately be at stake.

10                  It is apparently the case that the applicant had started, about 12 months ago, another set of proceedings in this Court in which she says that a representative of the present respondent has discriminated against her contrary to the Racial Discrimination Act 1975 (Cth) and the Sexual Discrimination Act 1984 (Cth). She now says that there are common issues in those proceedings and in the present ones, and that it is desirable for the efficient determination of the questions arising that the proceedings should be joined together, and that this matter should remain in this Court until that issue has been determined.

11                  The difficulty about this is that the applicant has had long notice of the possible transfer of the proceedings to the Federal Magistrates Court and a long time to consider whether it is desirable that the proceedings should be joined, but no application, even yet, has been made for the joinder of the two sets of proceedings. I do not consider that the fact that any such application might be made is a reason not to transfer these proceedings. If the docket judge hearing the other matter should consider, on application to him, that the matters should be heard together, then he can express such a view and the proceedings can either be transferred to the Federal Magistrates Court or, I do not doubt, the Federal Magistrates Court could and would arrange for the proceedings to be brought back to this Court. Alternatively, it could be asked that the present orders that I am making be vacated, and I will allow liberty to apply in relation to that matter.

12                  The applicant next says that it is not in the interests of justice to transfer the proceedings because, as a lay litigant, she would be thereby put at a disadvantage. The disadvantage she suggests is that she would have to relearn the processes and procedures of the Federal Magistrates Court as compared with those in this Court.

13                  The processes and procedures of the Federal Magistrates Court are likely to be less formal than those in this Court, and have been designed specifically to reduce costs to the parties. There will be no necessity to repeat steps already taken in the litigation. The applicant has apparently been able to find her way around the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules to her own satisfaction. I have no doubt that with little effort she will be able to do the same in relation to the legislation and rules concerning the Federal Magistrates Court.

14                  She further says in her written submissions that the matter has already been delayed by alleged default by the respondent. I am not satisfied that either the default has been such as she suggests, in the sense that it makes the respondent blameworthy, or that such delay militates against what should be the future conduct of the proceedings. The applicant says that ‘it is an enormous task for her to prepare documents for transfer to another court’. This mistakes the process; there will be no need for the preparation of any documents for transfer. It will operate because of the order that I make. She says a transfer would delay the proceedings. On the contrary, I think it would expedite them. She asserts that a transfer would result in her incurring additional costs. I think she will incur fewer costs. She says that the transfer would reduce the perception of the seriousness and significance of the case ‘in this day and age’. I have already dealt with that matter, and find no substance in that submission. She finally asserts generally that such transfer would not be in the interests of the administration of justice. The specific ways in which it would not be in the interests of justice that she put to me in oral submissions I have already dealt with.

Disposition

15                  The proceedings will be transferred. The conference before the Registrar now scheduled for next Monday is to proceed notwithstanding the order for such transfer, and the transfer is to take effect after the conclusion of that conference.

16                  The parties have liberty to apply in relation to these orders on seven days’ notice regarding the timing of the transfer, in the light of what may occur in the conference before the Registrar. The parties have similar liberty to apply should any judge of this Court express the view that it would be desirable for this case to be heard in conjunction with any other case presently before this Court, and that the two cases should be heard in this Court.

Associate:

Dated: 8 June 2006