FEDERAL COURT OF AUSTRALIA

Rixon v Business Parcel Express Pty Ltd [2006] FCA 969

PRACTICE AND PROCEDURE – application for relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) – no question of principle – transfer to Federal Magistrates Court – application may be by a party or on court’s own motion

Federal Court of Australia Act 1976 (Cth) s 32AB

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

NICOLE RIXON v BUSINESS PARCEL EXPRESS PTY LTD AND TRANSCONEX PTY LTD

NSD1315 OF 2006

JACOBSON J

27 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1.                   The proceedings be transferred to the Federal Magistrates Court pursuant to s 32AB(2)(b) of the Federal Court of Australia Act 1976 (Cth).

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

REASONS FOR JUDGMENT

1                     In these proceedings the applicant claims for unlawful discrimination pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The applicant claims to have been constructively dismissed from her employment by reason of her pregnancy and family responsibilities. Section 32AB(2)(b) of the Federal Court of Australia Act 1976 (Cth) gives the court power to transfer proceedings to the Federal Magistrates Court, Order 82 rules 4 to 8 address the matters to be taken into account in the exercise of the discretion to transfer proceedings to the Federal Magistrates Court.

2                     The court may transfer proceedings on its own initiative, see section 32AB(2)(b) and Order 82 rule 6. The primary considerations for the court in exercising its discretion are whether the Federal Magistrates Court has jurisdiction and whether the Federal Magistrates Court has the resources to hear and determine the proceedings and whether a transfer is in the interests of justice.

3                     Although these proceedings were commenced in the Federal Court the applicant acknowledges that the proceedings should have been commenced in the Federal Magistrates Court. The respondent agrees that the proceedings should be transferred. I am satisfied that the proceedings do not involve any question of general importance. I am also satisfied that it is likely that the proceedings will be heard and determined at less cost and more convenience to the parties than if the proceedings were not transferred.

4                     It is not clear whether the proceedings would be likely to be heard and determined earlier in the Federal Magistrates Court, than if the matter were to remain in my list; but I do not think that the proceedings would be heard significantly later. The wishes of both of the parties are that the proceedings be transferred to the Federal Magistrates Court. That of itself, seems to me to be decisive.

5                     I am also satisfied that the Federal Magistrates Court has jurisdiction to hear the proceeding, see section 46PO of the Human Rights and Equal Opportunity Commission Act. I note that in a similar case, Emmett J ordered that proceedings be transferred, see Beetham v Cortra Pty Ltd [2003] FCA 150. That was a matter in which the applicant applied for transfer of the proceedings. The present matter is effectively one in which the applicant applies to transfer but even if this be a case where the proceedings are transferred on the court’s initiative, it seems to me that the same considerations or similar considerations apply.

6                     Accordingly, I propose to order that the proceedings be transferred to the Federal Magistrates Court pursuant to section 32AB(2)(b) of the Federal Court Act.

Associate:

Dated: 27 July 2006