FEDERAL COURT OF AUSTRALIA

 Melville v Macquarie University [2006] FCA 1761

LYNETTE MELVILLE v MACQUARIE UNIVERSITY

NSD 1138 OF 2006

MADGWICK J

15 DECEMBER 2006

SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1                     This is an application brought pursuant to s 170CP of the Workplace Relations Act 1996 (Cth).  The claim is one of unlawful termination of employment under s 170CK, and a subsequent contravention of s 170CM of that Act.  The applicant seeks relief in the form of orders available to the Court under s 170CR of that Act.

2                     At the first directions hearing, I raised the possibility of transferring the matter to the Federal Magistrates Court.  In particular, the respondent was directed to turn its attention to that question before the next directions hearing.  Subsequently, the respondent indicated to the Court that it considered the matter suitable to be dealt with by the Federal Magistrates Court.  However, the applicant opposed the transfer.  Both parties were given leave to file written submissions on the issue.

Legal framework

3                     By virtue of s 32AB of the Federal Court of Australia Act 1976 (Cth), the Court has power to transfer proceedings to the Federal Magistrates Court.  Relevantly, subs 32AB(6) provides that:

‘In deciding whether to transfer a proceeding to the Federal Magistrates 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 Magistrates Court; and

(c)                whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

(d)               the interests of the administration of justice.’

4                     In relation to s 32AB(6)(a), O 82 r 7 of the Federal Court Rules adds to the first factors to be considered.  It provides that:

‘In deciding whether to transfer a proceeding or an appeal to the Federal Magistrates Court, factors that the Court or a Judge may take into account, in addition to the factors to which the Court or the Judge is required to have regard under subsection 32AB (6) of the Act or subsection 44AA (7) of the Tribunal Act, include:

(a)        whether the proceeding or appeal is 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;

(b)        whether, if the proceeding or appeal is 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 or appeal is not transferred;

(c)               whether the proceeding or appeal is, in the opinion of the Court or the Judge, likely to be heard and determined earlier in the Federal Magistrates Court;

(d)       the wishes of the parties.’

Applicant’s submissions

5                     The applicant firstly argued that the ‘application is in jurisdiction’.  Her claim pertains to pre-‘Work Choices’ provisions, and therefore, to a version of the Act that only conferred jurisdiction on the Federal Court.  As such, the Federal Court is the appropriate jurisdiction to deal with the matter.

6                     She next said that because she is seeking exemplary damages, the matter is ‘perhaps better heard in the Federal Court, which has been the court holding this jurisdiction for many years’.

7                     The applicant pointed to the elements of her claim that relate to breaches of international law in support of her submission.

8                     The applicant also raised the possibility that justice has been and will continue to be delayed if the proceedings are transferred.  She pointed to the respondent’s failure to observe the timetable set for preparation for hearing, and is ‘concerned that this history will be lost and these tactics repeated in another jurisdiction’.

9                     The applicant noted that there were some procedural issues that needed to be dealt with, and conceded that the matter is possibly a relatively simple one for the Court.  It was said that the confidential conference that the parties have been ordered to attend before a Registrar of this Court, and a referral under O 80 of the Federal Court Rules, could be of assistance.

10                  The applicant also argued that her comparative financial disadvantage against the respondent meant that conducting proceedings in another and different jurisdiction would place a significant burden on her that would not be experienced by the respondent.

11                  Similarly, the applicant argued that she will be placed at a disadvantage through having to familiarise herself with the orders, forms and rules of the Federal Magistrates Court, when she had already done so in relation to this Court.

12                  The applicant also submitted that her case represented an opportunity to set a precedent.  She said: ‘It is probable that this case represents one of the last opportunities for the Federal Court to rule on an unlawful termination of employment matter.  This case is potentially important because of its claim for exemplary damages and its reliance on international law’.

13                  Finally, the applicant argued that the respondents had not previously put forward any argument to advance their proposal to shift jurisdiction, as such, the applicant had no argument to rebut.

COnsideration

14                  After considering all of the relevant factors, it seems to me that the matter is suitable for transfer to the Federal Magistrates Court.  

15                  In relation to the O 82 r 7 factors, firstly, these proceedings are unlikely to involve any questions of general importance. 

16                  Secondly, the matter is likely to be heard and determined at less cost and more convenience to the parties than would be so if the proceedings were to remain in this Court.

17                  Thirdly, and similarly, in my opinion, the proceedings are likely to he heard and determined earlier in the Federal Magistrates Court.

18                  Finally, as mentioned above, the wishes of the parties are such that the applicant opposes the proposed transfer, while the respondent supports it.

19                  Despite the wishes of the applicant, it seems to me that the balance of factors that I am to have regard to favours the transfer of the matter to the Federal Magistrates Court.

20                  In relation to subs 32AB(6), para (b) is not relevant to the current proceedings.  In relation to para (c) of subs 32AB(6), ie, the resources of the Federal Magistrates Court, I have been informed through the appropriate channels that the Federal Magistrates Court has sufficient resources to hear and determine the proceeding fairly promptly.  In relation to para (d) of subs 32AB(6), it seems to me that the interests of the administration of justice will be better served if the matter is transferred to the Federal Magistrates Court.

Disposition

21                  The matter will be transferred to the Federal Magistrates Court.  However, at this time, I make this determination in principle only.  The parties have been ordered to attend a

confidential conference on procedural matters before a Registrar of this Court.  When those procedural issues have been resolved, I will make an order to give effect to my determination.

Associate:

Dated:         15 December 2006