FEDERAL COURT OF AUSTRALIA

Denison v Boart Longyear Pty Ltd [2011] FCA 881

THE COURT ORDERS THAT:

1.    Pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding is transferred from this Court to the Federal Magistrates Court.

2.    Any question of costs is reserved, and is to be resolved by the Federal Magistrates Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 22 June 2011 the Applicant in the present proceeding, Mr Aaron Denison, filed an Application in this Court seeking what he described as “financial damages” pursuant to the Fair Work Act 2009 (Cth).

2    The matter first came before the Court for directions on 25 July 2011. Mr Denison appeared, albeit belatedly, unrepresented. The solicitor appearing for the Respondent quite properly pointed out that there were difficulties, even at the outset, as to the manner in which the claim was then being advanced. Directions were sought on behalf of the Respondent (inter alia) for the filing of a Statement of Claim.

3    It emerged, however, that the Applicant was seeking “financial damages” in the sum of approximately $12,000. Obviously enough, the mere making of a claim should not necessarily lead to a respondent immediately capitulating because the payment of a monetary sum may be more convenient (and less expensive) than defending. Nor should s 37M of the Federal Court of Australia Act 1976 (Cth) and the purpose there set forth of facilitating “the just resolution of disputes …. as quickly, inexpensively and efficiently as possible” be construed as a directive to respondents to abandon defences that may well be available to them. Capitulation, because it is less expensive than litigation, is far removed from “the just resolution” of the dispute in which a respondent is frequently an unwilling participant. But there nevertheless remains a place for pragmatism – both on behalf of an applicant and a respondent.

4    Directions were made for the Respondent to disclose to Mr Denison the difficulties it foresaw in resolving his claim without the need for greater detail being provided. The proceeding was stood over to this morning to see whether pragmatism had prevailed or whether there remained a need to resolve the claim being advanced.

5    Pragmatism has not prevailed. The Application as filed is to be resolved.

6    Power, however, is conferred upon this Court to transfer a proceeding to the Federal Magistrates Court of Australia. That power is conferred by s 32AB of the Federal Court of Australia Act and it is a power that may be exercised by the Court on its own initiative: see s 32AB(2)(b).

7    Section 32AB provides as follows:

Discretionary transfer of civil proceedings to the Federal Magistrates Court

(1)    If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Magistrates Court.

(2)    The Court may transfer a proceeding under subsection (1):

(a)    on the application of a party to the proceeding; or

(b)    on its own initiative.

(3)    The Rules of Court may make provision in relation to transfers of proceedings to the Federal Magistrates Court under subsection (1).

(4)    In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Magistrates Court under subsection (1).

(5)    Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Magistrates Court.

(6)    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.

(7)    If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Magistrates Court.

(8)    An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1).

(8A)    The Federal Magistrates Court has jurisdiction in a matter that:

(a)    is the subject of a proceeding transferred to the court under this section; and

(b)    is a matter in which the court does not have jurisdiction apart from this subsection.

To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.

(9)    The reference in subsection (1) to a proceeding pending in the Court includes a reference to a proceeding that was instituted in contravention of section 32AA.

(9A)    This section does not apply to criminal proceedings.

(10)    This section does not apply to proceedings of a kind specified in the regulations.

8    The Rules to which s 32AB previously referred were those found in Order 82 Division 2 to the Federal Court Rules. The Rules now in force, however, are to be found in Rules 27.11 and 27.12 of the Federal Court Rules 2011. Rule 27.12 provides as follows:

Factors to be taken into account

(1)    …

(2)    For a proceeding, the parties must address the matters mentioned in section 32AB(6) of the Act.

(3)    For an appeal under the AAT Act or a proceeding, the parties should address the following:

(a)    whether the appeal or proceeding is likely to involve questions of general importance;

(b)    whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred;

(c)    whether an appeal or proceeding would be determined more quickly if transferred;

(d)    the wishes of the parties.

The term “proceeding” is defined in the Dictionary to the Federal Court Rules 2011 by reference to the definition in s 4 of the Federal Court of Australia Act.

9    The 2011 Rules commenced on 1 August 2011 and “apply to a step in a proceeding that was started before 1 August 2011, if the step is taken on or after 1 August 2011”: Rule 1.04(2).

10    Rule 27.12(3) employs much the same language as was previously employed in the now repealed Order 82 r 7. The transition to the new Rules effects no difference in either the manner in which the discretion conferred by s 32AB(1) is to be exercised or the factors that are to be taken into account.

11    Proceedings have been transferred from this Court to the Federal Magistrates Court, including claims made for unlawful termination of employment brought pursuant to the Workplace Relations Act 1996 (Cth): e.g., Melville v Macquarie University [2006] FCA 1761, 161 IR 30. Madgwick J there transferred the proceedings despite the opposition of one of the parties. Instances can also be provided where a proceeding is retained in this Court by reason of, for example, a docket Judge having an existing familiarity with the claims being made and where the proceeding can be more expeditiously dealt with in this Court: Cutler v Trustee for McKenzie & Baird Unit Trust [2010] FCA 714 at [48]. In circumstances where the parties consent to the making of such an order, it has been said that such consent is decisive: Rixon v Business Parcel Express Pty Ltd [2006] FCA 969 at [3]. Instances can be provided where an order has been made where the amount the subject of a claim, as is the case in the present proceeding, is a relatively modest amount: Garage Wholesalers Pty Ltd v Engineering Software Solutions Pty Ltd [2009] FCA 361 at [6]. The amount of the claim, however, always remains but one of the matters to be taken into account when exercising the discretion conferred by s 32AB.

12    In the circumstances of the present proceeding, it is considered that Mr Denison’s claims can be resolved in a less expensive manner if resolved in the Federal Magistrates Court. Although the Application is expressed as a claim arising under the Fair Work Act, few further details are provided as to the manner in which Mr Denison seeks to advance his case. But it is unlikely that any question of general application will arise such as to warrant this Court retaining the proceeding. It is likely that the Federal Magistrates Court could resolve the claim more quickly, or certainly as quickly, as this Court. No relevant question of delaying the resolution of the proceeding arises as the Application was first filed on 22 June 2011 and no directions have been made other than those made on 25 July 2011. This Court has had no involvement in the management of the case to date as to warrant it being retained. It remains a matter for the Federal Magistrates Court to give directions from the outset as to how best it considers the claim should proceed. Neither of the parties to the proceeding oppose an order being made.

Conclusion

13    The discretion conferred by s 32AB, it is considered, warrants an order being made for the transfer of the existing proceeding.

ORDERS

The Orders of the Court are:

1.    Pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding is transferred from this Court to the Federal Magistrates Court.

2.    Any question of costs is reserved, and is to be resolved by the Federal Magistrates Court.

Associate:

Dated:    5 August 2011