FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2011] FCA 1541

THE COURT ORDERS THAT:

1.    Leave be granted to the applicants to file an amended application.

2.    The respondent’s interlocutory application filed on 11 November 2011 be dismissed, costs reserved.

3.    If the respondent wishes to renew its application for a transfer of the proceedings to the WA registry, it do so by Wednesday, 7 December 2011. The need to file any further interlocutory application is dispensed with.

4.    Any affidavit in support of a further application be filed and served on or before 7 December 2011.

5.    By close of business on 8 December 2011, the parties indicate whether that application is opposed.

6.    In the event that the further application is opposed, the applicants file and serve submissions in support of their position by 11am on Friday 9 December 2011 and the respondent file and serve submissions in reply by 1pm on the same date.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Daryl Lamberth is an auto electrician and a member of the Construction, Forestry, Mining and Energy Union (“CFMEU”). He worked for Pilbara Iron Company (Services) Pty Ltd (“Pilbara Iron”) as a trainee car examiner at Karratha, near the port of Dampier, in the north west of Western Australia until he was dismissed from his employment in October this year. He claims that he was dismissed because of his union activities, the views or interests he advanced and/or the complaints he made. On 3 November 2011 he and the CFMEU filed an originating application, together with a supporting affidavit, in the New South Wales District Registry of the Court. The application seeks a variety or orders, including reinstatement, under the Fair Work Act 2009 (Cth). The hearing has been expedited and is due to start on Monday 19 December 2011.

2    On 11 November 2011 Pilbara Iron filed an interlocutory application requesting that the proceeding be transferred to the Western Australian Registry. It is supported by an affidavit affirmed on the same date by Mark Hamilton, the rail operations manager for Pilbara Iron. The application is opposed.

3    At any stage of a proceeding the Court or a judge may direct that the proceeding or part of it be conducted or continued at a place specified in the order, subject to any conditions the Court or judge might impose: Federal Court of Australia Act 1976 (Cth), s 48(1). A convenient summary of the relevant principles appears in Mortimer v Opes Prime Stockbroking Ltd (in liq) [2009] FCA 227 at [15]–[17]. The power is unfettered. It should be exercised flexibly, having regard to the circumstances of the case: National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 (“National Mutual Holdings”) at 162.

4    The starting point is that the proceeding has been commenced in one place and the Court must be satisfied that there is sound reason to direct that it be conducted or continued elsewhere: National Mutual Holdings at 162. The test, enunciated in that case, is:

where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the Court.

5    The following facts bear upon the determination of the application.

6    Mr Lamberth’s affidavit relates a number of conversations with officers or employees of Pilbara Iron. An affidavit was also filed in support of the application from Dennis Jones, another employee of Pilbara Iron, who is the president of the CFMEU Karratha Lodge, the workplace branch of the union. He, too, deposes to conversations with employees of Pilbara Iron.

7    Pilbara Iron is a wholly-owned subsidiary of Rio Tinto and the primary employing entity for employees engaged to work Rio Tinto’s iron ore operations in Pilbara. According to Mr Hamilton, it is the employee relations manager for Rio Tinto, not Pilbara Iron, giving the instructions to Freehills, the solicitors on the record for Pilbara Iron. He lives in Perth. All potential witnesses live in either Karratha or Dampier. Mr Lambeth continues to live in Karratha with his partner and six-month old son. I am informed that there is one direct flight between Karratha and Sydney each week. That is on a Thursday. Otherwise flights to Sydney go via Perth with a stopover there of up to four hours and 15 minutes. Flight times to Sydney are about four hours and 40 minutes and from Sydney about five hours. On the other hand flight times from Karratha to Perth are less than two hours.

8    Mr Hamilton states that all the employees Mr Lamberth mentions in his affidavit as participating in the conversations upon which he relies are members of the core management team of Pilbara Iron’s rail division. He says that if the hearing took place in Perth those employees could work from one of Rio Tinto Iron Ore’s locations in Perth (either in the central business district or at the operations centre near Perth Airport). He asserts that the disruption involved in giving evidence will be increased if they are required to do so in Sydney because of the extra time involved in travelling from Perth to Sydney. There are, of course, additional flight and accommodation costs if the trial is in Sydney rather than Perth. Any work those employees could do in Sydney would be limited because Rio Tinto does not have the facilities in Sydney it has in Perth and the three hour time difference would also affect productivity. In any case, not all those employees apparently have remote access to computer systems to enable them to continue working in Sydney. Mr Hamilton also mentions that the wife of one of the employees is expecting their first child in January.

9    The facts are that the cause of action arose in Western Australia. All potential witnesses live and work in Western Australia, and it would be inconvenient, costly and unnecessarily disruptive to their work and family lives if they had to fly to Sydney. The CFMEU has an office in Collie, about 200 km south of Perth, and the applicants’ solicitors also have an office in Perth.

10    On the other hand, there are four countervailing considerations.

11    First, the applicants filed the application in the New South Wales Registry. Their interest is in having the case heard in Sydney. The applicants’ choice is entitled to some weight. There is no suggestion that they commenced the proceeding in the New South Wales registry on some capricious basis. The appellants’ counsel and solicitor live and work in Sydney. Mr Fernon SC, who appeared for Pilbara Iron, urged that this circumstance should be given minimal weight in this case which otherwise has no connection to New South Wales.

12    Secondly there are no juridical advantages in having the matter heard in Perth rather than Sydney.

13    Thirdly, inquiries I have caused to be undertaken have revealed that there is no resident Western Australian judge available to hear the case this year. As Crennan J observed in Austal Ships Pty Ltd v Stena Rederi Aktiebolag [2004] FCA 302 at [13] (citing Friends of Hinchinbrook Society v Minister for Environment (No. 1) (1996) 69 FCR 1 at 25): efficient case management and a public interest in prompt resolution can be weighed in the balance. Indeed, since the amendments to the Federal Court of Australia Act 1976 (Cth) last year, they must be. Mr Hamilton provides no estimate of the relative costs of bringing the Court and counsel to Perth as compared to bringing witnesses to Sydney.

14    Fourthly, and most importantly, it is not apparent from the pleadings, there is no evidence to suggest and counsel was unable to indicate whether, any of the conversations to which Mr Lamberth deposed is in dispute, whether it is proposed to call evidence from any of the other employees or whether, if further affidavits are filed, any of the deponents will be required for cross-examination. The case has been listed for five days but presumably that was for more abundant caution. There is no evidence to indicate whether either of the two witnesses who have filed affidavits will be required for cross-examination. Nor is there any indication how long the oral evidence from any witness is likely to take. I was informed that Mr Hamilton would be a witness and his evidence is that he lives in Dampier but I was not told whether he would contradict Mr Lamberth’s account. Nor was I told why evidence could not be given by video-link, although, as I indicated to the parties, if there were credit issues I would not be disposed to take the evidence in that way. If none of the potential witnesses is required to give oral evidence, then conducting the case in Sydney will have minimal, if any, impact on the running of Pilbara Iron’s operations. I am very sympathetic to the concerns that Mr Hamilton raises in his affidavit. But in the absence of evidence (or even information) to demonstrate that any witness will have to travel to Sydney, most of the evidence in Mr Hamilton’s affidavit loses its punch. Indeed, much of it does not rise above the hypothetical.

15    The cost issue in this case are particularly important. That is because the Court’s powers are circumscribed by s 570 of the Fair Work Act 2009 (Cth). It may only award costs in this case if it is satisfied that it was brought vexatiously or without reasonable cause or that costs were caused by a party’s unreasonable act or omission. Counsel for both parties are Sydney-based. As Mr Reitano, who appeared for the applicants pointed out, if the case were to be heard in Perth five people would have to fly there and be accommodated there. That is a fact, whereas the circumstances in which any witness would have to fly to Sydney is mere speculation at this stage. I give some weight to the fact that Pilbara Iron’s instructing officer lives and works in Perth, to the genesis of the cause of action (although, as Mr Reitano submitted, this is not a case where there is any competition between state or territory laws). The place where the cause of action arose, if relevant, can have little weight. I also give weight to the other matters raised by counsel in argument but absent any indication, let alone evidence, that any witness will probably, let alone certainly, have to give oral testimony in person, these considerations are outweighed by the four countervailing considerations.

16    This case is running according to an expedited timetable and the time for Pilbara Iron to file its affidavits has not yet arrived. I appreciate that Pilbara Iron is in some difficulty on that account. Nevertheless, it was able to take instructions sufficient to enable it to file a defence and it has had the best part of three weeks to consider this application.

17    In all the circumstances I am not satisfied at present that the proceedings should be transferred to Perth. The interlocutory application must therefore be dismissed. As I indicated to counsel, however, if Pilbara Iron is in a position to provide answers to the questions raised in [14] above, I would be willing to reconsider the matter without requiring it to file another interlocutory application.

18    I reserve the question of costs.

Associate:

Dated:    5 March 2012