Federal Court of Australia

Isser v BHP WAIO Pty Ltd [2023] FCA 580

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth), the proceeding be transferred to the Federal Circuit and Family Court of Australia (Division 2).

2.    The costs of the respondent’s interlocutory application of 28 April 2023 and of the case management hearing of 19 May 2023 shall be costs in the matter so transferred.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By an originating application dated 22 February 2023, the applicant alleges that her former employer, the first respondent, subjected her to “adverse action” in contravention of pt 3-1 of the Fair Work Act 2009 (Cth) (the “FW Act”).

2    The application so commenced (hereafter, the “FCA Proceeding”) presents as a straightforward “general protections” matter under pt 3-1 of the FW Act. Complicating things somewhat is the existence—and perhaps now the former existence—of another proceeding in the Federal Circuit and Family Court of Australia (Division 2) (the “FCFCOA”). Not long prior to the termination of her employment with the respondent, the applicant commenced a proceeding against the respondent in that court (hereafter, the “FCFCOA Proceeding”) alleging that she had been subjected to adverse action (including in the form of a disciplinary process). The reasons that are said to have animated that adverse action appear to be—indeed, the applicant has confirmed that they are—the same as or very closely linked to the reasons for which she claims in this matter to have been dismissed.

3    By an interlocutory application dated 28 April 2023, the respondent moves for orders dismissing the FCA Proceeding on the basis that it has been commenced in contravention of s 32AA(1) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”). That section provides as follows:

32AA     Proceedings not to be instituted in the Court if an associated matter is before the Federal Circuit and Family Court of Australia (Division 2)

(1)     Proceedings must not be instituted in the Court in respect of a matter if:

(a)     the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction in that matter; and

(b)     proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2).

…

4    At a case management hearing conducted on Friday, 19 May 2023, I explored with the parties—including the applicant, who appeared on her own behalf—the possibility of having the FCA Proceeding transferred to the FCFCOA, as s 32AA(2)(b) contemplates. It was there confirmed, to the extent that it wasn’t already apparent, that the FCA Proceeding and the FCFCOA Proceeding involve common questions of fact and law; and, of course, some common parties. That being the case, it is apparent that the FCFCOA Proceeding is a proceeding in respect of a matter that is associated with this matter.

5    It thus appears to be clear that the FCA Proceeding was commenced in contravention of s 32AA(1) of the FCA Act. The applicant sought to explain how it came to be that she had commenced separate proceedings in separate courts about related matters. The FCFCOA Proceeding was commenced before she was able to secure proper legal advice. It was the subject of an application for interlocutory injunctive relief, which was not granted. The applicant considers that the Judge who dismissed that application was biased against her. Following the termination of her employment, she was able to secure some legal advice, which led to the commencement of the FCA Proceeding.

6    Neither party supports the transfer of the FCA Proceeding to the FCFCOA. The applicant considers that it is the Federal Court that is best placed to consider her present application. The respondent presses for orders in the nature of summary dismissal under s 32AA of the FCA Act.

7    Nonetheless, I am very strongly of the view that the appropriate—indeed, the only proper—course presently is to transfer the FCA Proceeding to the FCFCOA pursuant to s 32AB(1) of the FCA Act. That section provides as follows:

32AB Discretionary transfer of civil proceedings to the Federal Circuit Court

(1)     If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit and Family Court of Australia.

(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 Circuit and Family Court of Australia 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 Circuit and Family Court of Australia under subsection (1).

…

(6)     In deciding whether to transfer a proceeding to the Federal Circuit and Family Court of Australia 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 Circuit and Family Court of Australia; and

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

(d)     the interests of the administration of justice.

…

(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.

…

8    Rule 27.01 of the Federal Court Rules 2011 (the “FCA Rules”) concerns the transfer of proceedings before this court to the FCFCOA under s 32AB(1) of the FCA Act. Relevantly, the rule provides as follows:

27.01 Transfer to the Federal Circuit and Family Court of Australia

(1)     The Court must not make an order under subsection 32AB(1) of the Act on its own initiative transferring a proceeding from the Court to the Federal Circuit and Family Court of Australia unless the parties to the proceeding have been notified of the proposed transfer and have been given an opportunity to be heard in relation to the proposed transfer.

…

(3)     Before the Court makes an order under subsection 32AB(1) of the Act transferring a proceeding from the Court to the Federal Circuit and Family Court of Australia (Division 2):

(a)    the Court must consult the Chief Justice of the Court in relation to the proposed transfer; and

(b)    the Chief Justice of the Court must consult the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) in relation to the proposed transfer.

(4)     A failure to comply with this rule in relation to a proposed transfer of a proceeding under subsection 32AB(1) of the Act does not affect the validity of an order made under that subsection transferring the proceeding.

9    I have had regard to each of the matters enumerated in s 32AB(6) of the FCA Act. Having done so, the following observations are apt, namely that:

(1)    it is clear that the FCFCOA Proceeding is a proceeding in respect of a matter that is associated with the subject of the FCA Proceeding;

(2)    it is also apparent that the causes of action that the applicant hopes to press are of a routine nature, with which the FCFCOA regularly deals;

(3)    given the very clear application of s 32AA(1) of the FCA Act, the only alternative to transfer seems to be dismissal, which I do not consider is an outcome aligned with the interests of the administration of justice; and

(4)    since the hearing of 19 May 2023, the processes of consultation required pursuant to r 27.01(3) of the FCA Rules provides have played out.

10    Something further should be said about the fourth observation. In the period between the hearing of 19 May 2023 and publication of these reasons, the FCFCOA Proceeding appears to have been the subject of some kind of interlocutory application. On Friday, 26 May 2023, my chambers received by email from the applicant correspondence indicating that the FCFCOA Proceeding had been dismissed. She continued:

Please if you could advise what we're meant to do now and if the Federal Court can now keep the matter with it, or if we're meant to attend another hearing. I will forward a copy of the judgement and orders from today's Federal Circuit court hearing once it is published.

11    The applicant copied that correspondence to the respondent’s solicitors.

12    Leaving to one side the appropriateness of seeking advice from chambers (appreciating without criticism, as I do, that the applicant is a litigant in person who is unlikely to have abundant familiarity with the conventions that attend litigation in this court), there is nothing in the applicant’s email that bears upon the question with which the court is presently confronted. The effect of s 32AA(1) of the FCA Act is clear and the only way that the subject matter of the FCA Proceeding can be spared from summary judgment is for the matter to be transferred.

13    Even were it otherwise, I would still be minded to effect the transfer, as the matters that the applicant hopes to agitate are straightforward and the FCFCOA is well-equipped to deal with them with the efficiency and expertise that the parties rightly expect.

14    It follows that I will order that the FCA Proceeding be transferred to the FCFCOA and that the respondent’s interlocutory application of 28 April 2023 be dismissed. Although likely covered by s 570 of the FW Act, the costs of the respondent’s application and of the case management hearing of 19 May 2023 should be costs in the matter so transferred.

Associate:

Dated:    5 June 2023