FEDERAL COURT OF AUSTRALIA

Perrett v Newmont Mining Services Pty Ltd [2024] FCA 1147

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application filed on 2 September 2024 is dismissed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    By an interlocutory application, the respondent, Newmont Mining Services Pty Ltd, seeks orders, pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (FC Act), that the substantive proceedings be transferred to the Western Australian Registry, or alternatively, that the trial and any future interlocutory hearings be conducted in Western Australia (which would, on either outcome, result in a hearing in Perth).

2    The substantive proceedings were brought by Ms Rebecca Perrett (Ms Perrett or the applicant) under the Fair Work Act 2009 (Cth) for declarations and damages arising out of the termination of her employment as an executive in the respondent’s Health and Safety operations.

3    Ms Perrett resists the application for transfer to, or for the hearing to be conducted in, Western Australia.

The proceedings

4    Ms Perrett was employed by Newmont from September 2019 to October 2023. She was employed under an Employment Agreement for the position of Group Executive – Safety. The Employment Agreement specified that “This position is based in Perth.” In around September 2021, her terms of employment were changed so that Ms Perrett could relocate to Adelaide, and otherwise work remotely where possible.

5    Without going into too much detail, Ms Perrett pleads that a number of actions by the respondent, including the termination of her employment, were adverse, misleading, and/or in breach of contract. She claims loss and damages. Newmont resists her claims.

6    The matter has been to a mediation, and there is currently a timetable for the filing of the applicant’s lay evidence and some expert evidence, which brings the matter back before me in March next year. Accordingly, it is unlikely that the matter will be ready for hearing before some time next year, and will not obtain a hearing date in my docket until at least the second half of 2025. I was informed from the Bar table, (in answer to a question from the Bench), by Ms Millar, counsel for Newmont, that her personal experience is that the matter may have a slightly shorter wait for a hearing were it to be transferred to the Western Australian Registry.

7    It is not currently possible to state with any accuracy how many witnesses will be called by each party, nor how long the hearing will take. While the respondent has estimated an amount for the increased costs to it were the matter to be heard in Sydney on the basis of a 10-day hearing, counsel for each party took the view that the matter would be unlikely to take as long. What is clear however is that at least one case management hearing will need to be held, and possibly interlocutory matters will arise before the matter is heard. Accordingly, any decision about the venue for hearing (whether by way of transfer or a hearing in Perth) will need to take into account that there will be one or more interlocutory or case management hearings to be provided for as well.

The respondent’s application for a transfer or change of venue

8    The application is made for transfer or change of venue of the proceeding under s 48(1) of the FC Act which provides:

The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

9    It was submitted that r 2.02 of the Federal Court Rules 2011 (Cth) (FC Rules) was also available to the Court, but in a narrower way, as that rule only relates to transfer of proceedings. That rule provides:

A party may apply at the proper place for an order that the proceeding be transferred to another place.

10    Schedule 1, the Dictionary to the FC Rules, defines “proper place” as:

proper place, for a proceeding, means:

(a)    the place where the proceeding is started; or

(b)    if the proceeding is transferred to another place—the other place, from the date of transfer.

11    Accordingly, the respondent is able to ask, in Sydney, that the matter be transferred, or conducted, in Perth (whether by way of transfer under r 2.02 or conducting the hearing there pursuant to s 48).

12    The basis of Newmont’s application can be stated, briefly, as follows. The factual basis for the submissions is found in the two affidavits of Ms Darcy Harwood, a solicitor in the employ of the solicitors for the respondent.

(a)    The respondent is a corporation headquartered in Denver, Colorado. Its principal place of business in Australia is in Perth. It conducts some of its mining operations in New South Wales but has no commercial operations in Sydney.

(b)    The respondent’s internal Head of Legal, and its counsel and solicitors, reside and work in Perth.

(c)    Four of the six proposed witnesses are principally based in Perth. This includes the two decision makers in relation to Ms Perrett’s termination of employment. The other two witnesses are based overseas. The respondent does not envisage calling any witnesses based in New South Wales.

(d)    The cause of action (in the sense that the claim arises out of the applicant’s termination of employment) arose in Perth.

(e)    Were the matter to be heard in Sydney, the applicant estimates that increased costs (being the respondent’s counsel, solicitors, and witnesses, along with a representative of the respondent to give instructions), based on a 10-day hearing in 2025, would be an additional $48,000 in flights and accommodation.

13    Additionally, Ms Millar referred to s 37M of the FC Act and submitted that the proper administration of justice required a balancing of the interests of the two parties and the interests of the efficient administration of the court and, given the above factors, a direction that a transfer of proceedings be granted, or at least the substantive hearing of the proceedings be conducted in Perth.

14    In opposition to that course, Ms Perrett points to the following factors, based on her affidavit of 20 September 2024:

(a)    She currently resides in Adelaide with her partner and children. She is unemployed, and has been since her ceasing employment with the respondent. She worked remotely from Adelaide from around December 2021 due to her family and carer responsibilities.

(b)    Her legal representatives are based in Sydney.

(c)    Only two of her twelve pleaded complaints occurred in Perth. The others were made in Adelaide or elsewhere, while travelling for work.

(d)    Her employment was terminated in Perth. She was in Perth for a workshop for some three days and her employment was terminated before the workshop commenced. She found the circumstances of her termination very stressful and anticipated that she was unable to change her flights back to Adelaide, and so stayed in her hotel in Perth. She says that she underwent a significant deterioration in her mental health and wellbeing during that time.

(e)    On return to Adelaide, she saw her GP and received treatment for her symptoms of anxiety and depression. She later lodged a general protections application through her lawyers, Harmers, in the Sydney Registry of the Fair Work Commission. The hearing in the Commission was held in Perth but she applied, successfully, to appear remotely rather than to travel to Perth on the grounds that travel to Perth would cause her significant stress.

(f)    She suffers from Major Depression and Anxiety. She says that “I continue to experience significant stress and anxiety about being physically present in Perth”. She sees her GP and a psychologist. Ms Perrett has annexed letters from each of the GP (RMP-2 and RMP-3) and the psychologist (RMP-4) to her affidavit.

(g)    She will incur significantly higher costs were the hearing to be conducted in Perth than in Sydney. She says that air fares are approximately double the cost to fly to Perth from Adelaide than to Sydney, and if the hearing were in Sydney, she would have no accommodation costs as she would stay with a friend.

(h)    She would need to provide airfares and accommodation for herself, her counsel and solicitor(s) in Perth.

(i)    Most of the proposed witnesses for the respondent travel frequently within their employment, and four of the proposed witnesses have the NSW operation of the respondent within their responsibilities.

15    Ms Kumar, counsel for Ms Perrett, submitted that the estimated costs of the accommodation and travel for the respondent’s lawyers, representative, and witnesses was “inflated”, given that the trial may not last ten days, and she queried why the legal team needed to arrive in Sydney three days before the beginning of the trial, and why the witnesses needed to be in Sydney for four days each.

16    It should be noted that each of the parties’ reasons given on affidavit in support of, or in resistance to, the orders sought were not the subject of cross-examination. The above summaries of the reasons are not findings of fact by me.

Evidential treatment of GP’s and psychologist’s letters

17    Ms Millar submitted that the two reports of the GP and that of the psychologist should either not be admitted into evidence, or, if admitted, should be accorded very little weight. Her argument on this point may be summarised as follows.

(a)    Each of the three letters contained opinion evidence (s 76 of the Evidence Act 1995 (Cth)).

(b)    If each, or some of them, were opinions based on specialised knowledge (s 79 of the Evidence Act), then, in order to be admissible, it needed to comply with the requirements of an expert report (see FC Rules r 23.11 ff). In particular, Ms Millar noted that:-

(i)    RMP-2 – a letter from the GP – did not indicate any real understanding of the issues before the Court (for example, the letter referred to Ms Perrett being “advised to attend Perth for her hearings”);

(ii)    RMP-3 – an earlier letter from the GP dated 20 March 2023 (semble, 2024) – is headed “PLEASE FIND BELOW ANSWERS TO YOUR QUESTIONS POSED” but the letter or other means of posing the questions was not included in the affidavit. Additionally, the letter dealt only with the applicant’s mental health as at March of this year and not with the central issue of whether or not attending Perth is the triggering event; and

(iii)    RMP-4 – a letter from the psychologist – also does not reveal any information as to the factual assumptions underlying the opinion. It contained limited reasoning about Perth being a trigger for Ms Perrett’s symptoms, and did not differentiate between matters such as hearing-related stress generally, and issues arising specifically from triggers from being in Perth.

(c)    If the requirements of r 23.11 apply only to a trial, and not to an interlocutory hearing, then notwithstanding that the letters may be admissible, they should be, for the above reasons, accorded only minimal weight.

18    In reply to the above, Ms Kumar referred to the decision of Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475, particularly at [86], where it was said:

… as to the non-compliance with GPN-EXPT, having regard to the terms of r 23.11 of the Federal Court Rules 2011 (Cth) (FCRs) which make explicit reference to “a trial”, I consider that there is serious doubt whether Pt 23 has any application to the hearing of an interlocutory application such as here, which is not a trial. In any event, even if that is wrong, the Court has a discretion to waive any of the FCRs including those in Pt 23. If necessary, I would be prepared to take that course in this case.

19    Practice Note GPN-EXPT, while not referred to by either counsel except by reference to the above passage in Mumbin v Northern Territory of Australia (No 1), provides:

2.4    An expert witness’ opinion evidence may have little or no value unless the assumptions adopted by the expert (ie. the facts or grounds relied upon) and his or her reasoning are expressly stated in any written report or oral evidence given.

20    Ms Millar referred to the well-known passage in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [87] per Heydon JA where the question to be asked of an expert’s opinion was whether it could be characterised as “intelligible, convincing and tested” or a mere “ipse dixit” (“I say so”). She submitted that the letters did not provide the reliability considerations of the basis of the opinion or the reasoning process which led to the conclusions that Ms Perrett would be harmed by a hearing in Perth (see also R v Hien Puoc Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167, per Spigelman CJ at [154]).

21    Ms Kumar submitted that the letters were admissible given that this application was interlocutory, despite their brevity. In any event, Ms Perrett had herself given evidence that she felt her mental health was at risk in being forced to go to, and remain in, Perth. She said that she “continue(s) to experience significant stress and anxiety about being physically present in Perth” and referred to advice received from Dr Kajani that “travelling to Perth is a trigger for [her] present symptoms, and that it would not be advisable for [her] to travel to Perth for any hearing”. She indicated that if the hearing were held in Perth, she may not be able to continue with it.

22    In the context of this interlocutory hearing, and given that the opinions expressed are to an extent a mixture of observation of Ms Perrett’s symptoms and history, and concerns as to future impacts on her, they are admissible and should be accorded more than minimal weight. I was not formally asked to exclude the evidence pursuant to s 135 of the Evidence Act, nor to limit its use pursuant to s 136. Accordingly, I admit the evidence, but will accord it less weight than I would have had the writers of the letters included the questions they had been asked to address, or had been asked to provide more detailed information as to the matters they took into account. As opinions of treating doctors, they are of course based on observations of the applicant.

Determination of the application

23    If one were to look only at the question of the connection of the factual underpinnings of this matter, the outcome would be that the matter should be heard in Western Australia; there are a number of factors which indicate that that State is the one most closely linked with the pleadings and the witnesses. However, that fact on its own is not determinative. As a “truly national…Court” – see Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616 at [11] per Lee J – proceedings commenced in one State may be heard elsewhere or transferred to the appropriate registry.

24    Neither party has a significant reason to have the matter heard in Sydney, apart from the location of the applicant’s solicitors and counsel. While the plaintiff has a right to choose the Registry in which the proceedings are commenced, little weight can be put on the fact that the proceedings were commenced in Sydney (other than that it is the “proper place” for an application under r 2.02 of the FC Rules) – see Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22; (2007) 156 FCR 444 at [29].

25    In National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155, the Court held (per Bowen CJ, Woodward and Lockhart JJ) at 162 that while the balance of convenience is an important factor in determining a transfer application, its “weight must vary from case to case”. The real question is to establish where the case can be conducted bearing in mind the interests of all parties, the ends of justice in determining the issues between them, and the efficient administration of the Court.

26    One important factor in considering a transfer is the location of the witnesses – see Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2014] FCA 1010 at [15] per White J. Again, however, this factor is not determinative. The fact that the respondent has no corporate presence in New South Wales does not mean that it is unable to appear here or to arrange to have its witnesses to attend; it is already envisaged that at least two of them will give evidence remotely. The Court is very well primed to make orders enabling remote witnesses to be accommodated, if it were demonstrated that it were too much of a burden, financial or otherwise, for them to travel to the eventual place of hearing.

27    There is a significant financial impact on each of the parties if they do not succeed in having the hearing conducted in their respective chosen location. Were the matter to be held in Sydney, the respondent would suffer a significant financial impost in needing to fly lawyers and witnesses to Sydney, and to accommodate them while they were here. As was fairly conceded by the respondent, it is a large commercial organisation, but the estimated cost of $48,000 is a not insignificant burden.

28    In having regard to that factor, I take note that Ms Perrett would need to fly her lawyers and herself to Perth, and to accommodate each of them there, for a lengthy period (say 8-10 days). She is not employed, and was formerly the family’s primary income earner, but is no longer able to fulfil that role.

29    It seems to me that where both parties will be negatively impacted in a financial sense by the outcome of this application, I need to look at the relative nature of that impact. The burden on Ms Perrett of a hearing in Perth is relatively significantly greater than that on the respondent, even though it will cost the respondent more if the trial is heard in Sydney. That is one of the factors which tends towards a refusal of the application.

30    The other factor in this matter is the impact that any change of the location for the hearing will have on the applicant’s health. While her counsel noted that it was only one of four factors which were relied upon, it seems to me to be persuasive. The applicant herself indicated that she feared for her mental health if she were to return to Perth and set out in her affidavit some examples of her distress in transiting through Perth to travel to Geraldton to attend to a family member’s health. Even giving a lower degree of weight to her treating medical professionals’ opinions, her evidence is a compelling reason not to impose that stress upon her.

31    Where the outcome of the application has the potential not only to impose a significant financial burden on Ms Perrett, but also have a triggering effect on her symptoms of depression and anxiety, I am not prepared to accede to the application to have the matter transferred to the Western Australian Registry, or otherwise conducted in Perth. Accordingly, I dismiss the application.

32    I was referred to the decision of Jackman J in Oberix Group Pty Ltd v Atkinson [2021] FCA 1259 where his Honour dismissed an application for transfer partly on the basis that it was made prematurely, but noted that “much may change between now and the trial” (at [18]). The proceedings were at a similar stage of case management to the current proceedings. It may be that between now and the time when the matter comes to be set down for hearing, the considerations relevant to the location of the hearing could change. I do encourage the parties however to confer with a view to reducing the financial impact on the respondent in bringing witnesses to Sydney, and approaching the Court with any applications relating to remote hearings in good time so that as docket Judge I can keep the hearing on track and running as smoothly as possible.

Associate:

Dated:    2 October 2024