Federal Court of Australia

Grigorovich v Morgan Environmental Pty Ltd [2026] FCA 966

ORDERS

THE COURT ORDERS THAT:

1.    The originating application and interlocutory application filed on 3 March 2026 be dismissed.

2.    Costs be reserved.

3.    By 4.30 pm (AWST) on 5 August 2026 the respondent file and serve:

(a)    a minute of proposed costs orders;

(b)    an outline of written submissions on costs (limited to three pages); and

(c)    any affidavit(s) on the question of costs.

4.    By 4.30 pm (AWST) on 19 August 2026 the applicant file and serve:

(a)    a minute of proposed costs orders;

(b)    an outline of written submissions on costs (limited to three pages); and

(c)    any affidavit(s) on the question of costs.

5.    Subject to further order, the issue of the costs reserved in paragraph 2 of these orders be determined without an oral hearing.

6.    The parties have liberty to apply to vary paragraphs 3 to 5 of these orders upon 48 hours’ written notice.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These reasons concern an originating application filed in this Court for an order to transfer to this Court a proceeding Mr Grigorovich has commenced in the Federal Circuit and Family Court of Australia (Division 2) against Morgan Environmental Pty Ltd. Mr Grigorovich has also filed an interlocutory application in which he applies for a stay of the proceeding in the Circuit Court pending determination of the originating application in this Court.

2    The Court has power under s 32AC of the Federal Court of Australia Act 1976 (Cth) to make an order transferring a proceeding from the Circuit Court to this Court. Mr Grigorovich contends that this Court also has power under s 23 and s 37P(2) of the Federal Court Act to make an order staying the proceeding in the Circuit Court pending determination of the transfer application. As I was not satisfied that the Court has power under those provisions, or at all, to stay a proceeding in another federal court or any other court, I refused to entertain making such an order at a case management hearing held on 15 April 2026 and, instead, made orders for the completion of various interlocutory steps to bring about the hearing and determination of the substantive application expeditiously. Subsequently, an order was made by consent in the Circuit Court proceeding, in effect, staying the completion of further interlocutory steps in that proceeding until after the originating application in this proceeding is determined. For these reasons, the interlocutory application will be dismissed.

3    Mr Grigorovich filed written submissions on 3 March and 5 and 29 May 2026, filed a statement of issues on 13 April 2026 and filed affidavits of Mr Grigorovich on 3 March 2026 and 5 May 2026. Morgan Environmental filed written submissions and an affidavit of Ms Deluca on 20 May 2026. After those materials were filed, the parties agreed to the Court determining the originating application without an oral hearing under s 20A of the Federal Court Act. I am satisfied that it is appropriate to do so because there is no real issue of fact relevant to the determination of the matter and the legal arguments can be dealt with adequately by written submissions. In this regard, I take all affidavits to have been read and received in evidence on the application without objection. Consequently, I have had regard to the contents of the affidavits to the extent that the facts deposed in them and documents annexed to them are relevant and referred to in the parties’ written submissions. I have also taken into account the parties’ written submissions and Mr Grigorovich’s statement of issues.

4    The principal issue for determination on the application is whether, having regard to the available resources of this Court, it is in the interests of the administration of justice that the proceeding be transferred from the Circuit Court to this Court. For the reasons that follow, it is not in those interests and the application should be dismissed with costs reserved.

Applicable principles

5    Section 32AC of the Federal Court Act provides:

32AC    Discretionary transfer of civil proceedings from the Federal Circuit and Family Court of Australia (Division 2)

(1)    If:

(a)    a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and

(b)    the proceeding is not a family law or child support proceeding;

the Court may, by order, transfer the proceeding from the Federal Circuit and Family Court of Australia (Division 2) to the Court.

(2)    The Court may transfer a proceeding:

(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 from the Federal Circuit and Family Court of Australia (Division 2) under this section.

(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 from the Federal Circuit and Family Court of Australia (Division 2).

(5)    Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Circuit and Family Court of Australia (Division 2).

(6)    In deciding whether to transfer a proceeding from the Federal Circuit and Family Court of Australia (Division 2), 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 Court; and

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

(d)    the interests of the administration of justice.

(7)    An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under this section.

(8)    The 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)    This section does not apply to criminal proceedings.

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

6    Relevantly, r 27.02 of the Federal Court Rules 2011 (Cth) provides:

27.02    Transfer from the Federal Circuit and Family Court of Australia (Division 2)

…

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

(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.

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

7    Subject to satisfying the precondition that a pending proceeding in the Circuit Court is not a family law or child support proceeding, s 32AC(1) confers a broad discretion on the Court to transfer the Circuit Court proceeding to this Court. In the exercise of that discretion the Court must have regard to the factor in s 32AC(6)(b), where relevant, and each of the factors in s 32AC(6)(c) and s 32AC(6)(d). The Rules set out no factors that must be taken into account for the purposes of s 32AC(4) and s 32AC(6)(a). Otherwise, while there are factors to which the Court must have regard, s 32AC(4) and s 32AC(6) do not expressly or by necessarily implication constrain the factors to which the Court may have regard in the exercise of the discretion. Therefore, the Court may take into account any factor that is considered relevant having regard to the subject matter, scope and purpose of s 32AC of the Federal Court Act: e.g., Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J).

8    Further, the Court must interpret and apply and exercise the power conferred under s 37AC, including the interests of the administration of justice, in the way that best promotes the overarching purpose of the civil practice and procedure provisions: s 37M(3). That purpose is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M(1). Therefore, any factor that has a bearing on the best promotion of the overarching purpose may be relevant to the exercise of the discretion. There are also a wide range of factors that may be relevant to the interests of the administration of justice for the purposes of s 32AC(6)(d).

9    In terms of the overarching purpose, a factor that may be significant and relevant to the exercise of the discretion conferred under s 32AC(1) is that, while the judicial and administrative resources of this Court may need to be made available to determine an appeal, where a proceeding is commenced in the Circuit Court, this Court’s resources are not be required to determine the dispute at first instance. Further, an appeal from a first instance judgment of the Circuit Court is usually heard by a single judge of this Court exercising appellate jurisdiction and not a Full Court and, therefore, in a usual case, less resources of this Court are used to determine appeals from the Circuit Court. At the same time, if a dispute is resolved by the Circuit Court there is no material disadvantage, in terms of error correction by appeal, to the parties to a proceeding determined at first instance in the Circuit Court because there is a right of appeal to this Court. It follows that a dispute may be determined according to law significantly more efficiently, in terms of the use of this Court’s judicial and administrative resources, if a proceeding is not transferred to this Court from the Circuit Court without causing any material disadvantage to the parties to the proceeding pending in the Circuit Court.

10    Consistently with the view that parties to Circuit Court proceedings will not be materially disadvantaged by a decision not to transfer a proceeding to this Court, the parties have no right to appeal from a decision of a judge of this Court in relation to a transfer of proceedings from the Circuit Court: s 32AC(7). This places a transfer decision in a similar category to other kinds of decisions of an essentially administrative character that have no effect on a party’s underlying substantive rights from which there can be no appeal: e.g., s 24(1AA)(b) of the Federal Court Act.

11    Otherwise, in general, identification of factors relevant to the exercise of a discretionary power such as that described in s 32AC(1) is guided by principles derived from authorities in which the exercise of the power has been considered. In addition to the factors to which reference is made in s 32AC(6)(b)-(d) of the Federal Court Act, the following matters, drawn from the authorities, may be relevant to exercise of the discretion.

(1)    The extent to which the party not applying for transfer accepts that the Circuit Court is the appropriate forum and the party applying for transfer may be regarded as ‘forum shopping’.

(2)    The extent to which the Circuit Court has jurisdiction to determine all matters raised in the dispute.

(3)    The extent to which the dispute is likely to be determined more quickly if transferred to this Court taking into account, amongst other things:

(a)    the judicial and administrative resources of this Court and the Circuit Court available to determine the issues in dispute;

(b)    the justifiable length of the trial (i.e., whether this Court has resources available to accommodate a trial of that length in a more timely manner than the Circuit Court); and

(c)    the extent to which the issues in dispute can be limited or more narrowly focussed (i.e., if appropriately limited or narrowed, whether the Circuit Court has resources available to accommodate a trial in a more timely or equally timely manner as this Court).

(4)    The extent to which the proceeding involves any properly identified and serious and substantial issue about difficult points of principle or some significant question of public interest (such that this Court is a more appropriate forum for resolution of the dispute).

(5)    The importance of the issues to the parties and the need for expedition and despatch in the finalisation of the controversy (such that this Court is the more appropriate forum for resolution of the dispute).

(6)    The extent to which the likely additional costs of resolution of the matters in dispute in this Court is proportionate to the importance and complexity of those matters.

See, e.g., Van den Berg v Monash Health [2022] FCA 796 at [19]-[22] (O'Callaghan J); Currie v Joffe [2020] FCA 68 at [12]-[18] (Kenny J).

Nature of the issues raised in the Circuit Court proceeding

12    On 1 December 2025 Mr Grigorovich lodged an originating application and claim under the Fair Work Act 2009 (Cth) in the Circuit Court. In those documents Mr Grigorovich alleged that Morgan Environmental failed to pay certain superannuation contributions that involved a breach of cl 18.1 of the Miscellaneous Award 2020, contraventions of ss 45, 323, 536(3) and 718A of the Fair Work Act, contraventions of reg 3.44 and reg 3.46(5) of the Fair Work Regulations 2009 (Cth) and deliberate and systemic contraventions within the meaning of s 557A of the Fair Work Act. Mr Grigorovich also alleged Morgan Environmental contravened provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth) and Taxation Administration Act 1953 (Cth). Mr Grigorovich claimed an injunction to restrain ongoing breaches of the Miscellaneous Award under s 545(2) of the Fair Work Act, compensation of $34.90 (for his unpaid superannuation entitlement) and a pecuniary penalty of $99,000 under s 539 of the Fair Work Act.

13    Mr Grigrovich’s affidavit of 5 May 2026 annexes a document entitled ‘Amended Claim under the Fair Work Act 2009 in relation to other civil remedy provisions’, which expands upon the claims in the initial claim document. However, it is not clear whether that document was filed in the Circuit Court proceeding. In any event, on 2 April 2026, Mr Grigorovich filed a statement of claim in the Circuit Court proceeding. That document also expands Mr Grigorovich’s claims to include allegations of misleading or deceptive conduct in contravention of s 18 and s 31 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) and loss or damage (including non-pecuniary loss and aggravated damages) and provides additional and more detailed allegations of alleged breaches of the Miscellaneous Award and contraventions of the Fair Work Act and Regulations.

14    Before commencing the current proceeding in the Circuit Court, Mr Grigorovich filed an originating application for a small claim in the Circuit Court in June 2025. That proceeding also included a claim for unpaid superannuation entitlements. That proceeding was settled and the parties made a deed of settlement and release dated 4 August 2025. Although Morgan Environmental has not yet filed a defence to the statement of claim in the Circuit Court, it filed a response to the claim on 5 February 2026. In that document Morgan Environmental asserts that, by reason of the deed of settlement and release, Mr Grigorovich is barred from commencing and maintaining the current Circuit Court proceeding. Further, it asserts the relevant superannuation guarantee payment has been made and it has not breached the Miscellaneous Award or Fair Work Act as alleged.

15    It is evident from the affidavit material, statement of claim and the parties’ written submissions that the extent to which the deed of settlement and release is enforceable and (or) its terms operate as a bar to his current proceeding in the Circuit Court is disputed. Mr Grigorovich intends raising alleged conduct in which Morgan Environmental engaged during the negotiations that resulted in the parties making the deed of settlement and release to contend that the deed is unenforceable and (or) should be set aside in equity or on statutory grounds involving one or more of misrepresentation, misleading or deceptive conduct, duress and (or) unconscionability.

Jurisdiction and complexity

16    Mr Grigorovich submits that he intends to amend the originating application and statement of claim if the proceeding is transferred to this Court to include claims under the Corporations Act 2001 (Cth). He submits these claims are outside the jurisdiction of the Circuit Court. Except for assertions in the most general of terms, the nature of the foreshadowed Corporations Act claims and the factual bases for them are not identified. These general claims are said to ‘include’ misleading financial records, false or misleading statements to regulators, improper use of company information and conduct by officers contrary to ss 180 to 184 of the Corporations Act. However, the manner in which Mr Grigorovich would have standing to bring any cause of action for conduct of that nature, as opposed to the company or regulators, is not identified or explained. In the absence of sufficient detail of the nature and factual foundation for and standing to bring the foreshadowed claims, it is not accepted that Mr Grigorovich has any Corporations Act claims relating to the matters raised in the Circuit Court proceeding that could properly be joined with the causes of action in that proceeding and brought within the jurisdiction of this Court.

17    Regarding the Fair Work Act and Australian Consumer Law claims, as Mr Grigorivich pleads in his statement of claim, the Circuit Court has jurisdiction to determine any civil matter arising under the Fair Work Act (s 566) and, subject to a limit on the amount of loss or damage that can be awarded, has jurisdiction in relation to any matter arising under the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than a Commonwealth Minister (s 138A of the CC Act). Therefore, there is no jurisdictional impediment to the Circuit Court determining the subject matter of Mr Grigorovich’s claims in that court or determining any issues that may arise by way of defence or reply (or further claim for relief) with respect to the terms and (or) enforceability of the deed of settlement and release.

18    Mr Grigorovich submits that the issues raised in the Circuit Court proceedings are complex due to the ‘multi-forum factual matrix, and the specialist judicial tasks required to resolve them’ such that this Court is a more appropriate and suitable forum to determine those issues. Complexity is said to arise from the factual matrix involving asserted contraventions of the Fair Work Act, Australian Consumer Law, Corporations Act, Superannuation legislation and equitable principles and the difficult nature of the forensic task involving the analysis of financial records and information. These submissions are also not accepted.

19    While the issues raised in the statement of claim together with the issues concerning the enforceability and terms of the deed of settlement and release may involve a degree of factual complexity, determining factual issues of that nature is well within the ordinary and routine work of the Circuit Court. A similar observation applies to the legal issues. For the reasons already given, it is not accepted that Mr Grigorovich can raise or has raised any Corporations Act claim in the Circuit Court proceeding. Otherwise, the issues raised in the Circuit Court proceeding are not of such a complex nature that this Court is a more appropriate or suitable forum to determine those issues. Further, none of the issues raise an important point of principle or public interest.

20    It follows that neither jurisdiction nor the nature and complexity of the issues raised in the Circuit Court proceeding is a factor that favours exercising the power to transfer the proceeding to this Court.

Respondent’s attitude and forum shopping

21    Judge Ladhams made an order granting Mr Grigorovich leave to discontinue his proceeding in that court. Instead of discontinuing, in accordance with another order of Ladhams J, Mr Grigorovich lodged the statement of claim in the Circuit Court. If he had discontinued the Circuit Court proceeding Mr Grigorovich would, of course, have been able to file an originating application in this Court. However, rather than pursue that relatively simple option, he filed a separate originating application in this Court seeking an order to transfer the current Circuit Court proceeding to this Court. The transfer is opposed by Morgan Environmental. Therefore, while Mr Grigorovich chose to initiate his proceeding in the Circuit Court, now, somewhat unusually, it is Mr Grigorovich (as applicant) who wishes to transfer the proceeding to this Court and it is Morgan Environmental (as respondent) which is content for the matter to be determined in the Circuit Court.

22    Amongst other things, Mr Grigorovich submits and deposes that the cumulative effect of certain procedural and administrative decisions made in the Circuit Court is that he has not been able to ‘file essential evidence’, there has been a refusal to examine material and he has been unable to access the record of the earlier small claims proceeding creating a ‘procedural impasse’. Mr Grigorovich submits and deposes that these ‘constraints prevent the proceeding from being conducted according to law in [the Circuit Court]’. The substance of his complaints are that an affidavit was rejected for filing on the basis of ‘privilege’, Ladhams J refused to examine that affidavit and a statutory declaration at a case management hearing, and Ladhams J refused to permit Mr Grigorovich access to an audio recording of a hearing in the earlier small claims proceeding. However, if and to the extent that any of these interlocutory decisions involved error, Mr Grigorovich could have applied for leave to appeal and, if leave were granted, any error could have been corrected on appeal. As a consequence, Mr Grigorovich’s affidavit evidence and submissions have a distinct air of forum shopping in that he is dissatisfied with the manner in which the Circuit Court proceeding has been case managed and hopes to achieve a more favourable procedure and outcome if the proceeding were transferred to this Court.

23    Therefore, that Morgan Environmental considers the Circuit Court the appropriate forum and that Mr Grigorovich appears to be forum shopping is also a factor against exercising the power to transfer the proceeding to this Court.

Expedition, resources and cost proportionality

24    There is no evidence before this Court relating the estimated length of any trial or the relative availability of resources to determine the dispute in a timely manner in the Circuit Court as compared to this Court. In the absence of any evidence to the contrary, it may be assumed that the procedure in the Circuit Court would be simpler and more cost effective than the procedure generally employed in this Court. Otherwise, it is not obvious that utilising the procedure of this Court, with the likely additional cost, would be proportionate to the nature and complexity of the issues raised in the Circuit Court proceeding. In these circumstances, it may be presumed that the better and more efficient use of this Court’s resources would be to reserve them for use in the Court’s appellate jurisdiction, if necessary.

Disposition

25    For the foregoing reasons, while the resources of this Court are sufficient to hear and determine the proceeding, it is not in the interests of the administration of justice and it is not the best promotion of the overarching purpose of the civil practice and procedure provisions to order the transfer of the Circuit Court proceeding to this Court. Therefore, the originating application will be dismissed.

26    As none of the parties made any submission regarding the application of s 570 of the Fair Work Act to the originating application in this Court, the question of costs will be reserved.

Associate:

Dated:    22 July 2026