Abela v State of Victoria

[2011] FMCA 331

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABELA v STATE OF VICTORIA [2011] FMCA 331

HUMAN RIGHTS – Transfer to the Federal Court.

FACTORS TO CONSIDER – Whether matters involve a question of general importance – convenience – costs – whether the Federal Magistrates Court has sufficient resources to hear and determine the proceedings.

Federal Magistrates Act 1999, s.39(3)
Federal Magistrates Court Rules 2001, r.8.02

Walker v State of Victoria [2011] FCA 258

Applicant: BEAU ABELA (BY HIS NEXT FRIEND, PETER ABELA)

Respondent: STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT)

File Number: MLG 1380 of 2008

Judgment of: Turner FM

Hearing date: 2 May 2011

Date of Last Submission: 2 May 2011

Delivered at: Melbourne

Delivered on: 2 May 2011

REPRESENTATION

Counsel for the Applicant: Mr Perkins and Mr Hancock

Solicitors for the Applicant: Access Law

Counsel for the Respondent: Mr Bourke SC and Ms Sweet

Solicitors for the Respondent: Minter Ellison

ORDERS

1. Leave is granted to the respondent retrospectively to file the affidavits of Vincent Sicari, Trudy Thomson, Bernadette Towan and Ross Allison.

2. The applicant file and serve any affidavits in response on or before

   
   

   13 May 2011.

3. The matters be transferred to the Federal Court of Australia at Melbourne to be listed on a date and time to be advised to the parties.

4. Costs of today are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1380 of 2008

BEAU ABELA (BY HIS NEXT FRIEND, PETER ABELA)

Applicant

And

STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT)

Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

1. The matters were set down for 15 days of hearing on 2 to 6 May, 16 to 20 May, and 30 May to 3 June 2011. Partly because of the likelihood that further days of hearing would be needed and they were not available in this Court until early next year, the Court had notified the parties on 6 April 2011 that it wanted to hear submissions from them as to whether they supported the Court transferring the matters pursuant to r.8.02(1) of the Federal Magistrates Court Rules 2001 (the “Rules”), on its own motion to the Federal Court. Both parties opposed the transfer at a hearing on 8 April 2011, and, as a result, the matters were not transferred.

2. As a result of the proceedings today the Court has granted leave to the respondent retrospectively to file four affidavits.  To ensure fairness to the applicant, the applicant is given until 13 May 2011 to file and serve any affidavits in response.  Mr Perkins submits that as a result he is unable to proceed with the applicant’s case this week.  This means that the Court must find a further five days to replace the hearing days lost this week.  Those dates are not available until February/March next year.

3. Mr Perkins and Mr Hancock appeared for the applicant and Mr Bourke SC with Ms Sweet for the respondent.

4. Mr Perkins therefore makes application that the Court transfer the matters to the Federal Court for hearing and determination. Rule 8.02(4) of the Rules sets out the factors to be considered before transferring a matter to the Federal Court.

5. In the circumstances of this case the Court orders pursuant to r.8.02 of the Rules, that the application for transfer is able to be made today and the applicant need not make application by written application and affidavit.

6. The factors to be considered by the Court in deciding whether to transfer the matters are as follows.

   Rule 8.02(4) – In addition to the factors required to be considered by the Court under subsections 39 (3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

   (a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue.

   (b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred

7. Mr Perkins submits that the question of general importance is “whether it is appropriate for an education authority to not provide any assistance to a child in need in his schooling”.  Mr Bourke SC submits that the issues are very similar to those dealt with in the decision of Tracey J on 23 March 2011 in Walker v State of Victoria [2011] FCA 258. The Court finds that the issues raised in this matter are of general importance and the fact that similar issues may have been raised in Walker does not decrease the general importance of those issues.

8. The next factor is:

   (b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

9. The cost issue [r.8.01(2)(b)] is not of great relevance in these matters as the majority of the preparatory work has been done and the same counsel or counsel of similar standing, are likely to be involved in the hearing before the Federal Court.

   As to convenience [r.8.01(2)(a)], Mr Perkins submits that the possibility of an early hearing in the Federal Court would be more convenient to the parties.  Specifically, he says it would be more convenient in terms of his client’s interests who is a 17 year old awaiting furtherance of his schooling.  Mr Bourke SC submits that it would be more convenient for the respondent for the remaining 10 days set down in this Court to be utilised; the respondent has organised replacement staff for the witnesses whom he is to call; he submits that it is stressful for his witnesses to be waiting for the hearing to occur.  There is a possibility that the Federal Court would be able complete the hearing before February/March 2012.  That cannot occur in this Court.

10. The next factor is:

    8.02(4)(c) whether the proceeding will be heard earlier in the Federal Magistrates Court;

11. The Court has dealt with that issue above.

12. The next factor is:

    8.02(4)(d) the availability of particular procedures appropriate for the class of proceeding;

13. That issue is not of relevance or not of determinative relevance here.

14. The next factor is:

    8.02(4)(e) the wishes of the parties.

15. The applicant filed matter VID 558 of 2008 in the Federal Court and wanted that matter heard there.  That matter was transferred to this Court by order of Sundberg J on 5 November 2008.  Matter MLG 1071 of 2009 was then filed in this Court, and subsequently consolidated with this matter on 30 November 2009.  The applicant now wants both matters transferred to the Federal Court in the hope of gaining sufficient hearing dates before February/March 2012 to complete the matter.  As stated above, the respondent opposes the transfer and submits that it is better for the 10 remaining days set down in this Court to be utilised.

16. The Court next looks at s.39(3) of the Federal Magistrates Act 1999 (the “Act”). It provides as follows:

    (3)In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:

    (a)any Rules of Court made for the purposes of subsection 40(2).

    Rule 8.02 has been considered above.

    (b)whether proceedings in respect of an associated matter are pending in the Federal Court;

    There are no such proceedings.

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

    The Court has a further 10 days set down to hear the matter.  If that will not finish the matter and the applicant asserts that it will not, the next hearing dates available are in February/March 2012.  The Court therefore does not have sufficient resources to hear and determine this matter before February/March 2012.  That is, however, a possibility before the Federal Court.

    And:

    (d)     the interests of the administration of justice.

    Where the party seeking the transfer is the one with most to lose if the Federal Court does not have an earlier date or earlier dates, and where the respondent suffers only some inconvenience if these matters are transferred, the Court finds that it is in the interests of the administration of justice to transfer the matters.

17. The Court finds that the Federal Court may be able to finalise the matters earlier than in this Court.  That would be more convenient to the applicant which overrides the inconvenience, although unfortunate, to the respondent.

18. The Court finds that the matters involve issues of general importance.  For the reasons set out above the matters are transferred to the Federal Court for hearing and determination.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: 

Date:  10 May 2011