ANNING v University of Western Sydney
[2015] FCCA 2124
•3 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANNING v UNIVERSITY OF WESTERN SYDNEY | [2015] FCCA 2124 |
| Catchwords: PRACTICE & PROCEDURE – Application to consolidate proceedings. |
| Legislation: Racial Discrimination Act 1975 Fair Work Act 2009, ss.728, 732, 734 Federal Circuit Court of Australia Act 1999, s.14 |
| Applicant: | BERICE ANNING |
| Respondent: | UNIVERSITY OF WESTERN SYDNEY |
| File Number: | SYG 1444 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 3 August 2015 |
| Date of Last Submission: | 3 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr M. Seck |
| Solicitors for the Respondent: | Thomson Geer |
ORDERS
Proceeding SYG1313/2015 be consolidated with proceeding SYG1444/2015 in the docket of Judge Cameron.
The documents filed in SYG1313/2015 be transferred to SYG1444/2015.
The file SYG1313/2015 be closed by the registry.
The applicant file and serve points of claim incorporating all her allegations against the respondent and prayers for relief by 31 August 2015.
The matter be listed for further directions on 4 September 2015 at 11am.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1444 of 2015
| BERICE ANNING |
Applicant
And
| UNIVERSITY OF WESTERN SYDNEY |
Respondent
REASONS FOR JUDGMENT
The applicant was employed as an academic with the respondent university and her employment terminated a short time ago. She has brought two sets of proceedings in this Court against the respondent, one grounded on allegations of breaches of the Racial Discrimination Act 1975 and another grounded on allegations of breaches of the Fair Work Act 2009. The former is the present matter, SYG1444/2015, and is in my docket. The latter is matter SYG1313/2015 and is in the docket of Judge Nicholls. The respondent has filed an application in a case in this matter seeking orders that the matters be consolidated or heard together.
The applicant has opposed that application and wishes the matters to proceed separately. I have read the written submissions filed by both parties and I have heard and considered the oral addresses which they have made to the Court today. I have reached the conclusion that it is appropriate that these two matters be consolidated, rather than simply heard together, for the following reasons.
The two proceedings concern two series of events which intertwine and seem intimately related. These events also seem to involve many of the same individuals. It would be more efficient if the witnesses came to court only once and gave all their evidence concerning the dispute between the parties at one hearing. Also, consolidation of the matters would avoid the risk that different judges would make different findings on the same witnesses or on the same evidence.
It also seems that individual events or courses of conduct are alleged to give rise to concurrent rights under the Racial Discrimination Act and the Fair Work Act. Multiple claims of that sort contravene ss.728, 732 and 734 of the Fair Work Act. Consolidation would streamline the litigation by ensuring that relief was not sought under two Acts in respect of the same conduct in circumstances where the Fair Work Act prohibits that.
At para.17 of her written submissions the applicant argued:
The Applicant’s right to equality before the law should be the measure to be used, in order that the Applicant is not prejudiced by considerations of the Respondent to save the Court’s time and costs; or the Respondent’s time and costs.
That submission misunderstands the role of the Court. The task of the Court is to achieve a just, efficient and economic resolution of the proceeding. Consolidation will not affect the reality that the applicant and the respondent are equal in the eyes of the Court, although I am well aware that, as an unrepresented litigant, the applicant does not have some of the practical advantages enjoyed by the respondent.
The applicant observed that the Federal Circuit Court Rules 2001 and the Federal Circuit Court of Australia Act 1999 do not provide expressly for consolidation of proceedings. However, the Court’s statute provides that it is to operate as informally as possible in the exercise of judicial power. That objective is, in some part, reflected by the Court’s Rules, which are less comprehensive and technical than those of other courts. But it is also important to keep in mind that s.14 of the Court’s Act provides:
14 Determination of matter completely and finally
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
It is certainly within the Court’s power to consolidate two matters so that multiplicity of proceedings is avoided.
The applicant expressed concern that the consolidation of proceedings would see aspects of her Fair Work action, which did not depend on allegations of racial discrimination, subsumed by other aspects of her claims which did. The determination of this matter will turn on the allegations made by the parties and each allegation will be determined on its merits. The fact that in a consolidated proceeding the Court would have a broader perspective of the applicant’s claims does not mean that it will not be able to distinguish one sort of claim from another.
For those reasons, it is appropriate in my view that the two matters be consolidated.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 6 August 2015
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