Australian Building and Construction Commissioner v Gava
[2018] FCA 191
•26 February 2018
FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Gava [2018] FCA 191
File number: SAD 316 of 2017 Judge: WHITE J Date of judgment: 26 February 2018 Catchwords: PRACTICE AND PROCEDURE – Applicant seeks declarations and the imposition of penalties on the Respondents in respect of contraventions of s 503 of the Fair Work Act 2009 (Cth) – Respondents applied for transfer of proceedings to the Federal Circuit Court – whether the transfer is appropriate – application refused. Legislation: Fair Work Act 2009 (Cth) ss 484, 503, 512, 793
Federal Court of Australia Act 1976 (Cth) s 32AB
Federal Court Rules 2011 (Cth) r 27.12
Date of hearing: 26 February 2018 Registry: South Australia Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Ms K Stewart Solicitor for the Applicant: HWL Ebsworth Counsel for the Respondents: Mr M Ats Solicitor for the Respondents: Lieschke & Weatherill Lawyers ORDERS
SAD 316 of 2017 BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: MARK GAVA
First Respondent
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
26 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The oral application to transfer the proceedings to the Federal Circuit Court is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
In the proceedings, the Australian Building Construction Commissioner (the Commissioner) seeks declarations and the imposition of penalties on the First Respondent, Mr Gava, and on the Second Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), in respect of contraventions of s 503 of the Fair Work Act 2009 (Cth) (the FW Act) on 1 and 2 December 2016. At the time, Mr Gava was an employed organiser within the CFMEU.
The Commissioner’s allegation is that on 1 December 2016, Mr Gava caused a notice of entry, pursuant to s 487 of the FW Act, to be sent to Hansen Yuncken Pty Ltd (Hansen Yuncken). At that time, Hansen Yuncken was the principal contractor on the Flinders Medical Centre Transforming Health Project (the FMC Site). In the notice of entry, which Mr Gava signed, he asserted that he had been issued with an entry permit pursuant to s 512 of the FW Act, that he intended to enter the FMC Site on the following day and that the entry was authorised pursuant to s 484 of the FW Act.
On the following day, Mr Gava did enter the FMC Site and, on being challenged by the Hansen Yuncken site manager, claimed that he was unaware that his entry permit had expired.
In fact, as Mr Gava now acknowledges, he did not hold an entry permit as his previous permit had expired on 28 November 2016. Mr Gava also acknowledges that at both dates he had been aware that his entry permit had expired.
In these proceedings, the Commissioner alleges that, by his conduct on 1 and 2 December 2016, Mr Gava contravened s 503 of the FW Act. The Commissioner also alleges that, by the operation of s 793 of the FW Act and by Mr Gava’s conduct, the CFMEU also contravened s 503 on both days.
The CFMEU admits its contraventions but only on the basis that Mr Gava was acting within the scope of his apparent authority. It denies that Mr Gava was acting within the scope of his actual authority. There is an issue of fact between the parties concerning that issue and both are agreed that, in the particular circumstances of this case, the issue can be conveniently resolved within the context of a disputed-fact hearing forming part of the penalty hearing.
The proceeding was first scheduled for a case management hearing on 20 December 2017. However, the parties agreed on programming orders with respect to the filing of amended pleadings with the consequence that that hearing was vacated and the case management hearing listed for today. In their amended defence filed on 18 February 2018, Mr Gava and the CFMEU have made admissions concerning the contraventions alleged by the Commissioner, subject to the dispute about the nature of Mr Gava’s authority.
The application to transfer the proceedings
The Respondents have made an oral application this morning for these proceedings to be transferred to the Federal Circuit Court (the FCC). Section 32AB of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) empowers the Court to order the transfer of proceedings in this Court to the FCC. Subsection (6) requires the Court to have regard to the following matters when considering such a transfer:
(a)the relevant rules of Court;
(b)whether proceedings in respect of an associated matter are pending in the FCC;
(c)whether the resources of the FCC are sufficient to hear and determine the proceedings; and
(d)the interests of the administration of justice.
Rule 27.12 of the Federal Court Rules 2011 (Cth) is relevant. Subrule (3) requires the parties, on an application of the present kind, to address the following matters:
(a)whether the proceedings are likely to involve questions of general importance;
(b)whether it will be less expensive and more convenient to the parties if the proceeding were transferred;
(c)whether the proceeding would be determined more quickly if transferred; and
(d)the wishes of the parties.
In seeking the transfer, the Respondents submitted that, given the extensive admissions made by the Respondents, the matter is now relatively straightforward and that is so despite the remaining issue of fact; that the issue of expense is probably a neutral consideration, at least from the Respondents’ point of view; and that while the lists of the FCC are busy, it is reasonable to suppose that the FCC may be able to provide a hearing just as quickly as this Court. I think it fair to say, though, that the principal matter upon which the Respondents relied was that this matter, given the admissions, is now a relatively straightforward matter.
It seemed to be common ground that there is no associated matter in the FCC. No issue was raised as to the sufficiency of the resources of the FCC to hear and determine the proceeding. It may well be the case that the proceedings will not involve any issue of general importance.
However, in my view, an order for transfer is not appropriate. First, it is appropriate to take into account that the transfer is opposed by the Commissioner and regard is to be had to the choice of forum by the Commissioner.
Secondly, I think it probable, having regard to the current state of the lists in the FCC, that this matter will be able to be heard and determined more expeditiously in this Court than would be the case if it is transferred to the FCC.
Thirdly, as I alluded to before, the issue of cost and expense is a neutral matter. The hearing fee in this Court may be more expensive than the counterpart fee in the FCC but that, no doubt, was a matter taken into account by the Commissioner who will bear that fee.
Finally, it is the case, as counsel for the Respondents pointed out, that some proceedings of an analogous kind have been commenced by the Commissioner in the FCC but I think that it is fair to say that the greater amount of the litigation commenced by the Commissioner, the Commissioner’s predecessors and the Commissioner’s counterparts involving contraventions of the FW Act have been commenced in this Court. By reason of that, members of this Court have developed some awareness of the provisions in the FW Act and of the jurisprudence which has developed concerning them. This Court’s familiarity with the kinds of issues which commonly arise adds to my impression that the proceedings may be able to be dealt with more expeditiously in this Court.
For those reasons, I decline to exercise the discretion pursuant to s 32AB of the FCA Act by ordering the transfer of the proceedings to the FCC.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 28 February 2018
0
0
3