Barrett v Department of Education trading as State of New South Wales (Department of Education)

[2025] NSWSC 1257

Supreme Court

New South Wales

Medium Neutral Citation:

Barrett v Department of Education trading as State of New South Wales (Department of Education) [2025] NSWSC 1257

Hearing dates:

14 October 2025

Date of orders:

14 October 2025

Decision date:

14 October 2025

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Pursuant to s 140 of the Civil Procedure Act 2005 (NSW), the proceedings 2023/00341823 commenced in the District Court be transferred to the Supreme Court.

(2)   The costs of this application be costs in the cause.

(3)   The plaintiff is to pay the defendant’s costs thrown away by reason of the vacation of the hearing in the District Court.

(4)   List the proceedings 2023/00341823 for directions before Chen J on 28 November 2025.

Catchwords:

CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – whether proceedings should be transferred to a different court – where proceedings commenced prior to the amendments made to the Work Health and Safety Act 2011 (NSW) by the Industrial Relations Amendment Act 2025 (NSW) – proceedings transferred to the Supreme Court

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 3, 140, 151, Pt 9

District Court Act1973 (NSW)

Industrial Relations Amendment Act 2025 (NSW), Pt 1.9 of Sch 1

Land and Environment Court Act1979 (NSW), s 71

Supreme Court Act 1970 (NSW), s 23

Work Health and Safety Act 2011 (NSW), ss 105, 112, Pt 6

Cases Cited:

Kadic v Thiess Bros Pty Ltd [1967] 2 NSWR 257

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Justin Barrett (First Plaintiff)
The Trustee for THE K R BARRETT FAMILY TRUST trading as Kazbar Holdings Pty Ltd (Second Plaintiff)
Department of Education (Defendant)

Representation:

Counsel:
M Best (First and Second Plaintiffs)
K Nomchong SC / B Rauf (Defendant)

Solicitors:
Gilberts Legal (First and Second Plaintiffs)
Norton Rose Fulbright (Defendant)

File Number(s):

2025/00313505

Publication restriction:

Nil

REVISED EX TEMPORE JUDGMENT

1. Pursuant to a further amended statement of claim filed in the District Court on 6 December 2024, the plaintiffs seek orders pursuant to s 112 of the Work Health and Safety Act 2011 (NSW), including:

1. a declaration that the defendant engaged in discriminatory conduct for a prohibited reason;

2. an order for the payment of compensation; and

3. an order for reinstatement of the plaintiff’s former position or similar position.

2. The plaintiffs now come before this Court by way of a summons filed on 15 August 2025 seeking two orders being:

1. pursuant to s 140 of the Civil Procedure Act 2005 (NSW), the proceedings commenced in the District Court be transferred to the Supreme Court; and

2. pursuant to s 151 of the Civil Procedure Act, the proceedings be transferred to the Industrial Court.

3. The first plaintiff, Mr Barrett, is director of the second plaintiff, Kazbar Holdings Pty Limited. In 2018, the first plaintiff accepted an offer to work exclusively for the Department of Education as a Senior Project Director. He alleges that during his engagement with the Department he was bullied by the Director of Major Projects School Infrastructure.

4. He made complaints about the bullying in 2021 and 2022. He says that in response to his complaints, the Department directed Chandler Macleod, being the managed service provider, to terminate its contract with the plaintiff’s company, which had the effect of also terminating his services. He alleges that, in doing so, the Department engaged in discriminatory conduct within the meaning of s 105 of the Work Health and Safety Act. He, thus, seeks orders to that effect and payment of damages arising from that discriminatory conduct.

5. The plaintiffs commenced proceedings in the District Court on 27 October 2023. At that time the District Court had jurisdiction to hear an application under s 112 of the Work Health and Safety Act. After commencement of the proceedings, the Industrial Court was created and the jurisdiction formerly held by the District Court in respect of applications under Pt 6 of the Work Health and Safety Act thereafter vested in the Industrial Court.

6. Because these proceedings were commenced before the creation of the Industrial Court, there is an issue as to whether the District Court retains jurisdiction to hear the matter or whether the jurisdiction now rests with the Industrial Court such that the proceedings can and should be transferred to the Industrial Court.

7. The parties take different positions on that issue, which I will come to later.

8. Leaving aside that difference of view, the plaintiffs are seeking to transfer the proceedings from the District Court to some other court, whether that be the Supreme Court or the Industrial Court, because there is a monetary limit in the District Court of $1.2 million.

9. Although the defendant initially indicated that it might consent to extending the jurisdiction, it indicated subsequently that it would not consent and has filed a defence in the District Court to that effect.

10. The plaintiffs say that they will recover damages in the order of $1.7 million. They point to correspondence between the parties particularising their claims in that regard. The plaintiffs say that they are thus in the difficult position that they are uncertain as to whether the District Court retains jurisdiction to hear the matter and, because of the monetary limits in the District Court, they will not be able to recover the full amount of the compensation they seek.

11. The matter has a relatively long history. The issues in dispute go back to the original entry into the agreement in 2018, then termination of the agreement in 2022.

12. A defence was filed in March 2024. On 4 March 2024, the defendant filed an objection to increasing the District Court’s jurisdictional limit. Affidavits have been served, interlocutory proceedings have been heard, and the matter has been listed for hearing in the District Court for seven days commencing 1 December 2025.

13. The defendant’s position in response to the orders sought is that:

1. it opposes the making of the orders;

2. it says that this Court does not have jurisdiction to hear or determine proceedings under Pt 6 of the Work Health and Safety Act, specifically having regard to s 112 of that Act;

3. in those circumstances the proceedings cannot be transferred to this Court because this Court has no jurisdiction to hear the matter;

4. even if this Court has jurisdiction to hear the matter, what the plaintiff is really seeking is to use this Court as a vehicle to have the matter transferred to the Industrial Court;

5. the Industrial Court does not have jurisdiction to hear the proceedings because, on the defendant’s construction of the relevant legislation, the amendments made to the Work Health and Safety Act by the Industrial Relations Amendment Act 2025 (NSW) (“the Amending Act”) extend to proceedings commenced before the commencement of the amendment but do not extend to those proceedings if “the hearing” of the proceedings commenced before the commencement of the amendment. The defendant submits that, having regard to the definition of “hearing”, which includes interlocutory applications, these proceedings may not be transferred to the Industrial Court.

14. The plaintiffs originally sought to transfer the proceedings to the Industrial Court by way of an application filed in that court. The defendant’s response to that application was to provisionally appear and provide submissions to the effect that, consistent with the position it takes in this Court, the Industrial Court did not have jurisdiction to hear the proceedings because of the matters to which I have just referred.

15. There is a dispute between the parties as to why the plaintiffs did not proceed with that application in the Industrial Court when it was listed for hearing in August. The plaintiffs point to correspondence suggesting that the defendant’s senior counsel may not have been available and they were willing to adjourn the matter or accommodate the interests of the defendant. The defendant takes a rather dimmer view of the plaintiffs’ conduct, suggesting that the plaintiffs have engaged in forum shopping, having initially sought to transfer the matter to the Industrial Court and then decided that they had better prospects by adopting the approach they have in the summons filed in this Court.

16. However, it is not my function to comment on strategy or motivation or whether a party might be engaged in forum shopping.

17. I have some sympathy for the position of both parties (not that sympathy determines the outcome of the matter). By this I mean that the plaintiffs find themselves in a very difficult position in that they say they have a case worth $1.7 million but the District Court only has the jurisdiction to award up to $1.2 million. It may be understandable that the legal representatives of the plaintiffs are doing what they can to ensure that the plaintiffs are able to proceed with their case in a jurisdiction where the monetary sums are unlimited.

18. On the other hand, the defendant points to the significant delay in the making of these applications, whether they be in the Industrial Court or this Court. The matter has been listed for hearing in the District Court for seven days. No doubt, those representing the defendant have expended considerable time and money in preparing the case for hearing. Ms Nomchong of Senior Counsel, who appears for the defendant with Mr Rauf, raises the possibility that if the District Court proceedings are adjourned there will be significant further delay and the defendant may not be able to obtain the assistance of all its witnesses (bearing in mind that many have since left the employment of the defendant). There is certainly merit in that submission. Delay and prejudice are certainly factors which must be considered.

19. I raised with the parties whether consideration had been given to the possibility of transferring the matter up to this Court and then transferring it back to the District Court under Pt 9 of the Civil Procedure Act. Ms Nomchong submits that the provisions of Pt 9 would not permit that course even if this Court had jurisdiction to hear an application of a s 112 of the Work Health and Safety Act matter. The plaintiffs pointed to other provisions which may have made that course permissible but they also indicated that they did not seek to amend their summons to seek that course.

20. As such, I am only required to consider the summons in its current form.

21. The threshold question, having regard to the arguments of the parties, is whether this Court has jurisdiction to hear proceedings brought pursuant to Pt 6 of the Work Health and Safety Act and, in particular, whether this Court has jurisdiction to hear proceedings for compensation or declarations brought pursuant to s 112 of the Work Health and Safety Act.

22. I say this is the threshold question because, irrespective of issues relating to delay and prejudice, I could not make an order transferring proceedings from the District Court to the Supreme Court pursuant to s 140 of the Civil Procedure Act unless I am satisfied that this Court has jurisdiction to hear those proceedings.

23. As set out in s 140, this Court may, of its own motion or on application by a party to proceedings before the District Court, order that the proceedings, including any crossclaim, be transferred to the Supreme Court. Although this is a claim for compensation and the plaintiffs seek an allowance for non-economic loss, the parties do not suggest that this is a claim for personal injury and, thus, the restrictions on transfer under s 140(3) do not apply.

24. Leaving aside the jurisdictional issue raised by the defendant, the question which arises on an application under s 140 is whether there is sufficient cause for the transfer to be made. That necessarily involves a consideration of the particular circumstances of the case and a wide range of factors.

25. At least in general terms, sufficient cause might be shown where damages are likely to exceed the lower court’s jurisdictional limits (see Kadic v Thiess Bros Pty Ltd [1967] 2 NSWR 257 at 258).

26. In this case, the plaintiffs say that the existence of the jurisdictional limit in the District Court will deprive them of $500,000 in damages. Subject to questions of prejudice and delay, that would ordinarily constitute sufficient cause to justify the transfer.

27. Returning now to the jurisdictional point, s 112 of the Work Health and Safety Act is in the following terms:

112   Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct

(1)    An eligible person may apply to the Industrial Court for an order under this section.

(2)    The Industrial Court may make one or more of the orders set out in subsection (3) in relation to a person who has—

(a)    engaged in discriminatory conduct for a prohibited reason, or

(b)    requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason, or

(c)    contravened section 108.

(3)    For the purposes of subsection (2), the orders that the Industrial Court may make are—

(a)   an injunction, or

(a1)   an order declaring that the person has engaged in conduct of a type referred to in subsection (2)(a), (b) or (c), or

(b)   in the case of conduct referred to in subsection (2) (a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the Industrial Court considers appropriate, or

(c)   in the case of conduct referred to in subsection (2) (a) in relation to a worker who was or is an employee or prospective employee, an order that—

(i)   the worker be reinstated or reemployed in his or her former position or, if that position is not available, in a similar position, or

(ii)   the prospective worker be employed in the position for which he or she had applied or a similar position, or

(d)    any other order that the Industrial Court considers appropriate.

(4)   For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct.

(5)   Nothing in this section is to be construed as limiting any other power of the Industrial Court.

(6)   For the purposes of this section, each of the following is an eligible person—

(a)   a person affected by the contravention,

(b)   a person authorised as a representative by a person referred to in paragraph (a).

28. The defendant submits that on the face of the words used, the Parliament must have intended that the District Court would have exclusive jurisdiction to determine proceedings commenced seeking orders pursuant to s 112. The defendant submits that if it was intended that the Supreme Court would still have jurisdiction there would be other words to that effect. Of course, the defendant points to the fact that these types of cases are not commenced in the Supreme Court and are seemingly always pursued in the District Court.

29. The plaintiffs refer to s 23 of the Supreme Court Act 1970 (NSW), which is in the following terms:

23   Jurisdiction generally

The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.

30. In order to determine the issue, it is necessary to have regard to the role and functions and, indeed, creation of both the Supreme Court and District Court Acts.

31. The Supreme Court is a superior court of record. It has an inherent jurisdiction, as well as a jurisdiction which is informed by the statute, that is the Supreme Court Act.

32. The District Court is a court created by statute. It is not a superior court. It does not have any inherent jurisdiction. Its jurisdiction is determined either by the statute which created it, being the District Court Act1973 (NSW), or by other legislation enacted by a Parliament conferring jurisdiction on it.

33. Section 112 of the Work Health and Safety Act confers jurisdiction on the District Court to determine applications under that section. The question is, however, whether its jurisdiction is exclusive or in some way the inherent or the very broad jurisdiction set out in s 23 of the Supreme Court Act is limited by virtue of s 112 of the Work Health and Safety Act.

34. In my view, it is not. Section 23 of the Supreme Court Act is clear. There is nothing in that section which would tend to suggest that the jurisdiction conferred by s 23 should be limited by virtue of the fact that Parliament has afforded a jurisdiction on another court. I would not construe s 23 as making its application subject to the granting of jurisdiction to other courts.

35. It is not necessary in this judgment to further consider the nature of the Court’s inherent jurisdiction except to say that, again, the inherent jurisdiction of the Court is broad and may provide a general basis for the Court exercising jurisdiction unless otherwise specifically excluded.

36. The position adopted by the defendant may be different if there was anything in the Work Health and Safety Act which suggested that the District Court had exclusive jurisdiction to deal with these types of applications. By analogy, in the Land and Environment Court, another court created by statute, s 71 of the Land and Environment Court Act1979 (NSW) states that the Supreme Court does not have jurisdiction to deal with those certain types of matters which are dealt with in the Land and Environment Court.

37. There is nothing similar in the Work Health and Safety Act, or any other Act, which could be construed as operating to limit the broad jurisdiction of the Supreme Court.

38. I thus reject the defendant’s submission that this Court does not have jurisdiction to hear and determine any application under s 112 of the Work Health and Safety Act.

39. In these circumstances, it is then necessary to determine the application under s 140 having regard to the general discretionary powers of the Court and having regard to the range of factors which ordinarily determine whether a matter should be transferred.

40. There are certainly factors which suggest that it is too late now for the plaintiffs to seek to have the proceedings transferred to this Court, or even then to the Industrial Court. As I have said, the matter is listed for hearing in December. It has a long history. The plaintiffs have been aware of the problem of the monetary limit for nearly 18 months. They could have taken steps to solve their problem earlier. It may be that the defendant will be prejudiced. That may be a presumptive type of prejudice as there is no evidence before me of actual prejudice.

41. Having said that, this matter is somewhat complicated by the change in jurisdiction between the District Court and the Industrial Court, and it is apparent that the plaintiffs originally thought that the proper approach would be to apply to the Industrial Court. Again, there is merit in the defendant complaining that it seems to be facing a multiplicity of proceedings, but I am determining the application brought before me today, not what should be happening in the Industrial Court.

42. In all these circumstances, I consider the matter should be transferred to this Court. Sufficient cause has been shown as the plaintiff is pursuing a claim which exceeds the jurisdictional limit of the District Court by a substantial sum. Any real prejudice can be cured by costs.

43. The second order sought by the plaintiffs is transfer from this Court to the Industrial Court pursuant to s 151 of the Civil Procedure Act. As set out in s 151, if the Supreme Court is satisfied, in relation to proceedings brought before it, that it is more appropriate for the proceedings to be heard in the other court, the Court may, on application by a party to the proceedings, order the proceedings be transferred to the other court.

30. The defendant submits that no order should be made under s 151 because the Industrial Court does not have jurisdiction to hear the plaintiffs’ case. The defendant, correctly in my view, raises a question about the appropriateness of this Court now determining the jurisdiction of the Industrial Court in circumstances in which the plaintiffs have already commenced proceedings in the Industrial Court seeking orders which would require the Industrial Court to determine its own jurisdiction.

31. As the defendant submits, the limits of the jurisdiction of the Industrial Court is one which should be heard and determined by that Court. It has the power to decide whether a claim that is made in its Court is within its jurisdiction.

32. Further, the defendant submits that, even if I was persuaded to entertain the second application, I would not accept that the Industrial Court had appropriate jurisdiction having regard to the proper construction of the Amending Act. The defendant says that the Amending Act provides for amendments to be made to various legislation, including the Work Health and Safety Act.

33. Part 1.9 of Sch 1 of the Amending Act states:

1.9 Work Health and Safety Act 2011 No 10

[1] Sections 112(1), (3) and (5) and 114(2) and (3)

Omit “the District Court” wherever occurring. Insert instead “the Industrial Court”.

[2] Section 112 Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct

Omit “The District Court” from section 112(2). Insert instead “The Industrial Court”.

[3]    Schedule 4 Savings, transitional and other provisions

Insert at the end of the schedule, with appropriate part and clause numbering—

Part Provision consequent on enactment of Industrial Relations Amendment Act 2025

Application of amendments

An amendment made to this Act by the Industrial Relations Amendment Act 2025 extends to proceedings commenced before the commencement of the amendment but not if the hearing of the proceedings commenced before the commencement of the amendment.

48. The defendant’s point is that the hearing of the proceedings commenced before the commencement of the amendment and thus the jurisdiction remains with the District Court rather than with the Industrial Court.

49. The Amending Act does not provide any definition of the term “hearing” or “the hearing”, but the Civil Procedure Act defines “hearing” in s 3 as follows: “Hearing includes both trial and interlocutory hearings.”

50. A trial is then defined to mean “any hearing that is not an interlocutory hearing.”

51. The defendant submits that, in circumstances in which there had been interlocutory hearings prior to the Amending Act, the hearing had commenced and jurisdiction in this matter would have remained in the District Court rather than the Industrial Court.

52. The plaintiffs do not agree. The plaintiffs emphasise that “the hearing” is a reference to the final hearing of the matter and that the definition in s 3 must be construed in such a way that the reference to “interlocutory hearings” is a reference to interlocutory hearings which are in some way associated with the trial.

53. It is not necessary to determine which of those constructions is correct. I accept the defendant’s submission that it is the Industrial Court which should determine its own jurisdiction on this particular issue. This isa matter which will arise again, in terms of transfers between the District Court and the Industrial Court.

54. In the circumstances, I decline to make the order sought by the plaintiff transferring the proceedings from this Court to the Industrial Court.

55. The orders I make are:

1. Pursuant to s 140 of the Civil Procedure Act 2005 (NSW), the proceedings 2023/00341823 commenced in the District Court be transferred to the Supreme Court.

2. The costs of this application be costs in the cause.

3. The plaintiff is to pay the defendant’s costs thrown away by reason of the vacation of the hearing in the District Court.

4. List the proceedings 2023/00341823 for directions before Chen J on 28 November 2025.

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Decision last updated: 24 October 2025