BARRY v Park Trent Properties Group Pty Ltd

[2013] FCCA 743

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRY v PARK TRENT PROPERTIES GROUP PTY LTD [2013] FCCA 743

Catchwords:
INDUSTRIAL LAW – Application in a case to transfer proceeding to the Sydney registry of the Court – application dismissed.

Legislation:
Fair Work Act 2009, s.351(1),ss.546, 545(1), 546(2)
Federal Circuit Court of Australia Rules 2001, r.8.01  

Applicant: NATASHA BARRY

Respondent: PARK TRENT PROPERTIES GROUP PTY LTD

File Number: MLG 1379 of 2012

Judgment of: Judge O'Dwyer

Hearing date: 15 May 2013

Date of Last Submission: 31 May 2013

Delivered at: Melbourne

Delivered on: 28 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Fetter

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr Latham

Solicitors for the Respondent: Willis Lawyers

ORDERS

1. The Application in a Case filed by the respondent seeking a transfer of this proceeding to the Sydney registry of the Court is dismissed.

2. The Respondent pay the applicant’s costs of and incidental to this proceeding.

3. The matter is fixed for directions at 9.30 am on 19 July, 2013.

4. Leave granted to the respondent’s representative to appear by telephone link.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1379 of 2012

NATASHA BARRY

Applicant

And

PARK TRENT PROPERTIES GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The substantive application in this proceeding relates to a claim by the applicant in an amended application under the Fair Work Act 2009 (“the Act”), supported by an amended statement of claim:

   i.that alleges the respondent has contravened s.351 (1) of the Act;

   ii.that seeks an order:-

   ·for penalties against a respondent pursuant to s.546 of the Act;

   ·for compensation against respondent pursuant to s.545 (1) and (2) of the Act;

   ·an order in the nature of aggravated damages pursuant to s.545 (1) of the Act; and

   ·for interest on the amounts of compensation relating to past economic losses.

2. In short, the applicant makes the various claims as a consequence of an alleged breach of a workplace right (a parental leave right) arising from alleged discrimination as a consequence of her pregnancy, resulting in an unlawful dismissal.

3. By an Application in a Case pursuant to r.8.01 of the Federal Circuit Court of Australia Rules 2001 the respondent seeks to have the proceeding transferred to the Sydney Registry of this Court. For the sake of clarity, although the respondent in the substantive proceeding is the applicant in this interlocutory proceeding, I shall continue to refer to it as the respondent and the applicant shall continue to be referred to as the applicant.

4. The parties have provided written submissions and supporting affidavits in respect of this application pursuant to my directions of

   
   

   15 May 2013, which directions provided that after submissions were received, I would consider the application on the papers.

5. Submissions have been provided and I am now in a position to determine the application.

Background

1. By way of background, the applicant claims she was employed by the respondent between 29 August 2011 and 3 July 2012, initially in the role providing customer service in the respondent’s Wollongong call centre, but later, after promotion, as a personal assistant to the respondent’s Superannuation Co-ordinator. But in consequence, she claims, of her pregnancy, her employment was terminated.

2. The respondent is in the business of real estate sales and provision of related services. Its head office is located in Wollongong where the applicant was employed, but it also has offices in the Melbourne area; namely, Melton and Prahran.

Submissions

1. The pertinent rule in respect of this application is rule 8.01, which states:

   “(1) a party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the court.

   (2)in considering an application, the court must have regard to:

   (a)the convenience of the parties; and

   (b)the limiting of expense and the costs of the proceeding; and

   (c)whether the matter has been listed for final hearing; and

   (d)any other relevant matter.”

Respondent’s submissions

1. The respondent submits that in the exercise of my discretion I should give particular weight and consideration to the following:

   ·In respect of convenience, the respondent highlights that two significant witnesses are based at the head office of the respondent in Wollongong; that one witness has two infant children and a husband who is a shift worker and there are likely to be difficulties encountered by that witness in respect of child care arrangements, including costs of such, should the witness be required to attend a hearing in Melbourne.

   ·In respect of costs, the respondent has provided a statement of the likely costs that would be incurred in travel to Melbourne, plus the costs of accommodation there. It necessarily implies that the cost to the respondent of a hearing in the Sydney registry is cheaper than if the hearing proceeds in Melbourne.

   ·It is noted that a final hearing has not been fixed at this stage.

   ·In respect of any other relevant matters, the respondent refers to a need to travel to Sydney from Wollongong for its witnesses as there is no direct flight from Wollongong to Melbourne.  The respondent also refers to the difficulties that one witness may have in respect of child care arrangements; and further that the applicant’s place of employment was at Wollongong.

Applicant’s submissions

1. There were two principal submissions made by the applicant. First, she is a young mother with a very young child (three months old) who is presently being breastfed and it is anticipated will continue to be breastfed until six months of age. The burden placed upon her in taking, as she would have to, the child with her to Sydney is too stressful for both her and the child. The second thrust of her submissions was in respect of her financial capacity to fund her attendance at the Sydney registry if this proceeding is transferred there. She is unemployed, has no savings, is dependent upon her parents for accommodation, and has no one in Sydney upon whom she can call.

2. The applicant also deposed to other matters which, in my view, are relevant in the determination of this matter. Both parents work and it would be difficult for one of them to travel with her to Sydney, which situation is compounded by the fact that her younger sister has cancer and is receiving treatment, requiring her parents to provide her with support.

Consideration

1. There was one other consideration that was not alluded to in the submissions of either party, but which was addressed by me at a directions hearing. I ascertained at the hearing that there was regular travel by representatives of the respondent from head office in Wollongong to Melbourne to administer the offices at Melton and Prahran. Whilst I acknowledge the comment by the respondent that one of the witnesses is not one that would normally travel to Melbourne, it is nonetheless quite evident that the respondent incurs costs of travel to Melbourne as part of its normal business operation and in my view the financial burden placed upon the respondent should its witnesses have to travel to Melbourne, relative to the financial burden on the applicant in travelling to Sydney, does not swing the balance in favour of a transfer.

2. Similarly, on the question of the balance of convenience, I am persuaded that, in respect of witnesses, the balance falls in favour of the applicant having regard to her responsibilities as a young mother who is breastfeeding a child. There was a reference by the respondent to a witness who has two infant children and a husband who is a shift worker. The suggestion was that “she may encounter difficulties with childcare arrangements and may incur costs for childcare”. There was little supporting material to persuade me that the witness, or her children, would be significantly inconvenienced by her attendance in Melbourne. Whilst travel to Melbourne for her may be inconvenient and require some adjustment, there was no evidence that that adjustment was precluded.

Conclusion

1. For the above reasons, on balance, after considering the questions of convenience, costs and other factors, the considerations, in my view, fall in favour of the applicant.  The Application in a Case should therefore be dismissed with costs.

2. I have, as a consequence of my determination, listed the matter before me for future directions.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate:  

Date: 8 July 2013