Bartholomew v Mercer (Australia) Pty Ltd - [2011] FMCA 356

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARTHOLOMEW v MERCER (AUSTRALIA) PTY LTD & ANOR

[2011] FMCA 356

PRACTICE & PROCEDURE – Application for transfer to Federal Court – relevant considerations – whether proceeding associated with proceeding pending in Federal Court.

WORDS & PHRASES – associated matter.

Federal Magistrates Act 1999, ss.18, 19, 39
Sex Discrimination Act 1984
Insurance Contracts Act 1984, s.32
Federal Magistrates Court Rules 2001, r.8.02

American Optical Corporation v Allergan Pharmaceuticals Pty Ltd (1985) 4 IPR 1

PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520
Fencott v Muller (1983) 152 CLR 570
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Costa Vraca Pty Ltd (ACN 005 913 431) v Bell Regal Pty Ltd (ACN 076 871 648) [2003] FCAFC 305
O’Neil v Wratten (1986) 65 ALR 451
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd (1981) 57 FLR 110
Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340

Applicant:

PETER JAMES BARTHOLOMEW

First Respondent:

MERCER (AUSTRALIA) PTY LTD

Second Respondent:

MERCER INVESTMENT NOMINEES LTD

File Number:

SYG 2346 of 2010

Judgment of:

Cameron FM

Hearing date:

11 May 2011

Date of Last Submission:

11 May 2011

Delivered at:

Sydney

Delivered on:

18 May 2011

REPRESENTATION

Counsel for the Applicant:

Dr C.S. Ward

Solicitors for the Applicant:

Surry Hills Legal Centre

Counsel for the Respondents:

Mr M. Borsky

Solicitors for the Respondents:

Turks Legal

ORDERS

The respondents’ application to transfer this proceeding to the Federal Court of Australia be dismissed.
This proceeding be stayed until the determination of proceeding VID 772/2010 in the Federal Court of Australia, Victoria District Registry.
The parties advise the Court of the determination of Federal Court proceeding VID 772/2010 within fourteen (14) days of such determination.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2346 of 2010

PETER JAMES BARTHOLOMEW

Applicant

And

MERCER (AUSTRALIA) PTY LTD

First Respondent

MERCER INVESTMENT NOMINEES LTD

Second Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns the applicant’s allegations that the respondents were guilty of sex discrimination and marital status discrimination in the way that they resolved to dispose of his former partner’s superannuation death benefit. In this regard, he refers to the decision by either or both of them to pay that benefit to the deceased’s parents rather than to him and to make a partial payment to the deceased’s parents and to refuse to make one to him. He also alleges sex and marital status discrimination in the respondents’ refusal to accept binding nominations in favour of same sex partners.
Prior to commencing this proceeding, the applicant commenced proceedings in the Federal Court in Victoria against the second respondent, National Mutual Life Association of Australasia Ltd (“National Mutual”) and the deceased’s parents. That proceeding involves the applicant’s appeal from a decision of the Superannuation Complaints Tribunal (“Tribunal”) affirming the second respondent’s decision to pay the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 356
Decision Date: 18 May 2011

CaseChat Overview and Summary

The case of Bartholomew v Mercer (Australia) Pty Ltd involved the applicant, Bartholomew, who sought to transfer a proceeding from the County Court of Victoria to the Federal Court of Australia. The application was based on the premise that the proceeding was associated with another matter already being heard in the Federal Court. The respondent, Mercer (Australia) Pty Ltd, opposed the application on the grounds that the matters were not sufficiently associated to warrant a transfer. The application for transfer was heard and determined by the County Court.

The primary legal issue before the court was whether the proceeding in the County Court was associated with the proceeding pending in the Federal Court, such that a transfer would be appropriate. The court considered the nature of the disputes, the commonality of the parties and issues, and the potential for overlapping or conflicting judgments. The court also examined whether a transfer would better serve the interests of justice by avoiding duplication of effort and ensuring consistency in the application of the law.

In its decision, the court determined that the proceeding in the County Court was not sufficiently associated with the matter in the Federal Court to justify a transfer. The court found that while there were some common elements, the issues and parties in the two proceedings were not sufficiently intertwined to warrant a transfer. The court did, however, stay the County Court proceeding pending the outcome of the Federal Court matter, to prevent any potential conflicts or duplications in judgment. The court ordered that the parties must notify the County Court of the outcome of the Federal Court proceeding within fourteen days of its determination.

The orders made by the court included the dismissal of the application to transfer the proceeding to the Federal Court, a stay of the County Court proceeding until the Federal Court matter is resolved, and a requirement for the parties to inform the County Court of the Federal Court's decision within a specified timeframe. This outcome ensures that the County Court proceeding remains on hold until the broader issues in the Federal Court matter are decided, thereby preventing any potential inconsistency or duplication in the judicial process.

Orders

Orders of the court

The respondents’ application to transfer this proceeding to the Federal Court of Australia be dismissed.

This proceeding be stayed until the determination of proceeding VID 772/2010 in the Federal Court of Australia, Victoria District Registry.

The parties advise the Court of the determination of Federal Court proceeding VID 772/2010 within fourteen (14) days of such determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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