Bartholomew v Mercer (Australia) Pty Ltd
[2011] FMCA 356
•18 May 2011
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 |
| 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 deceased’s superannuation death benefit to the deceased’s parents and National Mutual’s decision to decline a claim made on the deceased’s life policy.
The respondents filed an application in a case on 29 April 2011 seeking orders that this proceeding be transferred to the Federal Court or, in the alterative, that it be stayed until the Federal Court proceeding is determined. The applicant opposed the transfer of the proceeding but consented to a stay in the event that a transfer was not ordered.
The respondents submitted that the two proceedings were associated within the meaning of s.19 of the Federal Magistrates Act 1999 (“Act”) and that this provided an effectively unanswerable case for its transfer. It was also submitted that:
a)if the applicant was successful in the Federal Court then that would render this proceeding otiose;
b)by bringing two proceedings in two separate courts, both of which raised the correctness and lawfulness of the second respondent’s decision, the second proceeding, the one in this Court, could be considered vexatious;
c)in any event if the two proceedings were heard together in the Federal Court (on the assumption that following a transfer they would be consolidated) they would be heard and determined at less cost and with more convenience to the parties than if this proceeding was not transferred; and
d)it was not likely that this proceeding would be heard more quickly were it to remain in this Court than if it would if it were transferred to the Federal Court.
The threshold issue is whether the matter the subject of this proceeding and the matters the subject of the Federal Court proceeding are associated. I accept that, if they are, the case for transfer is unanswerable unless the applicant is willing to have this proceeding treated as a nullity, a proposition to which he gave no indication of agreement. In this regard, s.19 of the Act provides:
19 Proceedings not to be instituted in the Federal Magistrates Court if an associated matter is before the Federal Court or the Family Court
(1) Proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court.
(2) …
(3) If:
(a) proceedings are instituted in the Federal Magistrates Court in contravention of subsection (1); and
(b) the proceedings are subsequently transferred to the Federal Court or the Family Court;
the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
That section is immediately preceded in the Act by s.18 which confers jurisdiction on this Court in associated matters. It seems tolerably clear from the juxtapositioning of these two provisions that “associated” was intended to have the same meaning in both of them. It is also apparent that the parliament’s intention was that matters which could be disposed of in one proceeding should be, rather than have parties litigate some matters in this Court and others in other courts.
The explanatory memorandum to the Federal Magistrates Bill 1999 explained the provisions that are now ss.18 and 19(1) in the following terms:
Clause 18–Jurisdiction in associated matters
30. Clause 18 gives the Federal Magistrates Court jurisdiction to deal with all matters associated with any matter that is within the jurisdiction of the court. The purpose of this provision is to avoid multiple proceedings by conferring jurisdiction on the Court in associated matters, which may be outside the jurisdiction of the Court, which must be disposed of at the same time as the matter before the Court so that the matter may be completely and finally determined. This provision is based on section 32 of the Federal Court of Australia Act 1976.
Clause 19–Proceedings not to be instituted in the Federal Magistrates Court if an associated matter is before the Federal Court or the Family Court
31. Subclause 19(1) provides that proceedings must not be instituted in the Federal Magistrates Court if associated proceedings have been commenced in the superior court. This is to ensure that matters are completed in the Court in which they commenced and that parties do not seek to have the same matter dealt with in the Federal Magistrates Court by filing similar proceedings in that court.
When considering the issue presently before the Court, it is to be recalled that one proceeding may contain more than one federal matter if those matters are associated. The Court’s associated jurisdiction is to be distinguished from its accrued jurisdiction where the test is whether different claims form part of the one controversy and thus the one matter. In American Optical Corporation v Allergan Pharmaceuticals Pty Ltd (1985) 4 IPR 1 Beaumont J said:
Whether the two sets of claims are “associated” for the purposes of s.32 [of the Federal Court of Australia Act 1976] is, of course, a question of degree. (at 4)
Reflecting the essentially factual inquiry involved in determining whether one matter is associated with another, in PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520 at 524-525 [10] Gaudron J said by reference to Fencott v Muller (1983) 152 CLR 570 that it is a question of “practical judgment” whether one federal matter is associated with another federal matter. Her Honour’s approach was cited with apparent approval in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 29-30 [29].
In Costa Vraca Pty Ltd (ACN 005 913 431) v Bell Regal Pty Ltd (ACN 076 871 648) [2003] FCAFC 305 consideration was given to the circumstances in which two federal matters would be considered to be associated. In that case, the damage claimed in one was, in effect, the damage claimed in the other and the two claims were plainly part of the same controversy or matter. The Full Court concluded that even if the characterisation of the matters as being one matter was wrong, the second matter was “plainly an associated matter within the meaning of s.32 of the Federal Court of Australia Act 1976, a concept which should not be read down” (at [22]).
In O’Neil v Wratten (1986) 65 ALR 451, which was referred to with approval by Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 501, Jackson J expressed the view at 459 that one federal matter would be associated with another if it arose out of facts which were substantially the same as, or were closely connected with, those involved in the determination of the principal matter.
It is therefore a matter of identifying what, in each proceeding, is the matter the subject of the controversy. In this case, the matter is whether the respondents’ decisions amounted to discriminatory conduct in contravention of the Sex Discrimination Act 1984. In the Federal Court proceeding, the annexures to the affidavit of the respondents’ solicitor, Mr Iacuzzi, sworn 29 April 2011 reveal that the matters in issue are whether the Tribunal misapplied s.32 of the Insurance Contracts Act 1984 when considering the operation of a life policy and whether it failed to take into account a relevant consideration and took into account an irrelevant consideration when considering how the superannuation death benefit was to be allocated.
Although both proceedings arise, at least in part, out of the decision to refuse to pay the deceased’s superannuation death benefit to the applicant, that is their only commonality. This is not a situation such as seen in PCS Operations v MUA, Superstar Australia Pty Ltd v Coonan & Denlay Pty Ltd (1981) 57 FLR 110 or Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340, where the resolution of the various federal matters in each case would essentially turn on conclusions drawn from one set of facts. This case will be decided by evidence concerning whether, by reference to the relevant comparators, the respondents discriminated against the applicant. The Federal Court proceeding will be determined by reference to administrative law tests and will be concerned with the decision of the Tribunal, not with the actions of the second respondent. Findings in one proceeding will not determine the outcome of the other proceeding, except to the extent that it might make the pursuit of the second proceeding unnecessary. As a matter of practical judgment, I do not conclude that the matters for determination in this matter are sufficiently related to the matters to be determined in the Federal Court proceeding that they should be considered to be associated for the purposes of s.19 of the Act. As a result, it is not necessary to transfer this proceeding to the Federal Court because it has been instituted in this Court in contravention of s.19.
It is therefore necessary, by reference to the matters which the relevant provisions of the Act and the Court’s Rules require me to consider, to address the other matters advanced by the respondents in support of their application to transfer this proceeding to the Federal Court. Section 39 of the Act relevantly provides:
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
Rule 8.02(4) of the Rules provides:
(4) In addition to the factors required to be considered by the Court under subsections 39 (3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Turning first to the matters referred to in the Court’s Rules and the matters which were specifically addressed by counsel for the respondents, I am not persuaded that a transfer would result in this proceeding being heard and determined at less cost, with more convenience to the parties or more quickly than if it were not. It seems unlikely, were the proceeding to be transferred, that allegations of sex discrimination would be heard at the same time as the appeal against the Tribunal’s decision, even if the two proceedings were to be consolidated. Not only are the two proceedings quite disparate in the issues presenting for determination but they will also require different evidence and distinct arguments. Moreover, the reasons which have led the parties to agree to a stay of this proceeding should it not be transferred to the Federal Court would be likely to be similarly persuasive in the Federal Court and lead to this proceeding awaiting the outcome of the appeal against the Tribunal’s decision. After all, if success by the applicant in the Federal Court proceeding would render the proceeding in this Court otiose, such an outcome would render it just as otiose in the Federal Court. For these reasons, it does not appear to me that any reduction of costs, increase in convenience or speed is likely to result from a transfer of this proceeding to the Federal Court. To the contrary, once the appeal against the Tribunal decision is decided, there is a good chance that the sex discrimination claims, if reactivated, would be heard more quickly in this Court than in the Federal Court.
I have already noted the applicant’s objection to the proposed transfer. I also observe that this proceeding is unlikely to involve questions of general importance such that it would be desirable for it to be transferred to the Federal Court or that there are available in one Court, but not the other, particular procedures appropriate to a proceeding involving allegations of sex discrimination.
I am satisfied that the resources of this Court are quite sufficient to hear and determine this proceeding, noting that they are unlikely to require extensive case management or interlocutory argument. Further, to the extent that document management might be a consideration, it is to be noted that in general federal law matters, this Court’s registry services are provided by the Federal Court.
Finally, I am not of the view that the interests of the administration of justice require that the proceeding be transferred. Although it is undoubtedly inconvenient for the respondents, as it may be for the applicant, for there to be two proceedings seeking essentially the same financial outcome, the above discussion demonstrates that the proceedings have very different sources, one involving the Tribunal and the other requiring as a preliminary step a complaint to the Australian Human Rights Commission. In circumstances where the determination of one proceeding will not necessarily determine the outcome of the other, even in a practical sense, and where the matters on which they are based are not associated for the purposes of ss.18 or 19 of the Act, the commencement of separate proceedings could not properly be considered to be vexatious or an abuse of process.
Conclusion
For these reasons, I find that a case for the transfer of this proceeding to the Federal Court is not made out with the result that, to that extent, the respondents’ application will be dismissed. However, in light of the agreement of the parties, this proceeding will be stayed pending the outcome of the appeal proceedings in the Federal Court.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 May 2011
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