BASHOUR v Australia and New Zealand Banking Group Ltd

[2014] FCCA 3117

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASHOUR v AUSTRALIA & NEW ZEALAND BANKING GROUP LTD [2014] FCCA 3117

Catchwords:
INDUSTRIAL LAW – Fair work – claim of adverse action – transfer to Federal Court, where associated matter pending.

Legislation:
Fair Work Act2009
Federal Circuit Court of AustraliaAct1999, ss.39(4), 40(4)
Federal Circuit Court of Australia Rules 2001, r.8.01(2)

Applicant: KATHERINE BASHOUR

Respondent: AUSTRALIA & NEW ZEALAND BANKING GROUP LTD

File number: MLG 1596 of 2014

Judgment of: Judge Riley

Hearing date: 7 August 2014

Date of last submission: 7 August 2014

Delivered at: Melbourne

Delivered on: 7 August 2014

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Solicitor Advocate for the Respondent: Mr Tamvakologos

Solicitors for the Respondent: Seyfarth Shaw Australia

UPON THE RESPONDENT UNDERTAKING through its solicitor, Mr Tamvakologos, that the respondent will not, until the application for interim relief is heard by the Federal Court of Australia:

(a)implement or apply any disciplinary outcome against the applicant; or

(b)request the applicant to participate in the disciplinary process; or

(c)issue the applicant with formal directions.

ORDERS

1. Pursuant to section 39 of the Federal Circuit Court of Australia Act 1999, these proceedings be transferred to the Melbourne Registry of the Federal Court of Australia to be listed on a date to be advised.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1596 of 2014

KATHERINE BASHOUR

Applicant

And

AUSTRALIA & NEW ZEALAND BANKING GROUP LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. This is an adverse action matter arising under the Fair Work Act2009. The applicant seeks interim interlocutory injunctions in the following terms:

   a)the respondent be restrained from terminating the applicant’s employment until the hearing of this matter; and

   b)the respondent be restrained from making formal directions to the applicant whilst she is on maternity leave in compliance with the applicant’s medical reports.

2. The respondent seeks an order that the matter be transferred to the Federal Court.  There is already an existing proceeding in the Federal Court which involves the same parties.  It concerns somewhat different matters.  They include an alleged denial of promotion, an alleged unlawful discrimination and an alleged breach of the terms of the applicant’s contract relating to flexible working arrangements.

3. The respondent is prepared to give an undertaking that it will not, until the application for interim relief is heard by the Federal Court of Australia:

   a)implement or apply any disciplinary outcome against the applicant or,

   b)request the applicant to participate in the disciplinary process or,

   c)issue the applicant with formal directions.

4. In considering an application for transfer to the Federal Court, the court is required to apply s.39(4) of the Federal Circuit Court of AustraliaAct1999.  That subsection requires the court to have regard to:

   a)the rules of court made for the purposes of s.40(4) of the Federal Circuit Court of Australia Act 1999;

   b)whether proceedings in respect of an associated matter are pending in the Federal Court;

   c)whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and

   d)the interests of the administration of justice.

5. The rules of this court concerning transfers are in r.8.01(2).  That rule requires the court to have regard to:

   a)the convenience of the parties;

   b)the limiting of expense and the cost of the proceeding;

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

   d)any other relevant matter. 

6. It seems to me that, although the applicant opposes the transfer of the proceedings, it would be overall more convenient for the parties if the matter were transferred to the Federal Court. 

7. There is a present date for final hearing, I am told, in the Federal Court which is a date in November 2014.  There is some risk that if this matter is joined with the existing matter in the Federal Court that the final hearing date will be lost.  However, it seems to me that if the parties are able to pursue their claims diligently it would be possible for the hearing date in the Federal Court to be maintained.  Having one hearing in one court rather than two hearings in two different courts would overall be more convenient for the parties.

8. It would also be less costly to the parties to have one hearing in one court rather than two hearings in two different courts. 

9. As I have noted, the matter is listed for final hearing in the Federal Court.

10. The matter in the Federal Court is an associated matter.  All of the issues in both this application and in the Federal Court application are matters concerning the applicant’s employment.  Exactly the same parties are involved in both matters.

11. The next matter to consider is the resources of this court.  The court could hear this matter but not before well into next year.  It is a matter that is likely, in my view, to take a number of days, not least because the applicant is not represented.  There would be some pressure on the resources of this court if it were required to hear the matter.

12. The next factor is the interests of the administration of justice. In a case such as the present, where there are the same parties and a number of related issues and allegations, it does seem to me to be in the interests of the administration of justice that the one court hears all of the issues in dispute between the two parties. If there were separate hearings in separate courts, there would be a risk of conflicting judgments about such issues as credibility and a risk of inconsistent fact-finding between the two courts. The respondent will give the court an undertaking that will protect the applicant’s position on an interim basis.

13. All in all, it does seem to me that this is very much a case where it would be appropriate for the matter to be transferred to the Federal Court. That is the order that will be made, upon the respondent’s undertaking.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  13 February 2015