Chambers v University of Western Australia

[2022] FedCFamC2G 977

Federal Circuit and Family Court of Australia

(DIVISION 2)

Chambers v University of Western Australia [2022] FedCFamC2G 977

File number(s):	PEG 48 of 2021 PEG 106 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	11 November 2022
Catchwords:	INDUSTRIAL LAW – transfer to the Federal Court
Division:	Division 2 General Federal Law
Date of last submission/s:	11 November 2022
Date of hearing:	11 November 2022
Place:	Brisbane
Number of paragraphs:	15
Date of last submission/s:	11 November 2022
Date of hearing:	11 November 2022
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf
Counsel for the Respondent:	Ms Millar
Solicitor for the Respondent:	Hwl Ebsworth Lawyers

ORDERS

PEG 48 of 2021
PEG 106 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SHANE CHAMBERS

Applicant

AND:

UNIVERSITY OF WESTERN AUSTRALIA

Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	11 NOVEMBER 2022

THE COURT ORDERS THAT:

1.Pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) these proceedings be transferred to the Federal Court of Australia at Perth to be listed on a date to be advised.

IT IS NOTED:

A.The application is being transferred pursuant to the protocol agreed between the Chief Judge of this Court and the Chief Justice of the Federal Court of Australia because the matter involves complex issues and this Court does not have sufficient resources to properly hear the matter.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 3 March 2021, the Applicant, Mr Chambers, filed an application in this Court (PEG48/2021) dealing with allegations that he had been underpaid and that the Respondent, the University of Western Australia, had contravened sections of the Fair Work Act 2009 (Cth). On 26 May 2021, on many of the same factual bases, Mr Chambers filed an application (PEG106/2021) arguing that the University engaged in adverse action against him.

2. The matter was originally in the docket of another Judge and was then transferred to my docket to case manage. I ordered that both matters be heard together. I had to do so by the use of Microsoft Teams.  There have been a number of mentions in this Court, mainly for the purpose of the Court trying to understand what it is that Mr Chambers had or was attempting to litigate in this Court.  

3. Those efforts by the Court were hampered by some personal difficulties of Mr Chambers with regard to the timelines that had been put in place as well as the Court wanting matters to be brief and to be able to be understood.

4. At the end of it all, what has been filed, in this Court, is a statement of claim of some 113 pages and an affidavit of some 2400 pages.  The Respondent had wanted, in their original response, to dismiss the whole of the claim because it was vague and inchoate.  That vagueness has been somewhat dissipated by the filing of the statement of claim and the affidavit.  Though having said that, there is still such a voluminous amount of material that it still does take quite some time to, to use the vernacular, get one’s head around it.  There are a total of 20 different claims being made.

5. The matter will require a Court to invest some time so that the 20 claims, which are identified in the statement of claim, can all be properly analysed, particularised and understood.  If it is that the pleading is deficient and that there is no cause of action then, obviously, that claim will not be able to proceed.  But because there are 20 claims, it is a matter that will take quite a long time. 

6. The question is whether this Court has the resources to deal with the matter, and, whether the matter is of such complexity that it is a matter that should be dealt with by the Federal Court. 

7. A short summary of the discernible facts discloses the complexity. There is no doubt that the Applicant was a person who had been completing a PhD at the university.  Because of this, he was working for the University and being paid a stipend.  This is an arrangement that has been the case with PhD students for quite some time.  But, because the Applicant had been part of, according to him at the very least, the authorship of an application for a grant from the State Government, which was ultimately successful, the Applicant was an employee of the University as well. 

8. The Applicant claims that there was no written contract which delineated the duties he had under his PhD obligations and the duties he had as the employee. In fact, he says that there was very much a blurring of lines, even though the University did try to compartmentalise what it was that he was doing.  Without the written contract, it was very difficult to say what duties were for what particular reason. 

9. As it does not seem that there is a written contract, or it certainly has not been found, it is then going to be a complex matter as to what the actual role was.  The issues to be decided by the Court need to include, in effect, a discussion as to the role of PhD students who are being paid a stipend and whether that makes them employees, or whether, if such duties are done and then combined with an actual employment role, that changes the relationship with regard to the PhD candidature such that it morphs from being a position, with a stipend, to a different position with an overall unwritten, but understood, contract between the Applicant and the University. 

10. There is also another complicating factor in that the Applicant suffered a workplace injury and has made a claim through Workers’ Compensation.  There is ongoing litigation in another place regarding the continuation of payments because of that workplace injury.  The questions are going to be asked as to whether the definitions that apply under that State legislation are also then applicable under this Federal legislation. 

11. So not only are there those complex matters of law but, also, there is a great deal of time that would be needed. 

12. To my mind, this Court simply does not the resources to properly consider the matter.  This Court is a Court of large intake and large turnover.  The Court, at the moment, has backlogs of, approximately, 14,000 matters in Family Law and over 16,000 in Migration, and it is that pressure that every Judge within this Court, especially those like myself who have a mixed docket, are under. 

13. Today is the first time I have been able to mention the matter in person.  This is because I am based in Brisbane and this is a Perth matter.  It seems to me, and endorsed by both parties, that any hearing on the merits of the matter needs to occur in person.  This is an extra strain on the resources of the Court.

14. Both parties before me today have expressed that they have no opposition to a potential transfer to the Federal Court; in fact, the Applicant welcomed such a move because his attempts to obtain pro bono legal assistance have been fruitless but, he has been told, those efforts have a hugely increased chance of being successful if the matter were in the Federal Court.

15. When one takes all of those matters into consideration, I am of the view that this is a matter that should be transferred to the Federal Court, and I will begin the process of the protocol which needs to be followed regarding such transfers. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       21 November 2022