Chia v Talaria Asset Management Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Chia v Talaria Asset Management Pty Ltd [2023] FedCFamC2G 1101

File number: PEG 175 of 2023
Judgment of: JUDGE KENDALL
Date of judgment: 30 November 2023
Catchwords: PRACTICE AND PROCEDURE – Application in a proceeding requesting transfer of proceeding to Melbourne registry of the Court – factors for consideration – transfer request granted – application in a proceeding successful.   
Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 184 and Division 3 in Part 6 of Chapter 4

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 8.01

Cases cited:

Moss v Contracoin Pty Ltd [2023] FCA 125

National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155

Picos v Healthengine Pty Ltd & Anor [2014] FCCA 640

Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726

The Australian Steel Company (Operations) Pty Ltd v Steel Foundations Ltd & Anor [2003] FCA 374
Division: Division 2 General Federal Law
Number of paragraphs: 64
Date of last submissions: 30 October 2023
Date of hearing: On the papers
Place: Perth
Applicant: Applicant as a self-represented litigant
Counsel for the Respondents: Mr C Gardner
Solicitor for the Respondents: Seyfarth Shaw Australia

ORDERS

PEG 175 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JOY CHIA

Applicant
AND:

TALARIA ASSET MANAGEMENT PTY LTD

First Respondent

ELIZABETH NINNESS

Second Respondent

JAMIE MEAD

Third Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The respondents’ application in a proceeding filed on 10 October 2023 for the proceeding to be transferred to the Melbourne registry of the Court be allowed.

2.The proceeding be transferred to the Melbourne registry of the Court pursuant to s 184 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

3.The proceeding be listed for a directions hearing before a Judge in the Melbourne registry of the Court on a date to be fixed.

4.Costs, if any, be reserved.

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

JUDGE KENDALL:

INTRODUCTION

  1. On 10 October 2023, the solicitor for the respondents in this matter filed an application in a proceeding (the “transfer application”) and supporting affidavit in this Court.

  2. The transfer application seeks the following:

    1.An order that proceeding PEG175/2023 be transferred from the Perth Registry of the Federal Circuit and Family Court of Australia to the Melbourne Registry of the Federal Circuit and Family Court of Australia…

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Details
Case
[2023] FedCFamC2G 1101
Decision Date

CaseChat Overview and Summary

The case of Chia v Talaria Asset Management Pty Ltd involves an application by the applicant, who is self-represented, to transfer a proceeding from the Perth registry of the Federal Circuit and Family Court of Australia to the Melbourne registry. The proceeding, initiated under the Fair Work Act 2009, pertains to the applicant's employment with the first respondent and involves individual defences from the second and third respondents. The respondents are represented by Mr Chris Gardner of Seyfarth Shaw Australia, based in Melbourne. The crux of the dispute revolves around the application filed by the respondents seeking a transfer of the case to the Melbourne registry, citing logistical and practical reasons, including the location of their legal representatives, potential witnesses, and the geographical relevance of the employment events.

The primary legal issue the court had to resolve was whether the proceeding should be transferred to the Melbourne registry of the Federal Circuit and Family Court of Australia. This decision hinged on various factors, including the convenience of the parties, the potential expense and cost of the proceeding, and the health considerations of the applicant. The court also had to weigh these factors against the mandatory considerations outlined in rule 8.01(2) of the Federal Circuit and Family Court of Australia Rules 2021. These considerations include the convenience of the parties, the limiting of expense and the cost of the proceeding, and the health of the parties.

The court determined that the factors in favour of transferring the proceeding to Melbourne outweighed those against the transfer. The court noted that the respondents' legal representatives and witnesses were located in Melbourne, and the events giving rise to the proceeding occurred in Melbourne. Although the applicant argued that Perth was more convenient for her, the court placed neutral weight on this factor due to the evenly balanced inconvenience on both sides. The court also acknowledged the potential expenses incurred by both parties if the proceeding remained in Perth but found that the overall practicalities of having the proceeding in Melbourne were more favourable. Consequently, the court allowed the transfer application, thereby ordering the proceeding to be transferred to the Melbourne registry.

In conclusion, the court's decision was grounded in a careful assessment of the mandatory and discretionary factors pertinent to the transfer of proceedings. The court's ruling reflects a balanced consideration of the convenience, cost, and logistical aspects of the proceeding, ultimately determining that the transfer to Melbourne was in the best interest of justice.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow, the Court considers that this proceeding should be transferred to the Melbourne Registry of this Court and, accordingly, allows the transfer application.BACKGROUND It is unnecessary to set out the history of this matter in detail. However, some context is useful. On 21 August 2023, the applicant filed an application, a Form 2 and a statement of claim (“SOC”) in the Perth registry of this Court (the “substantive application”). The substantive application was made under the Fair Work Act 2009 (Cth) and relates to the applicant’s employment with the first respondent. On 19 September 2023, a response was filed on behalf of the respondents and individual defences were filed on behalf of each of the first, second and third respondents. The applicant is self-represented. She now resides in Perth, having previously resided in Melbourne. The respondents are represented by Mr Chris Gardner (“Mr Gardner”) of Seyfarth Shaw Australia (located in Melbourne). On 3 October 2023, the matter came before this Court for a first court date with the purpose of case managing the proceeding. Both the applicant and Mr Gardner appeared by telephone. Mr Gardner foreshadowed with the Court that he would shortly be filing an application in a proceeding requesting that the proceeding be transferred to the Melbourne registry of the Court on the basis that the solicitors for the respondents are located in Melbourne, the second and third respondents are located in Melbourne, their potential witnesses will be in Melbourne and the applicant’s employment (and, consequently, any alleged events outlined in the applicant’s SOC) took place in Melbourne. The Court, having concluded that it would be useful to first determine the transfer application before making any programming orders in relation to the substantive application, asked Mr Gardner to arrange for the transfer application to be filed by no later than 10 October 2023. As outlined above, the transfer application was filed on 10 October 2023 (with a supporting affidavit affirmed by Mr Gardner on 10 October 2023 (the “Gardner affidavit”)). On 12 October 2023, my Chambers wrote to the parties advising as follows:I refer to the email correspondence below and the documents attached relating to the respondents’ application to transfer the proceedings to the Melbourne registry of the Court.His Honour Judge Kendall has reviewed the documents and proposes to make orders as follows:1.The respondents file any submissions in support of the application to transfer the proceedings to the Melbourne registry of the Court (the “application”) by no later than 23 October 2023.2.The applicant file any submissions in opposition to the application by no later than 30 October 2023.3. The application be determined on the papers.If the parties have any concerns in relation to His Honour’s proposal, they are asked to notify Chambers by close of business on Monday, 16 October 2023. His Honour will otherwise proceed to make the above orders and a copy will be provided to the parties.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court gives little weight in favour of the transfer in this regard.CONCLUSION Having weighed all of the considerations above, both mandatory and discretionary, the Court considers that the factors in favour of transferring the proceeding to Melbourne outweigh those against the transfer. The transfer application will, accordingly, be allowed.

Ratio Decidendi

Legal Principle Established

As outlined by this Court in Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 726, the guidance provided in Sentry is additional to the matters that the Court is required to consider under r 8.01(2) of the Rules. That is, the factors in r 8.01(2) of the Rules are mandatory and the Court must consider them in order to properly exercise its discretion to transfer, or not transfer, the proceedings.CONSIDERATIONMandatory considerations The Court will first address the factors set out in r 8.01(2) of the Rules, being the mandatory considerations in an application to have a proceeding heard in another registry of the Court.The convenience of the parties The applicant submits that “the status quo should be maintained” and that the proceeding remaining in the Perth registry is “of greater convenience of the parties than transferring it to Melbourne”. The applicant also submits that Melbourne “would not be a convenient location for the applicant, the recovery of her personal injury arising solely from the workplace incident(s), and her witnesses” (AS at [19]). The respondents submit that, if the second and third respondents (both of whom hold senior leadership positions with the first respondent) were required to travel to Perth, it would cause inconvenience and disruption to the first respondent’s business. The respondents also submit that this would “also be the case, at least to some extent, if other potential witnesses for the respondents were required to travel to Perth for the hearing”. The issue of the applicant’s health will be discussed separately below. The balance of convenience is otherwise fairly evenly balanced and the Court places neutral weight on this factor.The limiting of expense and the cost of the proceeding The applicant submits that she will “incur considerable expenses” if the matter is transferred to Melbourne, and includes the following items (AS at [20]):(a)return flights for counsel and two witnesses; and(b)accommodation, taxi charges and meal and sundries allowances for counsel and two witnesses for at least two days. The respondents, in turn, submit that, “in addition to the inconvenience associated with the running of the proceeding … interstate”, they will incur travel and accommodation costs for the second and third respondents, the respondents’ “Melbourne based legal representatives” and any Melbourne based witnesses (of which there will be at least two, as will be discussed further below) (RS at [32]). The respondents also submit that there will be a “business cost borne from the loss of time associated with two senior leaders” travelling a significant distance interstate (RS at [33]). The applicant also submits that the respondents “chose to engage Melbourne based solicitors … knowing that [the] matter … originated and was filed in the Perth registry” (AS at [21]). The respondents, however, submit that their legal representatives had “taken instructions in anticipation of and prior to [the applicant] lodging her general protections claim in the Fair Work Commission on 3 July 2023” (RS at [16d]) and thus before the proceeding was commenced in the Perth registry of this Court in August 2023.