Chia v Talaria Asset Management Pty Ltd
[2023] FedCFamC2G 1101
•30 November 2023
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
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.
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 pursuant to Rule 8.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
The applicant opposes the transfer application.
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.
No response was received from the parties.
On 17 October 2023, the Court made the following orders (which were provided to the parties):
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.
On 23 October 2023, the respondents’ representative filed the respondents’ submissions on application to change venue (“RS”).
On 30 October 2023, the applicant filed the applicant’s submissions in opposition of the application to change venue (“AS”) and a supporting affidavit (the “Chia affidavit”).
APPLICABLE PRINCIPLES
Division 3 in Part 6 of Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “Act”) addresses the conduct of proceedings in Division 2 of this Court. In particular, s 184 of the Act references the change of venue for a proceeding and, relevantly, provides as follows:
184 Change of venue
The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, at any stage of a proceeding in the Court, order that:
(a) the proceeding; or
(b) a part of the proceeding;
be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.
Rule 8.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) provides for a request by a party to a proceeding for a change of location and, relevantly, provides as follows:
(1)A party who files an application or a response in a proceeding may apply to have the proceeding heard in another registry of the Court.
In considering such an application, the Court must have regard to the factors set out in r 8.01(2) of the Rules, as follows:
(a)the convenience of the parties; and
(b)the limiting of expense and the cost of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.
In National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162 (“Sentry”), the Full Court of the Federal Court of Australia (the “Full Court”) explained as follows in relation to an application to transfer proceedings from Victoria to New South Wales:
There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere.
…
The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
The Sentry principles were most recently confirmed by the Federal Court of Australia (the “Federal Court”) in Moss v Contracoin Pty Ltd [2023] FCA 125 (“Moss”). In Moss, the Federal Court explained:
19.There must be sound reason to make an order to transfer proceedings. No one factor is determinative of whether an order to transfer the proceedings should be made. The decision falls to be made in the context of the national character of the Court and taking into account the capacity of the Court to make arrangements to facilitate case management, interlocutory hearings and, where appropriate, aspects of the final hearing being conducted via electronic platforms which enable remote appearances or attendances. It is well recognised that the Court should be flexible in exercising its discretion under s 48 of the Act and that it may be appropriate depending on the particular circumstances and context for one Registry to conduct pre-trial management while allocating the trial to a judge in another Registry: National Mutual at 162; Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49 at [10].
The Full Court in Sentry also identified the following factors (cited in Picos v Healthengine Pty Ltd & Anor [2014] FCCA 640 (“Picos”)) which may be taken into account when considering a transfer application like the one currently before this Court:
(a)the residence of the parties;
(b)the residence of the witnesses;
(c)any expense to the parties;
(d)the place where the cause of action arose; and
(e)the convenience of the court itself.
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.
CONSIDERATION
Mandatory 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.
The applicant has referenced costs for counsel (above) and cited those costs as being an additional burden should the matter be transferred to Melbourne. The Court notes, however, that there is no legal representative currently appointed to represent the applicant and, whilst the applicant submits that she “intends to engage a Perth based counsel for the final hearing”, there is no evidence before the Court that she has done so at this stage. The applicant could arguably choose to engage Melbourne based counsel in the event that the matter is transferred to Melbourne.
The Court considers that, on the basis that the applicant (who has yet to engage legal counsel) could appoint representatives in Melbourne, the cost of the proceeding would be limited by transferring the matter to Melbourne.
Whether the matter has been listed for final hearing
This matter has not yet been listed for any final hearing. As set out above, the matter was only commenced on 21 August 2023 and the matter came before the Court for the first time on 3 October 2023. As such, no orders have been made to facilitate the filing of any further evidence in relation to the substantive application or to programme the matter to trial at this stage.
In circumstances where there is no final hearing date and where the transfer application has been made at the start of the proceeding, the transfer of the proceeding to Melbourne would not result in any delay in the matter being heard or otherwise disrupt any programming orders already in place.
This weighs in favour of transferring the matter.
Any other relevant matter
In determining what other factors may be relevant to the present matter, the Court has had regard to the guidance provided in Sentry (as set out above). The Court’s consideration of the “other relevant matters” in that regard are set out below.
Residence of the parties
The applicant resided in Perth but relocated to Melbourne “in or around June 2022” in order to commence her role with the first respondent (Chia affidavit at [8]).
In her application dated 21 August 2023, the applicant lists a Perth address as her address for service.
However, in the Chia affidavit, the applicant advises that she left Melbourne and moved back to Perth in September 2023 (Chia affidavit at [16]).
On the basis of the information in the Chia affidavit, the Court is satisfied that, at the time that the application was commenced in this Court (that being 21 August 2023), the applicant was still residing in Melbourne.
The offices of the first respondent are located in Melbourne (Gardner affidavit at [16a]).
The second and third respondents both reside in Melbourne (Gardner affidavit at [16b]).
Overall, one party resides in Perth. The remaining three live in Melbourne.
The information above weighs in favour of transferring the matter to Melbourne.
Residence of the witnesses
The applicant submits that she intends to call two witnesses at the hearing of the substantive application in this matter (AS at [16]). The applicant provides additional detail in the Chia affidavit about those witnesses, explaining that:
(a)she “had a support person for a meeting” she had with the respondents (whilst she was still employed by the first respondent) and that person, who will “be a key witness” at the final hearing in this matter, resides in Perth (Chia affidavit at [17]); and
(b)one of the applicant’s family members, who will also be a witness at the final hearing of this matter, also resides in Perth (Chia affidavit at [18]).
The respondents submit that, depending on how the applicant “puts her case and the evidence she puts into contention”, they anticipate calling between two and four witnesses. They also submit that this is “aside from the need of any evidence from third parties such as [the first respondent’s] workers’ compensation insurer.
Whilst the witness lists for both the applicant and the respondents have not yet been finalised (given the early stage of the proceeding), it appears likely that the parties will have at least the same number of witnesses (that is, two witnesses) on each side.
On the basis of the information detailed above, the Court gives this consideration neutral weight.
The place where the cause of action arose
The place where the cause of action arose is often a crucial issue for consideration by the Court. In Picos, Judge Lucev relevantly stated:
82.In Ejueyitsi v Commissioner of Police (Western Australia) [2012] FMCA 775 the Federal Magistrates Court granted the respondent’s application to transfer the proceedings from the Melbourne registry to the Perth registry of the Federal Magistrates Court, two of the crucial issues being that:
a) the matter arose in Western Australia; and
b)the incidents occurred in Western Australia, and the cause of action was, therefore, in Western Australia.
Here, the matter arose in Melbourne. The events alleged by the applicant relate to the her employment with the first respondent. That employment was based in Melbourne. Further, the offices of the first respondent are located in Melbourne and the “majority” of the applicant’s working hours were spent in attendance in that Melbourne office (see the Gardner affidavit, p 4). The applicant does not appear to dispute this information, noting in the SOC that under the terms of her employment, she was to work from the first respondent’s “head office” in Melbourne (SOC at [3b]).
The Court is of the view that the cause of action was in Melbourne.
This weighs heavily in favour of transferring the matter.
Other relevant considerations
The applicant’s health concerns
The applicant has raised concerns about the potential impact of any transfer on her health (AS at [14]-[15]).
In particular, the applicant states that she “had to relocate back to Perth for health and financial reasons” (AS at [14]), that she “has a support network” in Perth and that the transfer of the application to Melbourne “may have a detrimental impact” on her recovery and on the “running of the matter … as a self represented litigant” (AS at [15]).
The Court is sympathetic to the concerns raised by the applicant in this regard and understands that court proceedings can be stressful for the parties involved. The Court notes, however, that there is no concrete medical evidence before the Court that the applicant’s health or recovery will suffer if the matter is transferred to Melbourne.
In the absence of any medical evidence to support the applicant’s assertion that the transfer of the matter to Melbourne would detrimentally impact her health, the Court considers that the conduct of this proceeding (as with any form of litigation of this sort) will be stressful for the applicant regardless of the location of these legal proceedings.
The Court gives this consideration neutral weight.
Breach of contract claims
The respondents submitted that the applicant’s “contract of employment provided that it was governed by the laws in force in Victoria” and that this was particularly relevant where the applicant “makes common law breach of contract claims” and that “the parties submit to the non-exclusive jurisdiction of the Courts in Victoria” (RS at [38]).
The applicant, in turn, submits that “a contractual choice of law clause” alone is “not an especially significant factor in considering whether to transfer the proceedings”.
While the Court acknowledges that it is a factor for consideration that the applicant’s employment contract indicates that it is governed by the laws in Victoria, the Court agrees that this is not an especially significant factor: The Australian Steel Company (Operations) Pty Ltd v Steel Foundations Ltd & Anor [2003] FCA 374 at [87].
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.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 November 2023
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