Dove v Everforex Financial Pty Ltd
[2022] FCA 1210
FEDERAL COURT OF AUSTRALIA
Dove v Everforex Financial Pty Ltd [2022] FCA 1210
File number: NSD 817 of 2022 Judgment of: ALLSOP CJ Date of judgment: 11 October 2022 Catchwords: PRACTICE & PROCEDURE – application for transfer from Federal Circuit and Family Court of Australia to the Federal Court of Australia – confirmation of transfer order Legislation: Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153
Federal Court of Australia Act 1976 (Cth) s 32AD
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 6 Solicitor for the Applicants: Financial Decisions Legal Pty Ltd Solicitor for the Respondent: Shl & Associates Pty Ltd ORDERS
NSD 817 of 2022 BETWEEN: CHRISTIAN CHARLES DOVE
First Applicant
GFY MARKETS PTY LTD (ACN 629 248 031)
Second Applicant
AND: EVERFOREX FINANCIAL PTY LTD (ACN 115 459 124)
Respondent
AND BETWEEN: EVERFOREX FINANCIAL PTY LTD (ACN 115 459 124)
Cross-Claimant
AND: CHRISTIAN CHARLES DOVE (and others named in the Schedule)
First Cross-Respondent
ORDER MADE BY:
ALLSOP CJ
DATE OF ORDER:
11 OCTOBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth), the order made in SYG2413/2020 on 9 September 2022 by Judge Cameron of the Federal Circuit and Family Court of Australia (Division 2) transferring this proceeding from the Federal Circuit and Family Court of Australia under s 153 of the Federal Circuit and Family Court of Australia Act 2001 (Cth) be confirmed.
2.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
On 9 September 2022, a Judge of the Federal Circuit and Family Court of Australia (Division 2) made orders under s 153 the Federal Circuit and Family Court of Australia Act 2021 (Cth) transferring the proceedings to the Federal Court of Australia. The Judge gave reasons of some 16 pages on that issue and other procedural issues.
The case concerns complaints by Mr Dove, the former Chief Executive Officer of Everforex Financial Proprietary Limited (Everforex), that he was constructively dismissed and that various provisions of the Fair Work Act 2009 (Cth) and other legislation had been contravened. On 28 January 2021, Everforex filed a cross claim against Mr Dove and the company alleging breaches of contractual fiduciary and statutory duties by Mr Dove with the knowing involvement of the company.
Later in 2021 another company, GFY Markets Pty Ltd, joined proceedings at the instance of Mr Dove. The judgment also deals with the procedure and some delays that have occurred. The Judge ultimately permitted the amendments and the further evidence. His Honour came to the view that the matter was now more suitable for the Federal Court of Australia given the questions of fiduciary duty and breaches of the Corporations Act 2001 (Cth) and accompanying equitable principles concerning liability for involvement in those breaches.
Under the recent amendments to the Federal Court of Australia Act 1976 (Cth), under s 32AD of the Act, a confirmation of the Federal Court of Australia is necessary for the order made by the judge to take effect. On 28 September 2022, I caused my Associate to contact the parties to allow them 14 days to put any submissions as to whether the confirmation order should be made, noting that Mr Dove had opposed the transfer. On the 14th day today, my chambers were informed that there was no opposition from Mr Dove.
In my view, the reasons of the Judge make out an appropriate basis for transfer and the transfer orders will be confirmed.
Orders
The court will make the following orders:
1.Pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth), the order made in SYG2413/2020 on 9 September 2022 by Judge Cameron of the Federal Circuit and Family Court of Australia (Division 2) transferring this proceeding from the Federal Circuit and Family Court of Australia under s 153 of the Federal Circuit and Family Court of Australia Act 2001 (Cth) be confirmed.
2.There be no order as to costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. Associate:
Dated: 11 October 2022
SCHEDULE OF PARTIES
NSD 817 of 2022 Cross-Respondents
Second Cross-Respondent
DK INTERNATIONAL PTY LTD ACN 632 006 494
Third Cross-Respondent
GFY MARKETS PTY LTD (ACN 629 248 031)
Fourth Cross-Respondent
MATTHEW STARKEY
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