Fair Work Ombudsman v Macquarie Technology Group International Pty Ltd

[2017] FCCA 867

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIR WORK OMBUDSMAN v MACQUARIE TECHNOLOGY GROUP INTERNATIONAL PTY LTD & ANOR [2017] FCCA 867

Catchwords:
INDUSTRIAL LAW – Alleged contravention of orders made by Fair Work Commission.

PRACTICE & PROCEDURE – Application in a Case for transfer to another Registry of the Court – consideration of factors under Rule 8.01 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Fair Work Act 2009 (Cth), ss.405, 550, 611

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 8.01

Applicant: FAIR WORK OMBUDSMAN

Respondent: MACQUARIE TECHNOLOGY GROUP INTERNATIONAL PTY LTD AS TRUSTEE FOR THE MTGI TRUST TRADING AS MACQUARIE TECHNOLOGY GROUP INTERNATIONAL ACN 123 183 451

File Number: SYG 3388 of 2015

Judgment of: Judge Nicholls

Hearing date: Matter decided on the papers

Date of Last Submission: 21 April 2017

Delivered at: Sydney

Delivered on: 5 May 2017

REPRESENTATION

Applicant: Fair Work Ombudsman

Respondents: Second respondent in person and on behalf of the first respondent

ORDERS

1. The application made on 14 December 2015 is transferred to the Brisbane Registry of the Court pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3388 of 2015

FAIR WORK OMBUDSMAN

Applicant

And

MACQUARIE TECHNOLOGY GROUP INTERNATIONAL PTY LTD AS TRUSTEE FOR THE MTGI TRUST TRADING AS MACQUARIE TECHNOLOGY GROUP INTERNATIONAL ACN 123 183 451

First Respondent

PAUL DESMOND WALLACE

Second Respondent

REASONS FOR JUDGMENT

1. On 14 December 2015 the Fair Work Ombudsman (“FWO”) commenced proceedings in this Court, alleging that the first and second respondents (“the respondents”) contravened various orders made in proceedings before the Fair Work Commission (“FWC”).

2. For the sake of clarity I note that the first respondent is a company, and the second respondent (“Mr Wallace”) is the sole director of the first respondent. The FWO claims that an “unfair dismissal order” and an associated “costs order” were awarded by the FWC in the favour of a former employee of the first respondent. The FWO submits that when the first respondent did not pay the amounts due under the orders made by the FWC, the first respondent contravened s.405 and s.611(3) of the Fair Work Act 2009 (Cth) (“the Act”) (see [23] and [29] of the FWO’s Statement of Claim (“SOC”) filed on 14 December 2015). Further, by reason of s.550(1) of the FWA, Mr Wallace has also contravened s.405 and s.611(3) of the FWA (see [35](b) and (d) of the SOC).

3. The matter first came before me on 3 February 2016. Since that time, various orders have been made for the progress of the matter. The matter was subsequently listed for directions on 15 February 2017. On this date, the first respondent and Mr Wallace did not appear. The matter was subsequently listed for directions on 29 March 2017. On this date, Mr Wallace appeared by telephone and requested leave to also appear for the first respondent. The applicant did not object, but did note that the first respondent had previously filed a Notice of Address for Service on 10 February 2016 indicating that it was legally represented. Mr Wallace indicated that the first respondent’s legal representative was in the process of ceasing to act for the first respondent, and a “Notice of Withdrawal of Solicitor” was subsequently filed on 12 April 2017. [I note that the first respondent was represented by counsel. Nonetheless he elected to formally notify his “withdrawal” by way of this form notice.]   

4. During the course of that same directions hearing, Mr Wallace asked that the proceedings be transferred to the Brisbane registry of this Court. In essence, he asserted he was self-represented, was living in Brisbane, and was able to rely on the support available to him in Brisbane to respond to the application made against the respondents.

5. The applicant opposed this course of action. In this light, I gave the parties the opportunity to file material in support of their respective positions. I proposed, and they agreed, that I would then proceed to determine this question on the papers, in light of what they had filed.

6. On 12 April 2017, Mr Wallace formally filed an Application in a Case (“the first AIC”) in which he seeks the following orders:

   “1. The matter be transferred to the QLD Registry.

   2. The matter be stayed until after the Attorney Generals investigation is dispended with.”

   
   
   [Errors in original.]

7. Mr Wallace has also filed an affidavit made by him on 12 April 2017.

8. Mr Wallace has also presented a second Application in a Case (“the second AIC”), but which, at this time, has not been accepted for filing. The second AIC seeks the following orders:

   “1. That the matter be stayed until the investigation by the Attorney General, Senator Brandis, currently being considered, into the claimed malfeasance by the related former Fair Work Commission Member, be dispensed with, or

   2. That the matter proceed to mediation.”

9. The applicant filed an affidavit made by Teresa Jane Dwight, Senior Lawyer, employed by the applicant, made on 28 March 2017.

10. It is to be noted that neither affidavit has been formally read into evidence. Nevertheless, as agreed by the parties, I proceeded to consider the material in these documents for the purposes of the application to transfer the proceedings to the Brisbane Registry of this Court.

11. Rule 8.01 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) is in the following terms:

    “Rule 8.01

    Change of venue

    (1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.

    (2) In considering an application, the Court must have regard to:

    (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.” 

12. Mr Wallace has not filed a formal Response on his behalf in these proceedings. However, it is appropriate, given the early stage of these proceedings, that the requirement in r.8.01(1) of the FCC Rules be waived pursuant to r.1.06 of the FCC Rules given the circumstances presented. A Response was filed on 1 March 2017 on behalf of the first respondent, which also indicated it was prepared by the second respondent.

13. Therefore, the issue to be determined is whether having regard to the matters set out at r.8.01(2) of the FCC Rules, the order to transfer the proceedings to the Brisbane Registry of this Court sought by Mr Wallace, should be made.

14. Mr Wallace’s argument is essentially as follows.

15. First, prior to filing his first AIC and affidavit, Mr Wallace had, on 5 April 2017, received email communication from Ms Dwight which indicated the applicant’s willingness to consent to the transfer of the proceedings to the Brisbane Registry of this Court. He states that he was told that “proposed orders” to this effect would be sent to him (the email is not attached to his affidavit). As he had not subsequently received anything from Ms Dwight, he felt compelled to file his first AIC.

16. Second, the balance of convenience favours the respondents, as neither has “resources” in Sydney, whereas the Fair Work Ombudsman has “resources” (offices) in Brisbane.

17. Third, Ms Dwight is employed by the applicant and, as shown in her affidavit, is the “acting principal lawyer” in this matter. Ms Dwight is based in Brisbane.

18. Fourth, while the respondents were previously represented by counsel in Sydney (Mr Duc of Counsel), that representation has been withdrawn.

19. Ms Dwight’s argument on behalf of the applicant is as follows.

20. First, while she, along with Mr Leahy, who is a principal lawyer with the applicant in Sydney, have had “supervision” of this matter since January 2017, the lawyer with “carriage” of the matter (Mr Steven Tan), is in Sydney.

21. Second, Ms Dwight annexes to her affidavit copies of a series of email exchanges and file notes of telephone conversations with Mr Wallace and Mr Duc. The relevant dates are from 13 February 2017 to 28 March 2017. I note that the directions hearing before me occurred on 29 March 2017.

22. Third, Ms Dwight asserts that there were a number of “previous proceedings relevant to this matter”. There are six matters listed. How they are directly relevant to the current proceedings is not made entirely clear.

23. In any event, it appears that the argument is that in other matters involving the first respondent, Mr Wallace and the applicant, the conduct of the various proceedings and the hearings of these matters proceeded as follows ([19] of Ms Dwight’s affidavit):

    a. Fair Work Commission in Sydney. The second respondent appeared on behalf of the first respondent by video link from Brisbane.

    b. Fair Work Commission Full Bench in Sydney. The second respondent appeared on his own behalf by video link from Brisbane.

    c. Fair Work Commission in Sydney. Application for costs. No appearance by the first respondent.

    d. Fair Work Commission in Sydney. Appeal against costs. Second respondent appeared by telephone link from Brisbane.

    e. Fair Work Commission in Sydney. Appeal against costs before a Full bench in Sydney. Mr Duc appeared on behalf of the respondents.

    f. Federal Court appeal in Sydney. Mr Duc appeared for the respondents.

24. Fourth, Mr Duc of counsel is in Sydney and “remains on the record”.

25. For the reasons that follow, the matter should be transferred to the Brisbane Registry.

26. The balance of convenience weighs heavily in favour of the respondents. Mr Wallace lives in Brisbane. In some of the matters referred to by Ms Dwight (see [23] above), Mr Wallace appeared by telephone or video link from Brisbane for hearings held in Sydney. It is possible that a similar facility could be made available to him if the proceedings remained in Sydney.

27. However, in my view, while such facilities are obviously available, they do not provide the same level of opportunity for a party to be heard as compared to a physical presence at a hearing. This is particularly so when the party is legally unrepresented, and the other side has legal representation.

28. Those proceedings set out above at [23], where Mr Wallace appeared by either video link or telephone, were all matters before the FWC. It is not for this Court to comment on the efficacy of such “electronic” participation at a hearing before the FWC.

29. However, in this Court, my experience is that, particularly at a final hearing involving any cross-examination of witnesses, a party appearing by such means who is legally unrepresented would be at a disadvantage in comparison to a party appearing in person.

30. I note that in the matters above (at [23]), the other two matters listed by Ms Dwight (see [23](e) and [23](f) above), the respondents were represented by counsel. Since the filing of her affidavit, a document has been filed by the first respondent (“Notice of Withdrawal of Solicitor”), in which Mr Duc indicates that he is no longer acting for the first respondent or Mr Wallace. They are therefore legally unrepresented. While Mr Wallace indicated that he had some support in Brisbane, I did not understand this to be an assertion of obtaining legal representation in Brisbane. But even if that were the case, that could also weigh in favour of the transfer to the Brisbane Registry of this Court.

31. The applicant in these proceedings is a Commonwealth body with offices both in Sydney and Brisbane. While Ms Dwight states that the lawyer with carriage of the matter is in Sydney, it is clear, in my view, given the correspondence set out in her affidavit, that she has taken an active and direct role in the conduct of the matter currently before this Court.

32. It may be that Mr Tan has immediate knowledge of the “earlier” proceedings which may provide a background to the current proceedings. However, given Ms Dwight’s active role in the current proceedings as an acting principal lawyer of the applicant, and given the availability of Mr Tan who is employed by the applicant to “brief” her on this background, this also favours the respondents in the balance of convenience in transferring the matter to the Brisbane Registry of this Court.

33. Ultimately, the respondents are unrepresented. The applicant on the other hand, has legal resources available within its own organisation in Brisbane. Even if Mr Tan, who is in Sydney, has some greater knowledge about the background of the earlier matters, or even of the current proceedings, there is nothing to indicate that this could not be satisfactorily communicated to Ms Dwight in Brisbane. In any event, on her own assertion, Ms Dwight has been able to access the “[a]pplicant’s file and records held by the FWO” (see [3] of Ms Dwight’s affidavit).

34. Plainly, Mr Wallace would be put to additional expense and costs if this matter were to remain in Sydney, as opposed to it being transferred to Brisbane. Given the applicant’s resources in Brisbane and the presence of its lawyers in Brisbane, the comparative cost to the applicant would be the lesser.

35. Further, even if the applicant were to seek to use counsel in Sydney as suggested by Mr Leahy who appeared for the applicant before this Court on 29 March 2017, that is a decision to be made by the applicant in circumstances where, as a Commonwealth instrumentality, its resources would be expected to be greater than those of Mr Wallace.

36. In any event, notwithstanding any counsel who may have “prior” knowledge of the earlier matters referred to by Ms Dwight, I have no doubt there are many competent counsel available in Brisbane who would be able to appropriately prepare for any final hearing of this matter in that venue.

37. This matter has not been listed for a final hearing. It is in fact at a much earlier stage. While Ms Dwight may see these proceedings as some “continuation” of the earlier matters, it still remains that this is a separate matter before this Court, which has not proceeded, in essence, beyond the early directions stage.

38. In both the “first” and “second” AICs, Mr Wallace seeks an order that these proceedings be stayed pending “investigation” of his complaint to the Attorney-General about a former Fair Work Commission member.

39. Given that the application should be transferred to the Brisbane Registry of this Court, the consideration of that matter is more appropriately one for the Brisbane Registry and the Judge in whose docket this matter is placed.

40. In any event, even if I were required to consider this matter, I can say for Mr Wallace’s benefit, that I would have required further from him as to why such an order should be made.

41. In his “second” AIC, Mr Wallace indicates a willingness to attend mediation. In my view, such a process would be facilitated if the matter were to be transferred to Brisbane. Mr Wallace would be able to attend in person without the cost of travelling to Sydney. The applicant who already has offices in Brisbane, and lawyers in Brisbane, would not be subject to the same disadvantage. This is however, also a matter for the Judge in Brisbane in whose docket the matter is placed.

42. It is therefore appropriate in the circumstances that the matter be transferred to the Brisbane registry of this Court. I will make that order. Therefore, the applicant’s first AIC is allowed in part. The remainder of that AIC and the “second” AIC (subject to its being accepted for filing) are to be transferred with the substantive application to the Brisbane Registry of this Court.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 5 May 2017