Farac v Pendal Group Limited (No 5)
[2023] FedCFamC2G 274
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farac v Pendal Group Limited (No 5) [2023] FedCFamC2G 274
File number(s): SYG 2443 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 14 April 2023 Catchwords: PRACTICE AND PROCEDURE – application for discovery - whether in the interests of the administration of justice – relevant considerations.
PRACTICE AND PROCEDURE – application for discovery – discovery by categories.
Legislation: Fair Work Act 2009 (Cth), s. 340
Federal Circuit and Family Court of Australia Act 2021 (Cth), s. 176
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 1.06, 14.02
Federal Court Rules 2011 (Cth), rr 20.14, 20.15
Cases cited: Farac v Pendal Group Limited (No.3) [2023] FedCFamC2G 220
Farac v Pendal Group Limited (No 2) [2023] FedCFamC2G 215
Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175
Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177
Pan v Hampton Accelerate Pty Ltd [2023] FCA 46
Abrahams v Qantas Airways Ltd (No 2) (2007) 210 FLR 314
Dixon v Watpac Ltd [2022] FedCFamC2G 778
Van den Berg v Monash Health [2022] FCA 796
Division: Fair Work Number of paragraphs: 38 Date of hearing: 22 March 2023 Place: Sydney Counsel for the Applicant: Ms R. Francois Solicitor for the Applicant: Kennedys Counsel for the First and Second Respondents: Mr D. Mahendra Solicitor for the First and Second Respondents: MinterEllison ORDERS
SYG 2443 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER ADAM FARAC
Applicant
AND: PENDAL GROUP LIMITED (ACN 126 385 822)
First Respondent
RICHARD BRANDWEINER
Second Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
14 April 2023
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed on 20 February 2023 be dismissed.
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 CAMERON
INTRODUCTION
In this proceeding the applicant, Mr Farac, has alleged in his further amended statement of claim that Pendal Group Limited (“Pendal”) took various forms of adverse action against him in contravention of s.340 of the Fair Work Act 2009 (Cth) (“FW Act”) and that Mr Brandweiner, the second respondent, was an accessory to those contraventions. Relevant facts were summarised in Farac v Pendal Group Limited (No.3) [2023] FedCFamC2G 220 at [4]-[6]. The matter is listed for hearing on 19 June 2023.
Relevantly, on 13 February 2023 the following orders were made:
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2. The applicant serve on the respondents and provide to the associate to Judge Cameron any draft further amended statement of claim on or before 5pm on 17 February 2023.
3.The applicant file and serve any application for discovery and affidavit in support on or before 20 February 2023.
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5.The respondents file and serve any objection to the applicant's application for discovery and affidavit in support on or before 27 February 2023.
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On 17 February 2023 Mr Farac circulated a draft further amended statement of claim and on 21 March 2023 leave was granted to file that document subject to some excisions. A related application made by the respondents, for the striking out of certain paragraphs of the pleading, was dismissed.
These reasons concern Mr Farac’s application for discovery, on which argument was heard on 22 March 2023.
APPLICATION IN A PROCEEDING
Application in a proceeding for discovery
Mr Farac’s application in a proceeding for discovery, filed on 20 February 2023, sought the following orders:
1.Pursuant to section 176(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act), the Court declares that it is apporpriate [sic] in the interests of the administration of justice to allow discovery in relation to the categories of documents in Annexure A appearing with these orders.
2.In the alterantive, [sic] the proceedings be trasferred [sic] to the Federal Court, pursuant to section 153(1) of the Act.
...
There were 24 categories of documents sought in Annexure A to the application in a proceeding. They covered the communications of key persons, the bonus scheme operated by Pendal, the proposal that Mr Farac return to work following sick leave, special leave (from attendance at work), annual leave and the corporate restructure said to support the alleged redundancy. The categories were:
Communications of Key Persons
1.Emails sent to and from Mr Gor concerning the Applicant during the period 13 March 2019 and 1 October 2021.
2.Electronic Messages sent to and from the Second Respondent concerning the Applicant during the period 13 March 2019 and 1 October 2021.
3.Meeting notes taken by the Second Respondent concerning the Applicant during the period 13 March 2019 and 1 October 2021.
4.Electronic Messages sent to and from Ms Martin concerning the Applicant during the period 13 March 2019 to 14 October 2019.
5.Meeting notes taken by Ms Martin concerning the Applicant during the period 13 March 2019 to 14 October 2019.
Variable Reward
6.Meeting notes taken by any person present at the Committee Meeting.
7.All electronic versions of the report (including any drafts) prepared by the Second Respondent and/or Ms Martin and presented at the Committee Meeting sufficient to enable metadata on each version to be accessed.
Applicant’s return to work
8.Documents recording any concerns held by any employee, agent or officer of the First Respondent about the return to work of the Applicant during the period 26 September 2019 to 13 March 2020.
9.Documents concerning the circumstances in which the Grievance Handling Policy was provided to the Applicant by the First Respondent on 6 December 2019 and on 14 May 2020.
10.[abandoned].
11.[abandoned].
Special Leave & Annual Leave
12.Documents recording any consideration or decision taken by the First Respondent (including information relied upon) with respect to providing the Applicant with special leave in response to the Applicant’s complaints and/or inquiries made on 24 July 2020 and 7 August 2020.
13.Documents recording any consideration or steps taken by the First Respondent in response to the Applicant’s notice on 15 September 2021 to apply for annual leave.
Restructure
14.Documents recording the decision (including information relied upon) of the First Respondent and/or the Second Respondent that Mr Daniel Campbell was suitable and successful for redeployment.
15.Documents recording any decision (including information relied upon) of the First Respondent and/or the Second Respondent and/or Mr Gor that each of the roles referred to in the Chart were not identified for redundancy and/or would be unaffected by the Restructure.
16.Documents recording any decision (including information relied upon) of the First Respondent and/or the Second Respondent and/or Mr Gor that the persons identified in the Chart did not need to be “redeployed” by the First Respondent as part of the Restructure.
17.Documents recording any decision (including information relied upon) of the First Respondent and/or the Second Respondent and/or Mr Gor that Mr George Bishay and/or Ms Amy Xie-Patrick and/or Mr Tim Hext and/or Mr Steve Campbell were more suitable to remain employed with the First Respondent as Portfolio Managers as opposed to the Applicant, following the Restructure.
18.Documents recording any decision (including information relied upon) of the First Respondent and/or the Second Respondent and/or Mr Gor that the “two other Portfolio Managers and two Analysts, will no longer be required and will be made redundant” as referred to in the 28 September Letter.
19.Documents recording any decision (including information relied upon) of the First Respondent and/or the Second Respondent and/or Mr Gor to change the position titles referred to in the Chart for:
(a) Mr George Bishay from Portfolio Manager to Head of Credit and Sustainable Strategies;
(b) Ms Amy Xie-Patrick from Portfolio Manager to Head of Income Strategies;
(c) Mr Tim Hext from Portfolio Manager to Head of Government Bond Strategies; and
(d) Mr Steve Campbell from Portfolio Manager to Head of Cash Strategies.
20.Meeting notes taken by any employee or officer of the First Respondent of any meetings notifying and/or discussing the Restructure with the following employees:
(a) Mr George Bishay;
(b) Ms Amy Xie-Patrick;
(c) Mr Tim Hext; and
(d) Mr Steve Campbell.
21.All Board minutes, Board papers and meeting notes considering or discussing the Restructure in the period January 2021 to October 2021.
22.All electronic word versions of the ‘FIMA Memo_May 2021.docx’ (and any draft or subsequent versions) sufficient to enable metadata on each version to be accessed.
23.Documents identifying the author or authors of the ‘FIMA Memo_May 2021.docx’.
24.Documents recording any communications to or from any employee or officer of the First Respondent in relation to the ‘FIMA Memo_May 2021.docx’.
Mr Farac also sought transfer of the proceeding to the Federal Court of Australia in the event that discovery was unavailable in this Court by reason of the strictures of its statute, the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“Act”).
LEGISLATION AND RULES
The Act relevantly provides:
176 Interrogatories and discovery
(1)Interrogatories and discovery are allowed in relation to family law and child support proceedings in the Federal Circuit and Family Court of Australia (Division 2).
(2)However, interrogatories and discovery are not allowed in relation to any other proceedings in the Federal Circuit and Family Court of Australia (Division 2), unless the Court or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(3)In deciding whether to make a declaration under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge must have regard to:
(a)whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Court or the Judge considers relevant.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“Rules”) relevantly provides:
14.02 Declaration to allow discovery
(1)A declaration may be made under subsection 176(2) of the Act to allow discovery on the application of a party or on the Court’s own initiative.
(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
The Court otherwise has no rules dealing with discovery. The discovery which Mr Farac sought was discovery by category and it appears to have been assumed by the parties that such a discovery process would be similar to the discovery by category in the Federal Court and thus depend entirely on the terms of the various categories, rather than on questions of relevance: cf rr.20.14 and 20.15 of the Federal Court Rules 2011 (Cth). The terms of the discovery sought would tend to confirm that impression. The Federal Court’s rules 20.14 and 20.15 are not expressly applied in this Court, as some others of its rules are, but in the circumstances it is appropriate that they nevertheless be applied under r.1.06 of this Court’s Rules which relevantly states:
1.06 Application
(1) It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Federal Court (Criminal Proceedings) Rules 2016 in whole or in part and modified or dispensed with, as necessary.
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APPLICANT’S EVIDENCE
Mr Le Blond, Mr Farac’s solicitor, filed an affidavit sworn on 20 February 2023 in support of the application for discovery. He deposed that each of the categories of document sought was relevant to the determination of a fact in issue in the proceeding and that disclosure was appropriate in the interests of the administration of justice. Mr Le Blond deposed that each document sought was required to resolve issues in dispute between the parties and, as the documents were solely in the possession of Pendal, it would be fair to grant a discovery order.
By reference to a table setting out individual submissions in relation to each proposed category for discovery, Mr Le Blond deposed to why he believed discovery to be necessary.
Mr Le Blond also submitted in his affidavit that if discovery were not ordered due to the “restricted jurisdiction” of this Court, the proceeding should be transferred to the Federal Court on the basis that Mr Farac’s case had become increasingly complex, discovery orders of the sort sought were available to be made and were readily made by the Federal Court and that the case probably needed a further three to four hearing days beyond the present trial listing to resolve remaining interlocutory matters and to conclude the trial itself.
RESPONDENT’S EVIDENCE
Ms Kelly, a solicitor employed by the solicitor for the respondents, filed an affidavit affirmed on 27 February 2023 opposing the orders for discovery sought by Mr Farac. Ms Kelly deposed to the history of the parties’ attempts, recorded in correspondence, to establish an informal regime for the exchange of documents, to orders the Court made regarding Mr Farac’s notice to produce dated 22 December 2022 and to documents the respondents had been required to produce in response to the notice to produce. The parties’ exchanges on discovery and the notice to produce were summarised in the following terms in Farac v Pendal Group Limited (No 2) [2023] FedCFamC2G 215 at [4]:
(a)on 5 August 2022 at a directions hearing Mr Farac suggested discovery and on 16 August 2022 the respondents’ solicitors suggested an informal regime for the exchange of documents;
(b)on 13 September 2022 Mr Farac’s solicitors suggested informal discovery and an exchange of categories of documents for discovery on or before 27 September 2022 and on 19 September 2022 followed up that inquiry;
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(e)on 13 October 2022 the respondents’ solicitors advised that their clients did not agree to discovery, informal or otherwise. They invited requests for specific documents if they could be identified, advising that the respondents would consider the request without requiring Mr Farac to file a notice to produce or a subpoena;
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(l)on 22 December 2022 Mr Farac’s solicitors served on the respondents’ solicitors a notice to produce, purporting to require the respondents to produce documents on or before 4pm on 19 January 2023. The notice to produce contained 37 numbered paragraphs;
(m)on 23 December 2022 the respondents’ solicitors wrote to Mr Farac’s solicitors advising that, given the time of year, it would be difficult to take instructions and, in any event, their offices would be closed until 9 January 2023. They went on to say that, given that their counsel was on leave until 18 January 2023, they would respond to the notice to produce as soon as practicable after that date. An answer was provided on 31 January 2023 with a detailed response to each of the numbered paragraphs; …
Ms Kelly deposed that as at 27 February 2023, the respondents had produced 84 documents in response to 13 categories of the notice to produce.
APPLICANT’S SUBMISSIONS
Categories 1 to 5 sought records of communications and meetings involving three “key decision-makers” in the two and a half years from March 2019 to October 2021 and in which he was discussed. Mr Le Blond submitted in his affidavit that these communications about Mr Farac were likely to be highly probative of the reasons why any adverse action was taken against him as well as helpful to test the truthfulness of certain evidence.
Categories 6 and 7 related to Mr Farac’s complaint about his 2019 bonus and it was submitted by Mr Le Blond that the documents in this category - notes of a meeting at which bonuses were discussed, a report presented to that meeting and the metadata of versions of that report - were relevant to determining who decided the bonus allocations, what was discussed and to test the truthfulness of certain evidence.
Categories 8 and 9 concerned Mr Farac’s potential return to work - and any concerns at Pendal regarding that - and what arrangements were considered in order to accommodate what had been asserted to have been Mr Farac’s disability arising out of workplace stress and depression, in circumstances where Pendal had sought public relations and legal advice in relation to Mr Farac and his complaint.
Categories 12 and 13 concerned whether Pendal had considered putting Mr Farac on special leave and what, if any, consideration had been given to his September 2021 request to take annual leave.
The remaining categories, 14 to 24, concerned documents recording consideration and discussion of, and decisions made in relation to, the corporate restructure including why some roles were made redundant and others were not, why some employees were retained and others were not and why certain position titles were changed. It was submitted that these documents might reveal why people who had not made complaints were treated differently from Mr Farac, who had, and what redeployment processes had been set up. It was submitted that:
… the suite of that communication, viewed as a whole, will give … an understanding of what’s occurring in the mind of Mr Gor and Mr Brandweiner, and Ms Martin …
It was submitted that, at least in part, the proposed process of discovery would permit the “piecing together [of] a mosaic” and that “relevance becomes a network, a matrix of facts that you sit together and draw inferences”.
RESPONDENT’S SUBMISSIONS
Discovery
The respondents submitted that it would not be appropriate in the interests of the administration of justice to allow discovery of the categories of documents Mr Farac sought. They submitted that the proceeding had been pending for a significant period and had been originally fixed for hearing on 8 February 2023 with the expectation that discovery would be resolved before then. The respondents argued that from 28 February 2022 Mr Farac had been on notice of the case he had to meet and had not made an application for discovery even though on 13 October 2022 the respondents objected to any form of discovery. The respondents submitted that it would be unfairly prejudicial to them to order production of further documents now, noting that in anticipation of the February 2023 listing a court book had been prepared based on material filed by both parties.
It was argued that discovery would not narrow the issues between the parties and would only delay the matter more than it had been delayed already. In that regard the respondents submitted that the principal matters in issue in the proceeding concerned Mr Farac’s bonus and his dismissal, and that a number of the proposed categories for discovery were focussed elsewhere.
The respondents also submitted that the volume of documents being sought was extensive notwithstanding that documents had already been produced in answer to the notice to produce issued on 22 December 2022. They argued in that regard that what was said to have been an extensive process of producing documents had already taken place and that it was not in the interests of the administration of justice to repeat the process by way of discovery.
The respondents submitted that, in addition to those more general objections, they had more specific issues with the particular categories of documents sought in the application for discovery, namely that:
(a)categories 1 to 5 were unclear as to what documents were referred to or how they were relevant to any pleaded issue. They further submitted that categories 4 and 5 concerned a period before any adverse action allegedly occurred, and so their relevance was questionable, and that categories 1, 2, 4 and 5 encompassed privileged material;
(b)documents in category 6 were of marginal relevance;
(c)category 7 was a fishing expedition based on unfounded speculation that metadata would somehow demonstrate ill intent;
(d)categories 8 to 11 were not relevant to any pleaded issue and were variously too widely drawn, oppressive or misconceived;
(e)categories 12 and 13 concerned a peripheral issue but would nevertheless involve disputation because they would capture privileged documents; and
(f)categories 14 to 24 had been satisfied by corporate restructure documents already produced and smacked of a fishing expedition. It was also said in relation to category 20:
Category 20, which seeks meeting notes for employees who were part of the bids team, again, this is simply a fishing expedition, your Honour. It’s simply looking, trawling – casting the net as wide as they can to trawl through material in the hope that they find something that’s useful.
Transfer to the Federal Court of Australia
The respondents submitted that there was no proper basis for an order transferring the matter to the Federal Court, particularly as the proceeding was at such a late stage, lacked legal or factual complexity and the length of the hearing was not a proper basis for a transfer. The respondents also submitted that there was no proper basis for Mr Farac to assert that the Federal Court would readily make the discovery orders sought by him if this Court were not minded to.
CONSIDERATION
In Fuji Xerox Australia Pty Ltd v Whittaker (No 2) [2021] FCA 696, Colvin J said:
10It has become relatively common for parties to proceedings in commercial matters to seek orders for discovery by reference to categories rather standard discovery. That is the approach adopted by the parties in the present case. Wherever possible, it is not to be encouraged. It tends to lead to disputation about the definition of categories rather than focus upon providing discovery. It can result in parties taking inappropriately technical views as to the scope of the categories leading, as a matter of precaution, to their Byzantine expression.
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16 Nevertheless, if discovery by category is to be pursued, it is to be expected that, in the usual case, the categories will be shown to be narrower than what would be required for standard discovery (and thereby duly confined to that which will facilitate the just resolution of the proceedings) or that there is some particular reason why disclosure of the particular category is appropriate. In other words, the provision in the Rules for an application for discovery with a 'proposed scope' is not intended to undermine the position that (a) discovery should only be ordered where it has been shown to facilitate the just resolution of the proceedings; (b) it is direct relevance that is the guiding principle; and (c) if discovery other than standard discovery is sought then the scope must be specified (and justified).
Discovery
General observations
Categories 7, 9, 20, 22, 23 and 24 do not, in my view, relate to any pleaded issue. Category 8 is oppressive as potentially involving a searching inquiry of a great many individuals, including some whose thoughts and opinions would be irrelevant to this case. The other categories do appear relevant to matters in issue but I note the respondent’s submission that categories 1, 2, 4, 5, 12, and 13 are likely to involve claims of client legal privilege.
The respondents also submitted that many of the categories involved a fishing expedition and that the application for discovery was objectionable for that reason. However, discovery often has a speculative element in the sense that the party seeking it may not know the extent and nature of all the documents that might be discovered and so that fact alone would not mean that discovery should not be allowed. The objection requires closer examination.
In this case the objection to Mr Farac’s proposed categories has not been expressed to be that they amounted to fishing in the sense of seeking to turn up new causes of action or evidence to support speculative allegations: cf Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 per Smithers J at 460, WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 per Bowen CJ at 176, Brennan J at 181-183 and Lockhart J at 189-191; Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177 at 181-183 [9] - [11]; Pan v Hampton Accelerate Pty Ltd [2023] FCA 46 at [21]. Rather, the argument was, in substance, that the categories were oppressive. There is merit in that argument. I have already referred to category 8 in that connection and I perceive that such a criticism may be made of many of the other categories as well. Although there is no direct evidence on the topic, Mr Farac’s submissions that the evidence to be discovered would disclose a network from which inferences could be drawn and a mosaic be pieced together indicates that disclosure through discovery is likely to be extensive and catch a great many documents whose irrelevance will be able to be determined only after the event, following the expending of considerate time, effort and costs.
At the very least, the categories have not been shown to be narrower than standard discovery and are in some cases clearly wider, for instance the requests for metadata.
Presumption
The Court’s statute was quoted earlier in these reasons. Its requirement that before discovery is permitted the Court declare that that step is necessary in the interests of the administration of justice indicates a rebuttable presumption that there is not to be discovery in non-family law cases in this Court. Depending on the circumstances of the matter, the interests of the administration of justice can comprehend a variety of considerations, including those recited by Lucev FM in Abrahams v Qantas Airways Ltd (No 2) (2007) 210 FLR 314. In this case, however, what is very relevant is that the application was listed for trial two months ago, but did not reach the evidence, and has now been relisted to commence in less than 2½ months’ time. As a result, the only considerations which are relevant are the ones the statute prescribes, fairness and expedition.
In that context it is appropriate to have regard to the fact that the interests of the administration of justice concern not only the litigants in a particular matter but others who come before the Court. In that regard I note what Judge Brown said in Dixon v Watpac Ltd [2022] FedCFamC2G 778:
120… it seems axiomatic that the issue of discovery and whether it should be permitted is one which is to [be] determined by reference to the overarching principles. Section 176(2), in my view, creates a rebuttal presumption that discovery will not ordinarily be permitted in non-family law proceedings. In deciding whether the presumption should be rebutted, it is necessary for the court to determine whether it is appropriate to do so, in the interests of the administration of justice.
121Administration as a noun refers to the process or activity involved in running an organisation. In a broader sense, it refers to the management of public affairs or government generally. Accordingly, the concept contained in section 176(2) is distinct from the interests of the parties concerned in any particular piece of litigation. It has wider connotations and can encompass the interests of other users of the justice system and the community generally, who have an interest in ensuring the court resources are utilised rationally and carefully for the benefit of all, within the terms envisaged by the High Court in Aon.
122 In this context, it is likely to be beneficial to these other stakeholders that cases be concluded expeditiously, through a focus on the main issues arising in them, so that the court’s scarce judicial resources can be applied as widely as possible to the speedy resolution of other cases.
I am not persuaded that the expeditious conduct of this case would be assisted by discovery and it may well be impeded by it. I am not confident that it would not be at least partly contentious, which might lead to the trial going off for a second time. It is not in the interests of the administration of justice that that should be risked.
The facts I have recited or referred to show that Mr Farac clearly had a fair opportunity to seek discovery earlier than 2023. His failure to do so has not been adequately explained, no evidence having been adduced on that subject. It is to be noted in that connection that the original statement of claim, filed over 2 years ago, particularised a number of allegations by reference to the results of future discovery. Plainly, discovery was in prospect at that early point yet it was not sought until very recently, when the matter was already listed for an upcoming trial.
In all the circumstances, considerations of fairness and expedition dictate that the application for discovery be refused.
Transfer to the Federal Court of Australia
I also refuse the alternative prayer that the matter be transferred to the Federal Court of Australia. A party’s approach to the preparation of their case is no basis for a transfer, particularly as a transfer would inevitably involve a postponement of the trial. Further the likely length of a trial is not a reason for transfer that the Federal Court would necessarily find compelling: Van den Berg v Monash Health [2022] FCA 796 at [17].
CONCLUSION
The application in a proceeding filed on 20 February 2023 will be dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 14 April 2023
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