Hoskin v Ernst and Young Services Pty Ltd - [2010] FMCA 947

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSKIN v ERNST & YOUNG SERVICES PTY LTD & ORS

[2010] FMCA 947

HUMAN RIGHTS – Alleged age discrimination.

PRACTICE AND PROCEDURE – Venue – application to change – mandatory matters for consideration – other relevant matters for consideration.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Federal Magistrates Act 1999 (Cth), ss.3, 42, 45, 52
Federal Magistrates Court Rules 2001 (Cth), r.8.01

Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932
Dorrian v Rushlyn Pty Ltd [2010] FMCA 787
Doukidis v Williamson (2008) 6 ABC(NS) 717; [2008] FMCA 1352
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381
National Australia Bank Ltd v Neil (2009) 7 ABC(NS) 357; [2009] FMCA 826
Neil v Reward Property Group Pty Ltd [2008] FMCA 1583
Reynolds v The Minister for Health & Anor [2010] FMCA 843
Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495

M Steele, Federal Magistrates Court Guide Book (Sydney: Thomson Legal and Regulatory Limited)

Applicant:

PHILLIP JOHN HOSKIN

First Respondent:

ERNST & YOUNG SERVICES PTY LTD

Second Respondent:

PAUL FONTANOT

Third Respondent:

YING LING LEE

Fifth Respondent:

MELANIE BLAIN

File Number:

PEG 157 of 2010

Judgment of:

Lucev FM

Hearing date:

3 December 2010

Date of Last Submission:

3 December 2010

Delivered at:

Perth

Delivered on:

6 December 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms F Cross

Solicitors for the Respondents:

Mallesons Stephen Jaques

ORDERS

The proceedings be transferred from the Perth District Registry of the Federal Magistrates Court to the Sydney District Registry of the Federal Magistrates Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 157 of 2010

PHILLIP JOHN HOSKIN

Applicant

And

ERNST & YOUNG SERVICES PTY LTD

First Respondent

PAUL FONTANOT

Second Respondent

YING LING LEE

Third Respondent

MELANIE BLAIN

Fifth Respondent

REASONS FOR JUDGMENT

Application in a Case

This is an Application in a Case by the remaining respondents[1] for an order pursuant to r.8.01(1) of the Federal Magistrates Court Rules 2001 (Cth)[2] that the proceedings be transferred from the Perth District Registry of the Federal Magistrates Court to the Sydney District Registry of the Federal Magistrates Court.
[1] The first respondent is Ernst & Young Services Pty Ltd (“Ernst & Young”), the second respondent is Paul Fontanot (“Mr Fontanot”), the third respondent is Ying Ling Lee (“Ms Lee”) and the fifth respondent is Melanie Blain (“Ms Blain”). The application against the fourth and sixth respondents was dismissed at a directions hearing on 11 October 2010.
[2] “FMC Rules”.
The Application in a Case is opposed by the applicant, Mr Hoskin.
The Application in a Case is supported by an affidavit from Mr Freeman,[3] a solicitor engaged in the role of Legal Counsel in the Sydney office of Ernst & Young.
[3] Affidavit of Scott Murray Freeman, sworn 5 November 2010 (“Mr Freeman’s Affidavit”).
Mr Hoskin has filed an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 947
Decision Date

CaseChat Overview and Summary

The case of Hoskin v Ernst and Young Services Pty Ltd involves an application by the respondents for an order transferring the proceedings from the Perth District Registry of the Federal Magistrates Court to the Sydney District Registry. The applicant, Phillip John Hoskin, opposed the application. The central legal issue was whether the application should be granted based on the mandatory and other relevant matters for consideration as outlined in the Federal Magistrates Court Rules 2001. The court found that the majority of witnesses resided in Sydney, and the subject matter of the litigation was connected to Sydney, where the alleged incidents occurred. The court concluded that these factors outweighed considerations favoring the proceedings remaining in Perth, and thus granted the application to transfer the proceedings to Sydney.

The court examined the convenience of the parties and witnesses, finding that the majority of witnesses were based in Sydney, and there were no witnesses resident in Perth or Western Australia. While the individuals who are parties to the proceedings reside in both Perth and Sydney, the potential number of witnesses resident in Sydney significantly favored transferring the proceedings to Sydney. The court also found that transferring the proceedings at that stage would have little impact on remaining interlocutory steps and mediation. The court rejected the applicant's assertions of financial hardship from having to travel to Sydney for hearings, as there was no evidence to support those claims.

The court also considered limiting expense and cost of the proceedings, finding that the overall expense and cost would be limited by having the final hearing in Sydney due to the majority of potential witnesses being located there. The court concluded that the subject matter of the litigation had no connection with Perth, and the incidents complained of occurred in Sydney. The change of residence of the applicant and one respondent did not alter the fact that the proceedings were solely connected with conduct which occurred in Sydney. The court found that the convenience of witnesses and limitation of expense and costs, along with the connection between the subject matter of the litigation and Sydney, were particular matters which outweighed any considerations favoring the proceedings remaining in Perth.

Orders