Inspector Aaron Rilstone v BP Australia Pty Ltd

[2007] FMCA 330

FEDERAL MAGISTRATES COURT OF AUSTRALIA

INSPECTOR AARON RILSTONE v BP AUSTRALIA PTY LTD & ANOR [2007] FMCA 330

PRACTICE AND PROCEDURE – INDUSTRIAL LAW − Transfer to Federal Court − where the respondent alleges a constitutional question has been raised − where the respondent alleges a conflict between the law of the Commonwealth and the law of South Australia involved in these proceedings − where the applicant consents to the transfer − whether a transfer to the Federal Court would be in the interests of justice.

Federal Magistrates Act 1999, s.39,
Federal Magistrates Court Rules 2001 Rule 8.10
Workplace Relations 1996

Boensch and Another v Pascoe [2006] FMCA 1396
Genovese v BGC Constructions Pty Limited [2006] FMCA 1507
Meinhardt v Meinhardt & Ors [2006] FMCA 1028, Pedra Holdings v Westfields [2005] FMCA 475
Warner Music Australia & Ors v Swiftel Communications Pty Limited & Ors [2005] FMCA 627
Warner Music (No 2) [2005] FMCA 706
BHP Billiton v Schultz [2004] 221 CLR 400

Applicant: INSPECTOR AARON RILSTONE

First Respondent: BP AUSTRALIA PTY LTD ACN 004 085 616

Second Respondent: NO. 1 RIVERSIDE QUAY LTD ACN 006 639 087

File Number: ADG 21 of 2007

Judgment of: Raphael FM

Hearing date: 13 March 2007

Date of Last Submission: 13 March 2007

Delivered at: Adelaide

Delivered on: 13 March 2007

REPRESENTATION

Counsel for the Applicant: Mr A. Short

Solicitors for the Applicant: Minter Ellison

Counsel for the Respondents: Mr R. Niall

Solicitors for the Respondents: Corrs Chambers Westgarth

ORDERS

1. Proceedings transferred to the Federal Court of Australia pursuant to s.39 of the Federal Magistrates Act 1999 and Rule 8.10 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 21 of 2007

INSPECTOR AARON RILSTONE

Applicant

And

BP AUSTRALIA PTY LTD ACN 004 085 616

First Respondent

NO. 1 RIVERSIDE QUAY LTD ACN 006 639 087

Second Respondent

REASONS FOR JUDGMENT

1. The respondents to these proceedings seek that it be transferred to the Federal Court pursuant to s.39 of the Federal Magistrates Act 1999 and Rule 8.10 of the Federal Magistrates Court Rules 2001.  The Federal Magistrates Court has been in operation for some six years.  In that time, there have not been many applications to transfer but those that have been made have generally been dealt with expeditiously and reasons provided:  Boensch and Another v Pascoe [2006] FMCA 1396, Genovese v BGC Constructions Pty Limited [2006] FMCA 1507, Meinhardt v Meinhardt & Ors [2006] FMCA 1028, Pedra Holdings v Westfields [2005] FMCA 475, Warner Music Australia & Ors v Swiftel Communications Pty Limited & Ors [2005] FMCA 627, Warner Music (No 2) [2005] FMCA 706, are just a number of such cases.

2. Section 39 of the Federal Magistrates Act provides that a proceeding may be transferred, either on the application of a party or on the initiative of the court.  In deciding whether to transfer a matter, the court must have regard to the Rules of court, whether there are any proceedings in respect of an associated matter pending in the higher court, whether the resources of the Court are sufficient to hear and determine the proceeding and the interests of the administration of justice.

3. The High Court considered the phrase "in the interests of justice" in BHP Billiton v Schultz [2004] 221 CLR 400 where Gleeson CJ, McHugh and Heydon JJ at 421 said:

   “The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.” At [15].

4. These proceedings are brought under the Workplace Relations Act 1996 (the “Act”). The Act is notorious for its length and difficulty. The cases that have been heard in this court have revealed that some parts of the Act have not been well drafted and in particular there seems to be concern about the Regulations; Inspector Wade Conolly v AC & MS Services [2007] FMCA 139. One of the matters raised in this application concerns the interpretation of Regulation 8.

5. The proceedings which have been brought seek to impose civil penalties upon the respondents in relation to their actions arising out of the alleged “transfer” of the business from a former employer to a new proposed employer. The penalties provided by the Act are quite high and whilst the proceedings are not criminal, it is important that a party who is to be required to pay such a penalty do so according to law.

6. I am advised by the respondents that there are constitutional questions in respect of which the appropriate notices have been served, although no response has been received to date.  I am informed that there are alleged conflicts between the law of the Commonwealth and the law of the state of South Australia involved in these proceedings.  I am informed that the case will require being pleaded and that a pleadings war is expected.  That is not something that I would personally condone and I do not think that the judges of the Federal Court would do so either.

7. However, and most importantly, the instigator of these proceedings, being an inspector of the Department of Workplace Services, agrees that the application is one of such complexity and importance that it should be transferred.  An applicant, when commencing proceedings, has the choice as to whether or not to commence proceedings in this court or in the Federal Court because our jurisdiction in this regard are concurrent. But one can see that proceedings might be commenced in a court which, by reason of its simplicity of procedures, speed and reasonableness of its costs, would be considered the most appropriate but that at a later stage, when the issues are properly joined it becomes clear that the decision was incorrect.

8. The Office of Workplace Services and its inspectors are the persons to whom the legislation has given power to enforce the Act and their views on these matters should be given very serious consideration. Mr Niall, who appears on behalf of the respondents, has explained in his helpful written submissions why he believes the case is one in which the interests of justice would support a transfer. Whilst I do not believe that every case in which there may be a potential constitutional issue or any case in which there may be a potential question of the operation of the State Act as opposed to the operation of a Commonwealth Act would require a transfer, I accept that in regard to this particular Act at this particular time of its operation Mr Niall's arguments have considerable weight. Given that that weight is endorsed by the views of the Inspector, as advised to me by Mr Short, who appears on his behalf, I propose to consent to the application to transfer this matter to the Federal Court.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: