Ioakimidis v Lygon Court Travel Pty Ltd Trading as Helloworld Lower Templestowe and Ors

[2020] FCCA 1687

FEDERAL CIRCUIT COURT OF AUSTRALIA

IOAKIMIDIS v LYGON COURT TRAVEL PTY LTD TRADING AS HELLOWORLD LOWER TEMPLESTOWE & ORS [2020] FCCA 1687

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of the Fair Work Act 2009 (Cth) – cross claim for misappropriation and breaches of Corporations Act 2001 (Cth) –transfer proceedings to the Federal Court of Australia.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 347, 357

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), r.8.02(4)

Corporations Act 2001 (Cth), ss.58AA(1), 182, 1317H

Cases cited:

Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102

Applicant: LISA IOAKIMIDIS

First Respondent: LYGON COURT TRAVEL PTY LTD TRADING AS HELLOWORLD LOWER TEMPLESTOWE

Second Respondent: SUE CORVASCE

Third Respondent: KRIS ROWE

File Number: MLG 4112 of 2019

Judgment of: Judge O'Sullivan

Hearing date: On the papers

Date of Last Submission: On the papers

Delivered at: Dandenong via telephone

Delivered on: 26 June 2020

REPRESENTATION

Solicitor for the Applicant: Rigby Cooke

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Pursuant to section 39 of the Federal Circuit Court of Australia Act 1999 (Cth), these proceedings be transferred to the Federal Court of Australia to be listed with such priority as that Court deems appropriate.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 4112 of 2019

LISA IOAKIMIDIS

Applicant

And

LYGON COURT TRAVEL PTY LTD T/AS HELLOWORLD LOWER TEMPLESTOWE

First Respondent

SUE CORVASCE

Second Respondent

KRIS ROWE

Third Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application in a case filed on 9 June 2020 for orders including an order pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) for the substantive proceedings to be transferred to the Federal Court of Australia.

2. In order to deal with the application in a case it is necessary to set out some of the factual and procedural background to the substantive proceedings.

3. By application (accompanied by a Form 2) filed on 22 November 2019, Lisa Ioakimidis (“the applicant”) commenced proceedings under the Fair Work Act 2009 (Cth) (‘the FW Act”) against Lygon Court Travel Pty Ltd t/as Helloworld Lower Templetstowe ACN 057010116 (“the first respondent”) along with its directors Sue Corvasce (“second respondent”) and Kris Rowe (“third respondent”). A notice of address for service was filed on behalf of the respondents on 26 November 2019 and a response on 23 December 2019.

4. The applicant is 43 years old and lives in Heidelberg and worked as a senior consultant in the first respondent’s business from 2014 until August 2019.

5. Following that relationship coming to an end the applicant commenced proceedings in the Fair Work Commission which then issued a certificate under s.368 of the FW Act on 8 November 2019.

6. Later that month the applicant commenced these proceedings alleging inter alia contraventions by the first respondent of s.340, s.347 and s.357 of the FW Act and that the second and third respondents were accessorially liable for same. The applicant also sought to bring other claims in the associated jurisdiction of the Court.

7. In their response filed in December 2019, the respondents opposed the orders sought by the applicant and sought by way of cross claim relief against the applicant as a result of what was alleged to be inter alia misappropriation of funds and breaches of the Corporations Act 2001 (Cth) (“the Corporations Act”).

8. The proceedings appear to have been listed administratively for a first court date before a Registrar.  Orders were made by the Registrar on 4 February 2020 which provided for the matter to proceed by way of pleadings, the respondents to file a cross claim and the parties to attend a mediation.

9. It appears shortly thereafter, and as a result of the timing of criminal proceedings brought against the applicant, disputes emerged between the solicitors for the applicant and the respondents about the efficacy of those orders.

10. By then the applicant had filed on 28 February 2020 a statement of claim and the respondents a defence and cross claim on 27 March 2020.

11. Ultimately the stalemate that emerged between the parties about compliance with the Registrar’s orders resulted in the matter being referred to the Court and the parties were advised the proceedings would be listed for mention on 13 May 2020.  This was prior to the date that had originally been fixed by order of the Registrar for the mediation.

12. On that occasion and as there had been no interlocutory application filed by either party the proceedings were adjourned.

13. Following this it appears that this was an outbreak of common sense.  The parties agreed the mediation couldn’t proceed and the respondents then filed the application in a case now before the Court.

14. Whilst the pleadings appear to have elicited some admissions from the respondents, the cross claim it is acknowledged, can’t be determined in this Court and should be transferred.

15. The application in a case is supported by an affidavit filed by the respondents’ solicitor, Adam Lunn, sworn 5 June 2020.  Annexed to that affidavit is a welter of correspondence exchanged between the parties’ solicitors which makes clear the application in a case (and the orders sought therein) comes as no surprise to the applicant and her solicitor and is not opposed.

16. Given this and as the parties’ were content for the Court to determine the matter on the papers, it is now necessary to turn to the relevant considerations for an application to transfer the proceedings.

Transfer to the Federal Court

1. The making of an order to transfer proceedings from this Court to the Federal Court of Australia is discretionary and can be made on the Court’s own initiative pursuant to s.39(2)(b) of the FCCA Act. There are, however, factors which it is mandatory for the Court to take into account under s.39(3)(a)-(d) of the FCCA Act , which provide as follows:

   “(a)any Rules of Court made for the purposes of subsection 40(2); and

   (b)whether proceedings in respect of an associated matter are pending in the Federal Court; and

   (c)whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and

   (d)    the interests of the administration of justice.”

2. Rule 8.02(4)(a)-(e) of the Federal Circuit Court Rules (2001) (Cth) provides for other factors to be considered as follows:

   “(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

   (b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceedings is not transferred;

   (c)whether the proceeding will be heard earlier in the Court;

   (d)the availability of particular procedures appropriate for the class of proceeding;

   (e)     the wishes of the parties.”

3. Unlike the situation in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [42], in this case, enquiries were made of the Federal Court of Australia before the issue of transfer was considered.

4. It was not clear whether, and if so why not, when the matter first came before the Registrar the issue of in which jurisdiction the relief sought in the respondents’ cross claim could be determined was raised.  However, the applicant has not chosen to move by interlocutory application to have so much of the respondents’ cross claim dismissed and now supports the proceedings being transferred.

5. Turning then to a consideration of those factors in the context of these proceedings.

Pending proceedings in an associated matter in the Federal Court

1. It is not suggested that there are pending proceedings in any associated matter in the Federal Court of Australia. 

Resources of the Court

1. It would appear that the usual case-management techniques of this Court are likely to be less satisfactory in the present matter than the Federal Court’s usual procedures.  Arguably the latter involve a more structured approach to case-management, and it appears likely that the present matter, given the issues canvassed in the correspondence annexed to Mr Lunn’s affidavit, will need to traverse through interlocutory procedures more commonly followed in the Federal Court of Australia before it is ready for trial.

2. Given the workload of this Court and the situation with respect to judicial resources available to hear General Federal Law matters in this Court, I think it is more likely that the matter will be heard more expeditiously in the Federal Court of Australia.

Interests of the administration of justice

1. Given the question of jurisdiction, these interests require the matter to be dealt with in the court with the authority to do so.

Questions of general importance

1. The proceedings do not involve a question of general importance such as to warrant a decision of the Federal Court of Australia.

2. However, this Court does not have jurisdiction to determine the whole of the controversy between the parties. The respondents’ cross claim raises questions about alleged breaches of s.182 of the Corporations Act (which is a civil remedy provision) and an order for compensation under s.1317H of that legislation.

3. Section 58AA(1) of the Corporations Act defines “Court” as follows:

   “Court” means any of the following courts:

   (a)the Federal Court;

   (b)the Supreme Court of a State or Territory;

   (c)the Family Court of Australia;

   …”

4. This Court is not a “Court” as defined in s.58AA(1) of the Corporations Act. Given the jurisdiction of the Federal Court of Australia in relation to matters under the Corporation Act this does support the proceedings being transferred.

Costs and convenience

1. The cost that may be incurred by the parties due to the matter being transferred is not, in of itself, a mitigating factor against the transfer.

Earlier hearing of proceedings

1. Given the stage of these proceedings and that a trial couldn’t be listed in this Court until the second half of 2021, whether the proceedings would be heard earlier in either Court is not a matter which tells against a transfer.

Availability of particular procedures appropriate for the class of proceedings

1. The proceedings, given the current state of the pleadings are not at an advanced stage and for reasons referred to earlier would be more amendable to the case management procedures of the Federal Court of Australia.  

Wishes of the parties

1. Whilst the proceedings were commenced in this Court an application to transfer has now been made and it isn’t opposed. 

Conclusion

1. Given the matter is to be transferred, the course on events since the orders of the Registrar, and that it appears on the papers there are (‘in the wind’ as it were) further amendments to the pleadings, it is not appropriate to formally discharge the order of the Registrar.  When the proceedings come before the Federal Court of Australia it can be dealt with then.

2. I am cognisant of the factors that the Court is required to consider under the Rules in relation to this issue are not all one-way but a significant factor, indeed the determinative factor in my view in relation to this matter, is that this Court cannot deal with the dispute under the Corporations Act.

3. Therefore, having considered all of the factors that the Court must, I order the transfer of these proceedings to the Federal Court of Australia. Finally, given the provisions of s.570 and as there is no warrant to invoke the exceptions, there is to be no order as to costs.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan

Associate: 

Date: 26 June 2020