Isser v BHP WAIO Pty Ltd (No 2)
[2023] FedCFamC2G 468
•26 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Isser v BHP WAIO Pty Ltd (No 2) [2023] FedCFamC2G 468
File number(s): PEG 217 of 2022 Judgment of: JUDGE STREET Date of judgment: 26 May 2023 Catchwords: FAIR WORK – parallel proceedings in Federal Court of Australia- proceedings dismissed as abuse of process Legislation: Fair Work Act 2009 (Cth): ss 340, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth): ss 139, 153, 190
Federal Court of Australia Act 1976 (Cth): ss 32AA, 32AC
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): r 13.13
Cases cited: Printing Industry Employees Union of Australia v Victoria Chamber of Manufacturers (1947) 73 CLR 259
Spencer v The Commonwealth [1907] HCA 82
Union Steamship Company of New Zealand Limited v Ship “Caradale” [1937] 56 CLR 277
Division: Division 2 General Federal Law Number of paragraphs: 15 Date of hearing: 26 May 2023 Place: Sydney Applicant: In person Counsel for the Respondent: Mr K de Kerloy Solicitor for the Respondent: Herbert Smith Freehills ORDERS
PEG 217 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEESTA ISSER
Applicant
AND: BHP WAIO PTY LTD
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 MAY 2023
THE COURT ORDERS THAT:
1.The proceedings are dismissed as an abuse of process under r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Court declines to make any order as to costs under s 570 of the Fair Work Act 2009 (Cth).
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 STREET
These proceedings were commenced on 10 November 2022 under the Fair Work Act 2009 (Cth) (‘the Act’) by the applicant against the respondent at a point in time where the applicant was still employed by the respondent. The Court declined to grant injunctive relief, and the last order made on 21 November 2022 facilitated the applicant discontinuing the proceedings if she wished and granted her liberty to apply. There was an application that was filed on 14 February 2023, seeking to join additional parties to the proceedings. The application was supported by an affidavit that annexed some material in relation to some proposed additional respondents.
It appears, however, that fresh proceedings have been commenced in the Federal Court of Australia, matter number WAD41 of 2023, in which the applicant is seeking to pursue proceedings against the same respondent in relation to contraventions of s 340 of the Act, albeit that she has now been dismissed and apparently there are other respondents. There is a provision in the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’), s 32AA, that purports to impose a mandatory obligation on the Federal Court of Australia where there are proceedings in an associated matter in this Court.
There is a tension between s 32AA and s 32AC of the FCA Act which purports to give the Federal Court of Australia the power of its own initiative to transfer proceedings of this Court to the Federal Court of Australia, as well as on application of a party. A statutory provision of the kind in s 32AA might be read down so as not to be an impermissible interference with the exercise of Commonwealth judicial power, on the basis that it attaches to the initiation only and does not invalidate proceedings.
Subsection 32AA(2) purports to identify an impact on validity that might support s 32AA(1) not operating to invalidate proceedings in respect of vested jurisdiction of a matter commenced in the Federal Court of Australia.
There is also an issue as to the Federal Court of Australia’s own initiative transfer under s 32AC(2)(b) as to the want of a vested matter enlivening vested jurisdiction. This is not the occasion to determine this issue any more than the unsatisfactory nature of s 32AC if interfering with the exercise of federal jurisdiction by this Court in respect of a docketed matter the subject of a current hearing, or fixture for hearing or reserved decision see Printing Industry Employees Union of Australia v Victoria Chamber of Manufacturers (1947) 73 CLR 259.
The odd and unsatisfactory nature of these new provisions is obvious. There could be a statutory described invalid instituted step under s 32AA which could be cured by transfer under s 32AC of the FCA Act. There now being a fair work matter in which the vested jurisdiction of the Federal Court of Australia has been invoked regardless of the temporal instituted restraint of s 32AA on one view the Federal Court of Australia is entitled and duty-bound to continue to hear the matter now commenced even if there is found to be an associated matter in proceedings pending in this Court. Whether there is no operative actual invalidity of proceedings in that Court seems to pose an ineffective use of judicial resources which can be readily solved by ending these pending parallel proceedings concerning the same matter.
The respondent has raised the s 32AA issue, but it has not yet been determined or fixed for hearing in the Federal Court of Australia. Section 32AA can only operate whilst an associated matter is pending in this Court and any purported invalidity would cease upon there being no associated matter pending in this Court. The Court was told the matter has been adjourned for further case management.
The reality is that the applicant now has two sets of proceedings on foot in relation to the same matter in two different Courts. That is an obvious abuse of process of the kind identified by Dixon J in Union Steamship Company of New Zealand Limited v Ship “Caradale” [1937] 56 CLR 277 at [281].
It clearly brings the administration of justice into disrepute to have the same subject matter being agitated in two Courts. To the extent that this Court is concerned, it is a Court that has an overarching purpose similar to that in the Federal Court of Australia, through s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’), to ensure the efficient use of judicial administrative resources and efficient disposition of the Court’s overall case load. A second case being run in this Court on the same subject matter is contrary to that overarching purpose. It is also one in relation to which the Court has a power under r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) to dismiss proceedings that are an abuse of process or are vexatious.
To expose the respondent to having to appear in two different Courts on the same subject matter is the very type of vexation, inconvenience and embarrassment that a Court should not permit, where it is clear it is the same subject matter. The Court is conscious of the fact that there is a public interest in avoiding a multiplicity of proceedings, as identified in s 139 of the FCFCOA Act. These are proceedings which might be described as parallel proceedings between the same parties on the same matter.
The Court is alive to the fact that, under s 153 of the FCFCOA Act, this Court, through its protocols, has an ability to transfer proceedings to the Federal Court. The Court is also conscious of the fact that the Federal Court of Australia can transfer proceedings back to the Federal Circuit and Family Court of Australia. If the proceedings are dismissed as an abuse of process by this Court, at this stage, it in no way impairs the ability of the Federal Court of Australia to take such steps as it thinks appropriate in respect of the matter in which it is seized. The only consequence of the Court doing so is that there would not then be pending proceedings falling within s 32AA of the FCA Act. The transfer powers of this Court might have been appropriate to consider but for the step taken by the applicant to institute proceedings in the Federal Court on the same matter without proper and timely application to this Court.
There are other provisions of the FCA Act to which I have referred that permit the Federal Court of Australia to remit the matter to the Federal Circuit and Family Court of Australia if it sees fit to do so. This is not a case of the kind where it is apparent that the applicant has engaged in “forum shopping”, because the proceedings have not progressed very far before this Court on the last occasion, and it appears one where, although there was an application to join additional parties, given the commencement of the proceedings in the Federal Court of Australia, that application would have inevitably been doomed to failure.
Ms Isser did initially indicate that she had a desire to agitate an issue of this Court recusing itself. No conduct was identified to support the same, no Application in a Proceeding has been filed, no earlier notice was given of such an application and the only basis could relate to this Court’s earlier published reasons on the interlocutory application. Interlocutory decisions do not ordinarily provided a basis to warrant disqualification from final hearings. The Court declined to entertain that oral application in circumstances where, on its face, the proceedings are now an abuse of process, and it is unnecessary step for the Court to hear a matter, in terms of recusal, in circumstances where the matter is already before another Court and that other Court is seized of the subject matter, and this Court, if it dismisses the proceedings, has no further role in the proceedings. What occurs to the matter on any remission is one where it will be allocated in accordance with the standard procedures within the Court.
The Court could see no utility, taking into account the principles in relation to s 190 of the FCFCOA Act, in entertaining a disqualification application where the proceedings are, at this stage, on their face, clearly an abuse of process. The Court did indicate to Ms Isser that it proposed to dismiss the proceedings in the circumstances but would not make any costs order under s 570 of the Act. Ms Isser indicated that she did not oppose the Court taking that course and did not contend that this Court had no power to dismiss the proceedings as an abuse of process. Standing the proceedings over for another occasion will only add to the costs of the parties and further create inconvenience and embarrassment.
The Court is satisfied, taking into account the warnings in Spencer v The Commonwealth [1907] HCA 82, that these are proceedings that are clearly an abuse of process, where the same subject matter is now seized of in the Federal Court of Australia, and the respondent should not be exposed to the vexation of having this Court purporting to entertain applications in a case or other process on the same subject matter.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Settled Ex Tempore Reasons for Judgment of Judge Street pronounced on 26 May 2023. Associate:
Dated: 1 August 2023
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