King v Office National Limited & Ors - [2007] FMCA 1840

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KING v OFFICE NATIONAL LIMITED & ORS

[2007] FMCA 1840

PRACTICE & PROCEDURE – Transfer to Federal Court – sexual harassment and employment claims – complex causes of action and multiple respondents – lengthy hearing likely – transfer supported by applicant and opposed by respondent – proceeding more suited to Federal Court – proceeding transferred on motion of Court.

Federal Court Rules (Cth), O.82 r.1
Federal Magistrates Act 1999 (Cth), ss.39(2)(b), 39(3)
Federal Magistrates Court Rules 2001 (Cth), r.8.02(4)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO

Sex Discrimination Act 1984 (Cth)

Trade Practices Act 1974 (Cth), ss.52, 53B, 86AA(a)

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

Applicant:

JACQUELINE RACHEL KING

First Respondent:

OFFICE NATIONAL LIMITED

ABN 68 078 656 737

Second Respondent:

GRAHAM HARMAN

Third Respondent:

JOHN DUNCAN

Fourth Respondent:

MICHAEL FOLDI

Fifth Respondent:

PAUL TOOHEY

File Number:

SYG 1518 of 2007

Judgment of:

Smith FM

Hearing date:

5 October 2007

Delivered at:

Sydney

Delivered on:

5 November 2007

REPRESENTATION

Counsel for the Applicant:

Ms K Edwards

Solicitors for the Applicant:

Legal Aid NSW

Counsel for the First Respondent:

Ms R Nocka

Solicitors for the First Respondent:

Corrs Chambers Westgarth

Counsel for the Second Respondent:

Mr P Magee

Solicitors for the Second Respondent:

Armstrong Legal

Counsel for the Third Respondent:

No appearance by or on behalf of the Third Respondent

Counsel for the Fourth & Fifth Respondents:

Ms R Docking

Solicitors for the Fourth & Fifth Respondents:

D E Jones & Associates

ORDERS

The proceeding be transferred to the Federal Court pursuant to s.39(2)(b) of the Federal Magistrates Act 1999 (Cth).
Direct under Federal Court Rules O.82 r.1 that the applicant must file this order in the New South Wales Registry of the Federal Court, and request an appointment for directions.
The listing on 9 November 2007 is vacated.
The parties’ costs incurred in this Court shall be their costs in the Federal Court proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1518 of 2007

JACQUELINE RACHEL KING

Applicant

And

OFFICE NATIONAL LIMITED
ABN 68 078 656 737

First Respondent

GRAHAM HARMAN

Second Respondent

JOHN DUNCAN

Third Respondent

MICHAEL FOLDI

Fourth Respondent

PAUL TOOHEY

Fifth Respondent

REASONS FOR JUDGMENT

This matter was commenced in this Court as an application against the first two respondents under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), alleging breaches of the Sex Discrimination Act 1984 (Cth) by the second respondent in the course of the applicant’s employment by the first respondent. Associated claims for breach of her contract of employment and negligence were also made. Compensation and damages were particularised totalling $1,170,525.70 for lost remuneration, medical expenses for psychiatric treatment, and general, aggravated and exemplary damages. A lengthy affidavit alleged a complex history of sexual harassment by the second respondent and other complaints in relation to the applicant’s employment by the first respondent between 2002 and 2006.
At the first court date before me on 8 June 2007, I made orders allowing the applicant to add additional respondents, and requiring her claims to be fully pleaded under the Federal Court Rules. I foreshadowed to the parties’ representatives that I would be considering whether the proceeding would more suitably be conducted in the Federal Court.
The applicant’s amended application filed on 22 June 2007 added three respondents, who were directors of the first respondent. They are separately represented, as is the second respondent, who is no longer employed by the first respondent. The applicant has legal aid, and is represented by solicitors and counsel.
The statement of claim filed on 6 August 2007 is a 38 page document with 196 paragraphs. It makes complex allegations in relation to the terms of the applicant’s employment, and representations made prior to its commencement and during its currency. Claims to damages are made based on numerous allegations of breach of contract in relation to remuneration and other employer’s duties, unjust enrichment, duress and unconscionable conduct, sexual harassment, breach of ss.52 and 53B of the Trade Practices Act 1974 (Cth), negligence, and breaches of the Sex Discrimination Act. Damages for significant personal injuries are alleged, as well as substantial claims for past and future economic loss. Total damages remain quantified in excess of $1m.
Although the statement of claim attempts to give particulars, it appears to me that further particulars will need to be provided on request. Defences have not yet been filed. Extensive interlocutory procedures appear likely. There may be grounds for some of the respondents to object to jurisdiction under the HREOC Act, on the ground that they were not respondents to the terminated complaint. It is unclear whether the claims for damages would be confined by the monetary limitation on this Court’s jurisdiction under s.86AA(a) of the Trade Practices Act.
On 17 September 2007, the applicant filed two interlocutory applications, including by seeking discovery in aid of Maraeva orders against the first respondent. She also sought to revise the timetable. An affidavit indicated that efforts to settle the matter had failed.
At a directions hearing on 5 October 2007, I explored with the parties the likely dimensions of the matter, and indicated that I proposed to consider ordering the transfer of the proceeding to the Federal Court pursuant to s.39(2)(b) of the Federal Magistrates Act 1999 (Cth). I made orders for some discovery by consent, and otherwise postponed the making of further directions and the hearing of further interlocutory applications until I had addressed the issue of transfer. The parties consented to my deciding it in Chambers after receiving their written submissions.
The applicant supported an order transferring the proceeding. She submitted that there are questions of general importance involved, including “the application of equitable principles to contracts of employment”, and “the interplay between common law principles relating to the determination of claims for negligence and/or breaches of the Applicant’s contract of employment due to bullying treatment and legislative principles relating to the determination of discrimination and harassment claims”, and “the operation of the limitations contained in the Civil Liability Act 2002, the resolution of which may involve Constitutional issues”. She estimated the final hearing will take at least two weeks, and noted other factors suggesting that the Federal Court would be the more suitable venue.
The first respondent opposed a transfer. It submitted that “the issues before the Court in the current proceeding are not matters of such importance, difficulty or legal novelty such that the matters would best be determined by a superior court of record”. It said that it is likely that greater costs would be incurred in the Federal Court, and that it will face difficulties recovering costs orders from a legally aided party. I assume that this is a reference to practical, not legal, difficulties (see: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [65]). It agreed that the final hearing “is likely to require 10 days”, and that this “would generally be considered to be ‘at the longer end of the time scale’ for a matter” in this Court.
The other respondents did not make any submissions in relation to the transfer of the proceeding.
I have considered all the relevant considerations identified in s.39(3) of the Federal Magistrates Act, and in r.8.02(4), and the parties’ written submissions which addressed those considerations.
I agree that, at present, it is not clear that there are any issues of law which have such obvious novelty or importance as to call for a transfer. I also agree that the essential nature of the dispute between the parties appears to fall squarely within this Court’s employment and human rights jurisdiction. The fact that associated common‑law and trade practices claims are also relied upon does not, of itself, call for a transfer. The Court’s processes, including case‑management through a docket system, endeavour to provide a forum where disputes such as the present can be litigated economically and expeditiously. However, this may require an apparent commitment by all parties to those objectives.
In the present case, the applicant has formulated her case with notable complexity, including as to causes of action, numbers of active respondents, and multiplicity of legal and factual issues. She has foreshadowed possibly extensive interlocutory applications. It is agreed that, even at this preliminary stage, there is prospect of a hearing which will require an allocation of judicial and other resources considerably greater than is usually available in this Court. Experience suggests that this may be a significant under‑estimation, and that it makes no provision for the out‑of‑court time required by a trial judge.
I am not persuaded that I would be able to case‑manage the present proceeding more expeditiously and with lower costs to the parties than would the Federal Court. I consider that the resources of this Court would be strained to accommodate its demands.
Considering all aspects of the matter, I have concluded that it is more suited for case‑management and hearing in the Federal Court, and that it is in the interests of the administration of justice in this case, and generally, that a transfer should now be ordered.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 November 2007