Koutouvas v Coca-Cola Amatil (Aust) Pty Ltd

[2009] FCA 1125

FEDERAL COURT OF AUSTRALIA

Koutouvas v Coca-Cola Amatil (Aust) Pty Ltd [2009] FCA 1125

Federal Court of Australia Act 1976 (Cth), s 32AB
Federal Court Rules O 82 r 7

SPIRO KOUTOUVAS and LIQUOR HOSPITALITY AND MISCELLANEOUS UNION v COCA-COLA AMATIL (AUST) PTY LTD ACN 076 594 119   

VID 622 of 2009

GRAY J
14 SEPTEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 622 of 2009
FAIR WORK DIVISION

BETWEEN:

SPIRO KOUTOUVAS
First Applicant

LIQUOR HOSPITALITY AND MISCELLANEOUS UNION
Second Applicant

AND:

COCA-COLA AMATIL (AUST) PTY LTD
ACN 076 594 119
Respondent

JUDGE:	GRAY J
DATE OF ORDER:	14 SEPTEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application to transfer the proceeding to the Federal Magistrates Court be dismissed.

2.        The proceeding be referred to a registrar for mediation, to be completed, if possible,         by 16 November 2009.

3.        The directions hearing be adjourned to 1 December 2009.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 622 of 2009
FAIR WORK DIVISION

BETWEEN:

SPIRO KOUTOUVAS
First Applicant

LIQUOR HOSPITALITY AND MISCELLANEOUS UNION
Second Applicant

AND:

COCA-COLA AMATIL (AUST) PTY LTD
ACN 076 594 119
Respondent

JUDGE:	GRAY J
DATE:	14 SEPTEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. In this proceeding, the applicants allege that the first applicant was dismissed from his employment by the respondent.  The dismissal appears to be an admitted fact.  The applicants allege that it was for reasons of the first applicant’s union activities and also that it was in breach of a collective agreement between the second applicant and the respondent.  This is the first directions hearing of the proceeding. 

2. The respondent has applied, pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth), for an order that the proceeding be transferred to the Federal Magistrates Court. Section 32AB(6) provides that the Court must have regard to certain factors in deciding whether to transfer a proceeding to the Federal Magistrates Court. Relevantly, they include any rules of court made for that purpose, and the interests of the administration of justice. There is also a reference to the resources of the Federal Magistrates Court.

3. The power given by s 32AB(4) to make rules relating to transfers has been exercised. The relevant rule is in O 82 r 7 of the Federal Court Rules.  That rule lists four factors, as follows:

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

   (b)      whether, if the proceeding or appeal is transferred, it is, in the opinion of the      Court or the Judge, likely to be heard and determined at less cost and more   convenience to the parties than if the proceeding or appeal is not      transferred;

   (c)       whether the proceeding or appeal is, in the opinion of the Court or the Judge,     likely to be heard and determined earlier in the Federal Magistrates Court;

   (d)      the wishes of the parties.

4. As to factors (b) and (c), the respondent has provided no evidence that the proceeding would be heard and determined at less cost and more convenience to the parties in the Federal Magistrates Court than in this Court.  Nor has the respondent provided any evidence that the proceeding is likely to be heard and determined earlier in the Federal Magistrates Court.  I am not aware of the state of the lists in the Federal Magistrates Court at the present time.  I am, however, aware of the state of my docket and the manner in which I manage it and I have considerable doubt whether there would be less cost, more convenience, or an earlier hearing, if I were to transfer the proceeding.  The very fact that another directions hearing would be likely to be held in the Federal Magistrates Court would be an additional costs factor.  I intend to manage the case for the filing of minimal paper and I do not know what the practice of the Federal Magistrates Court in that regard will be.  As to factor (d), the wishes of the parties, the parties are divided on the question.

5. Crucially, then, the question is whether factor (a) favours a transfer.  The respondent sought to characterise the proceeding as a very ordinary one.  On the face of the statement of claim it may be.  On the hearing of this application, I attempted to explore some of the issues, by asking what the respondent’s defences are likely to be.  The respondent’s representative revealed that there was a decision of a committee to automate part of the respondent’s process and to dismiss a group of employees working a shift, of which the first applicant was a member.  That decision, apparently not recorded in writing, was the subject of a recommendation, also not in writing, to a senior manager in human resources, who is said to have implemented it.  The question of whose mind must then be the one without any of the prohibited reasons becomes a crucial one.  The respondent’s representative proposes to call all members of the committee to state their individual reasons for voting in favour of a particular motion.  There is much law about the individual motivations of committee members and whether they are admissible in relation to questions such as this.  Whether the fact that the onus of proof lies on the respondent in relation to reasons overrides that law which has been determined in other contexts, may be a difficult question.  It also may be one of general importance. 

6. The representative of the applicants also indicated that there is a question of contravention of the collective agreement between the second applicant and the respondent, a question which may assume relevance in the event of future automations and future redundancies in consequence of them.  That is also a factor which gives to the questions involved in this case an element of general importance.

7. In the circumstances, it seems to me that the interests of the administration of justice do not dictate that the proceedings should be transferred to the Federal Magistrates Court.  Accordingly, I propose to dismiss the application for such a transfer. 

8. The orders I make are as follows:

   1.The application to transfer the proceeding to the Federal Magistrates Court be dismissed.

   2.        The proceeding be referred to a registrar for mediation, to be completed, if possible,         by 16 November 2009.

   3.        The directions hearing be adjourned to 1 December 2009.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:
Dated:       2 October 2009

Counsel for the applicants:	Mr Y Bakri
Solicitor for the applicants:	Liquor, Hospitality and Miscellaneous Union
Counsel for the respondent:	Mr JL Snaden
Solicitor for the respondent:	Clayton Utz

Date of hearing:	14 September 2009
Date of judgment:	14 September 2009