McGrath v Commonwealth Securities Limited
[2013] FMCA 224
•2 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCGRATH v COMMONWEALTH SECURITIES LIMITED | [2013] FMCA 224 |
| PRACTICE & PROCEDURE – Application to transfer proceedings to Federal Court – where question of accrued jurisdiction may arise before Federal Court in relation to breach of duty of care claim – where matter may fall outside Safety Rehabilitation and Compensation Act 1988 (Cth) - whether questions of general importance – whether questions would be determined at less cost – whether greater convenience to the parties – where respondent neither objects nor consents to the transfer – whether to transfer matter. |
| Federal Magistrates Court Act 1999, s.39(1) Federal Magistrates Court Rules 2001, Pt 17, r.21.02(1)(a), 21.02(2)(a) Safety Rehabilitation and Compensation Act 1988 (Cth), ss.14, 44(1) Fair Work Act 2009, ss.351, 545(2)(b), 546 Federal Court of Australia Act 1976, s.51A |
| Takemoto v Moody’s Investors Service Pty Limited & Anor [2012] FMCA 936 SZBQB v Minister for Immigration & Anor [2011] FCA 885 SZGIZ v Minister for Immigration & Anor (unreported) |
| Applicant: | LUKE STUART MCGRATH |
| Respondent: | COMMONWEALTH SECURITIES LIMITED (ACN 067 254 399) |
| File Number: | SYG 1825 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 April 2013 |
| Date of Last Submission: | 2 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Crossland |
| Solicitors for the Applicant: | Meehans |
| Counsel for the Respondent: | Ms E Raper |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $1,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1825 of 2012
| LUKE STUART MCGRATH |
Applicant
And
| COMMONWEALTH SECURITIES LIMITED ACN 067 254 399 |
Respondent
REASONS FOR JUDGMENT
I am faced today with an application under s.39(1) of the Federal Magistrates Court Act 1999[1] to transfer this proceeding to the Federal Court. I have been provided with a copy of a draft Application and Statement of Claim that it is proposed to file in the Federal Court should I consent to this transfer.
[1] “Act”
Section 39(1) of the Act provides:
“Discretionary transfer of proceedings to the Federal Court or the Family Court
(1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.”
The statutory provisions are complemented by Rule 8.02 of the Federal Magistrates Court Rules 2001[2] which are in the following form:
[2] “Rules”
“Transfer to Federal Court or Family Court
(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(4) In addition to the factors required to be considered by the Court under subsections 39 (3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(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 proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Note 1 Subsection 39 (3) of the Act provides that, in deciding whether to transfer a proceeding to the Federal Court, the Court must have regard to:
* the factors set out in these Rules to be taken into account
* whether proceedings in respect of an associated matter are pending in the Federal Court
* whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding
* the interests of the administration of justice.
Note 2 Subsection 39 (4) of the Act provides that, in deciding whether to transfer a proceeding to the Family Court, the Court must have regard to:
* the factors set out in these Rules to be taken into account
* whether proceedings in respect of an associated matter are pending in the Family Court
* whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding
* the interests of the administration of justice.”
The Application and Statement of Claim reveal an interesting justiciable matter. The applicant was at all material times an employee of the respondent. During the course of his employment he had dealings with an ethnic community based school. Those dealings did not end satisfactorily for the school which finally went into liquidation but before it did so a considerable amount of publicity was generated as to its relations with the respondent. It is alleged that some of the publicity about the school’s plight mentioned the applicant by name and was defamatory. This publicity caused the applicant stress and anxiety which led him to being unfit for work. He brought proceedings against the respondent who was self insurers and as such a person to whom the Safety Rehabilitation and Compensation Act 1988 (Cth)[3] applied. Although the respondent determined that the applicant’s medical condition was not work related a finding by the Administrative Appeals Tribunal held that the respondent was liable to make payment to him under s.14 of the SRC Act. The respondent dismissed the applicant from its employ on 23 May 2012.
[3] “SRC Act”
The applicant makes two claims in his proceeding. The first is a claim for damages for breach of duty of care on the part of the respondent in not protecting him from what the applicant claims was the defamatory and hurtful allegations made whilst the dispute between the school and the respondent was being ventilated in the public arena. The second constituent of the application is a claim that the dismissal of the applicant was made in breach of s.351 of the Fair Work Act 2009[4] “FWA” and that the applicant was dismissed because he suffered from a mental disability. The applicant claims compensation under s.545(2)(b) of the FWA and that the respondent pay a pecuniary penalty pursuant to s.546 of the Act together with interest under s.51A of the Federal Court of Australia Act 1976.
[4] “FWA”
In support of his application to transfer this matter to the Federal Court the applicant accepts that no claim is being made that the Federal Court has any additional jurisdiction other than its accrued jurisdiction that the Federal Magistrates Court does not have to hear that part of the claim founded in the employer’s duty of care. The applicant argues that the basis for the application is firstly that there is a concern as to whether the claim for breach of duty of care is properly a matter for the accrued jurisdiction of a Federal Court and as a result will in all probability involve a complex hearing on a separate question of law. Second that even if accrued jurisdiction is accepted there follows a further complex argument as whether in the facts and circumstances of the matter the duty of care is outside the provisions of s.44(1) of the SRC Act which is in the following form:
“Action for damages not to lie against Commonwealth etc. in certain cases
(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:
(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.”
The applicant submits that these are questions of general importance upon which it would be desirable that there be a decision of the Federal Court. It argues that it is likely that if the matter is transferred it would be determined at less cost and more convenience to the parties because the likelihood of appeal would be diminished.
The respondent’s attitude to the application is summed up in a letter which it wrote to the court:
“27 March 2013
BY EMAIL: Associate. [email protected]
Associate to Federal Magistrate Raphael
Federal Magistrates Court
Law Courts Building
Level 17
Queens Square
SYDNEY NSW 2000Dear Associate
Luke McGrath v Commonwealth Securities Limited Pty Limited - SYG 1825 of 2012 (Proceeding)
We are writing in relation to set out the Respondent’s position in relation to the Applicant’s Application in a Case to transfer the Proceeding to the Federal Court (Application), which is listed for hearing at 9.30a.m. on 2 April 2013.
We note that the Applicant has filed two sets of submissions – on 22 March 2013 and 27 March 2013 – in relation to the Applicant’s Application in a Case to transfer the Proceeding to the Federal Court (Application).
The Respondent has a limited submission to make and does so as is set out in this letter.
Having considered the submissions, the Respondent has decided that the Application is a matter for the Court and, accordingly, it neither consents to nor opposes the Application. With that being said, there are some unusual features of the submissions (including the fact that the draft Statement of Claim presumably relied upon in support of the Application is now otiose and an updated draft has not yet been provided). The Respondent confesses that it does not fully understand the basis on which a Transfer is sought.
The Respondent reserves all its rights – including in relation to the costs of the Application.
A copy of this correspondence has been sent to the Applicant’s solicitors.
Please contact Gareth Jolly on (02) 9921 4723 or Eliza Evans on (02) 9921 4331 if you have any questions in relation to this matter.
Yours faithfully
MINTER ELLISON”
Although the grounds upon which the transfer was sought became clearer at the hearing the respondent did not change its position as to neither consenting nor opposing the application.
This court has from time to time accepted an application to transfer a matter to the Federal Court on the grounds of procedural complexity; Takemoto v Moody’s Investors Service Pty Limited & Anor [2012] FMCA 936 per Smith FM. But on the other hand when this court has attempted to transfer matters in the immigration sphere where a number of similar applications remain to be decided by this court so that an early and determinative finding may be made the Federal Court, that court has shown itself reluctant to accept such transfers; SZBQB v Minister for Immigration & Anor [2011] FCA 885 per Flick J; SZGIZ v Minister for Immigration & Anor (unreported).
The fact that I can see that the respondent may well seek to argue at a hearing on a separate question that the factual matrix surrounding the alleged failure to exercise the respondent’s duty of care is not sufficiently connected to the dismissal of the applicant, which forms the basis of the court’s jurisdiction under the FWA, would not in itself be a ground for successful transfer. This court has on many occasions heard separate questions and they are specifically provided for in Part 17 of the Rules. That responding to the question may be difficult is also not a ground for transfer because cases on accrued jurisdiction are generally confined to their own particular facts and there are sufficient cases upon the general principles not to require a new one at this particular point in time; see the monograph on associated and accrued jurisdiction written by Chief Justice Allsop Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Australian Bar Review 29.
If the court does find that the breach of duty of care can be classed as a matter that falls within its accrued jurisdiction then the question as to whether or not in the circumstances of this particular case the activities of the employer fell outside s.44(1) could be said to involve a question of general importance upon which it would be desirable for there to be a decision of the Federal Court. But as these are questions that normally are answered in the Supreme Court of states where questions of breach of statutory duty are more commonly heard I would have to doubt whether it would meet the Federal Court’s understanding of this term.
It is embarrassing for both this court and for the parties to have matters that are transferred to the Federal Court remitted to this court. It does little for the confidence of parties in the administration of justice. It therefore behoves this court to be very cautious before making an order for transfer where the grounds for that transfer do not clearly fall within the remit of the Statute and Rules. This is one of those cases. I would dismiss the application. The respondent has asked for its costs. Although the matter has been commenced in the Fair Work jurisdiction of this court, a jurisdiction in which orders for costs are not generally made, the application concerns that part of the claim which is not within that jurisdiction. I think it appropriate that an order for costs be made in favour of the respondent. The applicant has clearly regretted his decision to commence proceedings in this court. He could have commenced them in the Federal Court and this application would not have been necessary. He has failed to obtain a transfer. This court has power under the Rules Part 21 Rule 21.02(1)(a) and 21.02(2)(a) to assess any costs so awarded. Given the respondent’s attitude to the application I propose to assess the costs payable by the applicant to the respondent in the sum of $1,250.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 2 April 2013
0
2
5