Mitry v Downer Edi Works Pty Ltd
[2025] FedCFamC2G 951
•14 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mitry v Downer Edi Works Pty Ltd [2025] FedCFamC2G 951
File number(s): SYG 152 of 2023 Judgment of: JUDGE CAMERON Date of judgment: 14 April 2025 Catchwords: PRACTICE AND PROCEDURE – Application to transfer proceeding to the Federal Court of Australia – relevant considerations. Legislation: Fair Work Act 2009 (Cth) Cases cited: Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168
Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Division: Fair Work Number of paragraphs: 15 Date of hearing: 14 April 2025 Place: Sydney Solicitor for the Applicant: Masselos & Co Lawyers Solicitor for the Respondent: Kingston Reid ORDERS
SYG 152 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSHUA MITRY
Applicant
AND: DOWNER EDI WORKS PTY LTD ABN 66 088 709 608
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
14 APRIL 2025
THE COURT ORDERS THAT:
1.The applicant’s application in a proceeding filed on 11 February 2025 be dismissed.
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 CAMERON
The applicant used to be employed by the respondent. He alleges that he was mistreated in his workplace such that he suffered psychological or psychiatric injuries which have affected his long-term ability to work. He seeks to be compensated for what he says are the consequences of his mistreatment by the respondent's employees. In this proceeding, the applicant alleges, amongst other things, that his injuries were a consequence of breaches by the respondent of the general protections provisions of the Fair Work Act 2009 (Cth). Relevantly, he says that he is entitled to compensation for those consequences of that conduct.
The applicant has also pursued his rights under the workers compensation scheme of New South Wales. It is submitted by the applicant, and not put in issue by the respondent, that the applicant has now satisfied all the conditions precedent to the commencement of proceedings for common law damages in accordance with relevant New South Wales workers compensation legislation. It is also submitted by the applicant, and not put in issue by the respondent, that the general protections claim and the workers compensation-related claim arise out of substantially the same facts. Documents filed by the applicant indicate as much.
The matter comes before the Court today on the applicant's application for a transfer of the matter to the Federal Court of Australia. The application was originally brought on the understanding that this Court would be unable to decide all relevant questions. The applicant has, in the meantime, acquainted himself with the principles of Federal accrued jurisdiction and now submits that the Court does have accrued jurisdiction to determine the workers compensation related aspects of the dispute.
As the two claims do arise out of substantially the same facts, the fact that they may afford different relief under two legislative schemes does not mean that they are not the same matter. They appear to me to be the same controversy. In Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475, Barwick CJ said:
It is a settled doctrine in Australia that when a court which can exercise Federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued Federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted Federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising Federal jurisdiction may enforce rights which derive from a non-Federal source. …
In Commissioner of Stamp Duties (NSW) v Owens (No 2) [1953] 88 CLR 168 at 170, the High Court made it clear that rights derived from non-Federal sources can include rights derived from State legislation. There are other cases to that effect.
Turning to the criteria which the Court's statute and rules prescribe to be taken into account in determining matters such as the present:
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 on one or more of the points in issue
As noted by Mr Masselos in submissions today, there is not much history of the Federal courts determining matters arising out of workers compensation claims. However, he advised the Court that there had been at least one such matter determined in the Federal Court. To that extent, while there may be some novelty in the determination by this Court, as a Federal court, of issues associated with New South Wales workers compensation legislation, it is not unprecedented. In other respects, the dispute seems unremarkable and hardly likely to raise novel issues.
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 were not transferred
It is not apparent to me that there would be anything to be gained in terms of lesser cost and more convenience if the matter were transferred to the Federal Court. The relevant Federal Court procedures are not different in any material respect from those of this Court.
Whether the proceeding will be heard earlier in the Court
It is unlikely that there would be any advantage as to hearing dates if the matter were transferred to the Federal Court. Certainly, this Court has unmanageably long lists for migration matters filed with it, but this case will proceed on a different track while it is in my docket, and is not likely to get a hearing date much later than would be available in the Federal Court.
The availability of particular proceedings appropriate for the class of proceeding
There is no difference between the Federal Court and this Court as to the procedures that would be applied to this matter.
The wishes of the parties
As noted earlier, the applicant originally sought the transfer, but is now at best ambivalent having, since filing, become aware of the Court's accrued jurisdiction. The respondent neither consents to nor opposes the application.
Whether proceedings in respect of an associated matter are pending in the Federal Court
There is no associated matter pending in the Federal Court that has been brought to my attention.
Whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding
The resources of this Court are undoubtedly very stretched when the migration workload is taken into account, but that is not likely to have a significant effect on the progress of this matter towards hearing.
The interests of the administration of justice
The only matter which might suggest that transfer is appropriate is the large quantum of compensation or damages which are sought. However, the Court has unlimited jurisdiction in Fair Work matters, and I am unaware of any legislative restriction associated with the New South Wales Workers Compensation legislation that would impose a jurisdictional limit on this Court. As I have already noted, there appears to be nothing novel about the matters, and large quantum or not, the matter can be determined by principles that are well-known and often traversed.
CONCLUSION
The application for transfer to the Federal Court of Australia will be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 18 June 2025
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