Nizzari v Westpac Financial Services
[2003] FMCA 255
•16 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NIZZARI v WESTPAC FINANCIAL SERVICES | [2003] FMCA 255 |
| PRACTICE & PROCEDURE – Transfer of proceedings to the Federal Court – relevant considerations – length of hearing anticipated – question of general importance involving the interpretation of Commonwealth legislation – likely delay in hearing before the Federal Magistrates Court – wishes of the parties. COSTS – Lateness of application for transfer – lateness of respondent’s evidence – likelihood of costs being thrown away – protection of Legal Aid budget. |
Disability Discrimination Act 1992 (Cth), s.46
Federal Magistrates Act 1999 (Cth), s.39
Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)
Insurance Contracts Act 1984 (Cth)
Xiros v Fortis Life Assurance [2001] FMCA 15
| Applicant: | ANNA MARIA NIZZARI |
| Respondent: | WESTPAC FINANCIAL SERVICES |
| File No: | SZ1168 of 2002 |
| Delivered on: | 16 June 2003 |
| Delivered at: | Sydney |
| Hearing date: | 16 June 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Murphy |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Mr Beckett |
| Solicitors for the Respondent: | Henry Davis York |
ORDERS
The proceedings be transferred to the Federal court pursuant to s.39 of the Federal Magistrates Act 1999 (Cth) and rule 8.02 of the Federal Magistrates Court Rules 2001 (Cth).
The matter be referred to a Registrar of the Federal Court for mediation in accordance with the Federal Court Rules (Cth).
The respondent pay 50 per cent of the applicant’s costs incurred in the proceedings in this Court up to today’s date, assessed in accordance with the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1168 of 2002
| ANNA MARIA NIZZARI |
Applicant
And
| WESTPAC FINANCIAL SERVICES |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application for procedural orders in relation to these proceedings. The application by the respondent filed on 11 June 2003 seeks a transfer of the proceedings pursuant to rule 8.02 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and s.39 of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”) to the Federal Court and a vacation of trial dates on 19 and 20 June 2003.
In support of the application, the respondent relies upon an affidavit by Robin Lynette Banks, a lawyer for the respondent. That affidavit was made on 11 June 2003. Although the application by the respondent is resisted by the applicant in the principal proceedings, Ms Nizzari, it is apparent from what I have been told by Mr Murphy for her, that there is a broad level of agreement that it is now clear that the proceedings raise some important issues.
There is a factual dispute between the parties, on issues of fraud and misrepresentation. More importantly, however, there are issues that will lead to a dispute on legal interpretation of both the Disability Discrimination Act 1992 (Cth) (“the DDA”) and the Insurance Contracts Act 1984 (Cth) (“the Insurance Contracts Act”). The respondent will be seeking to rely on the Insurance Contracts Act and also upon s.46 of the DDA to avoid any legal liability for unlawful discrimination. The applicant of course will be seeking to avoid that consequence.
It is now clear that the proceedings will be considerably longer than was originally anticipated. Two days have been set aside. The respondent estimates that the proceedings will now take six or possibly seven days. The applicant considers the matter could be dealt with in a shorter time, but I understand, accepts that the two days set aside by me previously would be insufficient.
Section 39 of the Federal Magistrates Act provides that 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. Sub-section 39(2) provides that Federal Magistrates Court may transfer a proceeding under that section on the application of a party or of its own motion. Section 39(3) sets out the matters to be considered by the Court in deciding whether to transfer a proceeding pursuant to section 39(1). I must have regard to any rules of the court; whether proceedings in respect of an associated matter are pending in the Federal Court or not; whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding (the resources are sufficient, but there would necessarily be a significant delay in the hearing of this matter in this Court); and the interests of the administration of justice.
Rule 8.02 of the Federal Magistrates Court Rules provides that the Court may at the request of the party or of its own motion transfer a proceeding to the Federal Court. Ordinarily, and unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding, and, unless the Court otherwise orders, the request must be included in a response or made by application supported by affidavit. The latter has been done.
Rule 8.02(4) sets out additional matters to be considered by the Court. These are, 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 points in issue. In this case, issues of importance involving the interpretation for Disability Discrimination Act and the Insurance Contracts Act have been raised. The outcome, if it proceeds to trial, could have significant implications for the respondent, Westpac, their re-insurers and other insurance companies.
The mere fact that issues of importance are raised does not necessarily mean that the matter should be transferred to the Federal Court. I have previously dealt with a matter of significance involving the interpretation of s.46 of the Disability Discrimination Act in the case of Xiros v Fortis Life Assurance [2001] FMCA 15. However, the issues in this case involving the interpretation of at least two Commonwealth Acts appear to be of significance.
I also must consider 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. If the proceeding is not transferred there will necessarily be a delay because the matter could not be heard on the two days allocated. Unless the matter were transferred to a different Federal Magistrate, it would probably not be heard until late April 2004. I do not know whether another Federal Magistrate would be able to hear the matter earlier, but I think that unlikely, given the state and lists of the Court generally. Although matters could be shifted in order to make time available to hear a case more urgently, the logistics involved in shifting hearings over more than a week would be very significant indeed.
I am told anecdotally that it is possible for matters to be heard more quickly in the Federal Court in Sydney at present than in this Court. There should not be a significant cost difference between this Court and the Federal Court. The amount of preparation that will need to be done will be the same in any event. The costs rules of the courts are different, but the costs outcomes need not significantly vary. There are also issues of public importance in the case, which may have an impact on the costs outcome in either court.
I do not think the availability of particular procedures appropriate for the class of the proceeding as a relevant consideration in this matter. The wishes of the parties is a relevant consideration. The respondent wishes the matter to be transferred.
On balance, I am of the view that the matter should be transferred to the Federal Court in order to enable the matter to be heard more quickly and in order for the issues of significance involving the interpretation of Commonwealth legislation to be dealt with by a superior court at first instance.
It is unfortunate that the issue of transfer has only been raised at a very late stage. I have noted that the rules ordinarily require that issues of transfer be raised on the first court date. This matter has been in this Court for many months and the parties have been proceeding, albeit rather slowly, towards an anticipated hearing in the Court. A significant amount of preparation has been done. Some of that preparation may be used in the Federal Court; some may turn out to have been a waste of effort. That will depend upon the view that the Federal Court takes of the matter.
I also note that I made an order to facilitate mediation between the parties, but not to require mediation. No mediation has taken place to date, although the applicant, in particular, would appreciate the opportunity to have the matter dealt with by mediation. I was told by Mr Murphy, for the applicant, that it is likely that if the matter is transferred to the Federal Court, the applicant will elect not to continue with the proceedings because of the costs implications. In my view, significant costs implications are likely to arise where ever the matter is dealt with, given the size that the case has grown to. However, the applicant is legally aided and the burden on the legal aid budget is another factor to consider. It would certainly have been better if the issue of transfer had been raised much earlier. I note that the respondent would seek to rely on affidavits from 12 persons at the hearing and none of those affidavits have yet been filed.
The lateness of the respondent’s evidence would almost certainly have caused the hearing to be aborted in any event. The issues do involve issues of public importance and given that the issue of transfer has been raised late, and that it is almost certain that the hearing in this Court would have had to have been adjourned. Even if the proceedings had remained in the Court, I am of the view that the respondent should bear part of the burden of costs incurred by the applicant to this point.
I am also of the view that an attempt should be made by the parties to resolve the issues between them by mediation. I will therefore order that the proceedings be transferred to the Federal Court pursuant to s.39 of the Federal Magistrates Act and rule 8.02 of the Federal Magistrates Court Rules. Secondly, and noting that the proceedings will now continue in the Federal Court, I will order that the parties attend mediation before a Registrar of the Federal Court who is also a registrar of this Court, pursuant to the Federal Court Rules. I will thirdly order that the respondent pay 50 per cent of the applicant's costs incurred in the proceedings in this Court up to today's date assessed in accordance with the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 July 2003
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