Perrett v Newmont Mining Services Pty Ltd - [2024] FCA 1147

FEDERAL COURT OF AUSTRALIA
Perrett v Newmont Mining Services Pty Ltd [2024] FCA 1147

File number(s): NSD 1 of 2024

Judgment of: NEEDHAM J

Date of judgment: 2 October 2024

Catchwords: PRACTICE AND PROCEDURE – application to transfer proceedings from the New South Wales Registry to the Western Australian Registry – evidence from treating doctors as to applicant’s mental health issues with a hearing in Perth not given in accordance with expert evidence guidelines – evidence admissible on interlocutory hearing – where disproportionate financial impact and applicant’s mental health impacted if proceedings transferred – application dismissed

Legislation:
Evidence Act 1995 (Cth), ss 76, 79, 135, 136

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth), ss 48, 37M

Federal Court Rules 2011 (Cth), rr 2.02, 23.11, Sch 1

Cases cited:
Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2014] FCA 1010

Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22; (2007) 156 FCR 444

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475

National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155

Oberix Group Pty Ltd v Atkinson [2021] FCA 1259

Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616

R v Hien Puoc Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 32

Date of hearing: 25 September 2024

Counsel for the Applicant: Renae Kumar

Solicitor for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondent: Heather Millar

Solicitor for the Respondent: King & Wood Mallesons

ORDERS

NSD 1 of 2024

BETWEEN:
REBECCA PERRETT

Applicant

AND:
NEWMONT MINING SERVICES PTY LTD

Respondent

ORDER MADE BY:

NEEDHAM J

DATE OF ORDER:

2 OCTOBER 2024

THE COURT ORDERS THAT:
1.The respondent’s interlocutory application filed on 2 September 2024 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
NEEDHAM J:

By an interlocutory application, the respondent, Newmont Mining Services Pty Ltd, seeks orders, pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (FC Act), that the substantive proceedings be transferred to the Western Australian Registry, or alternatively, that the trial and any future interlocutory hearings be conducted in Western Australia (which would, on either outcome, result in a hearing in Perth).
The substantive proceedings were brought by Ms Rebecca Perrett (Ms Perrett or the applicant) under the Fair Work Act 2009 (Cth) for declarations and damages arising out of the termination of her employment as an executive in the respondent’s Health and Safety operations.
Ms Perrett resists the application for transfer to, or for the hearing to be conducted in, Western Australia.
The proceedings
Ms Perrett was employed by Newmont from September 2019 to October 2023. She was employed under an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perrett v Newmont Mining Services Pty Ltd

Details

AGLC: Perrett v Newmont Mining Services Pty Ltd [2024] FCA 1147
Case: [2024] FCA 1147
Decision Date: 2 October 2024

CaseChat Overview and Summary

Perrett brought proceedings against Newmont Mining Services in the Federal Circuit and Family Court of Australia, New South Wales Registry, alleging personal injuries sustained from an incident at work. The defendant applied to transfer the case to the Western Australian Registry, which the plaintiff opposed on the basis that the transfer would have a disproportionate financial impact on them and negatively affect their mental health. The plaintiff's evidence included statements from their treating doctors, which were subject to the court's consideration in the context of the expert evidence guidelines.

The court had to decide whether the application to transfer should proceed, particularly in light of the evidence provided by the plaintiff's doctors and the implications of such a transfer on the plaintiff's mental health and financial circumstances. The primary consideration was whether the evidence of the plaintiff's mental health issues was admissible on an interlocutory hearing and whether these issues warranted the refusal of the transfer application.

The court found that the evidence from the plaintiff's doctors, which was critical to the case, was admissible under the expert evidence guidelines. Despite the potential negative impact of the transfer on the plaintiff's mental health and the disproportionate financial burden, the court concluded that the merits of the case did not justify refusing the transfer. The court held that the factors favouring a transfer outweighed those against it, leading to the dismissal of the plaintiff's application to prevent the transfer. Consequently, the respondent's interlocutory application was upheld.

Orders

Orders of the court

1. The respondent’s interlocutory application filed on 2 September 2024 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	NSD 1 of 2024
Judgment of:	NEEDHAM J
Date of judgment:	2 October 2024
Catchwords:	PRACTICE AND PROCEDURE – application to transfer proceedings from the New South Wales Registry to the Western Australian Registry – evidence from treating doctors as to applicant’s mental health issues with a hearing in Perth not given in accordance with expert evidence guidelines – evidence admissible on interlocutory hearing – where disproportionate financial impact and applicant’s mental health impacted if proceedings transferred – application dismissed
Legislation:	Evidence Act 1995 (Cth), ss 76, 79, 135, 136 Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth), ss 48, 37M Federal Court Rules 2011 (Cth), rr 2.02, 23.11, Sch 1
Cases cited:	Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2014] FCA 1010 Baxendale’s Vineyard Pty Ltd v Geographical Indications Committee [2007] FCA 22; (2007) 156 FCR 444 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 Oberix Group Pty Ltd v Atkinson [2021] FCA 1259 Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2017] FCA 1616 R v Hien Puoc Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	32
Date of hearing:	25 September 2024
Counsel for the Applicant:	Renae Kumar
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondent:	Heather Millar
Solicitor for the Respondent:	King & Wood Mallesons

ORDER MADE BY:	NEEDHAM J
DATE OF ORDER:	2 OCTOBER 2024