Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch (No.2)
[2017] FCCA 1788
•1 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUIRK v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH and MILLER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH (No.2) | [2017] FCCA 1788 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case for transfer of proceedings to the Federal Court of Australia – amended Statement of Claim alleges breaches of provisions of the Fair Work (Registered Organisations) Act2009 (Cth) – whether the Court has jurisdiction – whether the Court should transfer the proceedings to the Federal Court – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.545, 546, pt. 3-1 Fair Work (Registered Organisations) Act 2009 (Cth), ss.142, 163, 164A, 164B, 337BB, 337BD, 337BE, 338, 339 |
| Cases cited: Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch [2017] FCCA 81 |
| Applicant: | ANDREW QUIRK |
| Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
| File Number: | SYG 1521 of 2015 |
| Applicant: | BRIAN MILLER |
| Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
| File Number: | SYG 1522 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 June 2017 |
| Date of Last Submission: | 19 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2017 |
REPRESENTATION
| Counsel for the Applicant in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | Mr M Seck |
| Solicitors for the Applicant in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | McArdle Legal |
| Counsel for the Respondent in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | Mr BG Docking |
| Solicitors for the Respondent in proceedings SYG 1521/2015 and proceedings SYG 1522/2015: | Taylor & Scott Lawyers |
ORDERS
IN PROCEEDINGS SYG 1521 of 2015
The Application in a Case made on 25 May 2017 is dismissed.
Those parts of the applicant’s Statement of Claim that rely of the Fair Work (Registered Organisations) Act 2009 (Cth) be struck out.
IN PROCEEDINGS SYG 1522 of 2015
The Application in a Case made on 16 June 2017 is dismissed.
Those parts of the applicant’s Statement of Claim that rely on the Fair Work (Registered Organisations) Act 2009 (Cth) be struck out.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1521 of 2015
| ANDREW QUIRK |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
Respondent
SYG 1522 of 2015
| BRIAN MILLER |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSW BRANCH |
Respondent
REASONS FOR JUDGMENT
(As corrected)
On 4 June 2015 Mr Andrew Quirk and Mr Brian Miller (“the applicants”) each filed an application in this Court in which they sought orders for compensation pursuant to s.545 and pecuniary penalties pursuant to s.546 of the Fair Work Act 2009 (Cth) (“the FWA”), as a result of “adverse action” taken against them by the Construction, Forestry, Mining and Energy Union (“CFMEU”) New South Wales Branch (“the respondent”), in contravention of certain general protections contained in Part 3-1 of the FWA.
On 20 January 2017, I handed down judgment in relation to two Applications in a Case (“AICs”) made by the respondent pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) and r.13.10(a) and r.13.07 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). In essence, the respondent sought summary dismissal of each of the substantive applications made by the applicants on 4 June 2015 (see Quirk v Construction, Forestry, Mining and Energy Union NSW Branch and Miller v Construction, Forestry, Mining and Energy Union NSW Branch [2017] FCCA 81 (“Quirk and Miller (No 1)”)).
For the reasons given in that judgment, I made orders dismissing the respondent’s AICs. However I did also find ([62] – [63] of Quirk and Miller (No 1)):
“[62] … given the nature of the evolution of these cases, and the applicants’ apparent consent (see [72] of AS), the applicants should each file a Statement of Claim setting out, with particularity, the matters relied upon.
[63] Further, the Statements of Claim should, as far as relevant, and within the bounds of reasonableness, address the matters raised in the respondent’s submission of 17 March 2016 at [41], [43] and [44]. The applicants should also file and serve written Contentions as to Facts and Law, which should include comprehensive reference to the evidence to be relied upon. The respondent should then file a written Response to these contentions. The parties should agree to an appropriate timetable to give effect to this, and orders will be made accordingly.”
Each of the applicants did file a Statement of Claim (“SOC”) on 12 May 2017 in each of their respective proceedings. The SOCs seek relief under the FWA. However, they also seek relief pursuant to s.163, s.164B (and with reference to s.164A), and s.142 of the Fair Work (Registered Organisations) Act 2009 (Cth) (“the FWRO Act”). [I note that this Court now has jurisdiction in relation to ss.337BB, 337BD and 337BE of the FWRO Act. These are not the sections relied on by the applicants in this case.]
In my view, it is fair to say that while the applicants have not entirely “abandoned” their reliance on the FWA, the central focus of their cases now, as expressed through their SOCs, is the FWRO Act.
The applicants have now applied for their respective proceedings to be transferred to the Federal Court of Australia pursuant to the AICs filed in their respective proceedings on 25 May 2017 (proceedings SYG 1521 of 2015) and 16 June 2017 (proceedings SYG 1522 of 2015). The applicants seek orders pursuant to s.39(2) of the FCCA Act, and r.8.02(1) of the FCC Rules. The respondent opposes the making of such orders.
Section 39 of the FCCA Act relevantly provides:
“Section 39
Discretionary transfer of proceedings to the Federal Court or the Family Court
(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to the Federal Court or the Family Court.
(2) The Federal Circuit Court of Australia may transfer a proceeding under this section:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and
(d) the interests of the administration of justice.
…
(5) If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6) An appeal does not lie from a decision of the Federal Circuit Court of Australia in relation to the transfer of a proceeding under subsection (1).
(7) A reference in subsection (1) to a proceeding pending in the Federal Circuit Court of Australia includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8) This section does not apply to proceedings of a kind specified in the regulations.”
Section 40(2) of the FCCA Act is in the following terms:
“Section 40
Rules of Court about discretionary transfer of proceedings
…
(2) In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Circuit Court of Australia in deciding whether to transfer a proceeding to the Federal Court under subsection 39(1).”
Rule 8.02 of the FCC Rules is in the following terms:
“Rule 8.02
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 Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
Note: See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.”
The basis for the applicants’ AICs to transfer their proceedings to the Federal Court, is that the claim that they have now put before this Court, arising under the FWRO Act, is a claim that can only be considered by the Federal Court. In short, this Court lacks jurisdiction to consider the claim under the FWRO Act, and to make any relevant orders sought by the applicants in this regard.
The respondent agreed with the applicants on the issue of the Court’s jurisdiction. Although neither party made submissions on this point, it would appear that the parties’ position on jurisdiction is well-founded. I should note the respondent’s position, further, is that to the extent that the “amended” applications now seek to rely on the FWRO Act, they are not valid applications ([3]a. of the respondent’s written submissions filed on 14 June 2017).
Section 163 of the FWRO Act, in referring to an application for an order declaring that “Rules” of a relevant organisation contravene s.142 of the FWRO Act, allows for an application to be made to the Federal Court of Australia, for an order under that section, in relation to the organisation (s.163(1) of the FWRO Act).
Section 164A(1) of the FWRO Act provides that a member of an organisation may apply to the Federal Court for an order pursuant to s.164A(4) (s.164A(4) is also subject to s.164B) of the FWRO Act, in relation to that organisation.
Through their SOCs, the applicants have sought such orders in relation to the respondent.
Before this Court, the parties agreed that this Court did not have jurisdiction to consider this part of the applicants’ “amended” applications (putting to one side the issue of validity).
Therefore, the applicants sought transfer of the entire proceedings to the Federal Court on the basis that a central part, if not the key part, of their now “amended” applications, could only be considered by that Court, and not this Court. The respondent opposes such a transfer.
The respondent’s position was that the proceedings should not be transferred to the Federal Court, that the part of the proceedings relating to orders sought which could only be made by the Federal Court should be “struck out”, and that the remainder of the proceedings continue before this Court as had previously been envisaged prior to the filing of the applicants’ SOCs.
It must be said, at the outset, it is of note that the applicants did not dispute (and in fact agreed), that this Court did not have jurisdiction to consider the claims they now wish to have considered. What was not satisfactorily explained, was if the applicants had full knowledge of that state of affairs, why they chose to employ a circuitous route to the appropriate Court, indeed, the only Court that can consider their claim, instead of taking the more direct action of seeking to initiate proceedings in that Court.
In my view, the applicants’ focus on the matter of jurisdiction ignores the question as to whether the “amended” applications to this Court, for orders involving s.163, s.164B, s.164A, and s.142 of the FWRO Act, were valid.
It is accepted that the applicants initially made valid applications to this Court involving the FWA, and for which this Court had jurisdiction to consider.
However, the applicants appear to have conflated the concepts of a valid application and the Court’s jurisdiction.
The plain wording of s.163 (and as it relates to s.142) of the FWRO Act, and s.164A (and as it relates to s.164B) of the FWRO Act, makes plain that a member, or an applicant for membership of an organisation, may “apply” to the Federal Court, for the relief that the applicant seeks against the respondent. The sections make no provision for any such application to be made to this Court.
This is also in circumstances where the FWRO Act expressly grants exclusive jurisdiction to the Federal Court. The FWRO Act expressly provides that the Federal Court’s jurisdiction “is exclusive of the jurisdiction of any other court created by the Parliament” (see s.338 and 339(1) of the FWRO Act and see Ogawa v Federal Magistrate Phipps(with corrigendum dated 11 April 2006) [2006] FCA 361; (2006) 151 FCR 311 (“Ogawa”) at [10] – [12]).
The applicants, by way of their SOCs, have applied for orders from this Court in circumstances where there is an express exclusivity for the making of those orders statutorily reposed in the Federal Court, and not this Court.
Through their legal representatives, the applicants have made clear that what they have asked of this Court in their SOCs cannot be considered, let alone granted, by this Court. There was nothing put by the applicants now, through their counsel, to indicate that they would not have known of this state of affairs at the time of the making of their SOCs to this Court.
Further, what was put in submissions would indicate that the applicants did know of that state of affairs. Before the Court, the applicants’ counsel submitted that the applicants elected to make “amended” applications to this Court, seeking orders in relation to the FWRO Act. This was done as part of a “plan” of action to then ask for the proceedings to be transferred to the Federal Court. Further, the applicants did not apply directly to the Federal Court so as to avoid paying the filing fee to the Federal Court.
This would, in my view, reasonably indicate that the applicants, through their legal representatives, understood that at the time of the making of the SOCs, there was the alternative option of going directly to the Federal Court, with what is now the substantive part of the proceedings they wish to prosecute. However, the applicants elected to file the AICs seeking to transfer the proceedings to the Federal Court, at least in part, to avoid additional filing fees.
In the circumstances, in relation to the “amended” application part of the SOCs, there is no valid application before this Court which can be the subject of consideration of transfer to the Federal Court.
In this light, I did consider (although not the subject of any submissions by any of the parties), whether it could be said, that notwithstanding the invalidity of the applications to this Court (and in light of the relevant exclusive jurisdiction of the Federal Court), this Court has the “accrued” or “associated” jurisdiction to consider the “amended” applications for the orders sought by the applicants (and see further below on the question of jurisdiction to transfer to the Federal Court).
However, for the reasons set out in a Ogawa which, in my respectful view, is applicable to the current circumstances, this Court does not have such jurisdiction in relation to those parts of the FWRO Act relied on now by the applicants, given the express exclusive jurisdiction of the Federal Court. As was said by Finkelstein J at [12]:
“It is now necessary to notice s 86AA(4). This sub-section relevantly provides that the jurisdiction of the Federal Court conferred by s 86(1) is ‘exclusive of the jurisdiction of any other court other than: (a) the jurisdiction of the Federal Magistrates Court under subsection (1A).’ I think the intent of this provision is clear. Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that mater has begun in the Federal Court. Moreover, it would subvert Parliament’s intention if one were to accept the University’s contention that s 18 of the Federal Magistrates Court Act (the ‘associated jurisdiction’ provision) has the effect of giving to the Federal Magistrates Court jurisdiction over a federal claim that is within the exclusive jurisdiction of the Federal Court. In my view whatever claims may be picked up as part of the Federal Magistrates Court’s associated jurisdiction they do not include claims that are within the exclusive jurisdiction of another federal court.”
In any event, whatever reason the applicants had, at the time of the making of their “amended” applications to this Court through their SOCs, does not alter the circumstances that those applications are not valid, or competent, given the relevant and express provisions of the FWRO Act.
On this basis, it is appropriate to make relevant declarations that the parts of the “amended” applications, now sought to be made by the applicants to this Court, are not valid. Given the lack of competence of parts of the applications, they are not available to be transferred to the Federal Court. As to the remainder, for the reasons that are set out below, these proceedings should remain with this Court, as it had been previously envisaged.
While the invalidity of the “amended” applications is sufficient to dispose of the AICs to transfer the proceedings to the Federal Court, there is a second, and separate, basis on which the transfer should be refused in the exercise of the Court’s discretion.
The applicants (and the respondent) assert that this Court has no jurisdiction to consider granting the orders for the relief that is now central to their proceedings. Yet, they have sought to put before this Court these proceedings for the limited purpose of transferring the entire proceedings to the Federal Court. They do so for the sole purpose of this Court making orders to transfer the entire proceedings to the Federal Court.
It must be said, what remained unsatisfactorily explained (and see further below), was why, if the applicants knew that this Court had no jurisdiction in relation to the additional matters they now seek to press, they did not seek to directly initiate proceedings in the Federal Court.
This immediately raises the question of whether this Court, in the circumstances set out above, has jurisdiction to consider the transfer to the Federal Court (absent the invalidity of the “amended” applications).
Therefore, the question posed is whether this Court has jurisdiction to transfer the proceedings (that is, that part concerning the FWRO Act), in circumstances where it has no jurisdiction over a large part of the substantive matter, and the Federal Court has exclusive jurisdiction in relation to that same part.
While the Court in Fisher v Minister for Immigration and Citizenship [2007] FCA 591; (2007) 162 FCR 299 (“Fisher”) was concerned with a different statutory regime, in my respectful view, what was stated there applies to the current circumstances (see Fisher at [23] – [25] and the authority cited therein).
In particular, [24] of Fisher, addressing s.39 of the FCCA Act, is as follows:
“Section 39 applies to a proceeding that is ‘pending’ in the FMC. The Macquarie Dictionary gives the meaning of ‘pending’ as including ‘remaining undecided, awaiting decision’. This is an appropriate description of the proceeding as it was until the Federal Magistrate made an order disposing of it. That order could have been to dismiss it or, as occurred, an order to transfer it to this Court. I see no reason why his Honour’s jurisdiction did not extend to the latter order.”
For current purposes I proceed on this basis. Section 39(3) of the FCCA Act sets out the matters to which this Court must have regard in relation to the AICs to transfer the proceedings to the Federal Court (see above at [7]).
In relation to s.39(3)(a) of the FCCA Act, the Court must have regard to r.8.02 of the FCC Rules (see [9] above), which sets out the factors that are to be taken into account in considering a transfer to the Federal Court (with reference to s.40(2) of the FCCA Act). I will return to this below.
In relation to s.39(3)(b) of the FCCA Act, I am not aware of any associated matter pending in the Federal Court. Specifically, the applicants made clear before this Court, prior to the making of the SOCs in these proceedings, no associated matter had been filed by them before the Federal Court. Nor has any application involving the FWRO Act been made to the Federal Court.
In my view, this weighs against the transfer to the Federal Court, at least for that part of the current proceedings in respect of which this Court has jurisdiction.
In relation to s.39(3)(c) of the FCCA Act, the question of whether the resources of this Court are sufficient to hear and determine the proceedings does not arise in relation to the claims under the FWRO Act, because this Court lacks jurisdiction.
The question of the resources of this Court, arise however, in relation to the “remainder” of both of the proceedings. This Court was ready to hear the applicants’ case, in relation to the proceedings as they were explained prior to the filing of their SOCs. Those circumstances have not changed.
While this Court has a large workload, it cannot be said that its resources are insufficient to hear and determine the proceedings, absent the FWRO Act matters. This also argues against the transfer of the proceedings to the Federal Court.
Section 39(3)(d) of the FCCA Act requires this Court to consider what, in the circumstances, is in the interests of the administration of justice. The matters set out at r.8.02 of the FCC Rules are relevant to this consideration (see [9] above).
In relation to r.8.02(1) of the FCC Rules, the applicants, through their AICs, have asked for the proceedings to be transferred to the Federal Court.
In relation to r.8.02(2) of the FCC Rules, the requests for transfer of the proceedings were not made on or before the First Court Date in each matter. The existence of this Rule makes plain, in my view, that once proceedings have gone beyond the First Court Date, the question of any transfer to the Federal Court assumes a different focus.
The words “[u]nless the Court otherwise orders” (r.8.02 of the FCC Rules), connotes, amongst other things, the need for the Court to focus on the timing of the request in the chronology of the evolution of the proceedings and the stage of the proceedings, at which the request for transfer is made.
In this light, the following is relevant. Given what is set out above, the applicants and their legal representatives, would have known from 18 November 2014, that if they wished to pursue any action relying on the FWRO Act, they should do so in the Federal Court (Quirk and Miller: In the matter of an urgent application before the start of a proceeding [2014] FCA 1254 per Buchanan J (“Quirk and Miller: In the matter of an urgent application”)).
For whatever reason, the applicants subsequently commenced proceedings in this Court, relying on a different statutory basis. Plainly, no criticism can be made of that course of action, at that time.
However, two things remain as they arise from the “decision” in May 2017 in the drafting of the applicants’ SOCs. It is to be remembered that the applicants were given the opportunity, by the requirement to file and serve their SOCs, to properly articulate the case they had initiated in this Court. They did not do so. Instead they chose, essentially, a “new case”.
The respondent submitted that what was required, if the applicants wished to pursue claims under the FWRO Act, was that the applicants make an originating application to the Federal Court. Given r.34.06 of the Federal Court Rules 2011 (Cth), that required an application supported by an affidavit. That was not done, and continues not to have been done by the applicants.
It is here that the relevant history between the applicants, and the respondent, is important. The applicants sought relief from the Federal Court, that had some relationship to the respondent’s Rules (Construction, Forestry, Mining and Energy Union, Construction and General Division Rules), under s.164 of the FWRO Act. I respectfully understood the outcome of that matter to be that the application was dismissed because, in essence, given the circumstances before the Federal Court, the application was precipitous (see Quirk and Miller: In the matter of an urgent application at [20]).
Nonetheless, I respectfully understand the Federal Court to have given the applicants the “blueprint” for how to go about properly making the application to the Federal Court, which they have now made to this Court (which lacks jurisdiction), instead of seeking to initiate proceedings in the Federal Court (Quirk and Miller: In the matter of an urgent application at [8]).
The applicants would have been on notice since that time, that is, 18 November 2014, of the “appropriate” course to pursue in relation to the FWRO Act. It is not in the interests of the administration of justice to transfer the proceedings in circumstances where, with knowledge of the appropriate course, if the applicants did wish to pursue a matter under the FWRO Act, they instead elected to pursue a different course.
Further, when asked to “justify”, or explain, or to particularise the original claim, they instead sought to amend that claim in the knowledge that this Court had no jurisdiction to consider that “amended” case, and the Federal Court had exclusive jurisdiction to do so. It is not in the interests of the administration of justice to transfer the proceedings to the Federal Court at a time after the First Court Date, and in the circumstances above.
Rule 8.02(3) of the FCC Rules is satisfied. The applicants have made an application (the AICs) for the transfer of the proceedings supported by affidavits (see the affidavit of Mr C McArdle filed on 25 May 2017 (proceedings SYG 1521 of 2015) and 16 June 2017 (proceedings SYG 1522 of 2015)).
For the purposes of r.8.02(4)(a) of the FCC Rules, the applicants argued that the proceedings involve questions of general importance of law and fact, in a number of ways.
First, to the extent that the claims rely on the FWRO Act, which are in the exclusive jurisdiction of Federal Court, the fact of the Federal Court’s exclusive jurisdiction, does not, of itself, make the matters raised ones of general importance. That is a matter, with respect, for the Federal Court to assess if it becomes necessary.
Second, the applicants submit that a number of the claims made by the applicants, against the respondent, had not been authoritatively determined by the Federal Court or the High Court. They set out a number of circumstances in support (see the applicants’ submissions filed on 25 May 2017 at [12]).
The applicants made clear before the Court that central to the case they wish to present now, is the proper construction of some of the respondent’s Rules, the failure of the respondent to provide procedural fairness to the applicants in the application of those Rules to them, and that a proper understanding of the Rules would reveal that the findings of gross misbehaviour against them cannot lead to removal from office unless the proper application and compliance with the Rules has occurred.
Central to this articulation of their case, is the relevant parts of the FWRO Act dealing with the Rules of an organisation. Again, that is not a matter for this Court.
I pause here to note that these arguments do support the transfer of the proceedings to the Federal Court. After all, that Court is the Court with exclusive jurisdiction in those matters. On the other hand, given that the applicants knew of this state of affairs, and still sought to “commence” this “new”, and central part of the proceedings in this Court, strongly argues against granting the relief sought in the AICs.
Third, the applicants submit that the respondent foreshadowed that it would raise a number of “legal defences” to the claims that will be “novel and complex” ([13] of the applicants’ written submissions filed on 25 May 2017). It was not clear whether this submission was in relation to the FWRO Act matters or the FWA matters. In any event, the absence of any identification of what those “defences” may be, let alone any particularity, means that this is not a factor in favour of the transfer of the proceedings to the Federal Court.
Fourth, the applicants assert that the allegations concern matters of general importance and public interest ([14] of the applicants’ written submissions filed on 25 May 2017). They point to the reporting of the Sydney Morning Herald and the Australian Broadcasting Corporation, of the conduct of the CFMEU, and with reference to the Royal Commission into Trade Union Governance and Corruption, “significant” media publicity, and that the CFMEU has already been the subject of “criticism” in other proceedings before the Courts ([14](a) – (d) of the applicants’ written submissions filed on 25 May 2017).
Even if all, or even some, of these assertions are correct, the applicants went no further in their submissions than making the assertion of “general importance”. There is a further part to r.8.02(4)(a) of the FCC Rules, that requires consideration of why it would be desirable in relation to these issues, to have a decision of the Federal Court on one or more of the points in issue.
At its highest, the applicants’ position, as it related to the FWRO Act matters was not that the transfer was desirable, but necessary, because of the jurisdictional question. As to the remainder, no satisfactory explanation was given as to the desirability of any Federal Court decision on one or more of the points in issue.
I should also note that before the Court, the applicants submitted that they expressed views of a political nature protected under the Commonwealth Constitution. Notwithstanding that reference was made to this in their SOCs (see [77]b. of the applicants’ SOCs), no notices under s.79B of the Judiciary Act 1903 (Cth) have been issued.
Rule 8.02(4)(b) of the FCC Rules requires consideration of whether, if the proceedings are transferred to the Federal Court, it is likely to be heard at less cost and more convenience to the parties, than if it were to remain in this Court.
In this case, there is no doubt that the FWRO Act claims cannot be heard in this Court. In my view, the balance of convenience is, in that sense, not relevant. If anything, the lack of this Court’s jurisdiction argues for the FWRO Act claims to have been initiated in the Federal Court, not this Court.
As to the matter of costs, the applicants put this forward as the reason for “initiating” the FWRO Act claims in this Court through the SOCs, rather than initiating proceedings in the Federal Court. That is, to have taken the latter course, would have involved the payment of filing fees in the Federal Court.
The applicants initiated action in this Court, but then subsequently changed the substantial basis and focus of their case. They then sought to transfer the proceedings to the Federal Court, instead of initiating proceedings in that Court. I do not accept this submission. The cost of preparing the SOCs, the filing and the service of the AICs for transfer of the proceedings with accompanying affidavits, the written submissions in support, and the attendance of counsel and the solicitor at the hearing of the application to transfer, would, in my view, have exceeded the costs of simply filing applications in the Federal Court.
Enquiries have been made through the appropriate channels as to the likelihood of when the proceedings could be heard in the Federal Court, if the matter were to be transferred. If the entire proceedings were to be transferred, it would appear that such proceedings would not be heard earlier than when the remaining part of the proceedings for which this Court has jurisdiction, could be heard in this Court (r.8.02(4)(b) of the FCC Rules).
Plainly, the FWRO Act part of the proceedings can only be heard in the Federal Court (r.8.02(4)(d) of the FCC Rules). However, given what has otherwise been set out in this judgment, this does not serve to outweigh the factors militating against the transfer.
The applicants want the proceedings to be transferred. The respondent opposes (r.8.02(4)(e) of the FCC Rules).
This factor illustrates what is otherwise of great weight in this consideration. The applicant sought to “initiate” or “amend” proceedings in this Court, in full knowledge of the absence of jurisdiction in this Court to hear the matter. This was done simply, it appears, to avoid the payment of filing fees in the Federal Court.
I note further that the applicants’ election to pursue the course that they have taken (seeking transfer instead of initiating or attempting to initiate proceedings in the Federal Court), have the effect of taking out of the hands of the Federal Court the question of how to proceed with the claims made under the FWRO Act. This also weighs against the transfer.
In all the circumstances, it is not in the interests of the administration of justice to transfer the proceedings simply because the applicants selected to pursue a course to circumvent the payment of filing fees. The interests of the administration of justice would have been far better served if the applicants, once having arrived at the position of wanting to “resurrect” the FWRO Act claims, made the appropriate and direct application to the only Court that had jurisdiction to consider it.
In this context, the transfer of the proceedings to the Federal Court should be refused. Those parts of the SOC which rely on the FWRO Act, and for which this Court lacks jurisdiction, should also be struck out.
At the conclusion of the hearing of the AICs to transfer, the applicants’ counsel asked if the Court was minded to refuse the transfer on the basis that the applicants had not filed in the Federal Court, that the applicants be given an opportunity to further consider their positions.
The first basis (above) for dismissing the AICs does not only depend on this element. The absence of filing in the Federal Court however, has been a feature in the Court’s consideration of the refusal to transfer the proceedings.
In this light, it is appropriate that I hand down judgment, but delay, for a reasonable period, the making of orders to enable the applicants to consider their position.
Conclusion
The AICs should be dismissed. I will make the appropriate orders.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 1 August 2017
CORRECTIONS
Paragraph [4] fourth sentence, paragraph [10] second sentence, paragraph [54] first sentence insert “Act” after “FWRO”.
Paragraph [10] first sentence delete “the” after “their”.
Paragraph [31] delete “of the” after “making”.
Paragraph [54] first sentence insert “the” before “FWRO”.
Paragraph [66] first sentence insert “of” after “number”.
3
5
7