Sjodin v AMA Group Solutions Pty Ltd
[2023] FedCFamC2G 516
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sjodin v AMA Group Solutions Pty Ltd [2023] FedCFamC2G 516
File number(s): SYG 2374 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 June 2023 Catchwords: INDUSTRIAL LAW – Practice and procedure – application that proceeding commenced in the Sydney Registry of the Court be heard in the Melbourne Registry of the Court – whether it is in the Melbourne Registry of the Court where the proceeding can be continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court – order made that proceeding be heard in the Melbourne Registry of the Court. Legislation: Federal Court of Australia Act 1976 (Cth) s 48
Fair Work Act 2009 (Cth) ss 340(1), 550(2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 8.01
Cases cited: National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 263 Division: Fair Work Number of paragraphs: 19 Date of last submission/s: 23 May 2023 Date of hearing: Decided on the papers Place: Sydney Solicitor for the Applicant: Kennedys (Australasia) Partnership Solicitor for the Respondents: Nicholson Ryan Lawyers ORDERS
SYG 2374 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHRISTOPHER DAMIAN SJODIN
Applicant
AND: AMA GROUP SOLUTIONS PTY LTD (ACN 124 094 739)
First Respondent
CAMPBELL JONES
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 june 2023
THE COURT ORDERS THAT:
1.Pursuant to r 8.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding be heard in the Melbourne Registry of the Court.
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
INTRODUCTION
On 23 December 2021 the applicant commenced a proceeding in the Sydney Registry of the Court seeking relief under the Fair Work Act 2009 (Cth) (FW Act). The applicant claims the first respondent, contrary to s 340(1) of the FW Act, took adverse action against him, which included the termination of his employment, because the applicant exercised a workplace right by making inquiries and complaints in relation to his employment. The applicant also claims the second respondent is a person involved, within the meaning of s 550(2) of the FW Act, in the first respondent’s contraventions of s 340(1) of the FW Act.
On 29 July 2022 the respondents filed an application in a proceeding seeking an order under r 8.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) that the proceeding be transferred to the Melbourne Registry of the Court. The application in a proceeding was made returnable before me at 9:30 am on 4 August 2022, being the time at which the matter had been listed for directions. On that day, with the consent of the parties, I vacated the directions hearing, and I made an order in chambers that the matter be listed for directions on 25 August 2022. The parties consented to my making that order to afford the applicant time to consider the respondents’ application for transfer.
On 25 August 2022, again with the consent of the parties, I vacated the directions hearing that had been listed for 25 August 2022, and listed the matter for a directions hearing on 9 September 2022. At the directions hearing on 9 September 2022, I indicated to the parties that it would be preferable for me to hear the respondents’ application for transfer after the parties had filed their evidence. I accordingly made orders for the filing of evidence. By the time of the directions hearing on 9 May 2023 the parties had filed their evidence in chief. At the directions hearing I made orders for the filing of submissions in relation to the respondents’ application for transfer. The parties have filed their written submissions, and they have agreed that I determine the application for transfer on the papers, that is, without any oral hearing.[1]
[1] In determining the application for transfer, I have considered the following: the affidavits made by S Hogg on 28 July 2022 and 8 May 2023; the affidavit of J C Le Blond made on 16 May 2023; the respondents’ written submissions dated 9 May and 23 May 2023; and the applicant’s written submissions dated 16 May 2023.
In these reasons for judgment I consider the respondents’ application for transfer. I will first consider the principles that govern the exercise of the power conferred by r 8.01(1) of the GFL Rules.
PRINCIPLES
I begin with the text of r 8.01 of the GFL Rules:
(1)A party who files an application or a response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
The parties agree that the principles that govern the exercise of the power conferred by r 8.01(1) are the principles the Full Federal Court in National Mutual Holdings Pty Ltd v Sentry Corporation (Sentry) applied to s 48 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).[2] In that case the Full Federal Court noted that the power conferred by s 48 of the FCA Act, while in terms wholly unfettered, “should be exercised flexibly having regard to the circumstances of the particular case”.[3] The Full Federal Court further noted that, although there is no onus of proof to be discharged by the person seeking to conduct the proceeding elsewhere:[4]
[t]he Court must . . . be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.
[2] National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 263. Subsection 48(1) of the FCA Act provides: “The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.”
[3] National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 263, at [33]
[4] National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 263, at [35]
After acknowledging that the balance of convenience may be relevant to the exercise of s 48 of the FCA Act, the Full Federal Court said:[5]
Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.
[5] National Mutual Holdings Pty Ltd v Sentry Corporation [1988] FCA 263, at [36]
Although the principles stated in Sentry are relevant to the exercise of the power conferred by r 8.01(1) of the GFL Rules, the principles were formulated in relation to s 48 of the FCA Act, which differs from r 8.01 of the GFL Rules; subrule 8.01(2) requires the Court to have regard to the matters stated in that subrule when determining whether to exercise the power conferred by r 8.01(1).
PARTIES’ SUBMISSIONS
The respondents submit that the following matters support the proceeding being heard in the Melbourne Registry of the Court:
(a)Both the applicant and the second respondent reside in Melbourne.
(b)Of the three other persons who have made affidavits in the respondents’ case, one resides in Victoria, one in Queensland, and one in Tasmania.
(c)The events on which the applicant relies as giving rise to his causes of action under the FW Act occurred in Victoria.
(d)The respondents’ lawyers are located in Melbourne; and although the applicant’s lawyers are in Sydney, those lawyers have a practice in Melbourne.
The applicant, on the other hand, makes the following submissions:
(a)The convenience of the parties would not necessarily be impacted because the Court has the ability to hear the proceeding electronically.
(b)The first respondent’s registered office and place of principal business have changed across various State jurisdictions. At the time the applicant commenced this proceeding the first respondent’s principal place of business was in Queensland.
(c)It is likely that some of the witnesses will give their evidence by video.
(d)The respondents elected to retain lawyers in Melbourne, knowing that the applicant had commenced the proceeding in Sydney. The respondents have taken the risk that, unless the Court were to transfer the proceeding to the Melbourne Registry, they would incur the additional costs of having to conduct the hearing in Sydney.
(e)Transferring the proceeding to Sydney would be unfairly prejudicial to the applicant because he does not have the financial capacity the first respondent has to bear the additional costs he would incur if the proceeding were transferred to the Melbourne Registry.
(f)The Sydney Registry is best placed to hear and determine the proceeding. It has been case managed by the one judge (me), who has obtained a familiarity with it.
DETERMINATION
This Court has the means, and the experience, to conduct a hearing wholly by video. That is what, through necessity, the Court did when governments around Australia imposed restrictions to deal the COVID-19 pandemic. The position remains, however, that, unless it is necessary, or the parties agree, to proceed otherwise, a trial is to be conducted in person and in open court. That the Court, therefore, has the capacity to conduct the hearing by video is not, by itself, a factor that weighs in favour of the proceeding being heard in Sydney.
That, then, makes relevant the location of the parties and their witnesses. The applicant and three other persons have made affidavits in the applicant’s case. The applicant and one of the deponents reside in Victoria; the other two deponents reside in Queensland. The second respondent and three other persons have made affidavits in the respondents’ case. The second respondent and one of the other three deponents reside in Victoria. Of the other two deponents, one resides in Tasmania, and the other in Queensland. This points to Melbourne being a more convenient place for hearing the matter for the applicant, the second respondent, and two of the other remaining deponents.
Apart from convenience, there is the question of costs that would be incurred if the proceeding were heard in Sydney rather than Melbourne. If the matter is heard in Sydney, all eight persons who have made affidavits would have to travel to Sydney for the hearing (unless the parties agree or there is sufficient cause shown for evidence to be given by video). If the proceeding is heard in Melbourne, only four of the eight persons would need to travel to Melbourne, three from Queensland, and one from Tasmania (again, unless the parties agree or there is sufficient cause shown for evidence to be given by video). The costs to the witnesses, considered as a whole, would be materially less if the proceeding were heard in Melbourne, rather than in Sydney.
Next, there is the location of the parties’ lawyers. The applicant’s submission that, by retaining lawyers in Melbourne, the respondents have taken the risk of bearing the additional costs of their lawyers travelling and staying in Sydney, if the matter were heard in Sydney, applies with equal, if not greater, force to the applicant having decided to commence the proceeding in Sydney. At the time the applicant commenced the proceeding he was (and continues to be) a resident of Melbourne; and it is reasonable to infer the applicant knew that the second respondent resided in Melbourne. By commencing the proceeding in Sydney the applicant undertook the risk that the respondents would apply to have the proceeding heard in the Melbourne Registry and that, moreover, given the location of the parties, there would be a reasonable prospect the Court would order the proceeding be heard in the Melbourne Registry.
That the applicant may not be in the same position to bear the costs of the hearing being conducted in Melbourne as the first respondent’s position to bear the costs of the hearing being conducted in Sydney, is not by itself relevant. Any disproportionate costs the applicant may be required to bear, if the proceeding is heard in the Melbourne Registry, is a consequence of the applicant’s having elected to commence the proceeding in Sydney in circumstances where he and the second respondent reside in Melbourne. As I have already noted, this exposed the applicant to the risk that the respondents would successfully apply to have the proceeding heard in the Melbourne Registry.
There is the question of where the proceeding will be more efficiently heard. It is true, as the applicant submits, that I have been case managing the matter. There has been no occasion, however, where I have had to familiarise myself with the matter beyond understanding the nature of the applicant’s claims, and the respondents’ defences, as revealed by the pleadings. No material judicial time, therefore, has been devoted to the matter that would be thrown away if the proceeding were heard in the Melbourne Registry. Thus, the proceeding will not be more efficiently heard if it were to remain in the Sydney Registry of the Court.
Finally, the proceeding has not been set down for hearing. That means there will be no material impact to the Court’s listings of hearings in relation to other matters if the proceeding were to be heard in the Melbourne Registry.
For these reasons, I am satisfied that it is in the Melbourne Registry of the Court that the proceeding can be continued most suitably, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court.
DISPOSITION
I propose to order that, pursuant to r 8.01(1) of the GFL Rules, the proceeding be heard in the Melbourne Registry.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 June 2023
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