Smith v Landmark Products Pty Ltd
[2018] FCA 88
•9 February 2018
FEDERAL COURT OF AUSTRALIA
Smith v Landmark Products Pty Ltd [2018] FCA 88
File number: QUD 737 of 2017 Judge: LOGAN J Date of judgment: 9 February 2018 Catchwords: PRACTICE AND PROCEDURE – transfer of proceeding to Federal Circuit Court – s 32AB Federal Court of Australia Act 1976 – relevant considerations – whether Federal Circuit Court has sufficient resources – use of alternative dispute resolution - transferred Legislation: Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth), s 32AB
Migration Act 1958 (Cth)
Date of hearing: 9 February 2018 Date of last submissions: 10 January 2018 Registry: Queensland Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 14 Solicitor for the Applicant Susan Moriarty and Associates Solicitor for the Respondent MST Lawyers ORDERS
QUD 737 of 2017 BETWEEN: SHANE SMITH
Applicant
AND: LANDMARK PRODUCTS PTY LTD
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The applicant file and serve a Statement of Claim by 4.00pm on 9 March 2018.
2.By 4.00pm on 23 March 2017 the respondents file and serve a Defence to the Statement of Claim.
3.That the applicant file and serve any Reply to the Defence to the Statement of Claim within fourteen (14) days of service of the Defence.
4.Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) and r 28.02 of the Federal Court Rules 2011 (Cth), the matter be referred to mediation to be conducted by a Registrar of this Court, with such mediation to occur after the close of pleadings on such a date as a Registrar may appoint after consulting with parties. The Court costs of that mediation are in the first instance to be borne by the parties.
5.In the event that matter does not resolve at mediation, the proceeding is by this order transferred to the Federal Circuit Court.
6.Liberty to apply on three (3) days’ notice.
7.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
Mr Shane Smith, who is the applicant, was from 2013, employed by Landmark Products Pty Ltd (Landmark Products), as its national marketing manager. His claim is that, thereafter, he had the misfortune to suffer from leukaemia and, as a sequel, from a stroke. The claim is that, collectively, these conditions resulted in his suffering of disability. His further claim, which is made under the Fair Work Act 2009 (Cth) (Fair Work Act), is that he attempted to enter into a flexible working arrangement, with the respondent Landmark Products Pty Ltd, for a period, as a result of the disability said to result from his conditions. His further claim is that Landmark Products took what the Fair Work Act terms “adverse action” against him, because he exercised a workplace right.
The claim is that the adverse action is to be found in Landmark Products offering to employ him part-time, downgrading his hitherto position and reducing his hourly rate of pay. Mr Smith seeks declarations accordingly, together with the imposition of penalties, and orders requiring Landmark Products to adhere to the flexible working arrangement. The merits of the claim are not for disposition today. However and unsurprisingly, it emerged in submissions from Landmark Products that its likely defence and related evidence, in summary, would be that it had taken all reasonable steps, in the circumstances, to respond to Mr Smith’s condition.
It is common ground that the trial of the proceeding would take five days or less.
Section 32AB of the Federal Court of Australia Act 1976 (Cth) confers, on the Court, a discretionary power to transfer particular civil proceedings to the Federal Circuit Court. The present claim is a civil proceeding, of a kind, which may be transferred to that court, in the exercise of that discretionary power. I should add that the subject of transfer was one which, as is permitted by s 32AB and the Rules, raised by the Court of its own motion prior to the first case management hearing.
There are particular considerations, which are specified in s 32AB, as relevant to the exercise of that discretion. They are to be found in section 32AB(6).
As to these, there are no associated proceedings pending in the Federal Circuit Court. For that matter, there are no associated proceedings pending in this Court. Another matter which is expressly specified as relevant, is whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding. It is a matter of some notoriety that, in its matrimonial causes or family jurisdiction, the Federal Circuit Court is, ever increasingly, finding it difficult, within the limits of its existing judicial resources, to deal expeditiously with the volume of work in that jurisdiction. There is, at present, an inquiry being undertaken, at the behest of the immediate past Commonwealth Attorney General, into the optimal ways of dealing with such cases. It may be that the answer really lies in the phenomenon of a liberalisation of society’s mores, a related consequential increase in the number and types of cases which find their way into that jurisdiction and an absence of corresponding resourcing, compared with that of earlier years, in the Federal Circuit Court, to cope with that particular increased volume. It will be interesting, indeed, to see the results of the inquiry.
Not all Federal Circuit Court judges, though, are allocated to the disposition of family cases. Even so another very significant call on the resources of the Federal Circuit Court, at present, is a volume of work in respect of the judicial review of decisions under the Migration Act 1958 (Cth) (Migration Act). Some of that demand is a phenomenon related to earlier administration of the Migration Act, by the executive government. However that may be, that does create a call on the time of Federal Circuit Court judges not allocated to Family jurisdictional work. It is a mistake, though, that to consider that that type of judicial review work does not, in turn, have its impact on this Court, in the exercise of its appellate jurisdiction. Further, changes both in the terms of the Migration Act, in relation to the deportation of those with what is termed “a substantial criminal record,” as well as particular approaches to the administration of those provisions, have had their own separate impact on the original jurisdiction of this Court.
There is a practice which entails recognition of the difficulties presently faced by the Federal Circuit Court, as well as the objectives of that court, whereby cases which, irrespective of whether the issues in them truly warrant the attention of a superior court, are nonetheless heard in this Court, so as to preserve an ability, on the part of the Federal Circuit Court, to deal with a volume of cases. The rule of thumb, in respect of the practice, is whether the case would take more than five days to hear. For reasons already given, this is not such a case. That though, does not mean that it must be remitted.
There is an overarching consideration, found in s 32AB(6)(d), which is the interests of the administration of justice. As to that, and as disclosed to the parties in the course of submissions, the practice of this Court, as is well known, is to administer cases on a docket allocation, to particular judges. The demands of existing allocated work for me, in respect of cases on my docket, taken in conjunction with that from additional commissions (which are desirably assumed, and the assumption of the Australian of which is contemplated by federal legislation, notably commissions in the Administrative Appeals Tribunal, and the Defence Force Discipline Appeal Tribunal), are such that it is unlikely that I would be able to allocate a trial date for this case until, at the very earliest, and it is truly unlikely, even then, December this year. Added to that, the Australian Government, at the request of the Papua New Guinea government, has consented to two Federal Court judges, one of whom is me, taking additional commissions, as a matter of mutual public interest, on the Supreme and National Courts of Papua New Guinea. That, too, has its impact on available time to deal with cases in this Court, so far as my docket is concerned.
Taken collectively, something of an awful “Hobson’s Choice” emerges, as between Mr Smith, who would wish the case to remain in this Court, and Landmark Products, who have no particular such wish and are content to have the case transferred to the Federal Circuit Court.
It is said, by way of written submission, that there is an important point of principle in this case, in relation to the application of the provisions of the Fair Work Act to a person with a disability, in the context of an adverse action claim. The brief recitation of the nature of the claim and likely evidence is such that I expect that what is said to be a point of principle may well be resolved as a matter of conclusion of fact on the evidence. There are, doubtless, matters of fact and degree entailed as to whether Landmark Products’ responsive actions were, in all the circumstances, reasonable. If there is any particular point of principle, the Federal Circuit Court is well equipped to deal with that, in the first instance. If any such principle remains contentious, a right of appeal to this Court, if need be to an appellate bench constituted by three judges, is possible.
Thus, whilst I accept that the resistance to transfer is not frivolous, I am not persuaded that the case is one which should remain in this Court.
What particularly persuades me that the case is one for transfer is an absence of conviction on my part that it truly does entail any point of principle, as opposed to factual evaluation, its likely length of hearing and, further, the inability, were the case to remain in this Court, to give any likely trial date this year. In these circumstances, the case strikes me as one apt for transfer. There will be an order accordingly.
In addition, the case is one where the parties are, to say the least, content that there be a further endeavour beyond that which has already occurred in the Fair Work Commission, to resolve this case informally, by alternative dispute resolution. It is certainly one, given, as I was informed, that Mr Smith remains employed by Landmark Products, where every endeavour ought to be made to preserve that relationship. I well understand that employment is a source not just of monetary reward, but of personal dignity, self-esteem and satisfaction. That is so for all workers, I suspect, but particularly it must be for Mr Smith. It must also be observed, though, that perceptions may differ as to whether responses taken are either adverse action or just reasonable, in the circumstances. That realisation should be conducive to settlement but, if not, the case will just have to be the subject of an exercise of judicial power in the Federal Circuit Court. There will be orders accordingly.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 28 February 2018
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