Srikantha v Commonwealth of Australia
[2020] FCA 373
•20 March 2020
FEDERAL COURT OF AUSTRALIA
Srikantha v Commonwealth of Australia [2020] FCA 373
File number: VID 361 of 2019 Judge: SNADEN J Date of judgment: 20 March 2020 Catchwords: PRACTICE AND PROCEDURE – jurisdiction – cross-vesting – applicant’s interlocutory application to transfer proceedings from the Federal Court of Australia to the Supreme Court of Victoria – whether in the interests of justice to transfer proceedings – application dismissed
PRACTICE AND PROCEDURE – respondent’s interlocutory application to summarily dismiss application or, in the alternative, for the statement of claim to be struck out – whether the statement of claim raises a federal cause of action – application granted and statement of claim struck out – applicant granted leave to file and serve amended statement of claim
Legislation: Federal Court Rules 2011 (Cth) r 16.21
Fair Work Act 2009 (Cth) ss 50, 539, 562 and 570
Judiciary Act 1903 (Cth) s 39B
Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth) ss 4 and 5
Public Service Act 1999 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Superannuation Act 1990 (Cth) s 13
Workplace Relations Act 1996 (Cth) s 170MT
Cases cited: BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Federal Commissioner of Taxation v Residence Riverside Pty Ltd (2011) 198 FCR 248
McGowan v Migration Agents Registration Authority (2003) 129 FCR 118
Rana v Google Inc (No 2) (2017) 254 FCR 1
Transport Workers Union v Lee (1998) 84 FCR 60
Date of hearing: 16 March 2020 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Mr S J Moloney with Mr R A Millar Solicitor for the Applicant: Draddy Legal Counsel for the Respondent: Ms R Davern Solicitor for the Respondent: Ashurst ORDERS
VID 361 of 2019 BETWEEN: ANTHONY SRIKANTHA
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
SNADEN J
DATE OF ORDER:
20 MARCH 2020
THE COURT ORDERS THAT:
1.The applicant’s interlocutory application lodged 12 March 2020 be dismissed.
2.The applicant’s statement of claim dated 8 April 2019 be struck out.
3.The applicant be granted leave to file an amended statement of claim by 4:00pm on Friday, 3 April 2020.
4.Costs relating to the applicant’s interlocutory application of 12 March 2020 and the respondent’s interlocutory application of 31 January 2020 be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The applicant is a former employee of the respondent’s. The present proceeding concerns, at its core, the circumstances surrounding the termination of his employment.
Before the court presently are two interlocutory applications: one lodged by the respondent on 31 January 2020 for orders in the nature of summary judgment (or, alternatively, orders that the applicant’s statement of claim be struck out); and the other lodged by the applicant on 12 March 2020 for an order transferring the proceeding to the Supreme Court of Victoria pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth) (hereafter, the “CV Act”).
In support of its application (and, in part, by way of resistance to the applicant’s application), the respondent read two affidavits: one of Ms Lucy Mary Jedlin, affirmed on 31 January 2020; and another of Mr Jonathon Michael Lovell, sworn on 13 March 2020. In support of his application (and, in part, by way of resistance to the respondent’s application), the applicant read two affidavits of Ms Jennifer Anne Draddy, one sworn on 12 March 2020, the other sworn on 16 March 2020.
For the reasons that follow, I am satisfied that the respondent’s interlocutory application should be allowed in part; and that the applicant’s statement of claim should be struck out with leave to re-plead. The applicant’s interlocutory application should be dismissed.
THE RESPONDENT’S SUMMARY JUDGMENT APPLICATION
The respondent seeks an order for summary judgment on the basis that the applicant’s statement of claim does not identify a federal cause of action sufficient to invoke the court’s jurisdiction. It characterises the applicant’s case in the proceeding as one for breach of contract. That simple summation reflects the equally simple (and flawed) manner in which the applicant’s case is pleaded. It does not, however, accurately summarise the nature of the controversy that exists between the parties.
To explore that proposition further, it is convenient to set out the relevant parts of the applicant’s statement of claim. At [5], the applicant identifies certain “terms and conditions of the applicant’s employment”. The respondent construes that—not unfairly, although for reasons that will later become apparent, incorrectly—as a summary of terms that are said to have been contained, whether expressly or by implication, in the applicant’s contract of employment with the respondent.
For the most part, the terms that are then enumerated (by means of 20 discrete subparagraphs) are lifted from various statutory or other instruments that are said to have had application to the applicant’s employment. Many derive from the terms of an enterprise agreement (within the meaning attributed to that term by the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”)) that is said to have applied; some from policy documents of the respondent’s that are also said to have applied; some from statutory provisions; and some as a matter of legal implication. It is appropriate to set out [5] of the statement of claim in full:
5.Relevantly, there were terms and conditions of the applicant’s employment by the respondent to the effect that:
(a) the respondent owed the applicant a duty of care to provide a safe place of work;
(b) AUSTRAC must give prompt and genuine consideration to matters raised by a relevant employee about a major workplace change likely to result in termination of employment or diminution in job opportunities for an employee (cll 351, 353, 358 [AUSTRAC Enterprise Agreement 2012 – 2014 (hereafter, the “Enterprise Agreement”)]);
(c) an employee whose services can no longer be effectively utilised in their current role will be provided with both support and options regarding their future career (cl 361);
(d) AUSTRAC will consult for at least one month with any employee who is likely to become excess (cll 364, 366);
(e) should an employee become excess to requirements, the CEO or their delegate will inform the employee in writing that they have been formally declared excess, and at the same time make the employee an offer of voluntary redundancy, with additional information and assistance for professional financial advice up to a maximum of $500.00, and allow a period of one month in which to consider the offer and advise of their decision (cll 367, 368);
(f) should an employee not accept the offer of voluntary redundancy, the employee will commence their retention period from the date the employee was formally declared excess to requirements and offered voluntary redundancy in accordance with clause 367 (cl 382);
(g) during the retention period, AUSTRAC will continue to take reasonable steps to redeploy the excess employee in accordance with applicable APS-wide redeployment principles, mechanisms and arrangements (cl 386(a));
(h) an excess employee must not be terminated involuntarily by the CEO or their delegate under s 29 of the Public Service Act 1999 if they have not been invited to accept an offer of voluntary redundancy (cl 392);
(i) the rights and remedies of an employee in relation to termination of employment under common law are preserved (cl 394(c));
(j) an employee under the age of 60 who is a member of the [Public Sector Superannuation Scheme, (hereafter the “PSS Scheme”)] is not capable of being retired or otherwise terminated from their employment on the ground that, because of any mental or physical condition, the member is unable to perform his or her duties, unless the trustee of the PSS Scheme has certified in writing that, if the member is so retired, the member will be entitled to receive invalidity benefits under the PSS Scheme (s 13 Superannuation Act 1990 (Cth));
(k) redundancy (excess staffing arrangements) must not be used as an alternative to dealing with underperformance (APS Redeployment Policy, Redeployment principle cl 1.2.3);
(l) meaningful consultation with affected employees must continue through every stage of a downsizing process (APS Redeployment Policy, Redeployment principle cl 1.4.3);
(m) the employer must ensure that downsizing does not unreasonably reduce the diversity of its workplace (APS Redeployment Policy, Redeployment principle cl 1.6);
(n)excess employees should be provided with access to support in the form of career counselling and training in getting a job (APS Redeployment Policy, Redeployment principle cl 2.3);
(o)the respondent must ensure that the applicant as its employee had knowledge of all benefits relevant and available to him;
(p) alternatively to paragraph (o), where the applicant was injured or suffering disease caused or contributed to by his work, the respondent owed the applicant a duty of care to ensure that, as far as possible, the applicant could return to work with the respondent or otherwise could retire with maximum benefits available to him;
(q) if any employee appeared unable to perform his or her duties on the ground of any mental or physical condition and wished to be assessed for retirement on the ground that they were unlikely to work again in a job for which he/she is reasonably qualified for or could be qualified for (invalidity), the employer would in good faith:
(i) make application under the [rules establishing the PSS Scheme trust deed (hereafter, the “Rules”)] to the trustee of the PSS Scheme, or assessment of the employee’s incapacity and for application for retirement on the ground of invalidity; and
(ii) otherwise do all things reasonably required of the employer or necessary under the Rules to facilitate and assist the fair and balanced assessment of the employee’s request to retire on the ground of invalidity;
(r) if any employee were unable to perform his or her duties on the ground of any mental or physical condition and the employee requested retirement on the ground of invalidity, the employer would:
(i) while those applications referred to in paragraph (q)(i) were being pursued, upon exhaustion of the employee’s leave entitlements, pay or procure payment to the employee of pre-assessment benefits: and
(ii) not terminate the employee’s employment until the employee had been assessed for invalidity in accordance with the Rules;
(s) further and in the alternative to paragraphs (q) and (r), the respondent must act in good faith in the exercise of its powers and discretions in respect of an employee unable to perform his or her duties on the ground of any mental or physical condition; and
(t) the employer must do all things necessary on its part to enable the employee to have the benefit of the terms of the contract.
Particulars
The terms of paragraphs (b) - (i) are express terms of the Enterprise Agreement.
The terms of paragraph (j) is an express requirement of statute that, as acknowledged by cl 6 of the Enterprise Agreement, is applicable to the employment of employees under the Enterprise Agreement.
The terms of paragraphs (k) - (n) are express terms of Managing redeployment in the APS: Guidelines for agencies promulgated by the Australian Public Service Commission in April 2011 (APS Redeployment Policy). The requirement in paragraph (1) that consultation be meaningful is implied as a matter of law.
The terms in paragraphs (a), (o) - (t) arise by virtue of the contract of employment or are to be implied from the need to give effect to the contract and so as to confer the benefit of the terms of the contract on the employee.
Further, paragraph (p) arises from or is a correlative of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
What then follows is a series of pleas in which the applicant alleges various instances of discriminatory and other conduct that he attributes to officers of the respondent. None has any obvious bearing on the cause or causes of action that he prosecutes and it is not necessary to set them out.
The applicant next pleads the termination of his employment and the processes that preceded it. It is said that:
(1)the respondent, in August 2012, announced that it would undertake “a redundancy process” (statement of claim, [9]);
(2)the applicant’s position was identified as one that might potentially be made redundant (statement of claim, [10]);
(3)the respondent then determined to review the applicant’s performance (statement of claim, [11]-[15]); and
(4)the applicant’s employment was terminated by notice dated 12 March 2013 (statement of claim, [20]).
The applicant alleges (also at [20] of the statement of claim) that his employment was terminated because of his mental or physical incapacity to perform his duties (which incapacity is itself the subject of a separate, earlier plea). It is suggested that the respondent falsely attributed his dismissal to the redundancy of his position. The actuation of his dismissal for reasons relating to his alleged incapacity is then said to have involved various breaches of “the terms and conditions of [his] employment”. Under the heading “Breaches by the respondent”, the statement of claim pleads as follows:
21. By reason of the matters alleged in paragraph 20, the respondent breached the terms and conditions of employment of the applicant alleged at paragraphs 4 and 5 above.
22. Further and in the alternative, on it learning in December 2012 of the applicant’s then physical and mental condition and the applicant’s request for assessment for retirement on the ground of invalidity, the respondent wrongly and in breach of the terms and conditions of employment of the applicant:
(a) failed:
(i) to make application in good faith under the Rules to the trustee of the PSS Scheme, for assessment of the employee’s incapacity;
(ii) to make application in good faith for assessment of the applicant’s retirement on the ground of invalidity; and
(iii) otherwise to do all things reasonably required of it or necessary under the Rules to facilitate and assist the fair and balanced assessment of the applicant’s request to retire on the ground of invalidity;
(b) failed to suspend the respondent’s decision to declare the applicant’s position in excess (redundancy decision) until completion of the assessment of the applicant’s request to retire on the ground of total and permanent incapacity (invalidity assessment);
(c) failed to extend the respondent’s retention period under the redundancy decision until completion of the invalidity assessment;
(d) failed to do all things necessary in good faith to procure the payment to the applicant of pre-assessment payments upon the exhaustion of his leave entitlements;
(e) failed to ensure that, as far as possible, the applicant received such treatment and assistance so that he could return to work with the respondent or otherwise could retire with maximum benefits available to him;
(f) further and in the alternative to (e), while awaiting assessment of his application to the PSS Scheme for retirement on the ground of invalidity failed to retain the applicant as an employee; and
(g) failed to do all things necessary on its part to enable the applicant to have the benefit of the terms of the contract.
Particulars
The terms and conditions of employment referred to are those in paragraphs 5(g) - (j) and (l) - (t) and 19(b) and (c)(ii)–(iv) and (d) and (e).
With respect to paragraph (a), the respondent provided incomplete and partial information to the medical assessors of the applicant’s work history and provided the applicant with no opportunity to address the matters which it submitted to the assessors.
With respect to paragraphs (a) and (g), the respondent failed to present the applicant’s request for invalidity retirement to the trustee of the PSS Scheme and to the medical assessors in a fair and balanced manner.
Further particulars will be provided after discovery.
Those breaches are later said to have occasioned the loss that the applicant, by this proceeding, hopes to recoup (the particulars of which need not here be recited).
That summary stated, the respondent’s contention that this court lacks jurisdiction to hear the matter rests upon superficially solid foundations. As pleaded, the case appears—largely for want of the clarity that should normally be apparent—to be one for breach of contract. The applicant nominates a number of apparently contractual terms that he accuses the respondent of having breached in a manner that has caused him loss. The federal issue sufficient to enliven this court’s jurisdiction is, in that sense, not immediately apparent.
The applicant, hoping to address the point, cites the statutory (and other) instruments from which some of the terms pleaded at [5] of the statement of claim are said to have derived. In particular, he points to:
(1)the term pleaded at [5(j)] of the statement of claim—namely that, by reason of s 13 of the Superannuation Act 1990 (Cth), it was not open to the respondent to terminate his employment on the grounds of incapacity unless certain requirements were first met;
(2)the term pleaded at [5(p)] of the statement of claim—namely that, by reason of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent was obliged to ensure that the applicant could return to work when well enough to do so, or “…otherwise could retire with the maximum benefits available to him”; and
(3)various other terms pleaded at [5] of the statement of claim that are said to derive from the Enterprise Agreement.
Additionally, the applicant points to the fact that his employment was governed by the Public Service Act 1999 (Cth). He says that the pleadings “…raise a question [about] whether the [a]pplicant’s employment was terminated in accordance with statute”.
Each of those four circumstances is said to enliven the jurisdiction conferred upon this court by s 39B(1A) of the Judiciary Act 1903 (Cth) (hereafter, the “Judiciary Act”). By each, it is said that the applicant is able to “…identify a right, duty or defence which owes its existence to the law made by the Parliament upon which he or she relies or which relies on that law for its enforcement”: McGowan v Migration Agents Registration Authority (2003) 129 FCR 118, 127 [32] (Branson J).
Section 39B(1A) of the Judiciary Act provides as follows:
39BOriginal jurisdiction of Federal Court of Australia
…
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Note:Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
Respectfully, for the applicant’s propositions (above, [13]-[15]) to hold true, it is necessary to read the statement of claim in a way that requires a stretching of the language in which it is expressed. If, as the respondent contends, the applicant’s references to “terms and conditions of…employment” in [5], [21] and [22] of the statement of claim should be understood as references to the terms and conditions of the applicant’s employment contract, then the applicant’s submission must fail. If the applicant is to be understood, by those references, to plead that his employment contract contained certain terms that the respondent contravened, then his claim is one for breach of contract. The rights or obligations upon which he sues would be rights or obligations that arise by reason of his contract. Although they might well ultimately derive (in a contractual incorporation or implication sense) from statutory or other instruments, their existence, scope and application would arise contractually, not by reason of any federal law. Section 39B(1A) of the Judiciary Act would have no application in that circumstance.
In submissions before me, the applicant’s case emerged with far greater clarity than it does from his pleading. The applicant’s references to “terms and conditions of…employment” are not intended to be understood as (or to be limited to) references to the terms of his employment contract. Rather, that phraseology is intended as an analogue of the contractual and statutory requirements that regulated how the respondent was obliged to conduct itself in connection with his employment. The applicant’s case is that the respondent was, by reason of those requirements, obliged to do or not do certain things; and that, by its conduct, it failed to comply with those obligations, thereby occasioning him loss. Inasmuch as some of those obligations arose, as they plainly did, as a function of duties that owed their existence to federal laws, the justiciable controversy arising between the parties as to the respondent’s compliance with them amounts (in each case) to a matter arising under those laws. Section 39B(1A) of the Judiciary Act confers upon this court jurisdiction to determine such matters.
There is ample authority in support of that last proposition. In Transport Workers Union v Lee (1998) 84 FCR 60 (Black CJ, Ryan and Goldberg JJ), this court confronted a situation not unlike that which now confronts me. There, the respondent had brought proceedings against the applicant (a well-known trade union) in the Queensland Industrial Magistrates’ Court, alleging that it had organised or engaged in unlawful industrial action. The applicant succeeded in obtaining from this court an anti-suit injunction that prevented the respondent from taking further steps to prosecute that other action. The applicant contended that the industrial action in question attracted the immunity conferred by what was then s 170MT of the Workplace Relations Act 1996 (Cth).
On appeal, the respondent contended that those orders were made without jurisdiction. The applicant, in response, claimed that the Federal Court had jurisdiction to determine its application by virtue of s 39B(1A) of the Judiciary Act. The full court, accepting that contention, made the following observations (at 65-67):
Section 39b(1a)(c) is relevantly identical to s 76(ii) of the Constitution and the identity of language suggests that the Parliament intended to exercise its power under s 77(i) of the Constitution to confer upon the Federal Court the same potential original jurisdiction as might be conferred upon the High Court of Australia under s 76(ii): see Deputy Commissioner of Taxation v Richard Walter (1995) 183 CLR 168, per Mason CJ at 181, per Brennan J at 192 ‑ 193 and per Deane and Gaudron JJ at 212 ‑ 213.
Section 39b(1a) was introduced by the Law and Justice Legislation Amendment Act 1997 (Cth), the Explanatory Memorandum for which confirms that an ample grant of jurisdiction was intended. In relation to s 39b(1a) the memorandum states:
“The additional jurisdiction of the Federal Court is concurrent with the federal jurisdiction of State and Territory courts in civil matters.
The jurisdiction gives the Federal Court a greater role in administration of federal laws, by ensuring that the Court is able to deal with all matters that are of an essentially federal nature.”
Mr Bromberg, who appeared with Ms Doyle for the applicants, contended that a “matter arises” under a law made by the Parliament “when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation”. In support of that contention they made particular reference to Felton v Mulligan (1971) 124 CLR 367, where Menzies J said (at 382):
“It is to be observed from s 76(i) and (ii) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law. A matter may involve the interpretation of a law without arising under that law. Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it. A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law. It is to be observed that there is a difference between a ‘proceeding’ arising under a law and a ‘matter’ arising under a law. A ‘proceeding’ arises under a law only when it is authorised by that law: see Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at p 537. A ‘matter’ need not be a ‘proceeding’; it may be part of a proceeding, e.g. a defence that the law[…]authorising the proceeding is unconstitutional. So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law.”
In the same case, Gibbs J said (at 416):
“... a matter arises under law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title, privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law.”
See also per Barwick CJ at 373 and per Walsh J at 403.
Similarly in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrettv Opitz (1945) 70 CLR 141, Latham CJ, in a passage that has been frequently cited, said (at 154):
“A matter may properly be said to arise under a Federal law if the right or duty in question owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the Federal law. If a right claimed is conferred by or under a Federal statute, the claim arises under the statute”.
(See also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 95 per Toohey J and at 136 per Gummow J).
We accept that “matter” in s 39b(1a) of the Judiciary Act has, as Mr Bromberg submitted, the same meaning as it possesses in s 76 of the Constitution. This was recognised in Re Judiciary and Navigation Acts (1921) 29 CLR 257 where the High Court observed in a joint judgment (at 265):
“We do not think that the word ‘matter’ in s 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion, there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law.”
(See also Fencott v Muller (1983) 152 CLR 570 at 608 and Croome v Tasmania (1997) 191 CLR 119 at 125; 142 ALR 397 at 400.)
The claim made by the applicants in the proceeding in this Court is that by reason of the provisions of a law made by the Parliament, namely s 170 mt (2) of the Workplace Relations Act, they are immune from the proceedings brought against them under the law of Queensland in the Industrial Magistrates’ Court at Kingaroy. They also claim that the same provision gives them a right to make application to the Federal Court not to be subjected to an action which, by reason of federal law, does not lie. They claim that on its true construction s 170mt(2) operates as an immunity, or a bar to proceedings, rather than as a mere defence. The right for which they primarily contend is a right not to be subjected to a prosecution in respect of protected action but they say, in the alternative, that s 170mt (2) is available by way of defence.
In our view the applicants are correct in their submission that the Court does have jurisdiction to hear and determine their claim. That claim is a matter arising under a law made by the Parliament, in this case the Workplace Relations Act, because it is necessary for the Court to determine whether that law confers the rights which the applicants claim in this proceeding. There being a matter before the Court arising under a law made by the Parliament, the Court has jurisdiction derived from s 39b(1a)(c) to determine the controversy between the parties.
The respondent submitted that s 39b(1a) of the Judiciary Act does not itself provide for the substantive content of the Court’s jurisdiction but depends upon other laws made by the Parliament to specify the matters which arise under the particular statute. Thus, it was submitted, jurisdiction in a matter arises under a law made by the Parliament only when that law grants or confers or creates the jurisdiction. But this submission fails to give full recognition to the express language of s 39b(1a) and the content of a “matter” which is, as we have earlier observed, the subject‑matter for determination in a legal proceeding.
The respondent also submitted that s 39b(1a)(c) assumes that under the relevant law made by the Parliament there is a matter that is justiciable under that law. Section 170mt identifies such a matter but the respondent contends that such a matter only “arises under” that provision if there is no impediment in the statute to pursuing that matter in the Federal Court. It is then submitted that there is such an impediment because s 412 provides, exhaustively, for the types of proceedings that may be brought before the Federal Court and a proceeding in relation to, or arising out of, s 170mt is not such a proceeding. The point about s 39b(1a) is, however, that it operates according to its terms as a general conferral of jurisdiction. The respondent’s argument cannot be sustained having regard to the later enactment of s 39b(1a) as a general conferral of jurisdiction in respect of matters arising under any laws made by the Parliament. Section 39 b(1a) stands in contrast to the prior history of limited Act by Act conferral of jurisdiction upon the Federal Court, a history which had produced consequences such as those identified by Lockhart J in Kodak (Aust) Pty Ltd v The Commonwealth (1988) 22 FCR 197.
Here the “matter”—that is, the justiciable controversy presented, by means of this proceeding, for determination by the court—concerns the existence, scope and application of various statutory injunctions (see above, [13]-[14]). That is so notwithstanding the regrettable lack of precision with which the applicant’s case is pleaded. By reason of s 39B(1A) of the Judiciary Act, this court has jurisdiction to determine matters of that nature, that want of precision notwithstanding: Rana v Google Inc (No 2) (2017) 254 FCR 1, 8 [26] (Allsop CJ, Besanko and White JJ). The respondent’s application for summary dismissal thus cannot succeed.
That conclusion, however, does not mean that the applicant’s pleading is immune to other relief sought pursuant to the respondent’s application. For the reasons discussed above, the statement of claim is deficient as a pleading and those deficiencies should be corrected. As the analysis above implies, they manifest at least insofar as parallels are drawn between the applicant’s “terms and conditions of…employment” (on the one hand) and the terms of the various statutory (and other) instruments by which his employment was partly or wholly regulated (on the other). Those are not the same thing. The terms of an applicable enterprise agreement are not, for example, terms or conditions upon which a person is engaged to serve as an employee: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 419–420, 423 (Brennan CJ, Dawson and Toohey JJ); 453, 456, 462 (McHugh and Gummow JJ). Rather, they are provisions that assume the force of statute by conferring obligations with which the law requires compliance: FW Act, s 50. Likewise, the terms of a statute that applies in respect of a person’s employment are not terms of that person’s engagement as an employee. They are statutory terms, with which compliance is mandatory.
Insofar as the existing statement of claim equates the applicant’s “terms and conditions of…employment” with the terms of statutory (or other) instruments, it does so wrongly and in a manner apt to cause the very confusion under which the respondent has laboured. If, as it now appears that he intends, the applicant alleges that the respondent breached certain statutory obligations with which it was obliged to comply—and did so in a manner that occasioned him loss and that gave rise to a statutory (eg: FW Act, s 50) or tortious (eg: breach of statutory duty) cause of action—then that should be clearly put in his pleading. At present, it is not. The statement of claim is, on that basis, amenable to relief under r 16.21 of the Federal Court Rules 2011 (Cth).
Before concluding on this issue, I should say something about the passages of the statement of claim in which the applicant alleges that he was subjected to various instances of discriminatory, harassing or otherwise inappropriate conduct engaged in on the respondent’s behalf. Those passages were not the subject of argument before me and I hesitate to say anything about them for that reason. Nonetheless, by its defence, the respondent complains that they are irrelevant and embarrassing, and I offer the following observations in light of those complaints. The significance of the relevant pleas to the cause or causes of action that the applicant wishes to agitate—including those that are now better understood than they were prior to the 16 March 2020 hearing—is not immediately apparent. It might—and I stress, in the absence of knowing, might—be that the pleading would benefit from further consideration being given to whether or not those allegations are necessary. If they are not necessary to sustain the cause or causes of action that the applicant advances, then they would appear, fairly obviously, to be vulnerable to an application for orders that they be struck out as irrelevant, embarrassing and/or scandalous.
In terms of what relief should be granted in light of the observations above about the statement of claim, the applicant suggested that it should be sufficient merely to grant him leave to file and serve an amended statement of claim in 14 days’ time. Respectfully, I agree that he should have that leave. If the granting of such leave was resisted at all, it was resisted only faintly (as was appropriate).
In my view, it is also appropriate that orders be made to strike out the existing statement of claim. It is to be appreciated that not all of the existing pleading is amenable to criticism. Nonetheless, given the not immaterial prospect of substantial amendment, I consider it appropriate to strike out the pleading in its entirety. The applicant should not interpret that as an expectation that his amended pleading should look vastly different from the form that it presently assumes; it will be sufficient that the new version addresses the deficiencies identified herein.
THE APPLICANT’S CROSS-VESTING APPLICATION
The applicant, by his own application, seeks an order that the proceeding be transferred to the Supreme Court of Victoria under s 5(4) of the CV Act. That section relevantly provides as follows:
5 Transfer of proceedings
…
(4) Where:
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court); and
(b) it appears to the first court that:
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;
(ii)having regard to:
(A)whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross vesting of jurisdiction; and
(B)whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross vesting of jurisdiction; and
(C)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and
(D)the interests of justice;
it is more appropriate that the relevant proceeding be determined by that Supreme Court; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;
the first court shall transfer the relevant proceeding to that Supreme Court.
…
(7)A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney‑General of the Commonwealth or of a State or Territory.
Specifically, the applicant relies upon the circumstance enumerated in s 5(4)(b)(iii). He asserts that an order transferring the proceeding is appropriate because it is in the interests of justice that the present proceeding be determined by the Supreme Court of Victoria.
Jurisdiction to hear a proceeding so transferred is conferred, insofar as might be necessary, by s 4 of the CV Act, which provides as follows:
4 Additional jurisdiction of certain courts
(1) Where:
(a)the Federal Court or the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b)the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c)in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or
(d)in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory)—jurisdiction is conferred on that court with respect to that matter.
…
(4) This section does not apply to a matter arising under:
…
(ab) the Fair Work Act 2009…
In Federal Commissioner of Taxation v Residence Riverside Pty Ltd (2011) 198 FCR 248, McKerracher J had occasion to consider the factors that inform the court’s assessment of whether the interests of justice favour the transfer of a proceeding under s 5(4) of the CV Act. His Honour made the following observations (at 92 [17]), which I gratefully adopt:
In my view, ordinarily where cross-vesting transfer occurs, the factors in support of it would be obvious and a conclusion that the value judgment or decision about whether it is in the interests of justice for the proceeding to be dealt with in another court will be readily instinctive taking into account a variety of matters including:
• the stage of the proceedings in the respective courts;
• the commonality or diversity of the parties;
• the nature of the proceedings;
• the commonality or diversity of the issues;
• the risk of conflicting findings of fact or conflicting orders;
• a cost benefit analysis;
• the potential unnecessary drain on judicial and other public and private resources; and
• whether there is any particular judicial expertise residing in one court or the other.
In appropriate cases, the interests of justice will be informed in part by the reasons for which a proceeding was commenced in a particular court: BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421-422 [15] (Gleeson CJ, McHugh and Heydon JJ, with whom, in the result, Kirby, Hayne, Callinan and Heydon JJ agreed).
The applicant’s application under the CV Act stems primarily from his having commenced another action in the Supreme Court of Victoria relating, or partly relating, to the circumstances in which his employment with the respondent came to end. The defendant in that proceeding is the Commonwealth Superannuation Corporation (hereafter, the “CSC”), a statutory body that administers the Public Service Superannuation Scheme. The applicant asserts in that proceeding that the CSC failed to comply with certain obligations, statutory and otherwise, that were conferred upon it in its capacity as the trustee of that scheme. As the earlier recitation of the applicant’s claims in this court (above, [6]-[14]) makes clear, the rights and duties that are said to originate from that scheme (or from the various statutory and related instruments by which it is constituted and regulated) appear to assume significance in both proceedings.
There is force in the applicant’s submission that the two proceedings should, in the interests of justice, be heard together. Notwithstanding the confused state of the existing statement of claim in the proceeding before this court, they appear to agitate related claims and their disposition would appear to require consideration of common evidence. The loss that the applicant seeks to recover is, by his own admission, common to both proceedings. Again, properly enough, the respondent offered only muted resistance to those propositions.
The applicant contends that the Supreme Court of Victoria is the appropriate forum within which the two matters should be heard because “…the forms of damage, the type of damage and the type of case which is being run against the [CSC]…are the types of matters that are regularly and usually and conventionally dealt with in the Supreme Court, which include claims for breach of trust[ee’s]…duty”. More specifically, the applicant submitted that “…the Federal Court is not a personal injuries court”. He also contended that the respondent has not identified any prejudice that it would suffer were the matter to be transferred.
It does not appear to me (to use the terminology that the CV Act employs) that it is in the interests of justice to transfer this proceeding to the Supreme Court of Victoria. That is so for a number of reasons, although principally only for one.
First, this court cannot, by order made under s 5(4) of the CV Act, require that the two proceedings that the applicant has commenced be heard together. The order that might be made is limited to one transferring the existing proceeding in this court to the Supreme Court of Victoria (although it must be acknowledged that there would appear to be a significant likelihood that the two proceedings would be heard together were such an order now to be made).
Second, it is not the case that this court lacks the experience or expertise to adequately determine the questions that arise in either proceeding. This court regularly deals with claims for what is sometimes, if summarily, known as workers compensation, particularly claims advanced under the Safety, Rehabilitation and Compensation Act 1988 (Cth). In doing so, it has occasion to consider and apply principles common to the realm of personal injuries law. I do not accept that there is any compelling reason why the applicant could not have achieved his present goal of having his claims heard within a single proceeding (or, perhaps, a single hearing) simply by joining the CSC to this proceeding and amending his pleading to articulate the claims against it that he wishes to press.
Third—and, by far, most importantly—it appears very likely, in light of the submissions that the applicant advanced with respect to this court’s jurisdiction in the present matter, that the claims that he wishes to agitate against the respondent involve matters arising under the FW Act. The Supreme Court of Victoria does not have jurisdiction to determine such matters, whether under the CV Act or otherwise: CV Act, s 4 (above, [29]); FW Act, ss 539(2), 562. It can hardly be in the interests of justice to transfer a proceeding that relates to a matter that the receiving court would lack jurisdiction to hear or determine. The existence of that risk (if not that inevitability) presently is sufficient to persuade me that the interests of justice do not warrant the transfer that the applicant seeks.
The applicant’s interlocutory application will, therefore, be dismissed.
COSTS
The applicant’s apparent reliance upon rights and obligations arising under the FW Act gives rise to an additional complication on the question of costs. Ordinarily, given the manner in which I will determine them, it would be appropriate that the applicant should be ordered to pay the respondent’s costs of and pertaining to the two applications presently before the court. Were it not for the potential application of s 570(1) of the FW Act, I would have been inclined to make such an order.
As it happens, that issue need not now be considered. The respondent accepts that a course open to the court in the present circumstances is to simply reserve the question of costs. That was, with respect, a helpful concession that relieves the court of the need to give detailed consideration to an inherently circular and difficult proposition. Costs will be reserved.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate:
Dated: 20 March 2020
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