Tait v University of New South Wales Hr
[2021] FCCA 1839
•11 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Tait v University of New South Wales HR [2021] FCCA 1839
File number(s): SYG 410 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 August 2021 Catchwords: INDUSTRIAL LAW – Fair Work – whether the matter should be transferred to the Federal Court of Australia – the proceedings in this matter are transferred from this Court to the Federal Court of Australia pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) – costs reserved. Legislation: Fair Work Act 2009 (Cth)
Competition and Consumer Act 2010 (Cth) s 86, Sch 2, Australian Consumer Law
Federal Circuit Court of Australia Act 1999 (Cth) ss 39, 41
Federal Circuit Court Rules 2001 (Cth) r 8.02
Cases cited: Margo v Freemantle Football Club [2005] WASC 163
O’Neill v Medical Benefits Fund (2002) 122 FCR 455
Number of paragraphs: 22 Date of last submission/s: 6 August 2021 Date of hearing: 6 August 2021 Place: Parramatta Solicitor for the Applicant: Mr Alkadamani Solicitor for the Respondent: Ms Bembrick ORDERS
SYG 410 of 2021 BETWEEN: MELISSA KNOTHE TATE
Applicant
AND: UNIVERSITY OF NEW SOUTH WALES HR
Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.Pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth), the proceedings in this matter are transferred from the Federal Circuit Court, to the Federal Court of Australia.
2.Costs are reserved.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
This judgement concerns an Application in a Case bought by the Applicant, Melissa Knothe Tait that the proceedings be transferred from the Federal Circuit Court of Australia to the Federal Court of Australia.
BACKGROUND
In July 2013, the applicant was employed by the respondent, the University of New South Wales (“UNSW”) as the inaugural Paul M Trainor Chair in Biomedical Engineering. The applicant claims that the position she took up with UNSW was a tenured and endowed position.
Prior to her taking up the appointment, the applicant was employed in a tenured position at Case Western University, in Cleveland Ohio in the United States. But for taking up the appointment with UNSW, she claims that she had secure employment with Case Western until she turned 65 years of age.
The applicant claims that at the time of her appointment, it was represented to her that the Paul M Trainor Chair in Biomedical Engineering was an endowed position with guaranteed funding from the Paul M Trainor Endowment. Accordingly, the position was able to continue irrespective of any other budgetary pressures UNSW might face. The applicant claims that it is well known internationally and in academic circles that the meaning of a tenured academic position is that the academic holding such position cannot be terminated except for cause, such as serious misconduct.
The applicant claims that in November 2020, she was advised that her position would be terminated by reason of redundancy. UNSW claims that the applicant’s position was disestablished as part of a restructure bought about to address funding shortfalls caused by reductions in student demand resulting from the COVID-19 pandemic. Although the applicant was considered for redeployment, she was not considered suitable for two available positions, on the basis UNSW assessed that the applicant did not hold the necessary expertise for those positions.
UNSW denies claims that the employment contract of the applicant with it was such that the applicant was unable to be made redundant as part of a proper process carried out in accordance with relevant industrial agreements applicable to the University.
The applicant has made two separate and distinct claims. The first is a claim under the Fair Work Act 2009 (Cth) (“the Act”), alleging dismissal in contravention of a general protection. The applicant claims that her employment was terminated on the pretext of redundancy and this redundancy was an artifice to terminate her employment because she had exercised workplace rights to make complaints. It is further alleged that the applicant had been injured at work and has a disability and had exercised a workplace right and commenced legal proceedings against UNSW in relation to that injury.
The second claim is made under s 31 of the Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law(“the ACL”). It alleges that UNSW breached s 31 of the ACL by making misleading representations at the time of the Applicant’s employment as to the conditions and security of her employment with UNSW in a tenured and endowed professorial position. The Applicant contends that but for those false representations, she would have remained in a tenured secure position at Case Western University, until she reached retirement age of 65 years. The applicant contends that she is entitled to damages, being the loss of salary for a period of 10 years, given her age as at the date of her redundancy from UNSW was 55 years. The applicant contends that this amount approximates $2 million Australian Dollars (“AUSD”). This amount exceeds the maximum amount that this Court can award under s 86AA of the Competition and Consumer Act 2010 of $750,000. Reference was made to O’Neill v Medical Benefits Fund (2002) 122 FCR 455 and Margo v Freemantle Football Club [2005] WASC 163 to contend that even making allowance for any discount that the Court might apply for the vicissitudes of life or other matters that might discount the applicant’s economic damages, it is likely the amount would still exceed the $750,000 maximum that the Court could award, if the applicant were successful.
When the matter came initially before the Court, a number of procedural orders were made for the filing of a defence and for the matter to be referred to mediation. A mediation has been held but was unsuccessful. Following the unsuccessful mediation, the applicant has filed an Application in a Case for the matter to be transferred to the Federal Court of Australia. That application is opposed by UNSW.
THE RELEVANT LAW IN RELATION TO A TRANSFER OF A CASE TO THE FEDERAL COURT.
The relevant legislative provisions and procedural rules relevant to a transfer of a matter from the Federal Circuit Court to the Federal Court of Australia are, s 39 and s 41 of the Federal Circuit Court of Australia Act 1999 (“the FCCA”) and r 8.02 of the Federal Circuit Court Rules 2001 (Cth) (“the FCCR”). It is not suggested that this is a matter where the transfer is mandatory pursuant to s 41 of the FCCA. Accordingly, the transfer is a discretionary matter for the Court to determine taking account of the provisions set out in s 39(3) of the FCCA and
r 8.02 of the FCCR.
Section 39(3) of the FCCA is as follows:
Discretionary transfer of proceedings to the Federal Court or the Family Court
(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 proceeding; and
(d) the interests of the administration of justice.
Rule 8.02 of the FCCR reads as follows:
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.
CONSIDERATION
The first issue is that pursuant to r 8.08(3) of the FCCR, unless the Court otherwise orders, a request for a transfer must be made on or before the first Court date of the proceeding. In this case, orders were made in chambers for certain procedural matters to take place, including the filing of a Statement of Claim and a Defence. The matter was also referred to mediation. These procedural matters took place during Covid 19 restrictions and there has been no formal calling of the matter in Court.
It was only after the mediation had been unsuccessful that the Application in a Case has been made for the transfer the matter to the Federal Court of Australia. The applicant properly concedes that it was only after Directions were made on 7 April 2021 for the filing of a Statement of Claim that the consideration and formulation of the claim under the Australian Competition and Consumer Commission (“the ACCC”) was first propounded.
In these circumstances, the Court is satisfied that it is reasonable for the Court to consider, at this point of time, making an order for the transfer of the matter to the Federal Court of Australia, noting the discretion of the Court to do so, after any first Court date pursuant to
r 8.02(2) of the FCCR.
In terms of the discretionary matters pursuant to s 39(3) of the FCCA, the Court notes that there are no associated matters pending in the Federal Court of Australia. In terms of the resources of the Court to hear the matter, whilst there is no material before the Court as such, in the Court’s view, this matter is likely to take a considerable period of time to hear and will involve a number of witnesses other than the applicant and a large amount of documentary information. Consideration of the matter will involve not only the claim under the Fair Work Act2009 (Cth), but also the claim made under the ACL of what could be generally described as misleading and deceptive conduct on behalf of UNSW. It will also involve considerations of the meaning of the word “tenured” within the University context and an endowed professorial chair. It will involve consideration of the terms and conditions of the relevant workplace Enterprise Agreements for the University and the capacity of the University to disestablish a tenured professorial position. The Court considers these matters to be of some significant general importance by reference to the tertiary education sector.
The Federal Circuit Court of Australia is a high-volume trial Court with limited resources to hear lengthy and difficult matters. Such matters are better heard in the Federal Court of Australia that has the resourcing and time to hear such matters. By way of reference, any matter which is likely to involve a hearing over five days in the Family Law Division of the Court, can be transferred from the Federal Circuit Court to the Family Court of Australia. In circumstances where the Court holds considerable concerns that the matter will go for more than 5 days and involve a significant amount of both oral and documentary evidence, the Court is of the view that it is in the interests of the administration of justice that the matter be transferred.
In terms of the matters under r 8.02 of the of the FCCR, the Court is satisfied pursuant to
r 8.02(4) of the FCCR, that the proceeding is likely to involve a question of general importance such that it would be desirable for there to be a decision of the Federal Court of Australia on the issue. Given the current delays in the hearing of matters within this Court, it is unlikely that the matter will be heard any earlier in this Court than the Federal Court of Australia. The Court is advised that the applicant is aware of the likelihood of potentially greater cost implications, if the matter is heard in the Federal Court of Australia as compared to the Federal Circuit Court.
In making this decision, the Court has taken account that the application for the transfer of the matter is opposed by UNSW and the matters raised in the submissions provided by Counsel for UNSW.
Finally, the Court notes that pursuant to a protocol in existence between the Federal Circuit Court of Australia and the Federal Court of Australia, no objection is taken by the Federal Court of Australia to the matter being transferred.
CONCLUSION
Accordingly, the Order of the Court is that pursuant to s 39(1) of the FCCA, the proceedings in this matter are transferred from this Court to the Federal Court of Australia.
Costs are reserved.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 11 August 2021
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