Van Den Berg v Monash Health
[2022] FedCFamC2G 456
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Van Den Berg v Monash Health [2022] FedCFamC2G 456
File number(s): MLG 859 of 2021 Judgment of: JUDGE O'SULLIVAN Date of judgment: 10 June 2022 Catchwords: INDUSTRIAL LAW – allegations of serious contraventions of the Fair Work Act 2009 (Cth) – whether proceedings are more appropriate for the Federal Court of Australia – proceedings transferred. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s.153
FederalCircuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021, r.8.02, 12.01
Fair Work Act 2009 (Cth), s.557A
Cases cited: Smith v Landmark Products Pty Ltd [2018] FCA 88
Bullock v AJ & Co Lawyers Pty Ltd [2021] FCA 149
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of last submission/s: 25 April 2022 Date of hearing: On the papers Place: Melbourne (via Microsoft Teams) ORDERS
MLG 859 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEVEN VAN DEN BERG
Applicant
AND: MONASH HEALTH
Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to s.153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), these proceedings be transferred to the Federal Court of Australia to be listed with such priority as that Court deems appropriate.
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
These reasons concern the question of whether these proceedings should be transferred to the Federal Court of Australia pursuant to s.153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”).
BACKGROUND
The proceedings were commenced by application and statement of claim filed on 28 April 2021. After two interlocutory applications (one by each side) were filed and dealt with, a defence was filed on 6 August and reply to that was filed on 20 August 2020.
On 8 October 2021, the proceedings were referred the matter to mediation and an order was made pursuant to Rule 12.01 of the FederalCircuit and Family Court of Australia (Division 2) (General Federal Law)Rules 2021 (‘the Rules’) for the applicant to be referred to Victorian Bar Pro-Bono Scheme.
Ultimately, the mediation held on 9 February 2022 was unsuccessful. When the matter returned for directions on 11 April 2022, the Court was advised that:
(a)there have been two pro bono barristers appointed (as a result of the order made by the Court on 8 October 2021) and both have subsequently ceased to act following attempts at consulting with the applicant; and
(b)it is the assessment of the respondent’s Counsel, Mr Harrington, that the evidence on the liability stage of the proceedings would take eight days.
The Court raised inter alia the issue of transfer of the proceedings to the Federal Court of Australia directly with the parties at the directions hearing on 11 April 2022. The Court subsequently made the following orders:
THE COURT ORDERS THAT:
1.By 4:00pm on 22 April 2022, the respondent is to file and serve any submissions, of no more than three pages, on the issue of whether the Court should make an order under s.153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) transferring these proceedings to the Federal Court of Australia.
2.By 4:00pm on 6 May 2022, the applicant is to file and serve any submissions, of no more than three pages, on the on the issue of whether the Court should make an order under s.153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) transferring these proceedings to the Federal Court of Australia.
3.At the close of the submissions, the Court will consider the issue on the papers.
AND THE COURT NOTES THAT:
A.Counsel who appeared today with the applicant (as a result of an order made on 8 October 2021 under Rule 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021) advised the Court that she is unable to act and will return the brief.
B.This is the second time pro bono Counsel has ceased to act following discussion with the applicant.
C.Counsel for the respondent has estimated that the trial would likely take eight days.
OVERVIEW OF THE PLEADINGS
The statement of claim (which appears to have been prepared by the applicant himself) runs to over 168 pages and almost 600 paragraphs making allegations of at least forty different contraventions of the Fair Work Act 2009 (Cth) (‘the FW Act’). The defence (which was settled by Counsel) is almost sixty pages and joins issue with most of the alleged contraventions.
Many of the forty plus contraventions alleged involve “serious contraventions” for the purposes of the FW Act. Accordingly, the potential maximum penalties (subject to them being proved) would be ten times that otherwise allowed.
TRANSFER OF PROCEEDINGS
The FCFCOA Act relevantly provides:
153 Discretionary transfer of proceedings
(1) If:
(a)a proceeding is pending in the Federal Circuit and Family Court of Australia (Division 2); and
(b)the proceeding is not a family law or child support proceeding;
the Court may, by order, transfer the proceeding from the Court to the Federal Court.
(2)The Federal Circuit and Family Court of Australia (Division 2) may transfer a proceeding:
(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, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
(a) any Rules of Court made for the purposes of subsection 154(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 and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
…
The Rules relevantly provide:
8.02 Transfer to Federal Court
(1)The Court may, at the request of a party or on its own initiative, transfer a proceeding to the Federal 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 to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:
(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 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 were 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.
THE RESPONDENT’S SUBMISSIONS
The respondent’s submissions filed on 22 April 2022 were that:
Background to the submissions
1.By order dated 11 April 2022, the Court has invited the parties to address it on the question of the transfer of the proceeding to the Federal Court of Australia (FCA).
Power and nature of discretion
2.There is power to make an order to transfer the proceeding to the FCA: s.153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act).[1]
[1] see also former power to transfer under s.39(3) of the Federal Circuit Court of Australia Act 1999 (Cth).
3.The Court may make such an order on its own motion, after having heard from the parties.[2]
[2] s.153(2)(b) of the Act; rule 8.02(1): “The Court may, at the request of a party or on its own initiative, transfer a proceeding to the Federal Court.”
4.The decision to transfer is discretionary in nature. The discretion is broad but informed by the enabling enactment and the rules.
5.Section 153(3) of the Act requires consideration of a number of factors. Each is addressed in the table below.
6.Rule 8.02(4) of the FCFCA Rules provides that the Court ‘must’ take the following factors into account when determining the question of transfer.[3]
[3] see also former r.8.02(4) of the FCCA Rules
Nature of proceeding and progress to date
7.This is a civil penalty proceeding under the Fair Work Act 2009 (Cth) (FW Act) prosecuted by a litigant in person. It is squarely within the original jurisdiction of the Court.
8.The Applicant is a former employee. He was employed for a relatively short period as a security guard. His employment was regulated by an industrial agreement.
9.The Applicant has filed a long and detailed statement of claim. He appears to seek to agitate at least 40 separate claims, although certain of those claims can be grouped.
10.The Respondent has filed a detailed responsive defence.
11.The Applicant has filed a long reply to the defence.
12.The Respondent has sought to resolve certain claims and has explained this in open correspondence to the Applicant.
13.The Respondent, in good faith, has estimated an 8 day trial having regard to, and assuming that:
a)the Applicant is self-represented;
b)the sheer scope or sweep of the matters pleaded in the statement of claim;
c)that all matters must be adjudicated and thus assuming there is no agreement on any matters of fact or questions of law.
14.It is possible that some of these assumptions are inaccurate or misplaced or that the contours of the dispute refine as the matter edges closer to final hearing.
15.It has been observed in the FCA that there is a rule of thumb, arising from a practice, which operates in the exercise of the ‘transfer discretion’: if a proceeding will occupy more than five (5) days, it should transfer to, or remain in, the superior court.[4]
[4] Smith v Landmark Products Pty Ltd [2018] FCA 88 at [8]
16.This Court should approach with great caution, in this discretionary decision-making context, any rule of thumb which does not find its provenance in the statute.
The Respondent’s position
17.The Respondent opposes any transfer to the FCA.
Relevant considerations: exercise of the discretion
18.The Court should take into account the following matters in exercising its discretion:
Act/rule Mandatory consideration Submission s.153(3)(a) Any rules of court: s.154(2) r.8.02 must be considered s.153(3)(b) Proceedings in respect of an
associated matter
Not applicable s.153(3)(c) Resources of this Court sufficient to hear and determine The Respondent cannot know with precision the available resources of this Court. But the Court is skilled and experienced in the
determination of FW Act proceedings
s.153(3)(d) Interests of the administration of justice This requires an evaluative assessment. Rule 8.02(4) prescribes matters which must be
addressed. They are addressed below.
It is a balancing exercise having regard to the pressures on the Court and the scope and
complexity of the proceeding.
r.8.02(a) The proceeding is likely to involve questions of general importance… The proceeding is primarily concerned with construction questions in relation to the EBA. It is conceded that the allegations alleging a breach of Ch 4, Division 4 of the FW Act, s.557A (serious contravention of civil remedy provisions) involve a question of general
importance.
r.8.02(b) Less cost and more convenience It is likely this is a neutral consideration. r.8.02(c) Heard earlier in the FCA This is unlikely if it is an 8 day case r.8.02(d) Particular procedures This is a neutral consideration save that there is a rule of court concerned with FW Act
alternative dispute resolution
r.8.02(e) Wishes of the parties The Respondent opposes transfer 19.It is accepted the Court has a significant workload. However, it cannot be said that its resources are insufficient to hear and determine the proceedings.
20.It is to be weighed in the balance that the Court has exclusive jurisdiction in these matters as provided in the FW Act.
21.Further, the case is one is concerned with factual determinations and agreement-based construction questions. In that, it is not a proceeding truly or necessarily concerned with any point of principle. That consideration weighs against a transfer to the FCA.
22.Finally, this need not be a proceeding exceeding 5 days or an approximate time. If each party acts in a sensible and pragmatic manner, there can (or should be) agreement on key questions of fact and written outlines can ably identify that which is in issue. The Respondent is open to a judge-engineered trial plan in which time is allocated according to the nature of the contested issue.
23.The matter ought to be directed back to mediation. That mediation should be in person. The Applicant should be represented by pro bono counsel. And it is possible the matters in contest might narrow.
24.It is accepted the discretion is finely balanced. The Respondent accepts the Court is busy and resources are stretched. But this Court, and this judge, is well-equipped to engage with the matters requiring adjudication.
25.The proceeding should not be transferred.
THE APPLICANT’S SUBMISSIONS
The applicant’s submissions filed on 25 April 2022 were that:
1.The Applicant can think of no reason as to why these proceedings should not be transferred to the Federal Court of Australia.
2.The Applicant accepts the Respondents submission that the factors to take into account in deciding whether to transfer proceedings to the Federal Court are those set out in s.153(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Rule 8.02(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.The proceeding after conclusion of mediation which involved the parties preparing for the purpose of mediation statements of agreed and disputed facts and agreed and disputed questions of law has not resolved any of the 40 alleged claims against the Respondent. Furthermore, despite both parties engaging in good faith with the mediation process that has been completed, there has been no further narrowing of the issues in dispute.
4.This is now a proceeding that the Applicant accepts as requiring an estimated 8-day trial to determine according to law whether the claims put forth by the Applicant are made out and if such claims are made out what orders should therefore be made by the Court.
5.As referred to by the Respondent the matter of Smith v Landmark Products Pty Ltd [2018] FCA 88 provides the Federal Courts authority view as to when a matter should be transferred being hinged upon whether the case would take more than five days to hear.
6.Insofar as this is the identified practice of the Federal Court and these proceedings require an 8-day trial, it is the Applicants submission that it would be appropriate to transfer these proceedings to the Federal Court of Australia.
7.The r.8.02(4)(a) consideration being 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 on one or more points in issue is a factor supportive of the proceeding being transferred. The Respondent has already conceded in its submission of 22 April 2022 that ‘the allegations alleging a breach of Ch 4, Division 4 of the FW Act, s.557A (serious contravention of civil remedy provisions) involves a question of general importance’. In addition, the Applicant asserts that this claim involves employment practices that were both widespread and systemic across the Monash Health Security workforce and therefore any favourable decision of the Federal Court concerning any of the Applicants claims would have widespread ramifications for the workplace conditions of the Respondents Security workforce.
8.The s.153(3)(c) consideration being whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the proceeding is one that weighs heavily in support of these proceedings being transferred to the Federal Court.
9.The scope and complexity of these proceedings has meant that pro-bono Counsel has not been able to be obtained to assist the Applicant. In speaking to the scope and complexity of these proceedings and therefore whether the resources of the Federal Circuit and Family Court of Australia are sufficient to hear and determine the proceeding the Respondents Counsel by way of a note provided to the Court on the 7th October 2021 stated that “8. The dispute is wide in its compass and the alleged contraventions of the FW Act are many. On one view, the proceeding is sprawling and inordinately intricate.”
10.The Respondents Counsel also confirmed in this same note that “11. This proceeding will place a considerable strain on this Court’s resources save for any agreement that it be pared back to its essential elements.’’
11.Upon conclusion of the mediation process there has been and will be no such agreement to minimise the claims put forward by the Applicant. Therefore, the Applicant accepts the Respondents opinion that this proceeding would indeed place a considerable strain on this Court’s resources and therefore should be transferred to the Federal Court where an 8-day trial can be appropriately accommodated.
12.Based upon the relevant legislative criteria and the related facts outlined in this submission, the Applicant is in support of any discretionary decision that may be made by the Court to transfer these proceedings to the Federal Court of Australia.
CONSIDERATION
In making this decision, having considered the relevant matters in the Rules, the Court has also taken into account that the transfer of the matter is opposed by the respondent, supported by the applicant and the matters raised in the submissions provided by both parties.
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.
In terms of the discretionary matters, 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 affidavit 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.
Jurisdiction under the FW Act is not exclusive and as acknowledged in Bullock v AJ & Co Lawyers Pty Ltd [2021] FCA 149 (‘Bullock’) is shared with the Federal Court. Unlike the proceedings in that matter (putting to one side the issue of penalty) the applicant’s prayer for relief in this matter runs to thirty two sub-paragraphs. Moreover, I note the concession in the respondent’s submissions that the s.557A issue involves a question of general importance.
Whilst the submissions of the parties illustrate their views on the complexity of the matter, the issue of cost and conveniences should be looked at in the context of the likely length of the proceedings. The decision referred to in the respondent’s submissions did not involve a five day case.[5] This Court cannot proceed on the basis that the parties will act in a “sensible and pragmatic manner” particularly if the history of this matter is any guide. In that context the respondent’s “good faith” estimate seems more likely.
[5] see Smith v Landmark Products Pty Ltd [2018] FCA 88 at paragraph [8].
The Court notes that pursuant to a protocol in existence between the Federal Circuit and Family Court of Australia and the Federal Court of Australia, the matter was for this Court to decide.
Division 2 of the Federal Circuit and Family 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 Division 2 to Division 1. As the respondent conceded, the matter is “finely balanced”.
In circumstances of this matter where the Court holds considerable concerns that the matter will go for more than five days and involve a significant amount of both affidavit 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.
CONCLUSION
Therefore, for the above reasons, the orders set out at the beginning of these reasons will be made.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan. Associate:
Dated: 10 June 2022
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