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;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC2G 456
Decision Date

CaseChat Overview and Summary

In the matter of Van Den Berg v Monash Health, the Court was tasked with determining whether the proceedings should be transferred to the Federal Court of Australia pursuant to section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The case arose from an application and statement of claim filed by the applicant on 28 April 2021, with subsequent filings including a defence and a reply. The matter was referred to mediation, which was unsuccessful, leading to the current consideration of whether to transfer the proceedings to the Federal Court.

The key legal issues before the Court involved the criteria set out in section 153 of the FCFCOA Act and Rule 8.02(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The Court had to assess whether the proceeding was likely to involve a significant amount of evidence and would take more than five days, whether it involved questions of general importance, and whether the resources of the Federal Circuit and Family Court were sufficient to manage the proceeding. Additionally, the Court considered the applicant's acceptance that the proceeding would require an estimated eight-day trial.

After reviewing the submissions from both parties and considering the extensive nature of the pleadings, which included over 168 pages and 600 paragraphs, the Court concluded that it was in the interests of the administration of justice to transfer the proceedings to the Federal Court. The Court found that the proceeding would likely involve a significant amount of evidence and take more than five days, involved questions of general importance concerning the Fair Work Act 2009 (Cth), and would place a considerable strain on the resources of the Federal Circuit and Family Court. The Court therefore decided to transfer the matter to the Federal Court of Australia.

The Court's orders directed the parties to submit written submissions on the transfer, with the Court deciding the issue on the papers. The Court also noted the inability of pro bono counsel to continue acting and the respondent's estimation of an eight-day trial. The Court's decision was based on the criteria for transfer and the specific circumstances of this case, leading to the conclusion that the matter should proceed in the Federal Court of Australia.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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

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)

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