Van den Berg v Monash Health

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FEDERAL COURT OF AUSTRALIA

Van den Berg v Monash Health [2022] FCA 796

File number(s): VID 318 of 2022
Judgment of: O'CALLAGHAN J
Date of judgment: 11 July 2022
Catchwords: COURTS – practice and procedure – whether order by a judge of the Federal Circuit and Family Court of Australia (Division 2) to transfer civil proceeding to the Federal Court of Australia should be confirmed pursuant to s 32AD of the Federal Court of Australia Act 1976 (Cth) – where judge failed to consider mandatory criteria for transfer – where no sufficient grounds to warrant transfer – transfer not confirmed
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 153, 153(3), 154

Federal Court of Australia Act 1976 (Cth) ss 20(1A), 32AD, 32AD(1)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 8.02, 8.02(4), 8.02(4)(a)

Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1

Van Den Berg v Monash Health [2022] FedCFamC2G 456

Division: Fair Work Division
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 34
Date of last submission/s: 7 July 2022
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Lander & Rogers Lawyers

ORDERS

VID 318 of 2022
BETWEEN:

STEVEN VAN DEN BERG

Applicant
AND:

MONASH HEALTH

Respondent

ORDER MADE BY:

O'CALLAGHAN J

DATE OF ORDER:

11 JULY 2022

THE COURT ORDERS THAT:

1.Pursuant to section 32AD(1) of the Federal Court of Australia Act 1976 (Cth), it declines to confirm the order made by Judge O’Sullivan on 10 June 2022 transferring proceeding no. MLG 859 of 2021 to the Federal Court of Australia.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

  1. On 10 June 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) (the FCFCOA) ordered that:

    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.

    See Van Den Berg v Monash Health [2022] FedCFamC2G 456.

  2. That order cannot take effect unless it is confirmed by a judge of this court pursuant to s 32AD(1) of the Federal Court of Australia Act 1976 (Cth).

    Relevant provisions

  3. Section 153(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides as follows:

    Division 2—Transfer of proceedings to the Federal Court

    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…

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Details
Case
[2022] FCA 796
Decision Date

CaseChat Overview and Summary

Van den Berg v Monash Health involved a self-represented applicant bringing a proceeding in the Federal Circuit and Family Court of Australia (Division 2) against Monash Health, alleging numerous contraventions of the Fair Work Act 2009 (Cth) and associated regulations. The applicant sought confirmation of a transfer of the proceeding to the Federal Court of Australia pursuant to section 32AD of the Federal Court of Australia Act 1976 (Cth). The respondent opposed the transfer, arguing that it was not warranted by the mandatory criteria set out in the legislation. The central issue before the court was whether the transfer order should be confirmed, given the judge’s apparent failure to consider the mandatory criteria for transfer and the absence of sufficient grounds to warrant the transfer.

The court found that the judge misunderstood his statutory task, as there is no "rule of thumb" suggesting that a proceeding should be transferred if it is expected to occupy more than five days. Instead, the court must consider the interests of the administration of justice, the resources of the FCFCOA, and other specified factors when deciding whether to transfer a proceeding. The court concluded that the respondent had presented sufficient grounds to oppose the transfer, and there were no valid reasons to confirm the transfer order. The court emphasised that the interests of the administration of justice must be considered broadly, including whether the proceeding involves significant issues of legal principle or public interest.

Pursuant to section 32AD(1) of the Federal Court of Australia Act 1976 (Cth), the court declined to confirm the order made by the judge on 10 June 2022 transferring proceeding no. MLG 859 of 2021 to the Federal Court of Australia. The court's decision was based on the judge's failure to consider the mandatory criteria for transfer and the lack of sufficient grounds to justify the transfer. The respondent's opposition to the transfer, based on the FCFCOA's expertise in Fair Work Act proceedings and the interests of justice, was deemed valid.

Orders

Orders of the court

1. Pursuant to section 32AD(1) of the Federal Court of Australia Act 1976 (Cth), it declines to confirm the order made by Judge O’Sullivan on 10 June 2022 transferring proceeding no. MLG 859 of 2021 to the Federal Court of Australia.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Section 32AD of the Federal Court Act is headed “Confirmation of civil proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2)” and provides:(1)If the Federal Circuit and Family Court of Australia (Division 2) makes an order under subsection 153(1) of the Federal Circuit and Family Court of Australia Act 2021 transferring a proceeding to the Court, the Court may, by order, confirm the transfer of the proceeding to the Court.Note:The transfer of a proceeding takes effect on the day the Court makes an order under this section in relation to the proceeding: see subsection 153(4) of the Federal Circuit and Family Court of Australia Act 2021.(2)The Court may, in its discretion, receive further evidence to decide whether to make an order under subsection (1) …(3) The Court has jurisdiction in a matter that:(a)is the subject of a proceeding transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2); and(b)is a matter in which the Court does not have jurisdiction apart from this subsection.To avoid doubt, the Court’s jurisdiction under this subsection is not subject to limits set by another provision.(4)An appeal does not lie from a decision of the Court in relation to an order made under subsection (1) confirming the transfer of a proceeding.Background The Chief Justice referred to me to hear and determine the question whether this court should, pursuant to s 32AD(1) of the Federal Court Act, confirm the order to transfer the proceeding. In my view, for the reasons that follow, the judge misunderstood his statutory task and there are, in any event, insufficient grounds to warrant confirmation of the order to transfer the proceeding. The applicant, who is self-represented, filed a 167 page statement of claim in the proceeding before the FCFCOA. It is, to be sure, prolix. The applicant makes claims in respect of 41 separate alleged contraventions of the Fair Work Act 2009 (Cth) (FW Act) and the associated Fair Work Regulations 2009 (Cth), including one contravention which is described as a “serious contravention” in the statement of claim. Some of the individual contraventions are repeated, but in relation to different dates or periods of time worked. By way of example only, “Contravention 20” is headed “Failure to pay wages for 43 minutes worked on Thursday 24th October 2019 between 06:00-06:43 in contravention of Section 323(1) of the [FW] Act”. Contraventions 21 to 26 have similar headings, the only difference being that they each specify a different period of time worked and in respect of a different date. Similarly, Contravention 27 is titled “Altering the record of hours worked by the Applicant on 14th September 2020 in breach of Subregulation 3.44(4) of the Fair Work Regulations 2009 (Cth)”, and Contraventions 28 to 34 repeat that allegation in relation to different dates. The statement of claim is replete with allegations along the same lines. The respondent has filed a defence, and the applicant has replied. The matter was unsuccessfully mediated in the FCFCOA. The matter was then brought on for a directions hearing, at which the judge made orders, of his own volition, that the parties file submissions on the question of whether the FCFCOA should transfer the proceeding to this court. The judge’s reasons

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent opposed the transfer for the following reasons:(1)the fact that a trial may occupy more than five hearing days is not a “rule of thumb” sufficient to warrant a transfer; (2)the FCFCOA is skilled and experienced in the determination of FW Act proceedings; (3)the matter was squarely within the original jurisdiction of the FCFCOA; and(4)the interests of the administration of justice requires an evaluative assessment.Consideration The respondent correctly submitted that the fact that a hearing of a trial is anticipated to exceed five days is not a sufficient basis for ordering a transfer of a proceeding from the FCFCOA to this court. The applicant submitted, and the judge seems to have thought, that there was a “rule of thumb” arising from a “practice” that if a proceeding is to occupy more than five days, it should be transferred to this court. There is no such rule. Reading the Federal Circuit and Family Court Act and the Rules together, the following is a list of matters which a judge of the FCFCOA must take into account in deciding whether to transfer a proceeding from that Court to the Federal Court:(1)the interests of the administration of justice;(2)whether proceedings in respect of an associated matter are pending in the Federal Court;(3)whether the resources of the FCFCOA are sufficient to hear and determine the proceeding;(4)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;(5)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;(6)whether the proceeding will be heard earlier in the FCFCOA;(7)the availability of particular procedures appropriate for the class of proceeding; and(8)the wishes of the parties. The factors relating to “the interests of the administration of justice” referred to in s 153(3) of the Federal Circuit and Family Court Act, however, are not to be confined by the Rules. Those interests will always depend on the nature of the case. Other factors may include whether in any given case: (1)the proceeding involves any properly identified and serious and substantial issue about difficult points of legal principle, or some significant question of public interest; (2)the estimates of the hearing times given by the parties or their representatives are justified; and(3)the issues apparently in dispute can be limited or more narrowly focussed. In some cases the interests of the administration of justice may also involve consideration of the importance of the matters to the parties; and the need for expedition and despatch in the finalisation of the controversy. As to those last two factors, compare Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 397 ALR 1 at 4-5 [13]‑[15] (Allsop CJ and Besanko and O’Callaghan JJ). In that case, after the proceeding had been transferred from the FCFCOA to this court, and the transfer had been confirmed, the Chief Justice made a direction under s 20(1A) of the Federal Court Act, which is in these terms: “If the Chief Justice considers that a matter coming before the court in the original jurisdiction of the court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the court in that matter or a specified part of that matter shall be exercised by a Full Court”.