Vucina v Hewlett-Packard Australia Pty Ltd
[2011] FMCA 891
•15 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VUCINA v HEWLETT-PACKARD AUSTRALIA PTY LTD | [2011] FMCA 891 |
| PRACTICE AND PROCEDURE – Transfer to Federal Court – employment matter pleaded with great complexity – envisaged lengthy trial and interlocutory procedures – consent by parties to transfer – matter transferred. |
| Fair Work Act 2009 (Cth) Federal Magistrates Act 1999 (Cth), ss.39, 39(2)(a), 39(3)(c), 39(3)(d) Federal Magistrates Court Rules 2001 (Cth), rr.8.02, 8.02(4) |
| CEPU v Australian Postal Corporation [2010] FMCA 461 King v Office National Limited & Ors [2007] FMCA 1840 |
| Applicant: | NADA VUCINA |
| Respondent: | HEWLETT-PACKARD AUSTRALIA PTY LTD CAN 004 394 763 |
| File Number: | SYG 1208 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 15 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Truman Hoyle |
| Solicitors for the Respondent: | Norton Rose Australia |
ORDERS
Orders 1 and 2 made on 21 October 2011 are vacated.
The proceeding be transferred to the Federal Court pursuant to s.39(2)(a) of the Federal Magistrates Act 1999 (Cth).
The applicant must file this order in the New South Wales Registry of the Federal Court.
The parties’ costs in the proceeding shall be their costs in the Federal Court proceeding.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1208 of 2011
| NADA VUCINA |
Applicant
And
| HEWLETT-PACKARD AUSTRALIA PTY LTD ACN 004 394 763 |
Respondent
REASONS FOR JUDGMENT
This judgment explains my reasons for acceding to the request of both parties that this proceeding should be transferred to the Federal Court.
Ms Vucina filed an application in the Court’s Fair Work Division on 10 June 2011. It was accompanied by brief grounds which made allegations of unlawful termination of employment under the Fair Work Act 2009 (Cth) and breaches of contract, and made unparticularised claims for compensation. An affidavit referred to the termination of her employment on 18 March 2011, on grounds of failing to disclose a close personal relationship with a senior executive and to cooperate in relation to company investigations.
At the first court date on 8 July 2011, the parties requested that I should not direct a full timetable leading to an appointed hearing, but that I should direct pleadings, refer the parties to mediation, and then review the appropriate further directions. I acceded to that course.
Ms Vucina filed a statement of claim on 18 August 2011. It is a 40 page document with 110 paragraphs, containing innumerable causes of action pleaded separately and in a rolled‑up fashion. It pleads a wide range of events occurring in Ms Vucina’s employment, and more than 15 separate actions on the part of the employer which are alleged to constitute ‘adverse action’ under the Act. It elaborately disputes the true reasons for the termination. It then alleges discriminatory conduct of various species, and, for example, at paragraph 80 alleges:
80.As a result of the adverse action, the direct domestic status discrimination, indirect domestic status discrimination and dismissal, the Respondent:
(a)contravened s. 351(1) of the Fair Work Act;
(b)breached the Contract by contravening:
(i) Article 2 and 23 of the UDHR;
(ii) Articles 2 and 7 of the UCCPR;
(iii) Articles 11(1)(a) and 11(2)(a) of the CEDAW;
(iv) Articles 1 - 3 of ILO 111;
(v) Articles 4 and 5(d) of ILO 158;
(vi) ss. 6, 14(2) and 27(1) of Sex Discrimination Act;
(vii) s. 31(b) of the Australian Human Rights Commission Act and cl 4(a)(v) of the Australian Human Rights Commission Regulation 1989 (Cth);
(viii) ss. 24(1) and 24(2) of the Anti‑Discrimination Act;
(ix) s. 772(1)(f) of the Fair Work Act;
(x) the Standards of Business Conduct; and
(xi) the Harassment‑free work environment policy;
Not content with this complexity, the subsequent paragraphs allege further causes of action in relation to sex discrimination and sexual harassment, breaches of workplace rights, and “breach of confidence and privacy”. These paragraphs conclude at paragraph 106:
106.As a result of the Respondent’s collection, use and disclosure of personal and sensitive information about the Applicant, the Respondent:
(a)contravened the National Privacy Principles and the Privacy Act;
(b)contravened Article 12 of the UDHR;
(c)contravened Article 17 of the ICCPR;
(d)breached the Standards of Business Conduct;
(e)breached the HP Global master privacy policy;
(f)breached the Conflicts of Interest Policy;
(g)breached the implied term of mutual trust and confidence;
(h)breached the implied term of good faith; and
(i)procured a breach of the Mr Jones’ obligation of confidence;
(j)sought to procure the Applicant to breach her obligation of confidence to Mr Jones;
(k)breached its duty not to invade the privacy of the Applicant.
The statement of claim then pleads numerous breaches of contract, and concludes with prayers for relief pleaded as follows:
109.As a result of the Respondent’s conduct:
(a)the Applicant has suffered:
(i) economic loss,
(ii) a loss of opportunity to earn remuneration, commission and receive increases in remuneration and commission,
(iii) damage to her reputation,
(iv) a loss of privacy,
(v) injury to her feelings;
(vi) distress, anxiety and humiliation;
(b)the Respondent contravened civil penalty provisions for the purposes of s. 539(1) the Fair Work Act.
110.The Respondent seeks the following relief:
(a)Damages for economic loss (including loss of opportunity to earn commission);
(b)Damages for non‑economic loss;
(c)Equitable compensation for breach of confidence;
(d)Aggravated damages;
(e)Exemplary damages for breach of privacy;
(f)Compensation under s. 545(1) of the Fair Work Act;
(g)Penalties under s. 539(1) of the Fair Work Act payable to the Applicant;
(h)Costs;
(i)Interest.
A defence was filed by Hewlett‑Packard on 26 September 2011, which appears to take issue with most of the statement of claim, and offers no prospect of any simplification of the issues which the parties intend to bring to trial.
At the second directions hearing held on 21 October 2011, I noted that the parties had not engaged in mediation, since the timetable had been extended to give them more time to prepare the above pleadings.
I raised whether the matter was now of such complexity that it was more suited to the Federal Court than this Court.
The parties gave me estimates of an anticipated length of trial, respectively of 5 days or 10 days. However these estimates appeared to me to be highly problematic, in view of the multiplicity of factual and legal issues which would need to be addressed in evidence and submissions. I also informed the parties that my docket would have great difficulty accommodating any trial likely to exceed 5 days during 2012, due to a crisis of accommodation in relation to general federal law in Sydney and a current influx of urgent migration matters involving offshore‑entry persons. I suggested that accommodating a 10 day trial would not be possible without considerable fragmentation of a hearing over a protracted period or special arrangements which might not be available.
In the light of my observations, the parties indicated that they wished to discuss whether to request the Court to transfer the matter to the Federal Court.
On 14 November 2011, the parties forwarded consent orders for a transfer of the matter to the Federal Court, indicating that they would seek a further date for mediation from that Court. They requested that I deal with their request in Chambers.
The Court’s power to transfer matters to the Federal Court are governed by s.39 of the Federal Magistrates Act and r.8.02 of the Federal Magistrates Court Rules 2001 (Cth). They provide:
39Discretionary transfer of proceedings to the Federal Court or the Family Court
(1)If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.
(2)The Federal Magistrates Court may transfer a proceeding under this section:
(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 under subsection (1), the Federal Magistrates Court 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 Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(4)In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(5)If an order is made under subsection (1), the Federal Magistrates Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6)An appeal does not lie from a decision of the Federal Magistrates Court in relation to the transfer of a proceeding under subsection (1).
(7)A reference in subsection (1) to a proceeding pending in the Federal Magistrates Court includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8)This section does not apply to proceedings of a kind specified in the regulations.
8.02Transfer 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 Federal Magistrates Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
(notes omitted)
As is apparent, the Court must itself address the appropriateness of transferring a matter, even where all parties consent to this course.
In matters such as the present, the Federal Magistrates Court has concurrent jurisdiction with the Federal Court, and the suitability of either venue may often depend upon a close consideration of the manner in which the parties show that they wish to litigate their disputes. The Federal Magistrates Court provides an inferior court forum, for disputes which can be addressed more expeditiously, economically, and informally at that level.
However, as I have explained when addressing transfer issues in other employment cases, there are limits to which the court can, through its case‑management powers, force an unwilling applicant to simplify his or her litigation to a degree suited to my court (compare my judgments in King v Office National Limited & Ors [2007] FMCA 1840 with CEPU v Australian Postal Corporation [2010] FMCA 461).
In the present matter, the applicant has shown, by her statement of claim, that she wishes to present her claims against her former employer with a degree of complexity which is obviously more suited to a superior court than my court. She shows no desire to simplify her claims, so as to achieve a shorter hearing of a length normal in this court.
In those circumstances, and taking into account the difficulties which would face my docket in the foreseeable future in accommodating a trial which – even at its commencement – is projected to require 5‑10 days, I have concluded that it is appropriate to accede to the parties request for a transfer.
I would regard my reasons as largely falling within the considerations identified in s.39(3)(c) and (d), i.e. the limited resources available to my court in its general federal jurisdictions in Sydney and the interests of the administration of justice. In relation to the mandatory considerations in r.8.02(4):
a)It is unclear whether, in the profusion of causes of action pleaded by the applicant there are lurking any “questions of general importance”.
b)I have difficulty predicting when the matter would achieve a trial in the Federal Court. However, I think it likely that it would achieve a continuous trial for whatever length was needed, whereas it appears to me that it is likely that my docket would be unable to accommodate a very lengthy trial at any time in the foreseeable future without extraordinary arrangements to relieve me of parts of my normal workload.
c)I consider that the usual case‑management techniques of this court are likely to be less satisfactory in the present matter than the Federal Court’s usual procedures. They involve a more structured approach to case‑management, and it appears to me likely that the present matter will need to traverse through interlocutory procedures more commonly followed in that court than my court before it is ready for trial.
d)Both parties wish the matter to be transferred.
I therefore make the orders set out above.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 18 November 2011
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