Wardle v Crinitis Castle Hill Pty Ltd

[2020] NSWSC 924

Supreme Court

New South Wales

Medium Neutral Citation:

Wardle v Crinitis Castle Hill Pty Ltd [2020] NSWSC 924

Hearing dates:

20 July 2020

Date of orders:

20 July 2020

Decision date:

20 July 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See Paragraph 8

Catchwords:

CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether in the interests of justice

Legislation Cited:

Corporations Act 2001 (Cth)

Fair Work Act 2009 (Cth)

Industrial Relations Act 1996 (NSW)

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Category:

Procedural and other rulings

Parties:

Rebecca Catherine Wardle (Plaintiff)
Crinitis Castle Hill Trading Pty Ltd

Representation:

Counsel:
M Gradidge (solicitor)(Plaintiff)
J Dahdah (solicitor) (Fifth Defendant)

Solicitors:
Yates Beaggi Lawyers (Plaintiff)
JD Law Group Pty Ltd (Fifth Defendant)

File Number(s):

2020/192368

Judgment

1. HIS HONOUR: By summons filed on 29 June 2020, supported by the affidavits of her solicitor Mr Matthew Gradidge sworn on 29 June 2020 and 13 July 2020, the plaintiff seeks orders under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) for the removal of these proceedings, which were commenced in the Chief Industrial Magistrate's Court, into this Court for the purpose of considering whether they should be transferred under s 5 of the Act to the Federal Court of Australia.

2. It is unnecessary to detail all of the material that has been put before me by Mr Gradidge, who appears for the plaintiff. So far as there are active defendants among the six defendants who have been joined to the proceedings by way of the second further amended statement of claim, they either have not appeared or neither consent or object to the order being made.

3. The basic ground of the application is that by way of the current amended pleading, the plaintiff is seeking relief under the federal Fair Work Act 2009 (Cth), rather than as originally advised under the State Industrial Relations Act 1996 (NSW). The reason for the change in the direction is that the employer company has now been wound up under the provisions of the Corporations Act 2001 (Cth), and under the State legislation, the officers of the company in liquidation are not personally liable for the amount due as wages, superannuation contributions, and other employment benefits as claimed by the plaintiff in her statement of claim, according to the explanation Mr Gradidge has given.

4. The federal legislation facilitates claims directly against the senior officers of a company. Moreover, the amount now claimed to be due to the plaintiff, as calculated by her advisors, exceeds the jurisdiction of the Local Court of which the Chief Industrial Magistrate is part. According to the affidavit evidence, it is now said on behalf of the plaintiff that the total amount involved is a figure of around $250,000.

5. It seems to me, from my consideration of the Fair Work Act that the District Court of New South Wales is an eligible State court for proceedings for the recovery of employment benefits by employees: see s 545(3) of the Act. However, Mr Gradidge submits that the federal jurisdiction is the more appropriate forum for pursuing these proceedings.

6. I am prepared to accede to that submission. Certainly, the Federal Court of Australia has a jurisdiction in industrial matters, and as a general statement, the District Court of New South Wales, leaving aside prosecutions under occupational health and safety legislation, is not called upon regularly to exercise its powers in industrial matters, being a court of general civil jurisdiction.

7. I am satisfied, having reviewed the material I have referred to, that the matter should be removed from the Chief Industrial Magistrate's Court into this Court; and I am also of the view that, in accordance with the provisions of s 5 of the Act, that it is in the interests of justice that the proceedings be transferred to the Federal Court of Australia.

8. I make the following orders:

1. Under the provisions of s 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), remove proceedings number 2018/262878 from the Chief Industrial Magistrate's Court within the Local Court of New South Wales into this Court.

2. Under s 5(1) of the said Act, transfer the proceedings to the Federal Court of Australia.

3. The costs of the proceedings before the Chief Industrial Magistrate and in this Court are costs in the cause.

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Decision last updated: 22 July 2020