General protections cases; which Federal Court?

General protections proceedings which arise from an employment context (whether or not they involve a dismissal) are first commenced in the Fair Work Commission and if not resolved at conferences conducted by the Commission, and in the absence of the parties agreeing to the matter remaining in the Commission for arbitration), may then be pursued with either the Federal Court of Australia or the Federal Circuit Court of Australia.

Ordinarily, applicants tend to pursue such a claim in the latter court, where some of the fees are slightly less. Although the Federal Circuit Court has unlimited jurisdiction in such matters under the Fair Work Act, the Federal Court regards itself as (and is) a superior court in the hierarchy than the Federal Circuit Court (which also has the same jurisdiction under the Fair Work Act) and would prefer not to be bothered by such cases.*

(*My opinion and unsupported by any official position expressed by or from the Court)

An applicant in a case in the Federal Circuit Court has the right (sec 548, Fair Work Act) to elect to cap his or her claim at $20,000 and thus access the small claims procedures of that Court. Such claims (in theory at least) are easier to navigate by unrepresented parties than the procedures of the Federal Court, which does not have this option, or for that matter the Federal Circuit Court in the exercise of its ordinary jurisdiction.

See http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/court-forms/form-topics/industrial+law/application-fwd

Furthermore, every now and again an applicant in a case under the general protections which has been brought in the Federal Court (as is the applicant’s right) will for whatever reason decide to seek to change the court to the Federal Circuit Court. The most common reason for this may be the attraction of the small claims process. I am unaware of any other reason for wanting to do so, because the delays in both courts appear to be much the same, and regrettable.

Here is a decision of the Federal Circuit Court, dealing with an application by an applicant seeking to transfer a general protections case from the Federal Court of Australia to the Federal Circuit Court of Australia.

 

  1. “These proceedings were commenced on 30 December 2020in this Court.

2    The applicant alleges his employment as a delivery driver was wrongfully terminated by the respondent. The applicant’s claim is brought under s 340(1)(a) of the Fair Work Act 2009 (Cth). He seeks payment of an amount equivalent to 12 months’ salary ($85,134), together with damages to compensate him for the impact of the termination on his reputation ($25,000). The applicant is self-represented.

3    There is no question that the Federal Circuit Court of Australia has the jurisdiction to determine the applicant’s claim (see s 566 of the Fair Work Act), and the question has arisen as to whether this proceeding should be transferred to that Court.

Statutory context

4    Section 32AB of the Federal Court of Australia Act 1976 (Cth) provides that the Court may transfer a proceeding to the Federal Circuit Court. That section relevantly provides:

32AB    Discretionary transfer of civil proceedings to the Federal Circuit Court

(1)    If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court.

(2)    The Court may transfer a proceeding under subsection (1):

(a)    on the application of a party to the proceeding; or

(b)    on its own initiative.

(6)    In deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1), the Court must have regard to:

(a)    any Rules of Court made for the purposes of subsection (4); and

(b)    whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and

(c)    whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and

(d)    the interests of the administration of justice.

(7)    If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court.

5    Rule 27.11 and r 27.12 of the Federal Court Rules 2011 (Cth) are relevant but it is only necessary to set out r 27.12, which states:

27.12    Factors to be taken into account

(1)    For an appeal under the AAT Act, the parties must address the matters mentioned in section 44AA(7) of that Act.

(2)    For a proceeding, the parties must address the matters mentioned in section 32AB(6) of the Act.

(3)    For an appeal under the AAT Act or a proceeding, the parties should address the following:

(a)    whether the appeal or proceeding is likely to involve questions of general importance;

(b)    whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred;

(c)    whether an appeal or proceeding would be determined more quickly if transferred;

(d)    the wishes of the parties.

6    Accordingly, in determining whether or not the Court should transfer the proceeding to the Federal Circuit Court, the Court must have regard to the matters in s 32AB(6) of the Federal Court of Australia Act and r 27.12(3) of the Federal Court Rules.

Consideration

7    The applicant has filed an affidavit in support of his application. It is apparent from the affidavit that the dispute about the termination of his employment is largely factual, or will involve the application of law to particular facts: whether he conducted himself in the manner alleged by the respondent; whether he smoked in his truck; whether he conducted proper vehicle maintenance and complied with occupational health and safety processes; and whether his conduct caused damage to the truck in question.

8    Although I recognise that the dispute is important to both parties, it does not appear that the questions raised are of such general importance that they ought to be dealt with in this Court.

9    Nor is this the kind of matter where extensive judicial intervention is likely to be required; in fact, the attitude of the parties suggests that the matter might sensibly be mediated by a Judicial Registrar in the short term. Having regard to s 37M(2) of the Federal Court of Australia Act, with its emphasis on the just and efficient use of judicial resources and on proportionate costs and expenses, it seems to me that the resolution of this matter might be dealt with justly and efficiently in the Federal Circuit Court.

10    Further, the fees that may be incurred are likely to be less, having regard to the respective fees prescribed by Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth).

11    At the first case management hearing in this matter I raised with the parties whether it might be appropriate to transfer the proceedings to the Federal Circuit Court, and both parties were agreeable to that course.

12    The parties are to be commended for having commenced fruitful discussions about an efficient manner in which the litigation might proceed, and have apparently reached agreement as to programming directions that might be made as to filing short timelines of events, filing short case statements and attending a mediation.

13    Those are all matters that can be undertaken in the Federal Circuit Court, and so rather than make those orders, I indicated to the parties that if I decided to transfer the application, I would do so quickly and provide short reasons so that the parties are not unduly delayed by the transfer.

14    In saying that, I respectfully adopt Wigney J’s comment in Sampson as the trustee of the Bankrupt Estate of Wei Chen v Huang [2020] FCA 545 that:

[28]    Transferring proceedings to the Circuit Court should not, however, convey the impression that the Circuit Court only deals with matters of lesser significance. To do so would be to misunderstand the nature of the Circuit Court. Rather, transfers of proceedings are simply a reflection of ‘the concept of more efficient and better administration of justice which underlies the creation of that court and underlies the arrangements for transfer of cases between the two courts’: Sheikholeslami v University of New South Wales [2006] FCA 712 at [8]-[9].

15    Having taken into account and weighed the above matters, I consider it is appropriate that this matter be transferred to the Federal Circuit Court.”

Bailey v DPR Haulage Pty Ltd [2021] FCA 133  delivered 24 February 2021 per Banks-Smith J