General protections; Federal or Federal Circuit Court?

Now that the case law about the intricacies of the general protections has attained a reasonable comprehensible body of direction for parties, it has become almost routine for these cases to be pursued in the Federal Circuit Court rather than the Federal Court. Furthermore, the Federal Court Act contains a power for the Federal Court to remit matters to the Federal Circuit Court, and I would suggest that, despite the delays in the Federal Circuit Court in Western Australia which are reasonable notorious, it is becoming or will become wise to pursue these case right from the start in the Federal Circuit Court.

“PRINCIPLES RELEVANT TO THE QUESTION OF TRANSFER

Section 32AB of the Federal Court of Australia Act 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.

  1. Rules 27.11 and 27.12 of the Federal Court Rules are also relevant but it suffices to refer to 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.

Accordingly, in determining whether or not the Court should transfer the proceeding to the Federal Circuit Court, regard to must be had 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

It may be accepted that, as the respondent submitted, there are no proceedings in respect of an associated matter currently before the Federal Circuit Court or this Court.

The questions raised by the proceeding are outlined above.  Although their determination is important for the parties, it does not seem to me that they are of such general importance (for example, because novel or controversial) that this Court, rather than the Federal Circuit Court, should determine them.  Rather, it appears that the questions to be determined in the proceeding are primarily questions of fact and the application of law to those facts, such as may be appropriately determined by the Federal Circuit Court. Having regard to the nature of the legal issues to be resolved, they do not appear to me to involve a point of principle that should be heard by this Court.

I am also not persuaded by the applicant’s submissions that this Court is a more appropriate forum than the Federal Circuit Court on the basis that “it [the Federal Court of Australia] has uncapped damages and high penalties which can apply in this case but may not apply in other cases commenced in the Federal Circuit Court of Australia”. There is no basis to conclude that the applicant cannot be given proper relief in the Federal Circuit Court, having regard to nature of her claims and the jurisdiction conferred on the Federal Circuit Court by s 566 of the Fair Work Act.

Further, the fees likely to be incurred in connection with a proceeding in the Federal Circuit Court as compared with this Court pursuant to schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth) strongly indicate that the matter that should be heard in the Federal Circuit Court, which is the natural, generally more convenient, and less expensive forum for a case of this kind. The expense of the proceedings and convenience are, of course, a matter to which the Court must have regard in determining the question of transfer. I accept, moreover, that the level of judicial involvement in the proceeding to date does not warrant the retention of the proceeding by this Court.

Another matter to which this Court must have regard is whether a proceeding would be determined more quickly if transferred. The applicant’s originating application was filed in January 2019.  If the matter remains in this Court it is unlikely to be heard in the next eighteen months or so. The information in the respondent’s submissions indicates that the matter will probably be heard more quickly in the Federal Circuit Court.  This is confirmed by inquiries made by my Chambers with the Registry of this Court which indicated that the likely time to trial in the Federal Circuit Court would be eight to nine months. I do not accept, as the applicant submitted, that the procedural steps involved in the transfer will unduly delay the proceedings. Considerations of delay do not weigh in favour of the transfer of this proceeding.

It may also be accepted that the Federal Circuit Court labours under a heavy burden. Having regard, however, to the current resources of the Federal Circuit Court, to the likely time involved in the hearing of the matter, and to the nature of the issues in dispute, it seem to me that the resources of the Federal Circuit Court are sufficient to hear and determine the matter.

It may be accepted that the wishes of the applicant that the proceeding remain in this Court are a relevant factor to be taken into account. So too are the wishes of the respondent.

The more general matter to which this Court must have regard is whether the transfer of the proceeding to the Federal Circuit Court would be in the interests of the administration of justice. Whether the matter could be determined more quickly if it were transferred is, naturally enough, relevant to whether or not the administration of justice would be furthered by such a transfer. So too is the matter of the costs to the parties when measured against the issues in question.  As the respondent submitted, protecting the ability of the Federal Court to fulfil its role as a Court responsible for the interpretation and development of the law of the Commonwealth is also important.  These considerations indicate that the administration of justice is better served by the transfer of the proceeding to the Federal Circuit Court.

For the reasons stated, in all the circumstances, it seems that the proceeding should be transferred to the Federal Circuit Court.”

 

Currie v Joffe [2020] FCA 68 (05 February 2020) (Kenny J)