Killesteyn, in the matter of an application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers' Federation, Queensland Branch (No 2) [2010] FCA 123 (22 February 2010)

Last Updated: 24 February 2010

FEDERAL COURT OF AUSTRALIA

Killesteyn, in the matter of an application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers’ Federation, Queensland Branch (No 2) [2010] FCA 123

Citation:	Killesteyn, in the matter of an application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers’ Federation, Queensland Branch (No 2) [2010] FCA 123
Parties:	ED KILLESTEYN, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE AUSTRALIAN SALARIED MEDICAL OFFICERS’ FEDERATION, QUEENSLAND BRANCH
File number:	NSD 1047 of 2009
Judge:	FLICK J
Date of judgment:	22 February 2010
Catchwords:	INDUSTRIAL LAW –“irregularity” – vacation of hearing dates and adjournment of proceedings – transferral of proceeding to a different Registry – factors for consideration – “balance of convenience” – “proper place” for issues to be resolved Held: Proceeding transferred to the Queensland Registry of the Federal Court of Australia
Legislation:	Fair Work (Registered Organisations) Act 2009 (Cth), s 200 Federal Court of Australia Act 1976 (Cth), s 48 Workplace Relations Act 1996 (Cth), s 200 sch 1 Federal Court Rules, O 10 r 1(2)(f)
Cases cited:	Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (No 6) [2009] FCA 1465, cited Cycles & Wheelman Pty Ltd v Beltech Corporation Ltd (1988) 80 ALR 279, followed Hodder v Australian Workers’ Union [1985] FCA 105; (1985) 4 FCR 541, cited Hoop and Javelin Holdings Ltd v BT Projects Pty Ltd [2009] FCA 1123, cited Killesteyn, in the matter of an application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers’ Federation, Queensland Branch [2009] FCA 1311, cited National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155, followed Rafferty v Time 2000 Systems Australia Pty Ltd [2008] FCA 1925, cited
Date of hearing:	22 February 2010
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Applicant:	Mr G Johnson
Solicitor for the Applicant:	Australian Government Solicitor
Interested Party:	Australia Salaried Medical Officers’ Federation
Counsel for the Interested Party:	Mr J W Nolan
Solicitor for the Interested Party:	Hall Payne Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 1047 of 2009

ED KILLESTEYN, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE AUSTRALIAN SALARIED MEDICAL OFFICERS’ FEDERATION, QUEENSLAND BRANCH Applicant

JUDGE:	FLICK J
DATE OF ORDER:	22 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The hearing dates of 1 and 2 March 2010 be vacated.
2. The proceeding is to be transferred to the Queensland Registry of this Court.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 1047 of 2009

ED KILLESTEYN, IN THE MATTER OF AN APPLICATION FOR AN INQUIRY IN RELATION TO AN ELECTION FOR OFFICES IN THE AUSTRALIAN SALARIED MEDICAL OFFICERS’ FEDERATION, QUEENSLAND BRANCH Applicant

JUDGE:	FLICK J
DATE:	22 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

1. On 21 September 2009 an Electoral Commissioner filed in the New South Wales Registry of this Court an application for an inquiry relating to an election. An Amended Application was filed on 26 October 2009.
2. The Amended Application invokes both s 200 of Schedule 1 to the Workplace Relations Act 1996 (Cth) and s 200 of the Fair Work (Registered Organisations) Act 2009 (Cth). It seeks an inquiry into alleged irregularities in respect of an election for the position of Federal Council Delegate of the Queensland Branch of the Australian Salaried Medical Officers’ Federation held in 2009. It is said that there may have been (inter alia) a wrongful rejection of the nomination of Dr Coralie Endean and a wrongful rejection of the nomination of Dr James Finn for the same position when nominations were later recalled. The nominations were rejected because it was said that both members were unfinancial. Payment of outstanding subscriptions was tendered but not accepted. Declining to accept payment is said to be a breach of the rules and an “irregularity”.
3. On 13 November 2009 it was concluded that there were “reasonable grounds for the application” within the meaning of and for the purposes of s 201 of the Fair Work (Registered Organisations) Act 2009 (Cth): Killesteyn, in the matter of an application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers’ Federation, Queensland Branch [2009] FCA 1311. Orders were then made for the service of the Amended Application on the Australian Salaried Medical Officers’ Federation (“the Federation”); the Queensland Branch of the Federation; Drs Endean and Finn; and another doctor who also sought to nominate.
4. The inquiry has been set down for hearing on 1 and 2 March 2010.
5. On 19 February 2010 a Notice of Motion was filed by the Federation seeking an order that the March hearing dates be vacated and that the hearing of the proceeding be adjourned. In the alternative, an order is sought that the proceeding be transferred to the Queensland Registry of this Court. The Head Office of the Federation is in Sydney.
6. That Motion first came before this Court this morning. Mr Healy of Counsel informed the Court as a matter of courtesy that he had no instructions from either Drs Endean or Finn to participate in the inquiry. Mr Johnson of Counsel appeared for the Electoral Commissioner and was prepared to then argue the Motion. The Applicant on the Motion (represented by Mr Nolan of Counsel) obviously did not oppose that course.
7. The basis for the orders sought in the Notice of Motion essentially springs from a separate proceeding commenced in the Queensland Registry on 24 December 2009. The Applicant in that proceeding is the Federation. An order is there sought pursuant to s 323 of the Fair Work (Registered Organisations) Act 2009 (Cth) for the reconstitution of the Queensland Branch of the Federation. The order is sought because it is said that the Queensland Branch “has effectively ceased to function effectively ...”. That proceeding had its first return date before Dowsett J on 4 February 2010 and comes back before His Honour on 25 February 2010.
8. The power of the Court to vacate hearing dates and to adjourn proceedings is not in doubt. Nor is the power of the Court to transfer a proceeding to a different Registry in doubt: Federal Court of Australia Act 1976 (Cth), s48. That section provides as follows:

Change of venue
(1) The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.
(2) Subject to section 80 of the Constitution and sections 68C, 70 and 70A of the Judiciary Act 1903, subsection (1) extends to criminal proceedings.

Further provision is made for the transfer of proceedings in Order 10 r 1(2)(f) of the Federal Court Rules.

9. The power conferred by s 48, it will be noted, may be exercised “at any stage of a proceeding”. Where an order is sought, the applicant seeking the change of venue must satisfy the Court that the order sought is appropriate: Cycles & Wheelman Pty Ltd v Beltech Corporation Ltd (1988) 80 ALR 279. Gummow J there observed at 281:

... The question is whether there should be a departure from that ordinary course and, in that sense, it is for the applicant on the motion to satisfy the court that the proceedings should be transferred, with the attendant consequences of that transfer. It is not, in my view, simply a question of the court locating the balance of convenience, because the court must be satisfied by the applicant that there be a change in the status quo and in the identity of the “proper place” and that transfer be ordered. Nor, contrary to some of the submissions made this morning, is much guidance to be derived from cases in other jurisdictions, particularly those jurisdictions lacking the national character of this court, and those providing for trial by jury of civil claims.

The power “should be exercised flexibly having regard to the circumstances of the particular case”: National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 162. Bowen CJ, Woodward and Lockhart JJ there reviewed the authorities and concluded:

The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases.

The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances.

The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O  10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place.
The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.

See also: Hoop and Javelin Holdings Ltd v BT Projects Pty Ltd [2009] FCA 1123 at [9] to [11] per Foster J. Reliance upon other instances where an application for transfer has been made are of limited assistance given the “wide range of variables which confronted the judges who decided them. These factors included the residency of the parties and witnesses, the expense and prejudice likely to be experienced by the respective parties were a transfer to be granted, the similarity of causes of action in a proceeding on foot in the other Registry involving the same parties, and the possibility of interference with a fair trial”: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd (No 6) [2009] FCA 1465 at [8] per Tracey J.

10. In some proceedings it may also be relevant to place some weight upon an applicant’s choice of venue: cf. Hodder v Australian Workers’ Union [1985] FCA 105; (1985) 4 FCR 541 at 542. See also: Rafferty v Time 2000 Systems Australia Pty Ltd [2008] FCA 1925 at [16]. The weight to be given to that choice, of course, is not confined to an assessment as to whether or not the choice is “capricious”. The weight to be given to a choice of forum may also be influenced by the fact, as in the present case, that the applicant is a statutory officer holding office under a Commonwealth statute.
11. In the present proceeding there is much to be said for retaining the existing hearing dates. The proceeding was commenced in September 2009 and is ready to proceed. Although any “irregularity” may have occurred in Queensland, the Federation is a national body representing its members throughout Australia. No submission has been made that it was inappropriate for the Electoral Commissioner to have commenced the existing proceeding in the New South Wales Registry of the Court. Moreover, s 37M of the Federal Court of Australia Act 1976 (Cth) now emphasises the objective of resolving proceedings “as quickly, inexpensively and efficiently as possible”. This Court can only achieve that objective (of course) if there remain an adequate number of Judges appointed to the Court to resolve the applications filed. A transfer of the existing proceeding to the Queensland Registry, with respect, will in all probability have the consequence that the issues otherwise to be resolved next week will not be resolved as “quickly” as they would have been if the hearing dates were not vacated.
12. The factors relied upon by the applicant on the Motion in support of the order, and endorsed by the Electoral Commissioner, are the following:
    • the fact that if the orders sought in the Queensland proceeding are made, any inquiry into the alleged irregularities in the present proceeding may become unnecessary;
    • the fact that both the existing proceeding and the Queensland proceeding concern a Branch which is based in Queensland;
    • the fact that the Electoral Commissioner in the present proceeding has no preference as to where the proceedings are resolved and does not oppose a transfer of the existing proceeding to Queensland;
    • the fact that such costs as will be incurred in both proceedings may be minimised if both proceedings were to be heard together and in Brisbane;
    • the fact that there is a large measure of consent by a number of affected Queensland doctors to accept transitional positions to facilitate any reconstitution that may be ordered pursuant to s 323 of the 2009 Act; and
    • the fact that all of those doctors upon whom Dowsett J has ordered that the Queensland application be served are resident in Queensland.

Questions as to available witnesses and potential witnesses being resident in Queensland is a further factor of relevance. Also of potential relevance is the attitude of the Electoral Commissioner, being the officer who first invoked this Court’s jurisdiction in Sydney.

13. Such factors indicate, it is considered, that the “proper place” for the issues to be resolved in both proceedings is Queensland. The case is essentially a case founded in that State and the balance of convenience and the facts favour the making of an order pursuant to s 48.
14. But no order should now be made that the present proceeding is to be heard at the same time as the Queensland proceeding. It may be convenient for the present proceeding upon its transfer to the Queensland Registry to be docketed to the same Judge who presently has been allocated the Queensland proceeding, namely Dowsett J. If that occurs, it should be left to His Honour to make such directions as he sees fit in relation to both proceedings.

ORDERS

15. The Orders of the Court are:
    1. The hearing dates of 1 and 2 March 2010 be vacated.
    2. The proceeding is to be transferred to the Queensland Registry of this Court.
       

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 23 February 2010