Woodland Home Products Pty Ltd v Alex Picalovski [2010] NSWSC 629 (11 June 2010)

NEW SOUTH WALES SUPREME COURT

CITATION:
Woodland Home Products Pty Ltd v Alex Picalovski [2010] NSWSC 629

JURISDICTION:

FILE NUMBER(S):
2010/110769

HEARING DATE(S):
11 June 2010

EX TEMPORE DATE:
11 June 2010

PARTIES:
Woodland Home Products Pty Limited (ACN 002 060 246) (First Plaintiff)
Woodland Corporation Pty Limited (ACN 095 726 015) (Second Plaintiff)
Alex Picalovski (Defendant)

JUDGMENT OF:
Ball J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
J Emmett (Plaintiff)
G Grinter (Defendant)

SOLICITORS:
Esplins (Plaintiff)
O'Brien Lawyers (Defendant)

CATCHWORDS:
PRACTICE AND PROCEDURE - Transfer of proceedings from Supreme Court to Federal Court - Claim by employee for annual leave and long service leave - related claims in Federal Court - Federal Court has jurisdiction to hear all claims - interests of justice

LEGISLATION CITED:
Annual Holidays Act 1944 (NSW)
Corporations Act 2001
Fair Work Act 2009
Fair Work (Transitional and Consequential Amendments) Act 2009
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Long Service Leave Act 1995 (NSW)

CATEGORY:
Procedural and other rulings

CASES CITED:
AMP Financial Planning v Green [2004] NSWSC 1099; (2004) 51 ACSR 693
Carr v Blade Repairs Australia Pty Ltd (2009) FCA 764

TEXTS CITED:

DECISION:
1. Order pursuant to s 8(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), proceeding IRC 159 of 2010 (Alexander Picalovski v Woodland Home Products Pty Ltd & Anor) in the Industrial Court of New South Wales be removed from this Court.
2. Order pursuant to r 28.5 of the Uniform Civil Procedures Rules, the proceeding removed from the Industrial Court of New South Wales be consolidated with this proceeding.
3. Order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), this proceeding (as consolidated by order 2), be transferred to the Federal Court of Australia.
4. Order that question of costs be reserved, on the basis that they be dealt with by the Federal Court of Australia pursuant to s 12 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) or s 12 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

11 JUNE 2010

2010/110769 WOODLAND HOME PRODUCTS PTY LIMITED (ACN 002 060 246 & ANOR v ALEX PICALOVSKI

JUDGMENT

1. HIS HONOUR: This case involves an application under sections 8(1)(b)(ii) and 5(1)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) which will, in effect, transfer proceedings which are currently on foot in the Industrial Court of New South Wales to the Federal Court.
   
2. From 30 April 1996 to 30 March 2009 the defendant in these proceedings, Mr Picalovski, was employed by one or other of the plaintiffs (together “Woodland”). Mr Picalovski resigned from his employment on 30 March 2009. On 4 March 2010 he filed proceedings in the Industrial Court of New South Wales seeking to recover accrued annual leave, accrued long service leave and superannuation entitlements. Mr Picalovski relies on sections 3 and 13 of the Annual Holidays Act 1944 (NSW), as well as Division 4 of Part 7 of the Workplace Relations Act 1996 (Cth) and sections 4 and 12 of the Long Service Leave Act 1995 (NSW). Woodland oppose Mr Picalovski's claim in the Industrial Court proceedings.
   
3. On 4 May 2010 Woodland brought proceedings in the Federal Court claiming that Mr Picalovski made a number of unauthorised transfers of funds out of Woodland's bank account on account of annual leave and long service leave for his own benefit. In those proceedings, Woodland seeks damages and/or an account of profits and ancillary relief for breach of fiduciary duties, breach of duties under an employment contract and breach of sections 181 and 182 of the Corporations Act 2001. Mr Picalovski denies those allegations. However, he does not oppose the current application.
   
4. Section 8(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act empowers this Court to remove proceedings in another New South Wales Court to the Supreme Court where it appears that such an order should be made so that consideration can be given to whether those proceedings should be transferred to another Court.
   
5. Section 5(1)(b) of the Cross-Vesting Act empowers this Court to transfer proceedings pending in this Court to the Federal Court if it appears, relevantly, that it is more appropriate that the proceedings be determined in the Federal Court having regard to three factors. They are (a) whether the proceedings or a substantial part of them are capable of being instituted in the Federal Court but incapable of being instituted in this court; (b) the extent to which the issues raised arise under Commonwealth legislation and are not within the jurisdiction of this Court apart from the cross-vesting legislation; and (c) the interests of justice.
   
6. Taking account of these three matters, I think the proceedings in the Industrial Court should be transferred.
   
7. As to the first matter, Mr Picalovski's claim for annual leave undoubtedly arises under the Fair Work Act 2009. Even if the claim originally arose under New South Wales legislation, schedule 3 item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that, where an employee has accrued annual leave during the period before 1 January 2010, the provisions of the Fair Work Act relating to annual leave apply as if the leave had been accrued under that Act. This Court does not have jurisdiction to hear that claim but the Federal Court undoubtedly does. There may be a question whether the Federal Court would have jurisdiction to hear the claim in respect of long service leave alone, but whether or not it does, it would clearly have accrued jurisdiction to hear that claim: see, for example, Carr v Blade Repairs Australia Pty Ltd (2009) FCA 764.
   
8. As to the second factor, the claim under the Fair Work Act clearly arises under Commonwealth legislation and is not within the jurisdiction of this Court.
   
9. As to the interests of justice, I accept that it would be desirable if the two proceedings were heard together. Both arise out of Mr Picalovski's employment with Woodland. Inevitably, therefore, there will be a substantial overlap in the evidence and findings that may need to be made on factual issues which are common to both proceedings. Indeed, the defendant concedes that there is an overlap in the two proceedings. Both proceedings are likely to involve credit findings concerning the same witnesses and the same subject matter. Those factors point strongly to the desirability of making the orders sought: see, for example, AMP Financial Planning v Green [2004] NSWSC 1099; (2004) 51 ACSR 693 at [16].
   
10. For those reasons, I make the orders that have been handed to me and which I will initial and date today's date and place with the papers.
    

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LAST UPDATED:
11 June 2010