FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd
[2015] FCA 271 

Citation:	Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 271	
		
Parties:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v HAIL CREEK COAL PTY LTD ACN 080 002 008	
		
File number:	QUD 686 of 2014	
		
Judge:	REEVES J	
		
Date of judgment:	26 March 2015	
		
Catchwords:	PRACTICE AND PROCEDURE – application to transfer proceeding to Federal Circuit Court – absence of reason to transfer – proceedings pending in State court 	
		
Legislation:	Fair Work Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Coal Mining Safety and Health Regulation 2001 (Qld) 	
		
Cases cited:	Haylett v Hail Creek Coal Pty Ltd (No 2) [2014] QSC 280 	
		
Date of hearing:	16 March 2015	
		
Place:	Brisbane	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	11	
		
Counsel for the Applicant:	D Kent QC	
		
Solicitor for the Applicant:	Hall Payne Lawyers	
		
Solicitor for the Respondent:	A Ross of Sparke Helmore	

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 686 of 2014	
 
BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
	
AND:	HAIL CREEK COAL PTY LTD ACN 080 002 008
Respondent

JUDGE:	REEVES J	
DATE OF ORDER:	26 MARCH 2015	
WHERE MADE:	BRISBANE	

THE COURT ORDERS THAT:

1.	The respondent’s application filed on 20 February 2015 is dismissed.
2.	The proceeding is adjourned to a date to be fixed on the application of either party.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
QUEENSLAND DISTRICT REGISTRY		
GENERAL DIVISION	QUD 686 of 2014	
 
BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Applicant
	
AND:	HAIL CREEK COAL PTY LTD ACN 080 002 008
Respondent

JUDGE:	REEVES J	
DATE:	26 MARCH 2015	
PLACE:	BRISBANE	

REASONS FOR JUDGMENT
INTRODUCTION
1		On 23 December 2014, the Construction, Forestry, Mining and Energy Union (CFMEU) commenced this proceeding alleging that Hail Creek Coal Pty Ltd (Hail Creek Coal) had contravened a number of provisions of the Fair Work Act 2009 (Cth) (the Fair Work Act) in relation to one of its employees, Mr Michael Haylett. The CFMEU seeks the following relief under ss 545 and 546 of the Fair Work Act:
·	a declaration that Hail Creek Coal contravened s 50 of the Fair Work Act by failing to pay Mr Haylett wages;
·	a declaration that Hail Creek Coal contravened s 340 of the Fair Work Act by failing to provide Mr Haylett work or pay his wages because he submitted an application for workers’ compensation;
·	further or alternatively, declarations that Hail Creek Coal contravened s 340 of the Fair Work Act by failing to provide Mr Haylett work or pay his wages because he commenced proceedings in the District Court of Queensland and/or the Supreme Court of Queensland;
·	further or alternatively, a declaration that Hail Creek Coal contravened s 351 of the Fair Work Act by failing to provide Mr Haylett work or pay his wages because of his physical disability;
·	an order awarding compensation for the loss suffered by Mr Haylett;
·	an order requiring Hail Creek Coal to return Mr Haylett to work; and
·	an order that penalties be imposed on Hail Creek Coal and that those penalties be paid to the CFMEU.
2		As is alluded to in the relief sought by the CFMEU, for some time prior to commencing this proceeding, both parties have been involved in multiple proceedings before the District Court of Queensland and the Supreme Court of Queensland in relation to a piece of State legislation, the Coal Mining Safety and Health Regulation 2001 (Qld), in respect of the same, or similar, factual circumstances as those underpinning this proceeding. Importantly for this present application, an appeal and cross-appeal are presently pending in the Queensland Court of Appeal in connection with the most recent judgment delivered in the related Supreme Court proceedings: Haylett v Hail Creek Coal Pty Ltd (No 2) [2014] QSC 280.
3		Hail Creek Coal has now applied under s 32AB of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) for an order that this proceeding be transferred to the Federal Circuit Court. Section 32AB(6) provides that the Court must have regard to certain criteria in determining whether to make such a transfer order. They are:
(a)	any Rules of the Court setting out factors that are to be taken into account in deciding whether to transfer a proceeding;
(b)	whether proceedings in respect of an associated matter are pending in the Federal Circuit Court;
(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.
4		As is anticipated by s 32AB(6)(a) of the Federal Court Act (see [3](a) above), rule 27.12 of the Federal Court Rules 2011 (Cth) (the Rules) sets out certain matters that are to be taken into account in deciding a transfer application. They are:
(a)	whether the proceeding is likely to involve questions of general importance;
(b)	whether it would be less expensive and more convenient to the parties if the proceeding were transferred;
(c)	whether the proceeding would be determined more quickly if transferred; and
(d)	the wishes of the parties.
THE CONTENTIONS
5		Hail Creek Coal submitted that the Federal Circuit Court has the resources to deal with this matter, and it will be dealt with less expensively and more efficiently in that court. It submitted that this proceeding should be transferred because it does not involve any complex issues of fact or law, nor any questions of general importance. With respect to the pending appeal and cross-appeal in the Queensland Court of Appeal, it contended that the determination of those appeals is likely to result in the need to amend the pleadings in these proceedings. It therefore contended that if this proceeding were to be transferred to the Federal Circuit Court, no further steps should be taken in it until such time as the Court of Appeal determines those appeals.
6		In opposing the transfer of the proceeding, the CFMEU submitted that Hail Creek Coal has not provided any good reason why the proceeding should be transferred. Referring to the criteria identified above (see [3] and [4]), it submitted that there were no associated proceedings in the Federal Circuit Court and there was nothing to indicate that the matter would involve less expense, or be dealt with more conveniently, if it were to be transferred to the Federal Circuit Court. Further, whilst it conceded that the precise nature of the questions cannot be finalised until the appeals before the Queensland Court of Appeal are determined, nonetheless, it submitted that the proceeding did involve questions of general importance to the coal mining industry in Queensland because it raised significant legal issues about the operation of the health assessment regime under the apposite State legislation referred to above.
CONSIDERATION
7		The future conduct of this proceeding is largely dictated by the outcome of the appeals currently pending before the Queensland Court of Appeal. That is so because the final form of this proceeding will not be known until those appeals are determined, nor, for that matter, will it be known whether this proceeding will proceed at all. In these circumstances, it would, in my view, be wasteful of costs and the antithesis of efficiency to advance this proceeding in the meantime, whether that were to occur in this Court, or in the Federal Circuit Court.
8		That being so, it cannot be said that this proceeding will be dealt with less expensively or more conveniently in the Federal Circuit Court, as Hail Creek Coal claims it will. On the other hand, until this proceeding is finally pleaded in a form that takes account of the Queensland Court of Appeal disposition of the appeals, it will not finally be known what, if any, questions of general importance it will give rise to, as the CFMEU claims it will. For these reasons, I do not consider it would serve the interests of the administration of justice to accede to this application at this time and transfer this proceeding to the Federal Circuit Court.
9		Since none of the other criteria set out in the Federal Court Act and the Rules set out above supports Hail Creek Coal’s application, it necessarily follows that its application for transfer to the Federal Circuit Court must be dismissed.
10		As to the future conduct of the proceeding, I propose to adjourn it to a date to be fixed on the application of either party once the Queensland Court of Appeal delivers its judgment on the appeals before it, or at an earlier date should the appeals before the Queensland Court of Appeal be resolved between the parties. As to the CFMEU’s concern to have the interlocutory stages of this proceeding attended to pending the determination of the appeals in the Queensland Court of Appeal, so that this proceeding can proceed to hearing promptly thereafter, I would add this. If that concern were ultimately found to be valid, it can, in my view, be just as adequately addressed by applying a tight case management timetable, if it becomes necessary for this proceeding to proceed to a trial at some future time.
CONCLUSION
11		For these reasons, I propose to order that Hail Creek Coal’s application be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.	

Associate:		

Dated:	26 March 2015