Australia, Oct. 3 -- The Federal Court of Australia issued the following judgement on Oct. 2:

1 By an interlocutory application, the respondent, Newmont Mining Services Pty Ltd, seeks orders, pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (FC Act), that the substantive proceedings be transferred to the Western Australian Registry, or alternatively, that the trial and any future interlocutory hearings be conducted in Western Australia (which would, on either outcome, result in a hearing in Perth).

2 The substantive proceedings were brought by Ms Rebecca Perrett (Ms Perrett or the applicant) under the Fair Work Act 2009 (Cth) for declarations and damages arising out of the termination of her employment as an executive in the respondent's Health and Safety operations.

3 Ms Perrett resists the application for transfer to, or for the hearing to be conducted in, Western Australia.

The proceedings

4 Ms Perrett was employed by Newmont from September 2019 to October 2023. She was employed under an Employment Agreement for the position of Group Executive - Safety. The Employment Agreement specified that "This position is based in Perth." In around September 2021, her terms of employment were changed so that Ms Perrett could relocate to Adelaide, and otherwise work remotely where possible.

5 Without going into too much detail, Ms Perrett pleads that a number of actions by the respondent, including the termination of her employment, were adverse, misleading, and/or in breach of contract. She claims loss and damages. Newmont resists her claims.

6 The matter has been to a mediation, and there is currently a timetable for the filing of the applicant's lay evidence and some expert evidence, which brings the matter back before me in March next year. Accordingly, it is unlikely that the matter will be ready for hearing before some time next year, and will not obtain a hearing date in my docket until at least the second half of 2025. I was informed from the Bar table, (in answer to a question from the Bench), by Ms Millar, counsel for Newmont, that her personal experience is that the matter may have a slightly shorter wait for a hearing were it to be transferred to the Western Australian Registry.

7 It is not currently possible to state with any accuracy how many witnesses will be called by each party, nor how long the hearing will take. While the respondent has estimated an amount for the increased costs to it were the matter to be heard in Sydney on the basis of a 10-day hearing, counsel for each party took the view that the matter would be unlikely to take as long. What is clear however is that at least one case management hearing will need to be held, and possibly interlocutory matters will arise before the matter is heard. Accordingly, any decision about the venue for hearing (whether by way of transfer or a hearing in Perth) will need to take into account that there will be one or more interlocutory or case management hearings to be provided for as well.

The respondent's application for a transfer or change of venue

8 The application is made for transfer or change of venue of the proceeding under s 48(1) of the FC Act which provides:

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.

9 It was submitted that r 2.02 of the Federal Court Rules 2011 (Cth) (FC Rules) was also available to the Court, but in a narrower way, as that rule only relates to transfer of proceedings. That rule provides:

A party may apply at the proper place for an order that the proceeding be transferred to another place.

10 Schedule 1, the Dictionary to the FC Rules, defines "proper place" as:

proper place, for a proceeding, means:

(a) the place where the proceeding is started; or

(b) if the proceeding is transferred to another place-the other place, from the date of transfer.

11 Accordingly, the respondent is able to ask, in Sydney, that the matter be transferred, or conducted, in Perth (whether by way of transfer under r 2.02 or conducting the hearing there pursuant to s 48).

*Rest of the document and Footnotes can be viewed at: (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca1147)

Disclaimer: Curated by HT Syndication.