Federal Court of Australia Jones v Virgin Australia Airlines Pty Ltd [2021] FCA 1054 File number: NSD 1059 of 2020 Judgment of: SNADEN J Date of judgment: 31 August 2021 Catchwords: PRACTICE AND PROCEDURE – interlocutory application to transfer proceeding to Federal Circuit Court of Australia – application to transfer proceeding made by applicant – delay in making application – whether transfer in the interests of justice – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 32AB Federal Court of Australia Rules 2011 (Cth) r 27 Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, 2242 UNTS 309 (entered into force 4 November 2003) Division: General Division Registry: New South Wales National Practice Area Other Federal Jurisdiction Number of paragraphs: 10 Date of hearing: 30 August 2021 Counsel for the Applicant: Mr T. Driscoll (solicitor) Solicitor for the Applicant: BPC Law Counsel for the Respondent: Ms C. Cheng (solicitor) Solicitor for the Respondent: HWL Ebsworth ORDERS NSD 1059 of 2020 BETWEEN: LACHLAN JONES Applicant AND: VIRGIN AUSTRALIA AIRLINES PTY LTD Respondent order made by: SNADEN J DATE OF ORDER: 31 AUGUST 2021 THE COURT ORDERS THAT: 1. The applicant's oral interlocutory application of 30 August 2021 be dismissed. 2. By 4:00 pm on 13 September 2021, the respondent file and serve an amended defence. 3. By 4:00 pm on 27 September 2021, the applicant file and serve the lay witness statements on which he intends to rely. 4. By 4:00 pm on 29 October 2021, the respondent file and serve any witness statements in reply. 5. The matter be adjourned to a case management hearing to take place on a date to be fixed (but not before 16 November 2021). 6. The parties have liberty to apply on three days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 On 23 September 2020, the applicant in this proceeding filed his originating application, by which he seeks (amongst other things) damages pursuant to articles 17 and 21 of the Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, 2242 UNTS 309 (entered into force 4 November 2003) (the "Convention"). The matter relates to a medical reaction that the applicant suffered in April 2019, after he inadvertently consumed some nuts on a flight operated by the respondent. 2 The matter came before the court for case-management purposes on 4 November 2020, whereupon various, unremarkable orders were made. At the direction of the court, pleadings were finalised and the matter progressed to mediation. Regrettably, the parties were unable to resolve their dispute and the matter was programmed for further case management on 30 August 2021. 3 On 3 August 2021, the applicant's solicitors wrote to the solicitors for the respondent and foreshadowed that he would make an application to have the matter transferred to the Federal Circuit Court of Australia. Further correspondence ensued. In short: (1) the applicant explained that, as the matter does not pose questions of general importance, nor raise issues that are novel or controversial—and because it would be cheaper—the Federal Circuit of Australia was the appropriate forum in which to maintain the action; and (2) the respondent disagreed. 4 The matter came before me for case-management purposes as scheduled on Monday, 30 August 2021. The applicant (via the agency of his solicitor) indicated that he wished to press an application to have the matter transferred to the Federal Circuit Court. He relied, to that end, upon an affidavit sworn by his solicitor on Thursday, 26 August 2021, to which the correspondence summarised above was attached. The respondent indicated that it was prepared to respond to any such application. The court thus entertained the oral application, in respect of which both parties made brief, helpful submissions. 5 Mr Driscoll, for the applicant, contended that the matter is, conceptually, straightforward. He submitted that the applicable law is settled and that what there is by way of factual dispute is limited. Ms Cheng, for the respondent, disagreed. She submitted that there remains a dispute as to whether an "accident" occurred for the purposes of the Convention and as to whether the applicant suffered a "bodily injury" during the flight upon which the matter focuses. 6 For the reasons that follow, I am not inclined to order that the matter be transferred to the Federal Circuit Court of Australia. 7 Section 32AB of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act") provides as follows: 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. (3) The Rules of Court may make provision in relation to transfers of proceedings to the Federal Circuit Court under subsection (1). (4) In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1). (5) Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Circuit Court. (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. (8) An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1). (8A) The Federal Circuit Court has jurisdiction in a matter that: (a) is the subject of a proceeding transferred to the court under this section; and (b) is a matter in which the court does not have jurisdiction apart from this subsection. To avoid doubt, the court's jurisdiction under this subsection is not subject to limits set by another provision. (9) The reference in subsection (1) to a proceeding pending in the Court includes a reference to a proceeding that was instituted in contravention of section 32AA. (9A) This section does not apply to criminal proceedings. (10) This section does not apply to proceedings of a kind specified in the regulations. 8 The rules to which s 32AB refers are rr 27.11 and 27.12 of the Federal Court Rules 2011. Rule 27.12 relevantly provides as follows: 27.11 Transfer to Federal Circuit Court of Australia A party may apply to the Court to transfer to the Federal Circuit Court of Australia: (a) a proceeding other than an appeal; or (b) an appeal under the AAT Act. 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. 9 Before me, the requirements of r 27.12(2) and (3) were addressed somewhat summarily (if at all). I have, nonetheless, taken account of the matters that guide the court's discretion presently. From the pleadings, it is apparent that the matter involves questions of some novelty and potential complexity. Moreover, given that the matter is of some maturity in this court, it is not apparent to me that it would be determined more quickly or cheaply were it to be transferred. The applicant was unable to explain why he didn't commence the matter in the Federal Circuit Court to begin with. He also could not explain why (and, to be clear, did not try to hide from the fact that) it has taken to this point, nearly a year after the matter was commenced, to make the present application. 10 In the circumstances, I do not accept that the interests of justice warrant an exercise of the court's discretion under s 32AB of the FCA Act. The applicant's oral application will be dismissed. The parties were otherwise agreed as to appropriate directions that the court might make by way of case management. They are appropriate and will be made. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 31 August 2021