Jonak v Enscope Pty Ltd [2021] FCA 1606

Federal Court of Australia

Jonak v Enscope Pty Ltd [2021] FCA 1606 File number: WAD 241 of 2021

Judgment of: BANKS-SMITH J

Date of judgment: 16 December 2021

Catchwords: PRACTICE AND PROCEDURE - whether to transfer proceeding to the Federal Circuit and Family Court of Australia under s 32AB of the Federal Court of Australia Act 1976 (Cth) - where factors weigh in favour of transfer

Legislation: Federal Court of Australia Act 1976 (Cth) s 32AB

Cases cited: Sampson as the trustee of the Bankrupt Estate of Wei Chen v Huang [2020] FCA 545

Division: Fair Work Division

Registry: Western Australia

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 13

Date of hearing: Determined on the papers

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: The Respondent did not appear

ORDERS WAD 241 of 2021

BETWEEN: PETER JONAK Applicant

AND: ENSCOPE PTY LTD Respondent

order made by: BANKS-SMITH J DATE OF ORDER: 16 december 2021

THE COURT ORDERS THAT:

1. This proceeding be transferred to the Federal Circuit and Family Court of Australia pursuant to s 32AB(1) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J: 1 These proceedings were commenced on 25 October 2021 in this Court. 2 Mr Jonak has brought an adverse action claim against the respondent following the termination of his employment as a process engineer. His claim is brought under s 340, s 341(1)(c)(ii) and s 342 of the Fair Work Act 2009 (Cth) and he seeks compensation equivalent to two months' salary, being $12,000. 3 The Federal Circuit and Family Court of Australia (FCFCOA) has the jurisdiction to determine the applicant's claim: s 566 of the Fair Work Act (as amended since the formation of the FCFCOA). Mr Jonak does not have legal representation. I conducted a case management hearing on 22 November 20221 relevantly in order to ascertain from Mr Jonak whether the respondent had been served. At that time the respondent had not been served and accordingly no case management orders were made by the Court. I raised the question with Mr Jonak as to whether this proceeding should be transferred to the FCFCOA. Mr Jonak was content with such a course. It appears that the respondent has since been provided with a copy of the originating application but has written to Mr Jonak through its solicitors indicating it takes issue as to its form, and asserting that any application should have been brought in the FCFCOA.