Diane Moon and Bawinanga Aboriginal Corporation

[1995] IRCA 193

DECISION NO: 193/95
CATCHWORDS

Industrial Law ‑ Termination of employment ‑ Adjournment ‑ police investigation ­offensive material in documents provided by way of discovery.

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
NORTHERN TERRITORY REGISTRY

No. DI 160 OF 1994

DIANE MOON
(Applicant)

And

BAWINANGA ABORIGINAL CORPORATION
(Respondent)

Reasons delivered extempore, revised from transcript.

Date: April 12 1995

Before: Judicial Registrar Jenny Blokland

Reasons for Decision

Yesterday, (April 11 1995) I gave reasons for a decision on certain pre‑trial issues
concerning jurisdiction which were argued last week. One issue concerned whether or not

I should hear a cross‑claim filed on 3 April 1995 by the respondent against the applicant.
For reasons given yesterday I declined to hear those matters. I did however concede in

those reasons that facts discovered by an employer after the dismissal may in some circumstances be relevant to proceedings such as these. Yesterday, (which was also the morning of the commencement of the trial), Mr Duguid for the respondent applied to amend the respondent's defence by inserting the following particulars alleging the impugned conduct of the applicant, namely, "breach of fiduciary duty owed by the applicant to the respondent and conversion by the applicant of various chattels belonging to the respondent, the full extent of which did not become apparent to the respondent until after the termination". The applicant opposed the amendment sought but I allowed the amendment as at two prior directions hearings the respondents had made the same allegation orally. Mr Duguid agreed to supply all relevant particulars of those matters to the applicant.

Consequent upon those amendments Mr Duguid applied to adjourn the trial. Technically the application seeks a stay of proceedings (either permanent or temporary) which involves consideration of whether or not this Court possesses original jurisdiction in the same way as the Federal Court. I do not propose to examine that issue at this stage given the developments which have occurred overnight. An adjournment by any means was initially opposed by Mr Somerville for the applicant. I was surprised at the application given the effort which the parties and the Court have recently taken to make sure the trial proceeded yesterday. In my reasons yesterday I noted the problems of distance and no doubt consequent cost to both sides which was great incentive to make sure the matter proceeded. The starting point as far as I am concerned is that it would take quite an extraordinary factor to persuade me to adjourn or otherwise interfere with the trial date. I believe Mr Duguid was appraised of my view at the outset. The Chief Justice of this Court and other members of the Court have stated in the strongest terms in a variety of decisions that matters must proceed once a trial date is given.

The grounds for an adjournment on the part of the respondent were that the applicant is under investigation by the Northern Territory police for certain criminal activity, some of which is alleged to be one and the same with the matters raised in the amended defence

by the respondent. Mr Duguid argues this means the applicant may exercise her right not to answer questions which may incriminate her. He argued that what flowed from this is that the respondent may be prejudiced in defending the matter because the applicant will not be bound to answer questions concerning the alleged conversion and associated matters.

After some argument yesterday, I agreed to hear evidence this morning from a Northern Territory Police Officer concerning the alleged state of the investigation. This was particularly so after I was informed by the respondents that the applicant may soon be charged . The evidence would have been solely admissible to the question of whether or not I should in the circumstances grant the adjournment. I note that I was not asked to consider a stay or an adjournment for any reason concerning interference with a police investigation or the possibility of a judgment from this Court conflicting with the outcome of findings in another Court. The substantive law issues, the burden of proof, the mode of proof are so different as between this Court and any criminal determination that I can safely rule out any concerns in that regard. I do not think, without further material, that this Court should fail in its duty to determine the issues between the parties because a party is being investigated. Nor do I think it proper that an investigation by police should interfere with the proper running of this Court's procedures. The Court is not and I am not going to be intimidated by a concurrent investigation.

Overnight I consulted a variety of decisions and had come to a tentative view that the possible prejudice to the respondent was not of the magnitude that I should adjourn or stay the proceedings. This morning however, Mr Somerville for the applicant informed me that he had received only some of the documents requested from police and the respondents. He had spoken to police and he believes the applicant herself would now be at such disadvantage due to the lack of certain information being given to her and by the lack of compliance by the respondent with orders of this Court concerning discovery and provision of particulars. Mr Duguid has responded by stating that he attempted to comply as best he could, that the timetable in any case of the Court was tight and that discovery

could not take place before trial. I accept Mr Duguid has attempted to comply with Court orders. I reject the assertion that the timetable set down by the Court was too tight . This matter is nine months old. It is one of the oldest matters in this Registry. It has suffered from being bogged down in interlocutory steps which occurred in the past prior to my involvement. Because of its rather difficult history, I decided at a mention of this matter in March 1995 to set the matter down for trial. Great effort has gone into resolving all preliminary issues before trial because of the cost to the parties. Substantial latitude has been granted to the respondents at each stage in which I have been involved with the matter. It is therefore a most regrettable situation that the applicant finds herself in the situation that she cannot proceed to access the Court. In the circumstances I will not force the matter against the wishes of the applicant. She is now concerned at the overlap of the investigation and these proceedings. I note I was informed yesterday that the complaint was only made as recently as March 1995 to the police by the someone representing the respondents. The timing, in terms of these proceedings could not be poorer. Because the applicant no longer feels able to properly argue her matter I will agree to adjourn the proceedings. I am not informed as yet on the outcome of the police investigation. I am going to adjourn the matter for mention on the morning of 28th April 1995. Even if there is still investigation occurring at that time, the Court may still set this matter down for urgent hearing.

Mr Somerville has drawn my attention to a document provided to the applicant's solicitors as part of the discovery process undertaken over the last twentyfour hours. The document depicts an ape with the words "don't let menopause do this to you". The applicant is understandably outraged by the provision of such a document. Mr Duguid has told me he did not know the document was in the bundle supplied to the applicant. He has apologised for its inclusion. I accept without reservation that Mr Duguid had nothing to do with the inclusion of the document. I have already mentioned that if a legal practitioner is concerned, I believe the inclusion of such material as part of the Court process to be highly unethical although that is a judgement to be made elsewhere. In the time that I have adjourned to make notes about this issue this morning, I have attempted

to consider whether or not the inclusion of the document amounts to a contempt of this Court. I have not come to any decision on the issue. I do not know who is responsible, although I note Mr Duguid will make inquiries about the issue in the legal aid service office. I put the parties on notice that as far as I am concerned, the issue of whether such conduct amounts to contempt is not closed. I will continue to research the issue and await any advice from Mr Duguid. On the contempt point I am not so concerned about the offensive nature of the material, but rather that the material is contained in a bundle of documents subject to orders and undertakings in proceedings of this Court which is a superior court of record. As a Judicial Registrar of this Court I am duty bound to protect the Court and the parties from such material.

I regret that the matter must be adjourned. It is the applicant who now consents to the adjournment for the reasons stated. The applicant and no doubt the respondent have been put to great expense. I adjourn the proceedings until the 28th April 1995 for mention.

I certify that this and the preceding pages are a true copy of the reasons for decision given by Judicial Registrar Jenny Blokland.