Diane Moon and Bawinanga Aboriginal Corporation

[1995] IRCA 192

CATCHWORDS: INDUSTRIAL LAW ‑ Termination of employment ‑ powers of judicial registrars ‑ adequate alternative remedy ‑ cross‑claim ‑ accrued jurisdiction.

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT
DARWIN

No DI 160 of 1994

Between:

DIANE MOON
(applicant)

and

BAWINANGA ABORIGINAL CORPORATION
(respondent)

BEFORE: JUDICIAL REGISTRAR JENNY BLOKLAND
PLACE: DARWIN
DATE: 11 APRIL 1995
RULING ON PRE‑TRIAL QUESTIONS

In this matter the applicant alleges breaches of Part VIA ‑ Div 3 Industrial Relations Act (1988) concerning lack of procedural fairness and associated relief arising from the termination of her employment with the respondent on the 20th September 1994. The matter was listed before the Court for a directions hearing on 9 March 1994. On that occasion Mr Duguid for the respondent indicated to the Court that his client was unable to respond to the applicant's claim for reasons of failure of particulars being given by the applicant concerning certain aspects of the claim. He also indicated there would be a cross‑claim filed against the applicant but the precise nature of the defence and cross­claim still needed to be determined and any amendments on the part of the applicant would have some bearing on the responding documents. Further, Mr Duguid indicated certain issues concerning jurisdiction may arise. Upon hearing argument, I could not see

that the points raised concerning the applicant's claim for relief were particularly crucial, however given that Mr Somerville (for the applicant) consented to providing the particulars sought and given that the applicant and the respondent's witnesses all live in remote areas of the Northern Territory or inter‑state, I agreed to make the orders sought incorporating a timetable to have the matter set down for trial.

A tentative date for trial was set for today (11 April 1995 in Darwin), subject to certain enquiries being undertaken by the Court on whether the matter could be heard in Maningrida and subject to both parties checking the availability of witnesses. The parties have been informed that on this occasion the Court is unable to sit at Maningrida, however, I have advised the parties, that where possible, the Court may be able to make arrangements in future cases to sit in remote areas. Time was also set aside on 4 April 1994 for the Court to ascertain the readiness of the parties and to deal with any preliminary issues which might otherwise affect the smooth running of the trial. I note that the usual practise would be to hear such issues at the time of trial, however, as I have indicated, because all of the parties and witnesses are travelling substantial distances to attend the trial, in my view the Court needed to give consideration to certain matters raised by Mr Duguid before the actual trial date. On 4 April 1995, Mr Duguid raised three issues namely; whether or not there exists an adequate alterative remedy, whether a Judicial Registrar has the power to hear an unlawful termination claim where the substance of the claim is over $10,000 and whether the accrued jurisdiction of the Court should be exercised to permit the Court to hear the cross‑claim.

Given some other commitments I had with the Court inter‑state, counsel indicated they would not object if I conveyed my decision to them through our jurisdiction clerk and gave reasons subsequently. On the afternoon of 5 April 1995, the jurisdiction clerk (on my instructions), notified counsel that I intended to proceed to hear the matter on 11 April 1995, that I would decline to hear the cross‑claim but would allow the filing of the defence. I am now in a position to give brief reasons.

ADEQUATE ALTERNATIVE REMEDY

Although I have heard some argument on this issue from the respondent, I decline to make a ruling on the question until the merits of the matter are heard. The respondent relies on the existence of a federal award which, it is argued, covers the applicant and provides for its own remedy for wrongful dismissal. In the light of the existing authorities, Mr Duguid indicated it would be unlikely that I found there was an adequate alterative remedy, however, he suggested I tum my mind to the issue given the practical difficulties facing the parties coming to trial. In spite of those difficulties, I decline to thoroughly examine the issue given that the Court is not required to determine the issue until it considers the merits: Liddle v Lemke (1994) 127 ALR 342 . In this case it is impossible to answer the question of adequate alternative remedy arising under a federal award unless the award and associated material is placed before the Court at trial. I do not think even the respondents consider there is great merit in pursuing the issue, especially

given that their argument in part involves reliance on the resolution of a question presently before the High Court: Byrne v Australian Airlines Limited (1994) 120 ALR 274. I conclude on this point by indicating I think it is unlikely that the award meets the standard of "adequate alterative remedy", however, if either party wishes to pursue the issue, it must be done during the hearing of the merits.

POWERS OF JUDICIAL REGISTRARS

The respondents have queried whether or not a Judicial Registrar can hear cases of unlawful termination where the claim exceeds $10,000. Section 376 Industrial Relations Act (1988) provides:

"376(1) The Rules of Court may delegate to the Judicial registrars, either generally os as otherwise provided in the Rules, all or any of the Court' s powers in relation to proceedings in the Court, in so far as the proceedings relate to:

(a) a claim for an amount of not more than the amount specified in the rules; or
(b) a claim that the termination of an employee's employment was unlawful, or that the proposed termination of an employer' s employment would be unlawful, whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory.

376(2) For the purposes of paragraph (l)(a), the Rules may specify an amount of not more than:

(a) $ l 0,000;or
(b) such greater amount as the regulations prescribe."

In their present fomm, the Industrial Relations Court Rules mirror S 376: (Order 72, rule2). I am of the view that a plain reading of S 376(1)(a) and (b) indicates that (a) and (b) are alternatives. Further, in the context of the whole Act, S 376(1)(a) and S 376(2)(a) must relate to claims other than those concerning unlawful dismissal. In relation to claims concerning unlawful dismissal, S 376(1) makes it clear that Judicial Registrars have been delegated the powers of the Court. The powers of the Court in such cases involve the granting of remedies as set out in S170EE which include awards of compensation. The remedies associated with claims for unlawful dismissal are not clearly separated by the delegation of powers to Judicial Registrars. If they were, that would mean that in some cases Judicial Registrars could hear the trial of the issues, decline to award re‑instatement and then be prevented from assessing compensation if the claim exceeded $ 10,000. Awards of compensation over $ 10,000 are regularly made by Judicial Registrars in all registries of this Court. I intend to stay in line with the national approach which I happen to agree with in any case. I conclude that a Judicial Registrar has the power to hear claims concerning unlawful termination when the claim relates to an amount over $10,000. The limitation in S 376 relates to claims other than for unlawful termination.

EXERCISE OF THE ACCRUED JURISDICTION OF THE COURT IN RELATION TO THE RESPONDENT'S CROSS‑CLAIM

On 3 April 1995 the respondent filed a defence and cross‑claim against the applicant. These documents were expected by the Court and the applicant some 7 (seven) days before that date, in order to satisfy a timetable set down by the Court to permit the trial to run smoothly. The cross‑claim alleges breach of a fiduciary duty on the part of the applicant to the respondent. The breach of duty involves allegedly purchasing artworks for herself instead of the respondent, acceptance of gifts and other actions which arguably could give rise to a conflict of interest and breach of fiduciary duty. Further, conversion of certain property and records is also alleged. The respondent seeks remedies in the form of account of profit, a declaration of constructive trust, damages and interest.

To hear and determine such issues would involve an exercise of the accrued jurisdiction of the Court. I accept Mr Duguid's submission that the Industrial Relations Court may exercise the accrued jurisdiction: APESMA v Skilled Engineering (1994) 122 ALR 471; Jupp v Computer Power Group (1994) 125 ALR 669. I accept also that it is a matter of discretion for the Court whether or not to exercise the accrued jurisdiction. I accept his submission that to justify the exercise of the accrued jurisdiction the Court must be satisfied there is a "common substratum of facts": Elna v International Computers (1987) 95 ALR 271; Fencott v Muller (1983) 46 ALR 41 or a "single justiciable controversy": Stack v Coast Securities (No 9) (1983) 49 ALR 193. I accept there are strong grounds for the exercise of the accrued jurisdiction when the circumstances are such that the principal relief can only be brought in a Court such as this one which exercises exclusive jurisdiction: Stack v Coast Securities (No 9) (1983) 49 ALR 193. I accept that in the decision to exercise the accrued jurisdiction, the Court must do what is best for the resolution of all of the issues between the litigants and must consider whether on balance, it is convenient for the proceedings to be heard together.

In this case, while there are some common facts between the claim and cross‑claim, I do not consider them to be so closely associated that the Court should characterise them as comprising a "common substratum of facts" or a "single justiciable controversy". It is true the claim and cross‑claim arise out of the one employment relationship. Beyond that, the commonality between the two is thin. Mr Duguid has argued that there is a link between the alleged poor accounting on the part of the applicant, (a reason given to defend the dismissal) and the acquisition of art work for her own benefit. He concedes the issues raised by the cross‑claim did not initially form part of the respondent's justification for terminating the employment, however, as the matter has been investigated further, the allegations in the cross‑claim form part of a further justification for dismissal. I accept it may be possible in some circumstances for an employer to discover facts to justify the dismissal after the fact. In this case, beyond the point of relevance to the alleged poor accounting, the link between the claim and cross‑claim in my view not strong. At best the claim and cross‑claim are indirectly related. I do not think that all issues of dispute

occurring within the context of a lengthy employment relationship can be raised and agitated by way of cross‑claim.

If I am wrong in my characterisation of the cross‑claim, then in any event, I have come to the view that it is not in the best interests of the litigants, nor of this Court to hear the cross‑claim. Although the respondent would gain some advantage by only having to agitate one action, the applicant would be put to significant disadvantage by having to defend the relatively complex matters raised in the cross‑claim so close to trial and some nine months after the dismissal. Although I accept Mr Duguid has told the applicant's solicitor and the Court that there would be a cross‑claim, the extent of the cross‑claim was not known until it was recently filed. The cross‑claim changes the whole complexion of the inquiry which the Court must undertake to the point that it is not convenient to hear it. The respondents could have raised the issues agitated in the cross‑claim at any time in the last nine months. I appreciate the difficulties the respondent must have in being situate at a remote part of the Northern Territory, however, even having regard for that, it is too late to raise such fundamental issues for determination by the Court. Added to this is the fact that I am told by the applicant's solicitor that in hearing the cross‑claim, the Court may have to consider a further date for hearing. In the light of the nine months which have already elapsed, that course should be avoided.

I decline therefore to exercise the accrued jurisdiction of the Court. It appears the same objection does not apply with the issues raised in the defence accordingly I grant an extension of time to permit the filing of the defence.

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