FEDERAL COURT OF AUSTRALIA Coochey v Commonwealth of Australia [2003] FCA 1232 JOHN COOCHEY v COMMONWEALTH OF AUSTRALIA A 30 OF 2002 STONE J 22 OCTOBER 2003 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 30 OF 2002 BETWEEN: JOHN COOCHEY APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: STONE J DATE OF ORDER: 22 OCTOBER 2003 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The orders made on 3 October 2003 be set aside. 2. The proceeding is stayed until 9.30 am on 5 March 2004 or until further order. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 30 OF 2002 BETWEEN: JOHN COOCHEY APPLICANT AND: COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: STONE J DATE: 22 OCTOBER 2003 PLACE: CANBERRA REASONS FOR JUDGMENT 1 On 7 October 2003 the respondent filed a notice of motion seeking that this proceeding be dismissed pursuant to O 20 r 2(c) of the Federal Court Rules and that the applicant pay its costs of the proceeding. At the hearing today the respondent (the applicant on the notice of motion) indicated that it was not pressing the order in relation to costs. 2 The background to this proceeding can be briefly stated. The applicant was employed by the Department of Defence under an agreement under Division 2 of the Workplace Relations Act 1996 (Cth). In 1999 the applicant's employment was terminated and he accepted an offer of retrenchment. By way of an application filed on 14 June 2002 the applicant alleges that the respondent has breached the terms of the agreement under which he was employed and seeks, inter alia, a declaration that the termination of his employment in the Australian Public Service is void. 3 An action in respect of the same issues that are the subject of this proceeding has also been commenced in the Australian Industrial Relations Commission ('Commission'). In the proceedings before the Commission the respondent objected to the Commission's jurisdiction. On 1 May 2003 Commissioner Deegan heard the parties regarding the Commission's jurisdiction to hear the matter. As yet no decision has been given in respect of that issue. 4 At a directions hearing on 3 October 2003 I ordered that this matter be stayed, pending the outcome of the jurisdictional issue before the Commission, but gave the parties liberty to apply on three days' notice. The second order was in anticipation of a notice of motion, such as the present, being filed. 5 Although the notice of motion seeks that this proceeding be dismissed, in argument today counsel for the respondent (the applicant on the notice of motion) indicated that his client was actually seeking a permanent stay on the basis that there is an abuse of process involved in the applicant agitating the same issues in this Court and in the Commission. It is common ground between the parties that the issues raised in this proceeding and before the Commission involve alleged breaches of the same provisions of the employment and substantially the same evidence. It is also common ground that the remedies available from the Commission are potentially more attractive to the applicant than would be the case in this Court. The Commonwealth says, however, that the applicant must elect whether to pursue its grievance in the Commission or before this Court and, in default of such election, the Court should order a permanent stay of this proceeding. 6 The submissions of the Commonwealth dwelt on the duplication of costs and effort that would be involved in preparing for a hearing on the merits in both the Commission and this Court. These submissions seem to me to miss the point at issue here as the applicant (the respondent to the notice of motion) has made it clear that he does not wish to proceed with the action in this Court, so long as the Commission does have jurisdiction to deal with his claims. The respondent referred to the potential for delay if the Commission proves not to have jurisdiction and the substantive issues in the case ultimately have to be addressed in this Court. This, however, is not a basis on which the proceeding in this Court should be prejudiced. The need to resolve the issue of the Commission's jurisdiction will result in delay in hearing the substantive issues whether those issues are addressed before this Court or before the Commission. It is unfortunate that it may be some considerable time before that matter is resolved, but that is not an issue which, in my view, should determine the outcome of the notice of motion before me. So long as the respondent is not being pressed to prepare for a hearing on the merits in this Court and in the Commission, then there are no costs implications of any significance in that delay. 7 On the other hand, were I to accede to the application made by the respondent in the notice of motion, there is a potential for serious injustice to the applicant. If it were the case that the Commission does not have jurisdiction to hear his claim, and the matter had been finally disposed of in this Court, then the applicant would be in the most unfortunate position of having no forum in which to pursue his grievances. I am not prepared to take the risk of that outcome and I do not think it is necessary to take that step in order to avoid the disadvantage to which the Commonwealth refers. In my view the application in the notice of motion is, at the very least, premature, and the appropriate course to take is for the matter to be stayed, pending the determination of the Commission's jurisdiction to deal with the applicant's claims. 8 As a matter of case management it would be preferable to set a specific date until which the proceeding is to be stayed. If, by that date, the jurisdictional issue is not resolved the order can be extended. Accordingly, I will order that the orders made on 3 October 2003 be set aside and that the proceeding be stayed until 9.30 am on 5 March 2004 or until further order. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 3 November 2003 Counsel for the applicant: C Erskine Solicitor for the applicant: Higgins Solicitors Counsel for the respondent: T Jacobs Solicitor for the respondent: Blake Dawson Waldron Date of hearing: 22 October 2003 Date of judgment: 22 October 2003