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