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