Burgess v Corrs Chambers Westgarth [2011] QIRC 80

CITATION: Louise Burgess AND Corrs Chambers Westgarth (FA/2011/1) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - Chapter 4, Part 4 - freedom of association Louise Burgess AND Corrs Chambers Westgarth (FA/2011/1) DEPUTY PRESIDENT BLOOMFIELD 23 November 2011 DECISION [1] In proceedings before the Queensland Industrial Relations Commission (the Commission) on 9 November 2011 I refused an oral application by Counsel for Corrs Chambers Westgarth (the Respondent) to defer issuing directions for the hearing and determination of an application lodged in the Commission by Ms Burgess (Matter No. FA/2011/1). In his application, Counsel for the Respondent, Mr Murdoch, requested that directions not be issued until another application being pursued by Ms Burgess in the Federal Magistrates Court of Australia (the Federal Magistrates Court) had been heard and determined. [2] In refusing the application I gave brief reasons on the transcript and indicated I would issue a more fulsome decision in the course of time. This is that decision. Background [3] On 12 July 2011 Solicitors acting for Ms Burgess filed an application in the Commission, Matter No. B/2011/20, seeking relief in relation to certain matters pursuant to s. 276 of the Industrial Relations Act 1999 (the Act). [4] Subsequently, after preliminary proceedings in the Commission and her consideration of a number of issues raised by the Solicitors for the Respondent, Ms Burgess filed an amended application in the Commission on 2 September 2011 (which was given the new Matter No. FA/2011/1). In this application Ms Burgess (only) sought relief under the Freedom of Association provisions contained in Chapter 4, Part 4 of the Act. [5] On a date unknown to me, Ms Burgess caused for an application alleging breaches of a number of elements of the Disability Discrimination Act 1992 (Cth) (the Federal Act) to be lodged in the Federal Magistrates Court. Although this application canvassed essentially the same facts as contained in Matter No. FA/2011/1, it differed in that it alleged discrimination and/or harassment by various employees of the Respondent. [6] On 22 June 2011 Federal Magistrate Burnett issued Orders in relation to the above application which required: • the Applicant to file and serve a Statement of Claim within 28 days; • the Respondent to file a Response within a further 28 days; • the Applicant to file and serve any Reply within a further 14 days; • the parties to exchange Affidavits by 9 September 2011; • the parties to exchange Affidavits in Reply by 23 September 2011; • the Application to be referred for conciliation before 25 November 2011; and • in the event the matter was not resolved at mediation the matter is to be listed for Directions on 2 December 2011. [7] On 24 October 2011 the Respondent filed an application in the Federal Magistrates Court in which it, inter alia, requested that a number of paragraphs in the Applicant's Statement of Claim be struck out for a variety of reasons (which it is unnecessary to go into here). The Respondent's application was listed for Hearing and/or Directions on the date previously listed for Directions, namely 2 December 2011. [8] Mr Murdoch indicated that his client was seeking a temporary stay of the proceedings in Matter No. FA/2011/1 until proceedings before the Federal Magistrates Court were heard and determined. [9] In pressing his application, Mr Murdoch highlighted the similarity in the various events relied upon by Ms Burgess to support her respective applications in the Commission and in the Federal Magistrates Court. In doing so, he said that whilst some of the allegations featured in one application but did not feature in the other, the bulk of the matters asserted by Ms Burgess dealt with the same allegations of fact and the same alleged interactions with the same people. The only difference was that in one application she asserted a breach of the discrimination and/or harassment provisions of the Federal Act while in the other she asserted a breach of the Freedom of Association provisions of the Act. -- 1 of 3 -- 2 [10] Mr Murdoch said it was clear that the matters overlapped to a significant degree. However, proceedings in the Federal Magistrates Court had progressed further than they had in the Commission because the parties had, at the direction of Federal Magistrate Burnett issued on 22 June 2011, filed Statements of Claim, Defences, Affidavits, and participated in mediation. Significant costs had already been incurred in that jurisdiction, with further proceedings to take place on 2 December 2011. Given the progress there, and the costs incurred already, it made sense for those proceedings to take priority. [11] On the basis of the Federal Court Decision in Re Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited1 Mr Murdoch argued it was undesirable, for a number of reasons, for this Commission and the Federal Magistrates Court to be dealing with the same subject matter, or essentially the same subject matter, at the one time. In particular, Lockhart J in that case highlighted the undesirability of two Courts "competing", in the sense of making actual findings, in respect of what are, in most cases, the same interactions between the same people. Further, it was not in the interests of justice to allow this matter to proceed "in tandem" with the other matter. [12] The Respondent's application was opposed by Mr K. Watson, Counsel for Ms Burgess. He indicated that it was his client's clear preference to have the proceedings in the Commission dealt with first but that the procedures set in train in the Federal Magistrates Court, without request, required the lodgement of certain documents, as reflected in [6] above. If the Respondent was concerned about proceedings occurring in two jurisdictions at the one time Ms Burgess was prepared to make a joint approach with the Respondent to defer any proceedings in the Federal Magistrates Court until the present proceedings were heard and determined. [13] Mr Watson also explained that because of the provisions in the Australian Human Rights Commission Act 1986 (Cth) Ms Burgess was required to file her application in the Federal Magistrates Court within 60 days of a Certificate emanating from the President of the Human Rights Commission in relation to her claim under the Federal Act. That was the sole reason her application had been lodged in the Federal Magistrates Court when it had. [14] Mr Watson also highlighted that the proceedings in the Federal Magistrates Court to be held on 2 December 2011 related to a strike out application filed by the Respondent. If that application was successful those proceedings could be ceased or substantially curtailed. Further, if the Respondent's application was unsuccessful, or only partially successful, it was still going to have to face, and ultimately deal with, two separate applications in two jurisdictions. It was Mr Burgess' preference that the present application be pursued first. As such, directions for the conduct of the proceedings in Matter No. FA/2011/1 should be issued without further delay. Refusal to delay proceedings [15] In announcing to Mr Murdoch that I was refusing his request for a stay of proceedings until the Federal Magistrates Court proceedings were heard and determined, I took into account a number of factors, as follows: 1. Ms Burgess, through her Counsel, has expressed a clear preference for her application in Matter No. FA/2011/1 to be pursued as a matter of priority and that it is her desire to prosecute the application in this Commission prior to her separate application under the Federal Act; 2. Through her Solicitors, Ms Burgess has communicated her preparedness to make a joint approach to Federal Magistrate Burnett to defer the proceedings in the Federal Magistrates Court until the proceedings in this Commission are heard and determined. However, that offer has not been responded to; 3. The matters being pursued in the Federal Magistrates Court involve claims for relief under the Federal Act while the application in this Commission seeks relief under the Freedom of Association provisions of Chapter 4, Part 4 of the Act. While the events which gave rise to the separate applications might overlap to a degree the findings sought are quite different, as is the relief sought; 4. The proceedings in the Federal Magistrates Court on 2 December 2011 relate to the Respondent's strike out application, not Ms Burgess' application. If the Respondent succeeds in whole or part, Ms Burgess' application might take a different path from that being canvassed in these proceedings; 5. If the Respondent's strike out application in the Federal Magistrates Court is unsuccessful, Ms Burgess' application might be listed at some prospective time depending upon her submissions to that Court. By comparison, this Commission is in a position now to list Ms Burgess' application for hearing and to issue directions in relation to its conduct; 6. If proceedings eventually take place in the Federal Magistrates Court, any findings of fact will be in relation to alleged breaches of the Federal Act and not Chapter 4, Part 4, of the Act; and 7. Granting the Respondent's application to defer proceedings in this Commission to await the outcome (if any) of proceedings in the Federal Magistrates Court would hand the choice of forum in which Ms Burgess can prosecute her respective applications to the Respondent, rather than her. 1 Re Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 -- 2 of 3 -- 3 [16] For the foregoing reasons, I refused Mr Murdoch's oral application, on behalf of the Respondent, to defer proceedings in Matter No. FA/2011/1 pending the hearing and determination of separate proceedings initiated by Ms Burgess in the Federal Magistrates Court. [17] The Commission so determines and orders. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2011 9 November (Directions Hearing) Released: 23 November 2011 Appearances: Mr K. Watson of Counsel instructed by Susan Moriarty and Associates for the Applicant. Mr C. Murdoch of Counsel instructed by Minter Ellison Lawyers for the Respondent. -- 3 of 3 --