WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES GLENN ROSS MCLEOD

APPLICANT

-v-

STOCK RD MARKET TAVERN

RESPONDENT

CORAM COMMISSIONER S M MAYMAN

DATE WEDNESDAY, 6 APRIL 2005

FILE NO. APPL 21 OF 2005

CITATION NO. 2005 WAIRC 00963

CatchWords Application for adjournment - Within discretion of the Commission

Result Application for adjournment granted

Representation 

Applicant Mr G Slattery (of counsel)

Respondent Ms S Howard (as agent)

Decision

(ex tempore)

1         The claim that Mr McLeod was unfairly dismissed by Stock Road Market Tavern is set down for hearing tomorrow, 7 April 2005.  On 31 March 2005, Ms Howard as agent for Stock Road Market Tavern, wrote to the Commission seeking an adjournment of the hearing for two weeks.

2         On 5 April 2005, the Commission was advised by counsel for Mr McLeod that the application for adjournment of the hearing was opposed.

3         An application for an adjournment is within the discretion of the Commission.  Where the refusal of an adjournment would result in a serious injustice to one-party an adjournment should be granted unless in turn this would mean serious injustice to the other party (Myers v. Myers [1969] WAR 19).  I will not repeat the grounds set out in Stock Road Market Tavern's application for adjournment.  They are a matter of record and exhibits before the Commission, as is Mr McLeod's opposition to the application.

4         In assessing whether the refusal of an application to grant an adjournment would create a serious injustice to Stock Road Market Tavern, I take into account that documentation considered by either party to be relevant to the substantive application to allow for proper defence of the claim ought be available.  Of itself, a failure to provide a reasonable opportunity to present material, known to the respondent, in defence of a claim could result in a serious injustice to a party.

5         Further, the location of the documentation referred to in the application being, of itself, the subject of a police investigation, demonstrates to the Commission the apparent importance of the material to Stock Road Market Tavern.  This is a factor that has been taken into account in assessing whether a serious injustice would be created by refusing to grant the adjournment.

6         It might also be suggested that if Stock Road Market Tavern were to locate the documents without an adjournment then it would not be provided with a proper opportunity to examine the documents.

7         The fact that Stock Road Market Tavern.did not file the application for adjournment until some seven days prior to the scheduled hearing of the substantive matter has not gone unnoticed.  However, in considering this factor I have taken into account the seemingly tardy response by Mr McLeod, some three working days later.

8         In assessing whether the granting of an adjournment to Mr McLeod would create a serious injustice I have taken into account a number of factors.

9         Firstly, if the Commission were to grant the adjournment, witnesses who have arranged for time off work time off work to attend the hearing on 7 April , 2005, only to cancel the arrangements would cause inconvenience rather than serious prejudice.  It would, however, be open to Mr McLeod in the hearing of the substantive matter to seek an order for costs, if any, for arranging alternative dates for attendance by witnesses in the Commission.

10      Secondly, matters which come before this Commission are to be dealt with promptly and the Commission understands that evidence is best taken from witnesses as close as possible to the events to which the application relates.  This application is no exception and if an adjournment beyond two weeks was sought then the Commission’s conclusion with respect to serious injustice may have been different.

11      Further, at the request of counsel for Mr McLeod two hearing dates have now been vacated.  The first, a listing to hear application for further and better particulars was discontinued and the first day of hearing into the substantive matter was adjourned. 

12      I conclude that to refuse the application for adjournment would mean serious injustice to the respondent.  I therefore grant the adjournment for a two-week period, vacating the listing for the 7th April, 2005.  A further listing for hearing will be fixed in consultation with counsel for Mr McLeod and agent for Stock Road Market Tavern.

13      I do not intend to issue a formal order reflecting this decision, unless either party requests that I do so within 48 hours.