Appeal against the decision of the Commission given on 26 july 2011 in matter U 173 of 2010

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 00821

DELIVERED : Thursday, 11 August 2011

FILE NO. : FBA 6 OF 2011

Appellant

AND

Kylie Wood

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S M Mayman

Citation : [2011] WAIRC 00780

File No : U 173 of 2010

Catchwords : Industrial law (WA) – Appeal against finding of a single Commissioner – application for an adjournment – relevant principles considered – denial of procedural fairness – in the public interest an appeal should lie – decision quashed

Legislation : Industrial Relations Act 1979 (WA) s 6(c), s 7, s 23A(6), s 26(1)(c), s 29(1)(b), s 29(1)(b)(i), s 29(1)(b)(ii), s 34(1), s 35, s 36, s 46(1)(a), s 49, s 49(1), s 49(2), s 49(2a)

Result : Appeal upheld

Representation:

Appellant : Mr G McCorry (as agent)

Respondent : In person

Case(s) referred to in reasons:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Crown Scientific Pty Ltd v Clarke [2007] WAIRC 00334; (2007) 87 WAIG 598

House v R (1936) 55 CLR 499

Khatri v Price (1999) 166 ALR 380

McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000

Murdoch University v The Liquor, Hospitality and Miscellaneous Union Western Australian Branch (2005) 86 WAIG 247

Myers v Myers [1969] WAR 19

Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371

R v Blakely; ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54

R v Judges of the Federal Court; ex parte The Western Australian National Football League (Inc) (1979) 143 CLR 190

Registrar v Metal and Engineering Workers' Union of Western Australia (1994) 74 WAIG 1487

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873

Springdale Comfort Pty Ltd v BTAUWA (1986) 67 WAIG 325

The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126

Reasons for Decision

THE FULL BENCH:

The appeal

1          The appellant seeks to institute an appeal pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision of the Commission given on 26 July 2011:  [2011] WAIRC 00780.  The decision sought to be appealed against is a declaration that the hearing of the matter before the Commission would be rescheduled in Albany on 16, 17 and 18 August 2011 at the Albany Courthouse.  The notice of appeal was filed on 1 August 2011.

2          Pursuant to s 49(2a) of the Act an appeal does not lie from a decision that is a 'finding' of the Commission unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.  A finding is a decision made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate:  s 7 of the Act.

3          The application before the Commission at first instance is an application brought under s 29(1)(b)(i) of the Act by the respondent.  The respondent claims that she has been harshly, oppressively or unfairly dismissed by the appellant on 24 September 2010 and seeks an order that the appellant pay her compensation pursuant to s 23A(6) of the Act.

The grounds of the appeal

4          The grounds of appeal are that the Commission erred in law in refusing an adjournment application in that:

(a) the Commission failed to have regard or any proper regard for the principles applicable to consideration of application for adjournment, or in the alternative had regard for irrelevant principles; and

(b) in all of the circumstances the decision was wholly unreasonable.

5          The grounds of appeal also address the following principles which go to the public interest.  These are as follows:

1. It is in the public interest that decisions of the Commission in interlocutory matters where well established principles of law have applied for a long period and no distinguishing factors are identified that would justify a departure from previous decisions remain consistent.

2. It is not in the public interest for decisions to be made on apparently arbitrary grounds without reasons for decision being provided.

3. It is not in the public interest for decisions that are wholly unreasonable in all the circumstances to be allowed to stand.

6          After hearing the parties on 8 August 2011, the Full Bench informed the parties that the appeal had been made out and that an order would be made to quash the decision.  These reasons set out the reasons why the Full Bench made that decision.

Background

7          No reasons for decision have been issued by the Commission at first instance which set out the reasons for the declaration being made.  However, in two letters from the Associate to Commissioner Mayman to the appellant's agent, some of the factual circumstances which led to an adjournment and a relisting of the hearing are referred to.  The material part of the first letter which is dated 26 July 2011 states as follows:

I have received a request from the respondent's agent seeking an adjournment of:

The conference listed for 27 July 2011; and

The hearing scheduled for 2, 3 and 4 August 2011.

The Commission has also received a response to the respondent's request opposing such an adjournment.

The Commission has considered the parties' submissions and declares, in the circumstances, that the hearing listed for 2, 3 and 4 August 2011 in Albany is hereby vacated. Furthermore, the conference scheduled for tomorrow afternoon, 27 July 2011, is also vacated.

A declaration regarding the vacation of the next week's hearing is attached. The Commission's reasons for vacating the hearing will issue at a later date.

The teleconference will be rescheduled for the week commencing 8 August 2011.

The hearing will be rescheduled in Albany on 16, 17 and 18 August 2011.

8          A copy of the letter was sent to the appellant's agent on the same day.  Later that day the appellant's agent sent an email to the Associate to Commissioner Mayman.  In that email he said (AB 5A):

I refer to the adjournment of the above proceedings. I have a matter listed for hearing in the Federal Magistrates Court on 17 August 2011 and therefore request that this new listing be adjourned. However I am free the following week and I anticipate Ms Ireland and/or Ms Robinson will also be available that week, but I note from Ms Wood's previous correspondence of 25 July 2011 that one of her witnesses - Ms Bramley - is going to be away for several weeks, although the dates are not known. Subject to the importance Ms Wood places on Ms Bramley giving evidence, the listing dates may need to be reviewed to accommodate this witness.

For your assistance in scheduling other dates, my unavailable dates because of prior listings are 6, 7, 13 & 14 September 2011

9          Following some discussion between the appellant's agent and the Associate to Commissioner Mayman, the Associate sent the appellant's agent a second letter.  In a letter dated 29 July 2011, the Associate to Commissioner Mayman stated:

This matter was initially set down for hearing on 2, 3 and 4 August 2011. Following a request from the respondent to have the hearing adjourned the Commission considered submissions from the parties and granted the adjournment. At the same time a declaration was issued relisting the hearing in Albany for 16, 17 and 18 August 2011.

The Commission has now received a request from Mr McCorry, the respondent's agent, for a further adjournment due to his commitment in the Federal Magistrates Court on 17 August 2011.

In order to accommodate Mr McCorry's commitment the Commission has decided to rearrange the hearing for that week. The Commission now proposes to sit on Monday, 15 August 2011 and Tuesday, 16 August 2011 with extended hours and to recommence the hearing at lunch time on Thursday, 18 August 2011 having regard for Mr McCorry's request of 26 July 2011.

The Commission has also indicated sitting hours would be arranged to accommodate the applicant's need to breast feed her baby.

This matter has now been adjourned at the request of the respondent on one occasion and the applicant on one occasion. All being well the matter may be completed in two days.

Enclosed is a notice of hearing incorporating the above changes.

10       Some time later the appellant's agent received a copy of the declaration made by the Commission on 26 July 2011 which provides:

HAVING received written submissions from Mr G McCorry as agent for the respondent and Ms K Wood, the applicant, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby:

DECLARES that the hearing of this matter listed on 2 August 2011, 3 August 2011 and 4 August 2011 at the Albany Courthouse is hereby vacated.

DECLARES that the hearing of this matter will be rescheduled in Albany on 16, 17 and 18 August 2011 at the Albany Courthouse.

11       The appellant's complaint is that the scheduling of the hearing on 16, 17 and 18 August 2011 of this matter at the Albany Courthouse will cause an injustice to the appellant, the appellant's agent and another unrelated party.

Relevant circumstances of fact

12       The appellant's agent, Mr Graham McCorry, filed an affidavit made by him on 3 August 2011.  In his affidavit he sets out the information he provided to the Commission through the Associate to Commissioner Mayman in seeking an adjournment of the hearing listed for 2, 3 and 4 August 2011 and the relisting of the hearing of the matter.  As the Commission has not provided any reasons for decision in which the relevant material facts and issues on which an exercise of discretion for granting adjournment are founded we are of the opinion that it is appropriate in these circumstances for the Full Bench to receive the affidavit sworn by the appellant's agent in which relevant communications and submissions to the Commission are set out. 

13       In his affidavit Mr McCorry states he is the appointed representative of the appellant and is authorised to make the affidavit on its behalf.  He then goes on to state the following matters:

2. I have been involved in matters between the appellant and the respondent to this appeal since June 2010 and have intimate knowledge of the facts, claims and contentions of the parties and have provided advice to the appellant on the alleged unfair dismissal of the respondent and other matters. I refer to the Notice of Answer and Counterproposal to application U173 of 2010 at pages 8 to 20 of the appeal book for particulars of some of my involvement.

3. I am also the appointed representative of Bansley Pty Ltd in matter PEG 121 of 2011 in the Federal Magistrate's Court. I have been involved in all matters between the applicant, her union and the Respondent in matter PEG 121 of 2011 since January 2010 and have intimate knowledge of the facts, claims and contentions of the parties. I am instructing Counsel and am required to be present during Federal Magistrate's Court proceedings in Matter PEG 121 of 2011 that are scheduled for 17 August 2011.

4. The respondent to this appeal commenced proceedings in the Commission in October 2010 alleging she was unfairly dismissed from her employment with the appellant. I prepared the appellant's Notice of Answer and Counter Proposal to the application which was numbered U173 of 2010. The matter was allocated to Commissioner Mayman for hearing and determination.

5. Conciliation did not resolve the matter and the hearing of the matter was initially scheduled for dates in June 2011. The hearing was adjourned at the respondent's request and rescheduled for hearing on 2, 3 and 4 August 2011.

6. Ms Karen Ireland, the former Chairperson of the appellant was to be the appellant's sole witness at the hearing. I was advised by Ms Ireland that on the weekend of 23/24 July 2011 her mother had died in Carnarvon and that the funeral was scheduled for 3 August 2011.

7. Because of this [sic] circumstances, on 25 July 2011 on behalf of the appellant, I applied for an adjournment of the hearing. The applicant opposed the adjournment.

8. Commissioner Mayman on 26 July 2011 vacated the hearing dates and rescheduled them for 16, 17 and 18 of August 2011. Commissioner Mayman did not seek information about my availability on those dates before listing them.

9. I advised Commissioner Mayman's associate that I was scheduled to be in the Federal Magistrate's Court on 17 August 2011 and asked that the hearings be adjourned.

10. I further advised the associate that the respondent had indicated that a witness she had intended to call was going to be away for some time in August and that consideration might need to be given to accommodating the need for the respondent's witness to be available.

11. Commissioner Mayman's associate orally advised me that the Commissioner was not prepared to vacate the hearing dates of 16, 17 and 18 August 2011.

12. On receipt of this advice, I advised the Commissioner's associate by email and orally that the listing of the hearing for these dates would prejudice both the appellant and Bansley Pty Ltd in the proceedings in the Federal Magistrate's Court and would likely have an adverse physical impact on me. I informed the Commissioner's associate that for personal reasons, I would have to drive to Albany and return and that it was approximately a 4.5 hour trip each way.

13. On 29 July 2011 the Commission issued an order that purported to accommodate my need to be in Perth for the Federal Magistrate's Court matter on 17 August 2011 by commencing the Albany hearing on 15 August 2011, having extended sittings times on 15 and 16 August 2011 and not commencing the hearing on 18 August 2011 until lunch time.

14. I am of the belief that the appellant in this matter and Bansley Pty Ltd in matter PEG 121 of 2011 will suffer a serious injustice and I will be subject to adverse physical effects if the hearings dates of 15, 16 and 18 August 2011 are not vacated.

15. My basis for this belief is that it is my experience that each day of a hearing results in a need to consult with the client at the end of each day and thereafter prepare for the next day of the hearing. The consultation and subsequent preparation in my experience can take a considerable time and mental effort. The Commission's proposal to have extended sitting hours on 16 August 2011 coupled with an approximately 4.5 hour drive from Albany to Perth would not enable me to consult with Counsel and Bansley Pty Ltd about the proceedings on 17 August 2011 until late in the evening. This would be the case even if I flew back to Perth on the evening of 16 August 2011 and flew back to Albany on the evening of 17 August 2011 or the morning of 18 August 2011.

16. I would not be able to consult with the appellant or begin any preparation for the further hearing until I returned to Albany. The physical demands of such travel would in my view affect my ability to properly represent the appellant and also participate in the proceedings in the Federal Magistrate's Court to the potential prejudice of both parties.

The appellant's submissions

14       The appellant points out that the Commission is required to deal with applications for adjournments in accordance with the well known principles set out in Myers v Myers [1969] WAR 19 (21).  The appellant also points out that when the Commission exercises its discretion, it is required to do so in accordance with the principles enunciated by the High Court in House v R (1936) 55 CLR 499.  Applying those principles, the appellant says the Commission was required to consider the application for an adjournment by assessing whether the adjournment would result in serious injustice to the appellant and also to the respondent.  The Commission did not carry out this task, or in the alternative, the Commission did not carry out the task properly.  When making a decision as to when the hearing should be rescheduled, the appellant says the Commission should have had regard to the following matters:

(a) Obtaining alternative representation for the appellant or for the client in the Federal Magistrate's Court matter would not be appropriate because of the appellant's representative's deep involvement in the factual issues in both cases, requiring the representative to be present at both proceedings.

(b) It is almost inevitable that consultation with a client and further preparation for a subsequent day's hearing will be required at the end of each day of a hearing in any jurisdiction and a requirement to immediately return to Perth would prevent or seriously disrupt this activity.

(c) Even if the appellant's representative was able to fly back to Perth after the extended sitting times for the proceedings on 16 August 2011, the representative would not be able to consult with the Perth client or Counsel until late in the evening, to the possible prejudice of the following day's proceedings.

(d) As the appellant's representative will be travelling by car to and from Albany, a scheduling of hearing dates that imposes a requirement that the appellant's representative spend a considerable time driving after an extended sitting period and also before a scheduled sitting period, does pose a significant physical burden on the representative to the possible prejudice of the appellant and others.

(e) The respondent is a new mother and not engaged in the workforce:  she would not be required to make alternative arrangements for her absence from the workplace if the proceedings were adjourned.

(f) The respondent has objected to having set aside the witness summons issued to her witness who will be absent at some period in August 2011.  This gives rise to an inference that the respondent considers the witness's evidence important and thus her attendance essential if an injustice is not to occur.  Refusal of an adjournment may cause such an injustice to occur.

(g) The Commission has already indicated to the respondent that there is no need for the respondent's witnesses to attend and remain at the courthouse all during the proceedings until they are called to give evidence, but they may go about their normal duties and be summoned by a telephone call from the respondent with little consequent delay to the proceedings.  The witnesses are thus local and would not be unduly inconvenienced by an adjournment.

15       The appellant says that the Commission failed to take into account any of these factors and that while reasons for decision have not been given, it appears from the letter from the Associate to the appellant's representative dated 29 July 2011, that the only reasons for the refusal of the adjournment are that each party has previously been granted an adjournment on one occasion.  The appellant says this is an extraneous or irrelevant matter and to act on it is to act on the wrong principle.  Further, the failure to take into account material considerations is contrary to the principles set out in House v R. 

16       The appellant also says that in all of the circumstances the decision of the Commission to refuse the adjournment is wholly unreasonable and falls within the principle that administrative bodies and tribunals must not act unreasonably which was established and enunciated by Lord Green in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

The respondent's submissions

17       The respondent appeared in person by teleconference at the hearing of the appeal.  The respondent informed the Full Bench that she did not wish to make a submission in reply to the appellant's submission.  In answer to a question from the Full Bench, she also informed the Full Bench that the hearing and determination of the application brought pursuant to s 29(1)(b)(i) of the Act was, from her point of view, not an urgent matter.

Procedural issues

18       Pursuant to s 49(1) and s 49(2) of the Act, an appeal may lie against a decision of the Commission.  The Full Bench has a duty to decide whether or not it has jurisdiction:  R v Blakely; ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54, 69; Khatri v Price (1999) 166 ALR 380 [15]; R v Judges of the Federal Court; ex parte The Western Australian National Football League (Inc) (1979) 143 CLR 190, 202 - 204, 225 - 226, 228 and 230; Springdale Comfort Pty Ltd v BTAUWA (1986) 67 WAIG 325, 330 and Crown Scientific Pty Ltd v Clarke [2007] WAIRC 00334 [96] – [97]; (2007) 87 WAIG 598, 609 – 610.

19       The only 'decision' within the meaning of s 49 of the Act made by the Commission is a declaration issued on 26 July 2011.  The appellant complains about an amended notice of hearing which issued by the Commission on 29 July 2011 in which the hearing dates set in the 'decision' were purported to vary to exclude 17 August 2011 and substitute 18 August 2011 to commence at 12.00 midday.  Two procedural issues arise.

20       The first issue raises a jurisdictional matter.  The appellant's complaint is about the amended notice of hearing which purports to vary the dates of hearing set out in the 'decision' given on 26 July 2011, although it clearly cannot do so in law.  Pursuant to s 49(2) of the Act, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.  A 'decision' is defined in s 7 of the Act to include an award, order, declaration or finding.  A 'finding' is defined in s 7 of the Act to mean a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or depose of the matter to which the proceedings relate.  Pursuant to s 34(1) of the Act, a decision must be signed by a member of the Commission and under s 35 of the Act the decision must be drawn up in the form of minutes before it is delivered.  In addition, s 36 of the Act requires that each decision of the Commission is to be sealed with the seal of the Commission, deposited in the office of the Registrar and be open to inspection by any person interested without charge and during office hours.

21       It is clear that the amended notice of hearing cannot be said to be a 'decision' within the meaning of the Act.  It is not a 'finding' and no appeal can be instituted under s 49 of the Act:  McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000; Registrar v Metal and Engineering Workers' Union of Western Australia (1994) 74 WAIG 1487 (recently applied by the Full Bench in Palermo v Rosenthal [2010] WAIRC 00242; (2010) 90 WAIG 371).  When this issue was raised with the appellant's agent he conceded that an appeal could not be against the issuance of an amended notice of hearing as it was not an appealable decision within the meaning of s 49 of the Act.

22       The second issue arises in relation to the jurisdiction of the Commission to make a 'decision' in the form of a declaration.  A declaration is a statement of the law of existing rights and obligations, for example a statement that a contractual benefit is owed in an application made under s 29(1)(b)(ii) of the Act, or a statement of the true interpretation of an award under s 46(1)(a) of the Act.  The setting of hearing dates in a 'decision' made by the Commission should properly be made in the form of an order.  It is doubtful that a 'decision' that declares the date, or proposed dates, of hearing has any force and effect.  It should be noted, however, that it is not usually necessary for an order to be made to set a matter down for hearing as usually such an administrative step is uncontroversial.  In the usual course an order would not need to be made.

23       Leaving aside the issue whether the 'decision' is valid or enforceable, it is open for this Full Bench to consider whether an appeal should lie against the decision made by the Commission on 26 July 2011 and, if so, whether the decision should be quashed.

Is the matter of such importance that in the public interest an appeal should lie?

24       The principles that apply when considering the importance of an appeal in the public interest was settled in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873.  In that matter the Full Bench unanimously held that the words 'public interest' are not to be narrowed to mean 'special or extraordinary circumstances'.  An application may involve circumstances which are neither special nor extraordinary.  It may involve circumstances which, because of their very generality, are of great importance in the public interest.  Each matter will be a question of impression and judgment whether the appeal has the required degree of importance.  Also important questions that may have effect in other industries, and substantial matters of law affecting jurisdiction, can give rise to matters of sufficient importance in the public interest to justify an appeal:  Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 (Ritter AP) [13] – [14]. 

25       We formed the opinion that the present matter is of sufficient importance that it is in the public interest that an appeal should lie.  This is because this appeal raises the proper procedural process that should apply to applications for an adjournment of the hearing of an application under s 29(1)(b).

26       Applications for adjournment are routinely made to the Commission.  Whilst the principles set out in Myers v Myers are well established, the application of the rules of procedural fairness when considering an adjournment and the relisting of a matter for hearing is a matter which goes to a discretionary power vested in the Commission and is a matter of importance affecting the jurisdiction of the Commission.

Scheduling of a hearing

27      In the initial scheduling of a hearing, the Commission may consult with the parties about convenient and appropriate dates before setting those dates, or may list the matter, inviting the parties to advise within a specified time, if the dates listed are not suitable.  In the case of urgent matters, it may not always be possible to fully consult with parties about the issues which require consideration in setting hearing dates.

28      There are other circumstances where parties attempt to delay the hearing for some strategic advantage, or take an unreasonable approach to their availability in an endeavour to promote their own case.  The same circumstances may apply where there is an application for adjournment of a hearing which has already been set down.  However, we do not suggest that this is the case here.

The principles applicable for applications for adjournment of a hearing of an application made under s 29(1)(b) of the Act

29       Where a refusal of an adjournment would result in 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 (21).  In considering whether to grant an adjournment of a hearing by the Commission, the exercise of discretion is to consider not only fairness and justice to the parties but, in an appropriate case, the public interest is to be considered.  As Ritter AP in The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126 [45] - [46] observed, this is consistent with the principal object in s 6(c) of the Act and the exercise of the jurisdiction of the Commission set out in s 26(1)(c) of the Act. 

30       When the application was made to vacate the hearing date set on 2 August 2011, 3 August 2011 and 4 August 2011 it appears from the material before the Full Bench that the Commissioner made a declaration vacating the hearing dates and setting new hearing dates without any consultation with the appellant.  Importantly, in making a proper inquiry of the parties and their representatives, the Commission must observe the rules of procedural fairness and provide each party an opportunity to provide any information or instructions that are relevant as to whether an adjournment should be granted, the length of an adjournment and any periods of unavailability of witnesses and representatives.

31       It should be noted it is intended that the principles set in these reasons deal only with applications for adjournments in respect of applications brought under s 29(1)(b) of the Act and should not be taken to apply to applications and matters that arise under other provisions of the Act, in particular s 44 of the Act.

32       Part of the assessment by the Commission as to whether an adjournment should be granted necessarily involves a consideration as to when the proceedings should be adjourned.  It is proper to consider whether the refusal of an adjournment would result in serious injustice to one party or whether an adjournment itself and the relisting of the hearing would mean serious injustice to the other party.  Relevant considerations involve considering the period of time for which an adjournment is to be granted and whether the dates on which it is proposed that a hearing is to be re-listed would result in any serious injustice to either party.

33       Whether an injustice is raised can require a myriad of factors to be considered depending upon the issues raised by the parties.  In an application made under s 29(1)(b) some relevant matters are:

(a) The availability of witnesses.  To a lesser degree is the availability of the parties' representatives.  In some cases, it may be necessary for a party to find alternative representation.  The availability of lawyers or agents cannot be allowed to dictate the listing of matters before the Commission.  The Commission is obliged by s 22B to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit.  This may mean that on occasions they will have to advise their clients that they will have to obtain alternative representation.  Yet if an adjournment is to be for a short period of time, obliging a party to seek alternative representation may not be practicable.

(b) Whether the hearing and determination of the application is urgent.

(c) On occasions the raising of a new issue may necessitate an adjournment to obtain legal advice.

(d) The length of a delay.

(e) Where a matter is to be heard away from the place the Commission usually sits to hear matters, the practicalities of travel to that place should be taken into account.

(f) Case management principles are also a relevant consideration as the convenience of the Commission reconvening a hearing may be an important factor and any difficulties associated with that are also proper considerations.

34       Each application for an adjournment is to be considered on its merits.  In this matter no opportunity was afforded to the appellant to make a submission about what dates were suitable for a rescheduled hearing and no assessment was made by the Commission of the relevant circumstances, including whether the matter should be heard urgently.  In all the circumstances, the Commission denied the appellant procedural fairness.  For these reasons, we formed the opinion that ground (a) of the grounds of appeal had been made out and the decision made on 26 July 2011 should be quashed.