APPEAL AGAINST THE DECISION OF COMMISSIONER TO TAKE REMOVAL ACTION ON 31 MARCH 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00598

DELIVERED : Thursday, 25 November 2021

FILE NO. : APPL 16 OF 2021

Appellant

AND

Commissioner of Police

Respondent

Catchwords : Industrial law (WA) - Application for adjournment of appeal listed for hearing - Relevant principles applied - Adjournment granted for specified time

Legislation : Industrial Relations Act 1979 (WA) ss 26(1), 27(1)(f)

  Police Act 1892 (WA) ss 33P, 33S    

Result : Order issued

Representation:

Counsel:

Applicant : In person

Respondent : Mr S Pack of counsel

Solicitors:

Respondent : State Solicitors’ Office

Case(s) referred to in reasons:

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738

Myers v Myers [1969] WAR 19

Reasons for Decision

1         The appellant, Ms Woods, was a First-Class Constable in the Western Australian Police Force.  Ms Woods was removed from the Police Force by the respondent on 6 April 2021.

2         On 20 April 2021 Ms Woods filed the present appeal against her removal under s 33P of the Police Act 1892 (WA).  In accordance with the requirements of the Police Act, the respondent filed its response on 26 May 2021 and refers to nine allegations, established following an investigation, which formed the basis of loss of confidence proceedings leading to Ms Woods’ removal from the Police Force.

3         As is the Commission’s usual practice, directions were issued on 7 July 2021 to programme the appeal to a hearing.  Subsequently, on 31 August 2021, the Commission listed the appeal for hearing on 25 November 2021.  The appeal was listed on this date, having regard to correspondence from Ms Woods to the Registry of the Commission dated 26 August 2021, seeking sufficient time for her to obtain legal representation and to attend to certain medical matters.  The listing date of 25 November 2021 took into account Ms Woods’ request.

4         On 12 November 2021, Ms Woods sought an adjournment of the appeal on the basis of difficulties encountered with her legal representatives.  The Commission, by letter dated 12 November 2021, requested Ms Woods to furnish fulsome grounds for her application to adjourn the appeal, with supporting documents.  In response to a further request of the Commission by letter of 16 November 2021, Ms Woods provided a statutory declaration setting out her circumstances in support of her application to adjourn the appeal. In essence, Ms Woods contended that she initially consulted a solicitor to obtain legal advice and support.  Ms Woods paid an initial amount in fees for her solicitor to review her file and provide an indication as to whether they would represent her.

5         Whilst it is not entirely clear, it would appear that Ms Woods laboured under the misapprehension that the solicitors she consulted were going to represent her on the appeal and prepare her case. It was not until 12 November 2021 that Ms Woods said she discovered this was not so, and her case on the appeal had not been prepared.  She has also taken steps to obtain a medico-legal report on advice from her solicitor, in relation to a PTSD diagnosis.  Ms Woods contended that she is therefore unprepared to proceed with her appeal and needs further time to obtain alternative legal representation.

6         Given the proximity to the hearing date, the Commission urgently listed Ms Woods’ application to adjourn for a telephone hearing on 19 November 2021.  The respondent indicated that it neither consented to nor opposed Ms Woods’ application.

7         Ms Woods referred generally to her statutory declaration, and the grounds contained within it, in support of her request that the appeal be adjourned.  Ms Woods further submitted that given her present psychological state, in addition to not having undertaken relevant research and preparation for the hearing of her appeal, she would not be in a suitable state in any event, to appear before the Commission on the listed hearing date of 25 November 2021.

8         The decision of a court or tribunal to adjourn a proceeding is a discretionary decision.  The Commission, in appeals of the present kind, may exercise the procedural powers conferred upon it by s 33S of the Police Act, which includes s 27(1)(f) of Industrial Relations Act 1979 (WA), to adjourn a proceeding to any time and place.  The power to adjourn is to be exercised consistent with the principles set out in the oft-quoted decision of the Supreme Court of Western Australia in Myers v Myers [1969] WAR 19.  In short, that case is authority for the proposition that 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 a serious injustice to the other. In general terms, a lack of preparation for a proceeding is not in and of itself a sufficient reason to grant an adjournment: Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738.  The discretion available to be exercised by the Commission in proceedings of the present kind, is conditioned by the requirement to deal with matters in accordance with equity, good conscience and the substantial merits of the case, under s 26(1)(a) of the IR Act.

9         Having heard from the parties, the Commission indicated that whilst it was concerned that Ms Woods had already been afforded a generous amount of time to prepare her case for the appeal, it would, in the circumstances, grant an adjournment for a period of four weeks only.  This period is to enable Ms Woods to obtain alternative representation and to prepare her case to proceed.  We wish to emphasise, as we observed in the course of the hearing, that Ms Woods will, taking into account the period of the adjournment, now have had ample time to prepare her case, and it is our firm expectation that the appeal will proceed on the re-listed hearing date.  

10      Accordingly, an order was made granting the application to adjourn, vacating the hearing date of 25 November 2021 and with the appeal to be listed on a date to be fixed after the period of the adjournment.