X v New South Wales Crown Solicitor's Office [2011] NSWIRComm 2 (8 February 2011)

Last Updated: 17 May 2011

Industrial Relations Commission New South Wales

Case Title:	X v New South Wales Crown Solicitor's Office
Medium Neutral Citation:	[2011] NSWIRComm 2
Hearing Date(s):	8 February 2011
Decision Date:	08 February 2011
Jurisdiction:
Before:	Staff J
Decision:	Application for adjournment dismissed.
Catchwords:	PRACTICE AND PROCEDURE - unfair dismissal application - application for adjournment of hearing - Practice Note 17 - whether clear and compelling reasons for adjournment - unavailability of counsel - application for adjournment refused
Legislation Cited:	Industrial Relations Act 1996
Cases Cited:	Anley and Department of Education and Training [2009] NSWIRComm 39
Texts Cited:
Category:	Procedural and other rulings
Parties:	X (Applicant) New South Wales Crown Solicitor's Office (Respondent)
Representation
- Counsel:
- Solicitors:	Solicitors: Mr C McArdle (Applicant) Ms L Atkinson on behalf of Department of Justice and Attorney General (Respondent)
File number(s):	IRC 1495 of 2010
Publication Restriction:

Judgment

EX TEMPORE

1. This matter is referred to me by the Industrial Registrar pursuant to Practice Note 17 to consider an application made on 1 February 2011 by the Department of Justice and Attorney General ("the Department") for an adjournment of the hearing fixed in this matter for the period 4 - 6 April 2011 inclusive.

2. The grounds for the adjournment, as set out in the email to the Industrial Registrar were that "unfortunately, a conflict of appointments for the Department's legal counsel has occurred deeming her unavailable for the period 4 - 6 April 2011 inclusive."

Background

3. The background to this matter is that X ("the applicant") filed an application for relief in relation to unfair dismissal on 21 December 2010.

4. On 24 December 2010, the employer's reply to the application was filed together with a notice of appearance.

5. On 18 January 2011, Lynch AC chaired a conciliation conference. The matter did not resolve at conciliation.

6. On 28 January 2011, standard directions were made and the matter was listed for hearing commencing on 4 April 2011.

7. Ms L Atkinson appeared for the Department and pressed the application for an adjournment. Ms Atkinson advised that the Department's barrister was available when the dates were fixed for the hearing of this matter but has since become unavailable due to a conflict in respect of a matter fixed for hearing apparently before the Workers Compensation Commission.

8. Mr C McArdle, solicitor, appeared for the applicant and consented to the application for an adjournment on the basis that there was a genuine conflict of calendars in respect of the barrister briefed by the Department and that the proposed dates would overlap with the original dates that had been fixed for the hearing of this matter in any event.

Consideration

9. Practice Note 17 is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Industrial Relations Commission of New South Wales ("the Commission"). Clause 13 of Practice Note 17 which deals with adjournments, provides that the day or days on which the application will be dealt with by arbitration are definite and that it should be understood that adjournment applications will be granted only on clear and compelling grounds.

10. There are interests other than the interests of the parties to be considered. The workability and the practice in respect of unfair dismissal applications are considerations of importance in this application. So is the fact Mr McArdle has consented to the application for an adjournment. Although I propose to give weight to Mr McArdle's consent, this matter will ultimately be determined on the basis of the requirements of Practice Note 17.

11. Practice Note 17 reflects the legislative purpose implicit in s 84 of the Industrial Relations Act 1996 ("the Act"). The proper administration of justice is to ensure that this occurs.

12. The Commission has observed in numerous cases that Practice Note 17 will be strictly applied. See for example, Anley and Department of Education and Training [2009] NSWIRComm 39, and in particular the cases referred to at [23].

13. In determining this application, the objectives of a " just, quick and cost effective" requirement found in Practice Note 17 must be determined in light of the explanation relied upon by the Department who is seeking an indulgence from the Commission.

14. The Department submits that its counsel would be available on 7, 8, 11, 12 and 13 April 2011 if the matter were adjourned.

15. The critical issue for determination here is whether the Department has satisfied the test that there are "clear and compelling reasons for the adjournment to occur".

16. This Commission endeavours to take into account the availability of counsel when fixing matters for hearing, and no doubt this occurred when the hearing dates were fixed on 28 January 2011.

17. There is a significant period of time between now and the dates which have been fixed for hearing in this matter. Ms Atkinson did not point to any exceptional circumstances that would deprive the Department of briefing alternate counsel.

18. In my view, there is more than sufficient time for the Department to retain alternate counsel and for such counsel to become familiar with this matter. I am not persuaded that if such a course was adopted, any prejudice would be visited upon the respondent. In my view, the Department has not established clear and compelling reasons for an adjournment of the hearing. Absent such reasons, Practice Note 17 requires that the application for adjournment be refused.

19. In determining matters such as this, I am mindful that the administration of justice needs to be properly served. Taking into account all of the matters set out in this decision, and endeavouring to balance the overall interests of justice, I am of the view that the application for an adjournment of the hearing due to commence on 4 April 2011 should be dismissed. I so order.

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