An overview of legal procedure & case law
Parties to matters before the Fair Work Commission may apply to have a conference or hearing adjourned to a later time or date.
There should be no presumption that an adjournment will be granted.[1] The principles in relation to adjourning (or staying) proceedings are as follows:
The Commission’s task is a ‘balancing of justice between the parties’ taking all relevant factors into account.[3]
Sometimes an adjournment is sought because the subject matter overlaps with a criminal matter before a court, and the defendant’s rights, including the right to silence, may be prejudiced if a hearing in the Commission precedes the criminal hearing. In determining whether a civil matter interferes with a defendant’s right to silence in a criminal matter the following relevant factors may be considered:
These principles have been questioned in subsequent judgments but the decision which set them out has not been overturned.[5]
[1] Sanford v Austin Clothing Company Pty Ltd (t/as Gaz Man), Print S8287 (unreported, AIRC, Watson SDP, 19 July 2000) [26].
[2] Sanford v Austin Clothing Company Pty Ltd (t/as Gaz Man), Print S8287 (unreported, AIRC, Watson SDP, 19 July 2000) [31]; summarising the relevant principles from McMahon v Gould (1982) 7 ACLR 202.
[3] Sanford v Austin Clothing Company Pty Ltd (t/as Gaz Man), Print S8287 (unreported, AIRC, Watson SDP, 19 July 2000) [28]; citing McMahon v Gould (1982) 7 ACLR 202.
[5] See for e.g. Baker v Commissioner of Federal Police (2000) 104 FCR 359 [34]‒[35]; Yuill v Spedley Securities Ltd (in liq) (1992) 8 ACSR 272 (Kirby P).