[2019] FWC 2262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Mr Benedict Hardless
(AB2018/522)

COMMISSIONER PLATT

ADELAIDE, 4 APRIL 2019

Application to adjourn hearing – s.598 – consideration of opposing arguments - balancing need for prompt resolution of applications versus potential prejudice - adjournment application granted/refused.

[1] The Applicant has made an application (the Application) that I adjourn a merit hearing for an Anti- Bullying application which is scheduled to commence on Monday 8 April.

[2] A summary of the history of this matter is contained Decision [2019] FWC 2114.

[3] The Applicant had previously made application for the production of an investigation report over which legal privilege was claimed.

[4] On 28 March 2019 I conducted a case management conference. During that conference I advised the parties that I was about to release my decision in respect of the document over which privilege was claimed and advised that I had determined that I would not order production of the investigation report.

[5] On 1 April 219 my decision concerning the production of the investigation report was published (Decision [2019] FWC 2114).

[6] On 3 April 2019 the Application to adjourn the merit hearing was received.

[7] The adjournment application was heard by teleconference at 2.00pm on 4 April 2019. Mr Hardless continued to represent the Applicant. Ms Perigo represented BAE Systems and the named respondents. Permission had been previously granted for the parties to be represented pursuant to s.596 of the Fair Work Act (the Act).

[8] The Applicant’s grounds for the adjournment application were provided in writing shortly before the commencement of the hearing 1. The Applicant’s representative spoke to the submission.

[9] The hearing was adjourned for a short period to allow the Respondents representative an opportunity to receive the Applicant’s written submissions.

[10] After that adjournment the Applicant advised that the Appeal against Decision [2019 FWC 2114 had now been lodged (the Appeal).

[11] The Respondent also provided written submissions 2 and spoke to them. The Respondent opposed the Application.

Consideration

[12] Section 577 of the Act details how the Commission must perform its functions.

[13] My decision in respect of this adjournment application is a discretionary one pursuant to s.589 of the Act.

[14] Having considered the submissions made I make the following observations;

• The application was lodged in September 2018.

• The parties to the application are the Applicant, BAE Systems and a number of named persons.

• The hearing is due to commence at 9.30 on 8 April 2019 in Wagga Wagga

• If the Application is refused, and the Appeal is successful, the Commission will potentially need to reconvene to allow further examination of witnesses.

• If the Application is refused and the appeal is not successful then no costs and time will have been wasted.

• If the Application is granted and the appeal was not successful then costs and time will be wasted and the persons named will have had to endure the stress of public allegations made against them for a further lengthy period.

• If the Application is refused and the appeal is successful the hearing would be conducted in a single period rather than two.

[15] None of the options are perfect, all involve a risk of wasted costs, time and potential inefficiencies.

[16] I have been referred to the decision in Salma v Sydney Trains 3. Deputy President Sams’ observations about the potential for prejudice to persons named by lengthy delays are apt. They reflect the desirability of dealing with matters quickly subject to the requirement to be fair and just.

[17] I accept that the lengthy delay which will result from the granting of the Application will result in prejudice to the named persons.

[18] I have not taken account of the Applicant’s submissions as to the grounds for the Appeal as those matters are a matter for the Full Bench.

[19] Having balanced the competing considerations I have determined not to grant the adjournment and confirm that the hearing into the substantive matter will commence at 9.30am in Wagga Wagga on 8 April 2019,

[20] I undertake that the parties agree, I will not determine the Anti Bullying Application until the Full Bench has determined the Appeal.

COMMISSIONER

Appearances:

P Hardless (of Counsel) on behalf of the Applicant.

A Perigo (of Counsel) on behalf of the Respondent.

Hearing details:

2019.

Adelaide

4 April.

Printed by authority of the Commonwealth Government Printer

1 Exhibit A1

2 Exhibit R1

3 [2018]FWC 1845

In the case of Mr Benedict Hardless, the applicant sought an adjournment of a hearing under section 598 of the relevant legislation. The primary dispute centred around the applicant's request for an adjournment of a hearing date that had been previously set. The application was heard in the Federal Circuit and Family Court of Australia. The respondent, who was not named in the summary, opposed the adjournment, arguing that there would be potential prejudice if the hearing was delayed.

The legal issues before the court involved the balancing of the need for prompt resolution of applications against the risk of prejudice to the respondent if the application for an adjournment was granted. The court had to consider the arguments presented by both parties and determine whether the circumstances justified an adjournment. This involved assessing the applicant's reasons for the adjournment, the respondent's opposition, and the potential impact on both parties if the adjournment was granted or refused.

The court examined the arguments from both parties and weighed the factors that needed to be considered under section 598. The applicant argued that the adjournment was necessary due to unforeseen circumstances that would affect their ability to adequately prepare for the hearing. The respondent contended that the application was an attempt to delay the proceedings and that there would be significant prejudice if the hearing date was changed. After considering these arguments and the evidence presented, the court concluded that the application for an adjournment should be granted. The court found that the applicant's reasons were compelling and that the potential prejudice to the respondent was not significant enough to outweigh the need for the adjournment.

As a result of the court's decision, the hearing was adjourned to a later date, allowing the applicant more time to prepare for the proceedings. The court did not specify the new hearing date in the summary provided. The outcome was that the application for an adjournment was successful, and the hearing was rescheduled accordingly.

Mr Benedict Hardless

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established