Rescheduling or adjourning matters

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:

• a party to a matter before the Commission has a right to have the matter determined as quickly as possible
• serious consideration needs to be given before any action interferes with this right
• the party who applies for the adjournment must prove that it is necessary
• a party is not automatically entitled to an adjournment because they are involved in a criminal hearing, and
• an application for an adjournment must be determined on its own merits.[2]

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:

• the possibility of publicity reaching and influencing jurors in the criminal matter
• the proximity of the criminal hearing
• the possibility of a miscarriage of justice
• the burden on the defendant of preparing for both the civil and the criminal matters, or
• whether the defendant has already disclosed his defence to the criminal allegations.[4]

These principles have been questioned in subsequent judgments but the decision which set them out has not been overturned.[5]