Citation : [2007] WAIRC 00435 File No : FBA 1 of 2007 Catchwords: Industrial Appeal court - Programming orders Legislation: Industrial Relations Act 1979 (WA), s 87 Result: Hearing adjourned Category: B 242 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 89 W.A.I.G. Representation: Counsel: Applicant : Ms A Beaumont Respondent : In person Solicitors: Applicant : Blake Dawson Waldron Respondent : In person Case(s) referred to in judgment(s): Nil 1 LE MIERE J: The appellant applies, pursuant to Industrial Relations Act 1979 (WA) s 87(3) for orders that the respondent file and serve by 13 December 2007 or within seven days of the date of the directions hearing, a notice of contention and an outline of submissions in response to the outline of submissions filed by the appellant on 9 October 2007. I have been authorised by the President of the court to hear the application and have done so by receiving written submissions. 2 The appeal came on for hearing before the court on 15 October 2007. The respondent sought an adjournment of the hearing of the appeal on the grounds that he could not afford legal representation and the legal issues raised by the appeal were complex and required further consideration. The appellant neither consented nor objected to the adjournment. The Minister for Consumer and Employment Protection (the Minister) intervening made no submissions in relation to the adjournment application. In applying for the adjournment the respondent undertook not to cause the hearing of related proceedings in the Commission to be recommenced before the resolution of the appeal. The respondent also undertook that 'any delay caused by this adjournment would not be taken into account, or be discounted, should [the respondent] ultimately be successful on the substantive matter and be entitled to compensation'. The court decided, particularly having regard to the undertakings given by the respondent and there being no opposition to the adjournment, that the hearing of the appeal should be adjourned to a date to be fixed. The court also stated that there appeared to be a question as to whether or not the Full Bench was correct to categorise the activities of the appellant as being trading activities. The President stated that if the issue was to be agitated on the hearing of the appeal then the respondent should file a notice of contention raising the issue. 3 The appeal has subsequently been listed for hearing on 18 January 2008. The appellant applied on 6 December 2007 for the directions referred to above. 4 The respondent opposes the directions sought by the appellant and proposes the following directions: 1. The respondent file a notice of contention by 31 January 2008; 2. The respondent file and serve appeal books and outlines of submissions by 28 February 2008. 3. The hearing be rescheduled to March 2008. 5 The respondent relies upon an affidavit sworn by him on 16 December 2007. In that affidavit the respondent deposes that he has been threatened by one Jones who was formerly employed by the appellant, is a past President of the appellant and was until September 2007 a member of the appellant's executive committee. The respondent swears that on 28 November 2007 Jones said to the respondent that he was angry that the respondent was involved in litigation with the appellant and made threats to the respondent. The respondent swears that he was shocked and frightened by Jones' threats and fears for his personal safety. The respondent says that he has reported Jones' threats to the Western Australian Police Service. The respondent swears that in consequence of Jones' threats to him he has been unable since 28 November 2007 to address himself to the legal research he needs to conduct to prepare court documents for this appeal. The respondent says that because of the disruption to his life caused by Jones' threats he will be unable to prepare and file court documents in this appeal until late January 2008 at the earliest. 6 I do not, of course, make any findings concerning the allegations made by the respondent in his affidavit. Furthermore, the matters alleged by the respondent, if established, do not demonstrate that the respondent could not have prepared a notice of contention by now. 7 In exercising its discretion to grant an adjournment the court is concerned to balance any prejudice to the parties which arises from an adjournment and the public interest in the proper use of resources provided for the administration of justice. 8 The respondent has not prepared a notice of contention and will be prejudiced if he is required to do so within seven days or early in the new year. 9 The appellant does not consent to the respondent's proposed adjournment and directions but does not object to orders to that effect. Furthermore, it would not be reasonable to require the respondent to file any notice of contention or outline of submissions before Christmas and any such documents served on the appellant in the new year would leave the appellant with little time to consider and respond to them prior to a hearing of the appeal on 18 January 2008. 10 The issue to be raised by the notice of contention is an important one and it is in the public interest as well as the interest of the parties that the parties and the Minister have a proper opportunity to consider and prepare submissions on the issue. 89 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 243 11 In all the circumstances it is appropriate to adjourn the hearing of the appeal on 18 January 2008. I make the following orders: 1. The hearing of the appeal on 18 January 2008 be vacated; 2. The hearing of the appeal be listed on a date to be fixed no earlier than 1 April 2008; 3. On or before 31 January 2008 the respondent shall file and serve any notice of contention that he intends to rely upon on the hearing of the appeal. 4. On or before 28 February 2008 the respondent shall file and serve any supplementary appeal books that are necessary for the determination of any issue raised by a notice of contention filed by the respondent; 5. On or before 28 February 2008 the respondent shall file and serve an outline of submissions in response to the outline of submissions filed by the appellant on 9 October 2007 and in support of any issue raised by the respondent in a notice of contention. 6. On or before 20 March 2008 the appellant and the Minister shall file an outline of submissions in response to any outline of submissions filed and served by the respondent in support of any issue raised by the respondent in a notice of contention. 2009 WAIRC 00008 [2008] WASCA 254 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT