Grant v Industrial Relations Secretary – Service NSW (No 2) [2024] NSWIRComm 1008

Industrial Relations Commission New South Wales Medium Neutral Citation: Grant v Industrial Relations Secretary – Service NSW (No 2) [2024] NSWIRComm 1008 Hearing dates: 19 February 2024 Date of orders: 19 February 2024 Decision date: 19 February 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: 1. The hearing listed on 20 to 23 February 2024 is vacated. 2. The matter is listed for hearing on 30 April 2024, 1, 2 and 6 May 2024. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public Sector Disciplinary Appeal – Procedure — Adjournment of hearing granted due to illness of appellant's counsel Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 66 Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Carly Grant (Appellant) Industrial Relations Secretary – Service NSW (Respondent) Representation: Solicitors: Flame Tree Legal (Appellant) Minter Ellison (Respondent) File Number(s): 2023/00300951 Publication restriction: Nil

EX TEMPORE DECISION (REVISED FROM TRANSCRIPT) 1. The appellant, Carly Grant, has appealed pursuant to s 100A of the Industrial Relations Act 1996 (NSW) against a decision of her employer to demote her and reduce her salary following a finding of misconduct. The appeal is listed for hearing commencing tomorrow, 20 February 2024, for four days. 2. This matter was listed before me last Friday, 16 February 2024, for hearing of a notice of motion brought by the respondent, seeking an order pursuant to r 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) for leave for a witness to give evidence in the proceedings by video link. That application was opposed by the appellant who, while making submissions against the making of the order, applied for the matter to be adjourned to a date in April or May on the basis that this would be the most just resolution of the motion. 3. The respondent opposed the matter being adjourned. I dismissed the motion and declined to adjourn the proceedings, as I was not satisfied an adjournment could ensure the personal attendance of all relevant persons in circumstances where the availability of witnesses and the parties' representatives had not been ascertained. 4. This morning, 19 February 2024, the Commission received an email from the appellant's solicitor, Mr Wells, in which he advised that counsel who has been briefed in the matter for the appellant since before proceedings were commenced, was admitted to hospital on Friday night and, while she has been discharged, she is under medical advice not to work this week. 5. In those circumstances, an application was made for the hearing to be vacated and for new hearing dates to be set. It was on that basis that I set the matter down for directions at 12pm today and indicated to the parties by email that if the respondent was to oppose the adjournment of the matter, the appellant should file a notice of motion to be returned on short notice with a supporting affidavit and I granted leave for the appellant to file such material by email. 6. I also indicated that if the respondent agreed to the adjournment, orders could be made by consent for the hearing to be rescheduled. 7. Shortly before the matter was called at 12pm today, I received an email from the solicitor for the appellant to advise that the respondent had indicated they would not oppose the application today, provided the matter could be relisted within a reasonable timeframe and dates suitable to both parties were provided. The Commission is available to hear the matter on dates suitable to the parties. 8. The Commission has power to adjourn the hearing of the proceedings in appropriate circumstances pursuant to the statutory power given in s 66 of the Civil Procedure Act. The power to adjourn is to be exercised in accordance with the overriding purpose of the Civil Procedure legislation and the Uniform Civil Procedure Rules that is, to facilitate the just, quick and cheap resolution of the real issues in proceedings. 9. The Commission, in deciding whether to make any order for the management of the proceedings, including an order granting an adjournment of the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) of the Civil Procedure Act. 10. For the purposes of determining what the dictates of justice are in a particular case, the Commission must have regard to the provisions of ss 56 and 57 of the Civil Procedure Act and may have regard to the matters set out in s 58(2)(b) of the Civil Procedure Act to the extent which the Commission considers them to be relevant. 11. I have had regard to the overriding purpose of the Civil Procedure Act and the rules as they apply to the determination of the real issues in the proceedings and the objects of case management set out in s 57 of the Civil Procedure Act, including the just determination of the proceedings, the efficient disposal of business of the court, the efficient use of available and judicial administrative resources and the timely disposal of the proceedings at a cost affordable by the respective parties. 12. In circumstances where the respondent does not oppose the application (although it does not consent to the application) and has not challenged the information provided by the appellant's solicitor. I consider it is appropriate for an order to be made that the hearing dates be vacated and rescheduled. I consider it would be unfair in the circumstances to force the appellant to proceed to a hearing tomorrow in the circumstances of counsel's illness. Plainly enough, it is difficult at this late stage for the appellant to engage alternate legal representation, sufficiently to come to grips with the nature of her case and it is apparent that a degree of cross-examination will be required. 13. In those circumstances, I vacate the hearing listed on 20 to 23 February and I list the matter for hearing on 30 April 2024, 1, 2 and 6 May 2024. Janet McDonald Commissioner