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Coles Myer Logistics PL v Lee [2007] NSWWCCPD 141 Roche DP.

33. The granting or refusal of an adjournment is a matter within the discretion of the Arbitrator concerned. The issue of adjournments has been considered by the High Court in numerous cases. In particular, in Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625, at 628-9 Brennan, Deane and McHugh JJ said:

In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658 the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. [See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 55, at 558-9].

Moreover the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action [Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569]. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.

34. The above principles must be read in the light of the legislation, rules and Practice Directions that govern proceedings in the Commission.

35. Practice Direction No 2 of the Commission's Practice Directions is also relevant. It emphasises the objectives of the Commission and, in particular, the duty to provide a timely and effective resolution service. It adds that: 'The Commission will not adjourn any proceedings unless it is demonstrated that one or more parties would suffer a substantial injustice if the adjournment in not granted.'

36. The Practice Direction adds that the Commission has the discretion to grant an adjournment, 'other than in accordance with this Direction, where procedural fairness in the instant case requires'.

Refusal adjournment upheld.

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