Cushway v University of New England [2015] FCA 578

Cushway v University of New England [2015] FCA 578

The Court held that it was not reasonable to expect the applicant to respond within four days to over 600 pages of respondents' evidence, including substantive affidavit evidence and a positive case to rebut the statutory presumption, particularly where the applicant's ability to respond was also affected by his son's unforeseen deterioration in condition. Although the applicant's earlier delays contributed to the tight timetable and vacating the trial would cause some prejudice, the interests of justice and the need to afford a fair opportunity to present the case justified vacating the trial dates.

Jurisdiction
Australia
Judgment Date
05 June 2015
Procedural Posture
Fair Work Adverse Action Proceeding; Urgent Application to Vacate Trial Dates / Pre Trial Adjournment Application
Outcome
Application allowed; trial dates vacated; costs reserved.
Legal Topics
['adverse Action' 'adjournment' 'trial Timetable' 'evidence in Reply' 'overarching Purpose' 'statutory Presumption Under S 361 of the Fair Work Act 2009 (cth)']
['employment Law' 'fair Work' 'practice and Procedure'] ['adverse Action' 'adjournment' 'trial Timetable' 'evidence in Reply' 'overarching Purpose' 'statutory Presumption Under S 361 of the Fair Work Act 2009 (cth)']

Case Brief

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Procedural Posture

Fair Work Adverse Action Proceeding; Urgent Application to Vacate Trial Dates / Pre Trial Adjournment Application

Legal Issues

  1. 1 ["Whether the trial dates should be vacated because the applicant could not reasonably prepare affidavit evidence in reply within four days to the respondents' evidence of about 600 pages." "Whether the applicant's unforeseen family circumstances supported vacating the trial dates." 'How the discretion to adjourn should be exercised consistently with ss 37M and 37N of the Federal Court Act 1976 (Cth).']

Ratio Decidendi

The Court held that it was not reasonable to expect the applicant to respond within four days to over 600 pages of respondents' evidence, including substantive affidavit evidence and a positive case to rebut the statutory presumption, particularly where the applicant's ability to respond was also affected by his son's unforeseen deterioration in condition. Although the applicant's earlier delays contributed to the tight timetable and vacating the trial would cause some prejudice, the interests of justice and the need to afford a fair opportunity to present the case justified vacating the trial dates.

Court Disposition

Application allowed; trial dates vacated; costs reserved.

Orders

  • ['The trial dates 16 to 19 June 2015 are vacated.' 'Orders 2 to 11 inclusive of the orders made on 30 April 2015 are vacated.' 'Order 5 of the orders made on 9 April 2015 is vacated.' 'The matter is listed for directions on Friday, 12 June 2015 at 9.00am.' 'The question of costs of the adjournment application is...