C2001/3471, Transcript of Proceedings [2001] AIRCTrans 1784 (2 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE BOULTON

C2001/3471

APPEAL UNDER SECTION 45 OF THE ACT
BY MICHAEL IVERSON AGAINST A DECISION
OF COMMISSIONER RAFFAELLI AT SYDNEY
ON 31 MAY 2001 IN PR9O4772 RE
TERMINATION OF EMPLOYMENT

SYDNEY

1.37 AM, MONDAY, 16 JULY 2001

Hearing continuing

PN1

HIS HONOUR: Yes, I brought this matter on for mention at the request of the solicitors for Mr Iverson. In the circumstances the other members of the bench weren't able to sit so I brought this matter on for mention before myself. Can I have the appearances, please?

PN2

MR S. PRINCE: Yes, may it please your Honour I appear for the appellant.

PN3

MS H. McKENZIE: If it please the Commission, I appear on behalf of Qantas Airways, the respondent, and I have with me MS C. BURROWS from the company.

PN4

HIS HONOUR: Yes, thank you. Mr Prince?

PN5

MR PRINCE: Yes, thank you, your Honour, and thank you for listing the matter at such short notice for directions. The situation is that as the letter put to your Honour outlines there has been a recent change in solicitors. Senior counsel's advice was obtained on 9 July, the matter then came to those instructing me and then on 10 July my instructing solicitors wrote to the Commission. The previous timetable was that on 10 July submissions by the appellant were due and 17th July submissions by the respondent were due and the matter had been listed for hearing before a full bench on 24 July.

PN6

That timetable, in my submission, can no longer be abided to by the appellant for the reason that the case has changed subject to the change in solicitors and the change in representatives. The case has changed in this sense, the notice of appeal that is before the Commission at the moment deals with a number of matters in respect of Commissioner Raffaelli's decision going to a discretion that he exercised and the matters which he took into account and if I can say it is expressed within the same paradigm as the matter was run before the Commissioner.

PN7

The amendments to the notice of appeal, which I'll seek to put before the Commission, are that the first instance decision is unsafe because there has been a representative error and that representative error wasn't argued before the Commissioner and it wasn't argued by the same representatives that made the error. Now, in my submission, that's a very serious matter, it will require some evidence and it will require an amended notice of appeal and a different approach in submissions. I sought that the matter be relisted because I didn't think that it would be appropriate for the appellant to put in submissions which followed the existing notice of appeal.

PN8

If I can hand up to your Honour a proposed set of short minutes of order, a copy of which I have provided to my friend, which in my submission take account of the changed circumstances. You will see your Honour at order 1A that the appellant seeks an order that the existing timetable be set aside and a hearing date located in substitution of a new timetable at B. I haven't provided for dates for points 4 and 5 for obvious reasons.

PN9

HIS HONOUR: Yes, I've read it.

PN10

MR PRINCE: Thank you, your Honour. That's really all I have to say in respect of the timetabling.

PN11

HIS HONOUR: Why does the hearing date have to be vacated?

PN12

MR PRINCE: Simply as a consequence of the timetabling in B, your Honour, and to give the respondent an opportunity too, because at the moment the hearing date is set, as I understand it, for 24 July, which on the basis of the timetable in B would be one day after the evidence was in and I don't know if that would give my friends time to respond.

PN13

HIS HONOUR: I must say that I'm reluctant to agree to any change of hearing date in this matter, just a cursory viewing of the documents would indicate there have been so many delays in the matter. The matter has been listed - I think it has been listed for sometime - I see the listing was only notified, it was listed on 27 June, as I understand.

PN14

MR PRINCE: I don't have the benefit of the notice of listing, your Honour, this is the first that I've come into the matter and the first that my instructing solicitors have come into the matter and we came into it late last week. I also am loath to vacate the hearing date given the history of the matter that has dragged on for over two years but in my submission it would be a short delay and in my submission might save a lot of more time and - - -

PN15

HIS HONOUR: It might be a short delay in some senses but it might be a long delay in terms of when the bench can relist the matter and that's what creates problems. It is not that every member of the bench is available on every following day to hear this matter, we've listed it, the three members of the bench are available on that day. If we don't hear this matter on that day it is unlikely we can now list any other matter on that day, everything in the list goes back because this matter is not ready to proceed.

PN16

MR PRINCE: Yes, I do understand.

PN17

HIS HONOUR: As I said, I'm reluctant, very reluctant.

PN18

MR PRINCE: My only submission in that regard is that it is simply a question of the interest of justice because of the error that has occurred below and - - -

PN19

HIS HONOUR: I mean some of the matters that you might be asking me to do it is inappropriate that as a single member I make a decision on. The question of whether fresh evidence should be admitted at the appeal stage and things of that nature are matters which should properly be considered by the full bench.

PN20

MR PRINCE: Yes, your Honour. I have expressed order 2 in my submission to take account of that. It is simply an order that any evidence proposed to be adduced at the hearing be filed, it is simply an order for filing rather than for the acceptance.

PN21

HIS HONOUR: Why can't you do that forthwith together with what might be your outline of submissions, including the outline of reasons you say the notice of appeal needs to be amended, and assuming that it is amended what you wanted to put.

PN22

MR PRINCE: I'd simply put the date of 23 July as a week to allow time to put together an affidavit from the appellant. I'm quite prepared to do that in as short a time span as possible and it may be that could be done possibly by Wednesday if the appellant put everything into it. I'm happy to put aside time to do that if that assists the Commission, then that doesn't give my friend much time to respond but that's really a matter for them if the Commission wishes to keep the hearing date as it is.

PN23

HIS HONOUR: So you could prepare what might be the statement of evidence that you would be seeking, additional evidence that you'd be seeking to adduce by the close of business on Wednesday, and then what about the outline of your submissions could you have those - - -

PN24

MR PRINCE: I could do that by the same date at a pinch. Yes, well, if it is not done by then, I'm in a hearing on the Thursday, so if it is not done by the close of business on Wednesday then it won't be done in time in any event so I will have that done by Wednesday, your Honour.

PN25

HIS HONOUR: It only needs to be an outline, it doesn't need to be full submissions. So if you can do it by Wednesday, if you can do it by Thursday, even if you do it by Friday. This is all subject - I haven't heard anything that Ms McKenzie's going to say to me but I gather that she would also be aware I'm reluctant to agree to a change in the hearing date.

PN26

MS McKENZIE: Yes, your Honour, we oppose the vacation.

PN27

HIS HONOUR: If that concludes what you want to put, Mr Prince, I might hear from Ms McKenzie and then I might need to come back to you on some matters. Ms McKenzie?

PN28

MS McKENZIE: Thank you, your Honour. Qantas's position is to not consent and in fact oppose the vacation of the hearing dates. We will, I can foreshadow, although obviously it is subject in part to seeing the proposed new evidence but we are also likely to oppose any fresh evidence being admitted into the appeal. The matter is, as your Honour has observed, been one of some history and in part the reasons for that are set out in Commission Raffaelli's decision and in particular the delay between the hearing of the argument before Commissioner Raffaelli and the Commissioner giving his decision is at least in part explained by the request of the parties for the decision not to be finalised pending what I understand some settlement discussions or negotiations going on between the parties.

PN29

But leaving aside that delay there was of course a substantial delay between the termination of Mr Iverson and the filing of the unfair dismissal application and its that delay which is the subject of the decision of Commissioner Raffaelli in refusing leave to file out of time, and as your Honour will see from the file, approximately a six or seven month period in respect of which Mr Iverson had failed to commence his unfair dismissal proceedings and the consequence of that is that it is now almost on 18 months since the events which gave rise to the termination occurred and well over a year since the actual termination occurred.

PN30

So it is obviously not a matter that should hang around any longer. Qantas received the notice of appealing in the end of June and the Commission responded very promptly and listed the matter for appeal and it was only last week that Qantas became aware that there was now going to be really a complete change in the grounds upon which the appeal was going to be progressed. Qantas received, or Qantas solicitors received a copy of a letter from Mr Iverson's new solicitors dated 10 July, which referred to discussions which had taken place between Mr Prince and your Honour's chambers.

PN31

Now, that in itself is almost a week ago. As at 10 July there was still two weeks before the appeal date and we do not see any reason, if there was to be fresh evidence, why the new solicitors could not have got onto the job and provided Qantas with the new evidence so that at the hearing of the appeal on 24 July there could be an argument about whether or not the new evidence should be admitted. The new evidence we assume relates to the proposed new grounds of the appeal which raise for the first time the question of representative error and it is clearly, we think, relevant that representative error was not in any way, shape or form an issue before Commissioner Raffaelli. It has now been raised for the first time substantially after the hearing of the matter and reasonably long after the filing of the notice of appeal and the listing.

PN32

However, it is a matter for the Full Bench of course whether to grant leave to amend the grounds of appeal and whether to admit fresh evidence and we're content to have that matter argued and determined on the day of the appeal. We for our part, your Honour, if Mr Prince is able to provide an outline of his submissions and any new evidence which he proposes to seek leave to have admitted towards the end of this week we can provide a brief outline of submissions in time to have the matter argued on 24 July. We don't need a week or so from the filing of that evidence and in any case it is difficult to provide outline of submissions after the new evidence has been filed, which presumably we're intended to address, which the Full Bench may in fact not admit.

PN33

So it is obviously necessary for the new evidence to be put to the bench and leave to admit it sought and if necessary have that argument and then depending on the outcome of that decision the appellant's appeal may be of a very different character and we for our part will until such time as the Commission's has amended, the grant of leave to amend the notice of appeal and/or accept fresh evidence, we'll prepare the appeal on the basis of the existing grounds of appeal and we'll be ready to do that on the 24th.

PN34

HIS HONOUR: Yes, thank you. Mr Prince?

PN35

MR PRINCE: Yes, just a couple of points, your Honour. The point of this exercise in attempting to bring the matters before the Commission as soon as we became aware of them was so that my friends would be under no misapprehension about what the appeal is about. If the Full Bench decides that leave is not granted to admit the fresh evidence or to amend the grounds of appeal in the manner in which we seek to have done then in my submission the appeal really falls away, it is an all or nothing type of case. I don't know that - - -

PN36

HIS HONOUR: That's a rather big concession.

PN37

MR PRINCE: Yes, because that's the type of case it is about and there's been enough obfuscation here so far in the Commission below, it is all about representative error and - - -

PN38

HIS HONOUR: In the light of that concession maybe Ms McKenzie doesn't want to file an outline of submissions.

PN39

MR PRINCE: But we say the same reasons why the Full Bench would accede to our application are the same reasons that the Full Bench, in my submission, ought to exercise their discretion and accept the fresh evidence and all of the matters really are related. I don't know from what my friend has put it almost sounds as if there may a bifurcation of the case in the sense that the question of leave to amend the notice of appeal and leave to adduce the fresh evidence would be dealt on the 24th and then depending on the outcome of that the appeal properly might be dealt with sometime later. In my submission, all of the issues really are the same.

PN40

HIS HONOUR: Yes, I'm not sure you could read that into anything that Ms McKenzie said and you certainly cannot read it into anything that I said.

PN41

MR PRINCE: No, well I would be fine and content with that.

PN42

HIS HONOUR: I mean, it is a matter for the Full Bench when it convenes and clearly there would be more information available to the members of the bench at that time than there is presently available to me. But at this stage, as I've indicated to you, I'm reluctant to change the hearing date. I am prepared to vary the dates for the filing of certain material and what I propose when you finish is to go off the record for a moment in order to discuss with you and Ms McKenzie just what are the appropriate dates in which material should be filed. Yes, well that completes what you wish to put?

PN43

MR PRINCE: That's correct, your Honour.

PN44

HIS HONOUR: We will go off the record for a moment.

OFF THE RECORD [1.58pm]

RESUMES [2.02pm]

PN45

HIS HONOUR: I've discussed the amended timetable with the parties whilst I was off the record. The applicant should file with the Commission, and at the same time fax to Ms McKenzie an outline of submissions, and a statement, as to any evidence which is going to be sought to be adduced in the appeal by 4.30 pm this Friday, 20 July. Qantas should file an outline of its submission by 4.30 on Monday, 23 July, with a copy being faxed to the applicant's representatives at that same time. That concludes the matters that I'm asked to consider in these mention proceedings. As I indicated, the appeal hearing will go ahead as listed on 24 July and the Full Bench will consider any applications which might be made in relation to the hearing of the appeal at that time.

PN46

MR PRINCE: Your Honour, there is one further matter. The amended notice of appeal, should that be filed in the Registry, although presumably not moved on until its before the Full Bench.

PN47

HIS HONOUR: I think it would be appropriate for you to file that together with your outline of submissions. If you could provide an earlier indication to Ms McKenzie as to what that amended notice of appeal should be then I'm sure that would be appreciated. We will now adjourn.

ADJOURNED UNTIL TUESDAY, 24 JULY 2001 [2.04pm]