C2001/3656, Transcript of Proceedings [2001] AIRCTrans 2274 (7 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 9023
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER CRIBB

No C2001/3656

APPEAL UNDER SECTION 45 OF THE ACT
BY AUSTAIN FASTENERS AGAINST THE
FINDING AND ORDER OF COMMISSIONER
WHELAN AT MELBOURNE ON 13 JUNE 2001
IN NUMBER U2001/823 RE TERMINATION
OF EMPLOYMENT

MELBOURNE

10.07 AM, TUESDAY, 21 AUGUST 2001

PN1

MR M. McDONALD: I seek leave to appear on behalf of the appellant.

PN2

MR P. MOLOGOUSIS: Good morning. I am the respondent.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Mologousis, Mr McDonald is appearing as barrister and requires leave to represent the appellant. Do you have any objection to Mr McDonald representing the appellant in the matter?

PN4

MR MOLOGOUSIS: No, not at all.

PN5

SENIOR DEPUTY PRESIDENT WATSON: Very well, leave is granted, Mr McDonald.

PN6

MR McDONALD: Thank you, your Honour.

PN7

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, I might say that we have had an opportunity to read the written material submitted by each of the parties. I will mark the material submitted by Minter Ellison for the respondent exhibit A1 and the material provided by Mr Mologousis exhibit R1.

EXHIBIT #A1 WRITTEN MATERIAL SUBMITTED BY MINTER ELLISON

EXHIBIT #R1 WRITTEN MATERIAL SUBMITTED BY MR MOLOGOUSIS

PN8

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr McDonald.

PN9

MR McDONALD: Thank you. This is an appeal brought under section 45(1G) of the Act against the decision of Commissioner Whelan to the effect that the Commission had jurisdiction to entertain Mr Mologousis's application. Being an appeal brought under section 45(1G), the determination of the appeal is not subject to the principles in House v The King, but rather is to be determined by reference to whether or not the Commission as presently constituted is of the view that there was an error of law or fact in Commissioner Whelan's decision and the relevant authority for that proposition - if I can hand up a copy of that decision - is the judgment of the Full Court of the Federal Court in Sanatino v Foggo, the relevant passage appearing at paragraph 9 of the judgment. I will not read that. I simply draw that to the Commission's attention.

PN10

The Commission will have seen from the material filed with the appeal papers that on 18 May proceedings came on for hearing before Commissioner Whelan in which the company contended that there was no jurisdiction to entertain the application for reinstatement on the basis that Mr Mologousis was not an employee subject to an award and that his remuneration was in excess of the threshold limits of $71,200, there being no dispute that that was the relevant threshold at the time. There is also no dispute as between the parties that the combination of Mr Mologousis's salary and superannuation at the time of termination was $64,562. There is also no dispute between the parties that the value of the motor vehicle provided to Mr Mologousis, excluding fringe benefits tax, was $13,300 and there was also no dispute between the parties that the vehicle throughout the period of Mr Mologousis's employment was travelling approximately 2500 kilometres per month.

PN11

SENIOR DEPUTY PRESIDENT WATSON: There was a more precise figure, was there not, over the eight month period?

PN12

MR McDONALD: There was, and I think Commissioner Whelan has referred to that in her decision.

PN13

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN14

MR McDONALD: In paragraph 5, Commissioner Whelan refers to the figure that I have just referred to. Perhaps if I could come back to that. There is in the material more precise evidence on that point.

PN15

SENIOR DEPUTY PRESIDENT WATSON: That was the odometer reading.

PN16

MR McDONALD: Yes. I think it is fair to say that the difference is marginal and nothing turns on it for the purposes of the appeal. Now, in the proceedings before Commissioner Whelan on 18 May, Mr Mologousis contended that 39 per cent of the use of the vehicle was for private use, equating to an amount of $5199 which, when combined with his salary and superannuation, brought his remuneration to $69,761, some 14 or $1500 below the threshold. The respondent's contention was that the private use was within the range of - a minimum of 60, up to 90 per cent, giving him a remuneration within a range at the lower end of $72,560 and at the upper end of 76,559. The basis of the applicant's contention of 39 per cent private usage is found in paragraph 7 of the decision, if I could take the Commission to that. It states:

PN17

Mr Mologousis has stated the distance from his home to his place of work was 40 kilometres, or an 80 kilometre return trip. However, he stated ...(reads)... per month. This amounted to 39 per cent of private use of the vehicle.

PN18

Now, the Commission will note that Commissioner Whelan has referred there to the business travel planner and coming straight to the point, the Commission will see that in paragraph 15 of the decision, Commissioner Whelan made a finding of fact that she accepted the 39 per cent estimate. The business travel planner which underpins the 39 per cent figure is the critical item of evidence, in my submission, in the proceedings.

PN19

SENIOR DEPUTY PRESIDENT WATSON: The Commissioner, in fact, found in paragraph 16 that Mr Mologousis's estimate may have been a little low, but she was not satisfied that the company had established the roughly 50 per cent required to - - -

PN20

MR McDONALD: Well, there is some tension between paragraph 15 and 16, in my submission, your Honour. I am not sure at the end of the day, for the purposes of the argument I am going to advance, that anything turns on that, but can I go straight to the business travel plan document which the Commission will find immediately behind the transcript in the appeal papers. There is a document - immediately after the last page of transcript, there is a document headed annexure B, jurisdictional objection. Does the Commission have that?

PN21

SENIOR DEPUTY PRESIDENT ACTON: My copy of what I understand to be the business travel planner is actually towards - about two-thirds of the way through the appeal documents.

PN22

MR McDONALD: Yes. Well, in the papers I have, there is a four-page document. The first page is headed annexure B, jurisdictional objection and then some two or three pages into that there is a table.

PN23

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN24

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN25

MR McDONALD: And, in fact, on the final page of that four-page document there is a chart for the period May through to January on which Mr Mologousis has set out during various days of the month those occasions when he contends that either on his way to work, coming home from work or during the course of the day he was actually engaged in business on behalf of the company and it is by reference to this chart and the preceding page, you will see there is a break-down A, B, C, D, where he has broken down from the travel planner the different categories of business use and it is that break-down which underpins the observations of Commissioner Whelan in paragraph 7 of her decision where Commissioner Whelan has explained the basis of the 39 per cent private usage.

PN26

Now, that document, the business travel plan document, was provided for the first time to the company during the course of the proceedings on 18 May. As I understand the position prior to the proceedings, Mr Mologousis had been - an affidavit from a company director had been filed with the Commission and had been served on Mr Mologousis and an intention to rely on that had been foreshadowed, the position being that although this company operates in Melbourne, the management of the company is based in Perth, hence the affidavit which is filed in advance of the proceedings. Now, if I can come straight to the nub of the argument, it is this.

PN27

This document, the business travel planner document, is the critical document underpinning Commissioner Whelan's findings as to the extent of private usage of the vehicle. It was provided on 18 May to the company and was provided in circumstances where the company had no advance notice of the fact the document was to be relied upon. If I can take the Commission to paragraph 101 of the transcript, Commissioner Whelan at paragraph 101 says to Ms Groves, who is representing the company:

PN28

Is there anything further either of you wish to put? Otherwise, I will take the documentation and I will consider it.

PN29

Ms Groves says:

PN30

I suppose my only concern is I haven't had the benefit of - I know it is in a sense our own fault, but I haven't had the benefit of instructions in relation to the figures that Mr Mologousis has put and I just wondered if I could respectfully request an opportunity to provide the Commission with additional submissions on those figures.

PN31

The Commissioner says:

PN32

Look, I will make sure that you have a copy of the document that has been handed up.

PN33

Now, that was a document in relation to a January trip that is referred to in paragraph 7 which is in relation to a four-day trip that Mr Mologousis undertook in January and the material that he has submitted here in relation to the business travel planner from which he has derived his figures:

PN34

I don't think there is any difficulty in that. I am not going to let this matter continue on in relation to further evidence, however. If you wish to make submissions on the way he has calculated things ...(reads)... and I should indicate to you, Ms Groves, that the onus is on you.

PN35

And for the purpose of these proceedings, the company doesn't cavil with the proposition that there being a jurisdictional objection, that the onus was upon it. Now, the appellant's submission is this. If you look at Commissioner Whelan's decision, the business travel planner document is the evidence which underpins the finding of fact that she made in relation to the proportion of private use. The moment that Commissioner Whelan determined that the company was to be deprived of the opportunity of putting any further evidence in relation to the matters contained in the business travel planner document, the outcome of the proceedings was, with respect, a foregone conclusion.

PN36

Whilst the Commission has the power under section 110, it has a broad discretionary power in terms of the procedures which are to be adopted, in terms of admission of evidence and so forth, that power cannot be exercised in such a way which confers upon one party an advantage and imposes on the other party a clear disadvantage. Now, following on from 18 May, the company I think on 25 May, thereabouts, filed a written submission and if I can take the Commission to the written submission. I am sorry the appeal papers aren't numbered.

PN37

SENIOR DEPUTY PRESIDENT WATSON: It is immediately behind the transcript in my set of papers.

PN38

MR McDONALD: Yes. Well, I wanted to take you to paragraph 11 of the written submission. Does it begin with the words:

PN39

In particular, the respondent would draw the following matters to the Commission's attention.

PN40

SENIOR DEPUTY PRESIDENT WATSON: I can't find that. I have got 9 on the first page.

PN41

SENIOR DEPUTY PRESIDENT ACTON: What page is it?

PN42

MR McDONALD: It is page 3. It follows on - the submission that I wish to take the Commission to follows on from an affidavit which contains exhibits 4, 5 and 6 and there is an exhibit which is in the form of a handwritten letter on Austain Fasteners' letterhead. It is about halfway through the appeal papers and then immediately following on, there is a document headed submissions in reply to material presented by the applicant. Do you have that? I do apologise that the papers have not been numbered.

PN43

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.

PN44

MR McDONALD: At paragraph 11 of the submissions there are a series of matters which were advanced by way of contention which were directly responsive to the business travel planner and the first point which was made was challenging Mr Mologousis's estimate in terms of the distance between his home and work. The second matter under the heading client meetings attended by applicant, there are a number of issues which were raised here. The first was the company contended that according to its records, it could find no record of Mr Mologousis having attended at clients' premises on many of the occasions where he had so asserted in the business travel plan document. The second point was that on some 11 occasions when Mr Mologousis asserted in the business travel plan document that he had attended clients' premises, the company records, in fact, disclose that a sales representative had attended, then at the top of page 4 there is reference to the company's security system, the records of which disclosed that on a number of occasions when Mr Mologousis contended in his business travel plan document that he had visited clients either on the way to or home from work, the company's security system records showed him as the person who had either opened the company's premises or closed the company's premises being inconsistent with his assertion.

PN45

Then under the heading use of motor vehicle by the applicant after weekends, there is reference to the mobile phone in his car, the company's position being it was a mobile phone which couldn't be removed from the car and an analysis of the mobile phone records showing that on many occasions the mobile phone had been used on weekends or out of hours and then on page 5 there is a bullet point to the effect that to the extent that the vehicle may have been used by other employees of the company for business purposes, that the capacity for that was very limited. Now, those were the submissions which were made by the company. All of those submissions were underpinned - the evidence to support those submissions was underpinned by a further affidavit and the affidavit is the document which precedes in the appeal papers those submissions and it is headed responding affidavit by Nigel Cameron Webster. So the matters that I have taken the Commission through and which I should point out are summarised in paragraph 10 of Commissioner Whelan's decision, the evidence in support of those matters is contained in this affidavit and the supporting exhibits.

PN46

SENIOR DEPUTY PRESIDENT WATSON: In the whole matter there was no factual contest as to those matters, was there? Mr Mologousis relied upon his business travel planner, his estimate of how long in distance it took to get to work. The respondent says, well, we measured it differently. We have had a look at all these records. They show this. Mr Mologousis then provided his explanation of why those types of records wouldn't accurately reflect a position and it really came down to an interpretation as to factual material that really wasn't in issue, wasn't challenged. The telephone records show that. There were different explanations as to how the telephone was used.

PN47

MR McDONALD: With respect, your Honour, that characterisation is not correct. If one turns to the page that precedes the affidavit, the responding affidavit of Mr Webster, the correspondence from the Commission on 28 May, Commissioner Whelan refused to accept the affidavit. None of the factual matters, none of the evidentiary matters to underpin any of the submissions, the contentions, there was no evidence before the Commission to support any of that, because Commission Whelan wrote back and said as set out:

PN48

The Commission did not invite you to re-open your case, but to make submissions in response to those made in proceedings by Mr Mologousis on 18 May 2001. The affidavit with attachments of Nigel Cameron Webster is returned. The written submissions will be considered and a decision issued in due course.

PN49

SENIOR DEPUTY PRESIDENT WATSON: But she has then summarised the factual matters supported by that affidavit in paragraph 10 of the submissions of the - - -

PN50

MR McDONALD: There is no evidence before the Commission in relation to those matters and the ultimate decision in the case is hardly surprising. The only evidence before the Commission was the business travel plan document and Commissioner Whelan has made it very clear in this correspondence of 28 May that to the extent that there was an attempt to lead evidence, the evidence did not go in. In those circumstances - the ultimate findings of Commissioner Whelan, with respect, was virtually a foregone conclusion.

PN51

SENIOR DEPUTY PRESIDENT WATSON: Why would the Commissioner go to the bother of summarising the submissions that you say she has had no regard to?

PN52

MR McDONALD: They were in a document entitled submissions.

PN53

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN54

MR McDONALD: And Commissioner Whelan has said yes, this was a contention that was made. That is not evidence, your Honour.

PN55

SENIOR DEPUTY PRESIDENT ACTON: Wasn't the business travel planner in the form of submissions as well?

PN56

MR McDONALD: Yes, your Honour, but that is another dynamic to this case, with respect. In circumstances where the Commission has before it an applicant in person, the line between submission and evidence inevitably becomes blurred and there is authority which is referred to in the outline of submission to the effect that, yes, the Commission can rely upon a statement from a party, someone in the position of Mr Mologousis, which is made from the bar table and when he says on 100-odd days I was engaged in business activities and these are the days and this is the document which summarises that, the Commission is entitled to rely upon that, but the complaint of the appellant in these proceedings is, with respect, why wouldn't the company in circumstances where it is subject to the onus, why wouldn't the company have the capacity to put before the Commission evidence to rebut that contention? And that was what was denied to the company. With respect, it is as clear a case of denial of natural justice as one could ever see and the other point which, with respect, takes the matter even further is that when one looks at paragraph 15 of the decision, Commissioner Whelan has made a finding of fact based on the submissions in reply of Mr Mologousis to the affidavit material of Mr Webster which Commissioner Whelan would not admit into evidence.

PN57

SENIOR DEPUTY PRESIDENT WATSON: So the problem is the evidentiary material was incorporated in a submission, so it could have been a response to the submissions or the evidentiary material.

PN58

MR McDONALD: And this goes to the point about the blurring, where one has an applicant who is appearing on their own and is making assertions. The statement in the second sentence in paragraph 15:

PN59

I accept that such visits may not have always been recorded on clients' files.

PN60

Now, that finding of fact by Commissioner Whelan is based on her having denied the company the opportunity to put in evidence when an attempt is made to put the evidence in, sending the material back and making it clear that the evidence is not accepted, Commissioner Whelan then makes a critical finding of fact on the basis of Mr Mologousis's response, Mr Mologousis's response to the company, saying there are all these - the company's evidence is to this effect. We have files in relation to all of these companies that Mr Mologousis says he has visited. When someone visits the company, someone makes a note to that effect. We have checked the records. There is no record on any of these days Mr Mologousis says he has gone to this company, there is no record of him having been there. His response to that is, oh, well, you know, I didn't do it all the time for whatever reason and Commissioner Whelan has accepted that and that is quite critical to her ultimate finding of fact.

PN61

SENIOR DEPUTY PRESIDENT ACTON: Isn't the position in reality, though, that she has accepted everything that has been said as evidence, whether it be in writing or orally and notwithstanding the refusal of the affidavit, she has accepted as evidence the submissions which summarise the affidavit?

PN62

MR McDONALD: Good heavens, no. With respect, that is a conclusion which is simply not open, particularly when one reads, with respect, the fairly blunt manner in which the correspondence of 28 May has been expressed. If ever there was correspondence from a Court or Tribunal making it very clear that this is not being relied upon, it is that letter of 28 May. Commissioner, Whelan has made it quite clear I didn't give you leave to file further evidence. When the written submission was put in, the written submission on 25 May expressly sought leave to rely upon that affidavit. That request for leave to rely upon the affidavit was refused, as I say, in very blunt terms. No, with respect, your Honour, it is not open to characterise the case in the manner in which your Honour has postulated and therein lies the fundamental flaw in this reasoning.

PN63

COMMISSIONER CRIBB: Could I interrupt for a sec, Mr McDonald, just to pick up on what Senior Deputy President Acton has just asked you? What is it in the affidavit of Mr Webster that is not also contained in the submissions in reply to material presented by the applicant? What is it that Commissioner Whelan was missing?

PN64

MR McDONALD: If you read the submissions in reply, Commissioner, and this is one of the real problems in terms of the approach which Commissioner Whelan has taken, the submissions keep referring back to the affidavit, paragraph 11, first bullet point, last sentence:

PN65

This matter is referred to in paragraph 7 and paragraph 8 of Webster's affidavit.

PN66

COMMISSIONER CRIBB: Which bullet point in paragraph 11 would you like to take?

PN67

MR McDONALD: The first bullet point.

PN68

COMMISSIONER CRIBB: Mr Webster's affidavit is paragraphs 7 and 8, correct?

PN69

MR McDONALD: That is correct, and an annexure thereto.

PN70

COMMISSIONER CRIBB: What precedes that is a statement that says that the respondent's view is that the applicant's claim is 46 kilometres away from the office, not 40.

PN71

MR McDONALD: That is correct.

PN72

COMMISSIONER CRIBB: So paragraph 7 of Mr Webster's statement says exactly the same thing, right?

PN73

MR McDONALD: Yes.

PN74

COMMISSIONER CRIBB: Okay, so therefore, given that Commissioner Whelan accepted the submissions in reply, she therefore accepted or took consideration of the respondent saying that it is 46 kilometres, not 40.

PN75

MR McDONALD: No, that is not evidence, with respect. It raises a fairly fundamental question in these proceedings. The issue in the case involves a question of jurisdictional fact. The Commission makes a finding in relation to jurisdictional fact. Whether it be a dispute finding under section 101, whether it be the issue of whether or not someone is an employee or an independent contractor, whether it be the issue of whether someone is earning more than $71,200, the Commission makes the finding on evidence. Submissions are not evidence.

PN76

COMMISSIONER CRIBB: But as Senior Deputy President Acton indicated earlier, the material, the business travel planner and the submissions by the respondent were actually on the same footing in a practical sense. They were both unsworn.

PN77

MR McDONALD: The difference is that was clearly accepted. The evidence in relation to these matters was clearly rejected and Commissioner Whelan has made very clear on 18 May, I am not interested in further evidence, you can give me submissions about how these figures are packaged and how you do the calculations, I don't want further evidence and at that point in time, Commissioner Cribb, on 18 May, the only evidence before the Commission, unless rebutted, compelled the conclusion that Mr Mologousis was under $71,200.

PN78

COMMISSIONER CRIBB: But I thought that the evidence was unsworn, because the business travel planner wasn't sworn.

PN79

MR McDONALD: But the Commission can rely upon a statement from the bar table. I have referred to the authorities in the outline of submission, the Tramways Board case.

PN80

COMMISSIONER CRIBB: So you are basically saying that if the Mr Webster's affidavit, which was sworn, had been allowed into evidence, it would have changed the basis on which - it would have changed Commissioner Whelan's decision?

PN81

MR McDONALD: It would have to have had. Commissioner Whelan could not possibly have decided the case on the basis that she has in the decision in paragraph 15. Commissioner Whelan would then have had evidence before her, there would have then been actual evidence admitted in the proceedings directly rebutting Mr Mologousis's claims as set out in the business travel plan and Commissioner Whelan, in order to comply with the principles in Edwards v Giudice and the obligation of the Commission in contested arbitration proceedings to deliver a reasoned decision, establishing the chain of reason which leads to a particular conclusion, Commissioner Whelan would have to have indicated why Mr Mologousis's evidence is to be preferred over that of the company. In a practical sense - - -

PN82

COMMISSIONER CRIBB: But is that a different issue? That is providing an explanation for the logic, the chain of logic and reasoning. You are talking about - I think what you are trying to say, Mr McDonald, if I understand you correctly, is that it would have then been a contest of sworn evidence versus unsworn evidence and on the basis of the principles you have just outlined, the sworn would have to win the day, whose ever it was.

PN83

MR McDONALD: That is one option. The other options would have been that Commissioner Whelan, if the evidence had been admitted, may have come to the view, well, there is contested evidence here, the company is asserting that Mr Mologousis has been untruthful in the material that he has represented to the Commission, there is going to be a need to make some findings in relation to these contested matters, there is going to be a need to make some findings of credit and there would need to be further proceedings.

PN84

COMMISSIONER CRIBB: So further inquiry.

PN85

MR McDONALD: There would need to be a further inquiry.

PN86

SENIOR DEPUTY PRESIDENT WATSON: Would another option have been to have said, well, I won't grant in effect an adjournment, it is your application, you haven't brought persons able to give evidence, or instruct you, I will determine the matter on what I have heard?

PN87

MR McDONALD: Yes, that in itself would have been a most unfair ruling, given the fact that the material was presented to the company without any notice at all.

PN88

SENIOR DEPUTY PRESIDENT WATSON: Well, in the context of the normal process, where directions are issued to the objector to provide the materials they are relying upon and experienced practitioners would know how the process operates and presumably have persons who are able to give evidence or instructions available.

PN89

MR McDONALD: That issue doesn't arise in the case, with respect, because Commissioner Whelan just made a ruling, no further evidence. With respect, and I go back to the question about the actual decision itself. In my submission, when one looks at paragraph 15 and the ultimate conclusion which Commissioner Whelan has reached, it simply reflects the complete absence of any evidence before the Commission to rebut the business planner. The company should have been allowed the opportunity to put that material. For whatever reason, Commissioner Whelan, notwithstanding the fact that there was an issue of jurisdiction, notwithstanding the fact that the onus in relation to that matter was on the company, on 18 May chopped the company off at the legs by saying you can't lead evidence to rebut the business planner and the company lost. That is an unremarkable, unsurprising outcome, given what, with respect, was an unreasonable and procedurally unfair ruling which clearly advantaged Mr Mologousis and I have referred the Commission to Freshmore's case and Egan's case in the outline of submission and the principles set out in those cases apply directly to paragraph 29.

PN90

SENIOR DEPUTY PRESIDENT WATSON: Would that evidence have altered the result?

PN91

MR McDONALD: I beg your pardon?

PN92

SENIOR DEPUTY PRESIDENT WATSON: Would that evidence have altered the result?

PN93

MR McDONALD: It would have altered the decision. You couldn't possibly have had a decision in those terms. It would have altered the result. It would have necessitated - - -

PN94

SENIOR DEPUTY PRESIDENT WATSON: Not necessarily the outcome.

PN95

MR McDONALD: That is going to require - if the Commission accepts the natural justice point, there will have to be further proceedings. There is a clear challenge in relation to the matters which go to the heart of whether or not the Commission has got jurisdiction. Findings of fact will have to be made as to whether or not on the days the company says Mr Mologousis did not visit these company clients, whether or not he did in fact make those visits. There is a substantial factual controversy.

PN96

SENIOR DEPUTY PRESIDENT WATSON: But the affidavit of Mr Webster wouldn't have assisted in that regard. It simply says:

PN97

On our records, there was no visit by Mr Mologousis on that day.

PN98

MR McDONALD: Yes, but, with respect, your Honour asked me the question whether the affidavit would have altered the decision. It would have altered the decision because Commissioner Whelan couldn't simply have come to the decision that she did if the evidence was there. It would have had to have been considered.

PN99

SENIOR DEPUTY PRESIDENT WATSON: But would it not be possible to consider the material and say, well, yes, there is no record on the company records, there is a record on Mr Mologousis's - in the absence of any other evidence, on the basis indicated, I prefer the record of the business travel planner?

PN100

MR McDONALD: On what basis, with respect? That is not decision-making. That is pure speculation. No-one has got in the witness box, no-one has been challenged on the evidence. You have got the business travel plan document from Mr Mologousis and he says I did visit all of these places. You have got the company's records, the security system, the mobile phone, which tell a completely different story. The Commission, with respect, can't just toss a coin up in the air and say heads you win, tails you lose.

PN101

SENIOR DEPUTY PRESIDENT WATSON: Well, it can say the onus is on you, if you haven't made out the regulation that applies in these circumstances.

PN102

MR McDONALD: That just reinforces my point, your Honour, that, with respect, you don't say the onus is on you. By the way, you can't lead any evidence.

PN103

SENIOR DEPUTY PRESIDENT WATSON: No, that is not the issue. I asked you if the affidavit were admitted, would it affect the outcome. I am not saying in the circumstances where the affidavit wasn't allowed. In the circumstances where the affidavit were admitted, would it have affected the outcome? It would have led to a position where you have one set of records saying one thing, other company records saying another thing and absent other evidence, no means of resolving it other than what was more likely to more accurately reflect the position.

PN104

MR McDONALD: Well, with respect, that proposition is not to the point on the appeal and whether or not there is an error of law.

PN105

SENIOR DEPUTY PRESIDENT WATSON: Well, it is to this extent. If there is no point which arises from the denial of natural justice if on the materials which were denied it makes no material effect.

PN106

MR McDONALD: Your Honour, these aren't prerogative writ proceedings.

PN107

SENIOR DEPUTY PRESIDENT WATSON: No, they are appeal proceedings.

PN108

MR McDONALD: They are appeal proceedings and the issue of whether or not relief is granted is not overlaid by some sort of discretionary consideration which might apply in prerogative relief proceedings. The question is was there a denial of justice in circumstances where a party bearing an onus is denied the opportunity to lead evidence which goes directly to its capacity to discharge the onus?

PN109

SENIOR DEPUTY PRESIDENT WATSON: You say the Full Bench is not entitled to have regard to that evidence and say, well, even if it were admitted, the appropriate outcome would be this. We will grant leave, we will determine it and having admitted that material, this is the outcome.

PN110

MR McDONALD: Well, the Commission can have regard to it and I ask the Commission to have regard to it, but, with respect, the Commission itself as presently constituted would be falling into error if, absent the opportunity for anyone to be tested in relation to the matters contained in that evidence, it was to simply make a finding, oh, well, you haven't discharged the onus. That in itself would be a most unfair outcome.

PN111

SENIOR DEPUTY PRESIDENT WATSON: All of that evidence really goes only to what is recorded on documents.

PN112

MR McDONALD: I am sorry?

PN113

SENIOR DEPUTY PRESIDENT WATSON: All of that material only goes to what is recorded on its face in documents.

PN114

MR McDONALD: I accept that.

PN115

SENIOR DEPUTY PRESIDENT WATSON: The security records and the phone records, the business travel planner.

PN116

MR McDONALD: And in turn it all goes to the question of whether or not in fact the Commission has jurisdiction to entertain the application. At the end of the day, it is a short point. It is a natural justice point, there was an onus there. Commissioner Whelan made what, with respect, was a fairly extraordinary ruling, to deny a party the right to lead evidence in relation to a matter where it bears the onus in circumstances where at the time the ruling was made, the material before the Commission, unanswered, Commissioner Whelan having been informed that a party was not in a position to challenge that evidence on the day, Commissioner Whelan makes a ruling, no further evidence. That is just not fair and proceedings in the Commission should not be conducted that way.

PN117

SENIOR DEPUTY PRESIDENT WATSON: And nor should parties attend in a position totally unable to respond to evidentiary material, but that is a different point altogether and not one immediately relevant, so I don't ask you to address it, but I make the point.

PN118

SENIOR DEPUTY PRESIDENT ACTON: Could I underscore that point, Mr McDonald? It is a separate issue to this appeal, but I am concerned that Minter Ellison writes to the Commission the day before the hearing, knowing the applicant is unrepresented, saying here is the affidavit we intend to present tomorrow and the swearer of that affidavit will not be available, but we can answer the questions. I just ask you to pass that on to your client, that potentially that places the Commission in a very difficult position and could lead to a waste of public resources.

PN119

MR McDONALD: Yes, I will pass those observations on. The further point that I wanted to make, which is a discrete point from the natural justice point, is the issue of the actual adequacy of the reasons which have been given. Now, in my submission paragraph 15 does not disclose any reasoning process and this issue, with respect, is tied up with the point which Commissioner Cribb has raised as to whether or not Commissioner Whelan has, in fact, had regard to those matters which are summarised in paragraph 10 of the decision, being the various contentions which emerge from the submissions in reply.

PN120

SENIOR DEPUTY PRESIDENT WATSON: The second sentence suggests the Commissioner has had regard to at least one of those matters:

PN121

I accept that such visits may not always have been recorded on a client's file.

PN122

That is absolutely unnecessary absent any consideration of the files.

PN123

MR McDONALD: That is not in the company's material. That emerges from Mr Mologousis's submissions in reply, that statement.

PN124

SENIOR DEPUTY PRESIDENT WATSON: Yes, but if, as you say, the Commissioner has relied entirely and only on the business travel planner records, however inappropriate or unwise it was for Mr Mologousis to respond to the company material, it wouldn't be totally unnecessary to make any reflection upon that second point.

[10.55am]

PN125

MR McDONALD: Well, I accept that. Commissioner Whelan has relied on the business travel planner and Commissioner Whelan has accepted, has made a finding of fact accepting Mr Mologousis's rejection of the company's claims in relation to whether or not he was visiting clients or not. One reads the decision and it is simply not possible at all to discern from the decision on what basis Commissioner Whelan has preferred Mr Mologousis's view to that of the company. However, one can readily draw the inference that the basis upon which Commissioner Whelan has preferred the view of Mr Mologousis to that of the company is that there was simply no evidence at all to support the contrary proposition. Now, all of those submissions are all under the umbrella of natural justice, but the Commission will see that in paragraphs 45 onwards of the written submissions - does the Commission have that?

PN126

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN127

MR McDONALD: That what has been advanced there is an alternative approach to the determination of what is the value, the remuneration which should be attributed to the use of a motor vehicle and we accept at the outset that the approach adopted by Commissioner Whelan was consistent with the approach which has been endorsed by Full Benches of the Commission and I have made reference to - there is reference to Fewing's case in paragraph 49 which is if I can call it the conventional approach to determining the value of a motor vehicle. Now, in my submission, this Full Bench should not regard itself necessarily as constrained by that conventional approach and I invite the Commission as presently constituted and it is my submission that it would be appropriate for the Commission to take the opportunity which is raised by these proceedings to look afresh at what is the appropriate approach to determining the value to be attributed to a motor vehicle.

PN128

SENIOR DEPUTY PRESIDENT WATSON: Am I right in thinking the major deviation from past authority you are suggesting is that all fixed costs should be apportioned to the employee?

PN129

MR McDONALD: Yes, your Honour, on the basis that - well, the conceptual approach underpinning this alternative means of determining the value is to identify what is the intrinsic value of an employee, irrespective of the amount of private use qua business use, what is the intrinsic value of being provided with a vehicle and irrespective of the amount of private use/business use which is actually utilised, that the vehicle is utilised, there are costs incurred by the employer which will be incurred irrespective of the extent of usage and those are costs which, if the employee was in the position of providing his or her own vehicle, those are costs which would be incurred, so it is on that basis it is submitted that - - -

PN130

SENIOR DEPUTY PRESIDENT WATSON: If they chose the same vehicle or, indeed, a vehicle at all.

PN131

MR McDONALD: Yes, your Honour.

PN132

SENIOR DEPUTY PRESIDENT WATSON: There have been cases where some person has accepted the vehicle, but used for no private purposes other than travelling to and from work, which is broadly what Mr Mologousis has put in these proceedings as well. There have been cases where a person has said, well, had the company not provided a car, well, I would have had a vehicle, but it would have been a $3000 wreck which I use, given I only use it 10 kilometres for private usage to visit my mum in the nursing home.

PN133

MR McDONALD: Yes, but in circumstances where a vehicle is actually provided, it is reasonable and appropriate in my submission to actually look at that particular vehicle and if it is not a $3000 wreck, if it is a Ford Fairmont Ghia, the employee has the benefit not of driving a $3000 wreck, but the Ford Fairmont Ghia.

PN134

SENIOR DEPUTY PRESIDENT WATSON: It depends how the intrinsic value arises. I mean, I use a vehicle to get from point A to B and I am not terribly concerned about the quality of the stereo or seating and all the rest of it, so the intrinsic value varies considerably. It is a very subjective thing, is it not?

PN135

MR McDONALD: There clearly is an objective component. That is, what does it actually cost and are those costs incurred irrespective of extent of private/business usage. Anyway, the submission is set out.

PN136

SENIOR DEPUTY PRESIDENT WATSON: Just one final point on that. Why wouldn't one take the alternate view? In circumstances where the company provides a vehicle to directly assist in the generation of business income and also for reasonable personal use, why wouldn't you say, well, if we are providing a vehicle to assist in generation of business income, we are lumped with the fixed cost for that purpose and none of the fixed costs should be attributed to the personal usage?

PN137

MR McDONALD: Because within the statutory framework of regulation 30BB, for the purposes of that provision there is an acceptance of the proposition that even in the circumstances as your Honour postulates, that the provision of a motor vehicle will have a remunerative value and a benefit to the employee, so in those circumstances it is legitimate and in my submission it is consistent with regulation 30BB to look at the equation from the employee benefit perspective rather than the employer benefit perspective and when one does so, one comes back to the proposition, well, if the employee was driving his or her own vehicle in to work each day and driving to the supermarket and going on outings on the weekend, there are going to be costs which are to be incurred.

PN138

SENIOR DEPUTY PRESIDENT WATSON: But that is just inconsistent with the - for example, where a person uses their own vehicle for some private usage, the kilometres allowances provide for some fixed cost component within the payments made, recognising the business usage contribution to the fixed costs. I mean, doesn't all that really point to the fact that we should continue to rely on the past authorities that attribute the costs, all of them, fixed and variable, between personal and private usage?

PN139

MR McDONALD: Yes, well, I acknowledge there is a corresponding view and I acknowledge there is Full Bench authority which supports - sorry, an alternative view and I acknowledge there is authority to that effect, but I am inviting the Commission to take a different view. I rather glean that it is not one which is going to be warmly embraced and I don't think I will take the matter - - -

PN140

SENIOR DEPUTY PRESIDENT WATSON: Well, it is one in the context of the policy which in part is to provide the vehicle for the generation of business which doesn't immediately attract me. I will consider it further and my colleagues might have other views.

PN141

MR McDONALD: Yes, well, that is the alternative submission. The principal submission advanced in this case is the natural justice point and can I say this. If that submission is accepted, well, the question does arise as to what should happen with the further conduct of the proceedings and in my submission this would be an appropriate matter for the Commission to make an order remitting further conduct of the proceedings to another member of the Commission or a member of the bench as presently constituted.

PN142

SENIOR DEPUTY PRESIDENT WATSON: Why is that? If you are correct and the Commission has simply failed to hear the evidence, would it not be appropriate to refer it back to the member at first instance and ask them to do what you say she should have done in the first instance?

PN143

MR McDONALD: Well, if that is a course that the Commission wished to follow, I wouldn't cavil with that. I make the submission that the matter perhaps is appropriate to be referred to another member of the Commission on the basis that that outcome is consistent with the decision at first instance which is being attacked for a denial of natural justice. I appreciate it is not a bias point.

PN144

SENIOR DEPUTY PRESIDENT WATSON: Yes. It is the same approach the Federal Court takes on referral to - in matters such as Sanatino and the like.

PN145

MR McDONALD: Yes, your Honour.

PN146

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Mologousis.

PN147

MR MOLOGOUSIS: Yes, your Honour. I must apologise. I am not au fait with Court procedures, your Honour, so just bear with me, please.

PN148

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN149

MR MOLOGOUSIS: I would like to have legal representation, but unfortunately, for reasons, I am unable to do that.

PN150

SENIOR DEPUTY PRESIDENT WATSON: This is the document you have already provided, Mr Mologousis?

PN151

MR MOLOGOUSIS: That is correct.

PN152

SENIOR DEPUTY PRESIDENT WATSON: Very well, that has already been marked as exhibit R1.

PN153

MR MOLOGOUSIS: I was asked for three copies. It is the same document.

PN154

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN155

MR MOLOGOUSIS: Is it appropriate to go through the document, your Honour?

PN156

MR MOLOGOUSIS: Well, we have had the opportunity to read it, but certainly if there are particular matters you want to draw to our attention, do so, but we have read the material, Mr Mologousis.

PN157

MR MOLOGOUSIS: It appears that the case of the appellant is directly against my business travel planner which I submitted - - -

PN158

SENIOR DEPUTY PRESIDENT WATSON: Well, the case of the appellant in essence, putting aside the last point we were discussing, which is the appropriate - the last point was the appropriate approach for the Commission to take in trying to ascertain the private value of the vehicle, but beyond that, the issue was essentially a natural justice issue, that you advanced certain materials and the appellant is saying that they sought an opportunity to bring evidence in response to that and were denied the opportunity to bring that evidence in response to that.

PN159

MR MOLOGOUSIS: It just appears from Commissioner Whelan's decision that although she did say on 18 May that she didn't ask the respondent to open a new case with new evidence, in her decision she has made reference to a lot of those submissions made by the respondents. She has considered their measurement of 46 kilometres against mine of 40 kilometres and accepted my distance, being a local to the area, familiar with the road developments of Footscray, around the docklands and Burnley Tunnel to Dandenong, whereas the evidence from the respondent I think is from an existing employee who lives in Bayswater, so she may have considered that someone living in Bayswater may not be as familiar with the most direct route than me, who is living in Footscray and understands the road developments and the freeway system to Dandenong and, in fact, my response to the submissions gave many reasons for that.

PN160

As far as the distance goes, there was a document by the employer suggesting that the distance was 46 kilometres between Footscray, my home, to the office, approximately 30 minutes duration, so I find it almost impossible to travel 46 kilometres in 30 minutes from one side of town to the other, so obviously she did consider that. The other things mentioned by the appellant as far as records, basically they used the security code monitoring system at the branch. We were only a small branch. There are five employees there. I was State Sales Manager, responsible for the branch, the profit and loss of the business, the sales activity and also the warehousing and the supervision of the staff, so I had quite a responsible position and at times where there may not be a record shown on an existing customer file, I deemed it whether I was too busy, I had other distractions or maybe there wasn't enough quality information to put down on the document.

PN161

I am only human and sometimes we don't always do things in accordance with the rules and regulations. As far as some files where they mentioned that there is no record, that would be the case where there is no files exist. Not only did I call on existing clients, but I was looking to generate more business income and also trying to seek some new business, new customers, new products, new markets. Those records unfortunately the appellant would be unable to justify and it is no fault of the appellant, because there is no - those files don't exist. There was also the visits where I would call on other people within the industry.

PN162

My role was to generate more sales, to find new markets and to do that, I had to converse with other people within the industry. Some were competitors, some were other distributors, some didn't have a direct association with the company that I represented, but it was collecting information and data to help me perform my job in accordance with the duties and to do it as best I could. On the security code, because we were a small branch, it was important that we didn't rely on any one individual to open and close the branch, so basically there were two security codes available. My most senior employee had one. He had been with the company for 15 years, a gentleman in his 60s, was happy to use his security code, but the other gentleman didn't have one and I didn't ask the company to provide one for them because I didn't think it was necessary. He could have used a common security code, which was mine, so unfortunately when the appellant says that where I said I made a client visit, I was actually closing or opening the premises.

PN163

It wasn't actually me. It was just the security code allocated to my name that was being used. It seemed sensible at a small branch that we could all open and close the place. It wasn't a big corporation. It was very small. All of us were hands on, so it was open and close on a first in, last out basis, so I don't think you can make any direct relationship between my whereabouts with the security monitoring system. They also mentioned that from the use of the telephone card, which was a fixed phone in the vehicle, they could also determine my whereabouts. I found it difficult using the fixed telephone because often I would go back to my car and there would be a lot of messages, so most of that was after hours. If I was in the office all day, go back to my vehicle after hours and there would be a number of messages and that may have been on the phone for up to four, five, six hours, people that rang in the morning, so it wasn't convenient to have a fixed phone in the position I was in.

PN164

We were trying to grow the business. We were trying to build relationships with our clients and they were demanding better service, particularly from the State manager, who I was, so I had my own personal mobile, so I simply just removed the SIMM card from the car phone and used in my personal phone. I didn't think there was anything devious with that. I just thought it was a way of managing my time and providing better service to our customers and that phone was with me 24 hours a day, so if I was out of an evening, occasionally I would make a personal call on my telephone. I tried to limit the calls to business, but occasionally some personal matters needed to be addressed and I used the phone wherever I was, so using the phone did not determine my locality at all.

PN165

In Commissioner Whelan's decision, although she said she didn't offer to open the case, she did make reference to all those comments and she made reference to the SIMM card, that it is quite a reasonable thing to do. She also made reference to the security code, that, yes, that is something that we do. I am working with a company now, just started work with a new employer and we are all using the same code. There is no need to have individual codes in a small operation. She also made mention about the distance, that, yes, I am saying 40, they are saying 46, but I live in the area. I have been driving there for eight months and my objective was to get there as quick as I could. It is a long drive from Footscray to Dandenong and I didn't want to spend more than an hour on the road, so I did find the most direct route, that is for sure.

PN166

She also accepted that at times you don't make entries in customer files. We are not all perfect. I couldn't be bothered sometimes. I had too many other priorities. I had - staff weren't well and they have got partners. They need time to share with them and I am dealing with other matters and just not trying to generate business, so I had to manage my priorities. As far as the remuneration of the vehicle goes, I should direct the bench to the employment contract, because the employment contract clearly states that the vehicle was to be used for company business and provided to assist in generating business income.

PN167

I couldn't perform my role without the use of the vehicle. The vehicle was provided to me so that I can make client calls, go out and seek new business and represent the company. They needed to improve their image and just get some more representation out on the road. Although we had a sales representative, he didn't join us until probably two months. I employed him two months after I commenced, so there was some training with the sales representative as well, but to perform the duties that were in accordance with the employment contract, I needed the use of the motor vehicle, so the remuneration to me, that is the private benefit, should be proportioned between what is considered as private use and what is considered as business purposes, not the total cost of that vehicle.

PN168

I prepared the business travel planner to show the difference between business and private use and that was directly from my diary, visits that I made. I accept that some were not recorded. I do not accept that there were no records. I question that and I am not privy to the customer files, unfortunately, the employers files I am not privy to. I am happy to bring them all in and go through them, but I know that a lot of records would be made and there would be some that wouldn't be made.

[11.19am]

PN169

I notice with the security monitoring system it shows that I did visit a client and I also closed the premises, so that - obviously it wasn't me closing the premises, if I visited a client. As for the appellant's case with regard to business use, they have come up with 89 per cent was private and 11 per cent was business which was a figure of about 2500 kilometres of business use only. They haven't considered my four-day trip in January which was a total of 1500 kilometres, yet they can come up with a figure of business use was only 2500 kilometres. I don't know how that was derived. As I have mentioned in my submissions, they haven't considered their motor vehicle policy which clearly would have brought the figure to somewhere around about 44 per cent to 59 per cent, in their own motor vehicle policy where they say that:

PN170

Reasonable personal use would be defined as between 15,000 to 20,000 kilometres per year.

PN171

Given the odometer reading at 22,573 kilometres, it would be fair to say that the annual distance would be around about 33,860 kilometres and if I calculate that from their motor vehicle policy, at 20,000 kilometres remuneration would be $72,442, not much more than the $71,2000 that we are arguing here today, yet they come up with figures of 89 per cent, 60 to 80 initially, then 90, then 89 per cent. It seems like I have submitted evidence to show that there is a proportion between private and business use, some calculated evidence, as in the business travel planner.

PN172

The appellant's case lacks any evidence. They used the accountant's submission between 60 and 80 at the figures they were given by the employers. They submitted the motor vehicle policy as evidence. They submitted the employment contract as evidence, but they never used it in their own case. They said their figures seemed based on merely their own idea of usage. There was no evidence of usage there, so their case seems to be that they are trying to shoot down the business travel planner. Commissioner Whelan, although she didn't offer to open up the case, obviously in her decision she made mention to all those points, the distance, the SIMM card, the security records, the monitoring system and I clearly think that she made a judgment based on the information that was available to her and it was fair and reasonable that I do fall within the jurisdictional amount of $71,200. I once again emphasise that without the vehicle, I could not perform my job.

PN173

It was clearly stated to me by the director and the national sales manager that I had to generate business income. My job and my performance was measured on generating business income. I couldn't do this without the use of the vehicle. I couldn't do this without face to face contact. I couldn't do this without going to trade shows, meeting people within the industry and cold calling, prospecting new leads which unfortunately the appellant would not have these records of files on their premises and can't justify this. Some things cannot be justified and unfortunately I can't justify - I can justify where I have been from my diary and I understand the appellant, where they cannot justify some of those things, but I am sure if you look at the record, you will find a large proportion, a large percentage of my business travel planner would be accurate. Once again I just refer your Honour to the motor vehicle policy and I will just read this:

PN174

The company provides a vehicle to directly assist in the generation of business income and is also for reasonable personal use outside of normal business hours.

PN175

I used that vehicle for business purposes, but I also did use it for some private purposes as well, but it was only very minimal. I live alone, I don't have a young family, I don't need to do the weekend trips with a young family. Footscray is I guess city fringe these days, with the way the city is sort of moving out to the docklands and most of my socialising or evenings would be done in the CBD in Melbourne and I would go by taxi. I notice in the policy there was a comment regarding driving while drinking, so I adhered to that. My shopping and provisions I needed, I would do it on the way home and if I had to do it on the weekends, well, I did it in the local area, so although I did use the car for private purposes and it did help me, I didn't abuse that and I didn't go driving all over Australia and Victoria.

PN176

Again I am firm with the business travel planner, your Honour. The records that I have submitted to the best of my knowledge are accurate and I do say that 39 per cent was related to private use only and I do believe in this case Commissioner Whelan has considered all the submissions and made a judgment that I would say would be fair and reasonable from the evidence submitted. I don't think I should say any more. Thank you.

PN177

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you, Mr Mologousis. Anything in reply, Mr McDonald.

PN178

MR McDONALD: No, thank you, your Honour.

PN179

SENIOR DEPUTY PRESIDENT WATSON: We will adjourn briefly to determine whether we are able to deliver a decision.

SHORT ADJOURNMENT [11.28am]

RESUMED [11.42am]

PN180

SENIOR DEPUTY PRESIDENT WATSON: Yes, we are able to announce a decision in the appeal. This matter concerns an appeal against the decision of Commissioner Whelan in Mologousis v Austain Fasteners dated 13 June 2001, print PR905195. In the decision, the Commissioner decided she was not satisfied that Mr Mologousis's section 170CE(1) application was outside the Commission's jurisdiction. The Commissioner was not satisfied Mr Mologousis's remuneration was above the threshold established by section 170CC and Regulation 30BB.

PN181

In so deciding, the Commissioner refused Austain leave to adduce additional evidence contesting material advanced by Mr Mologousis during the hearing before her, material Austain had not seen prior to the hearing and during the hearing the legal representative of Austain indicated she had not had the benefit of instructions in relation to the material and requested the opportunity to provide additional submissions on the material. At the hearing, the Commissioner said she would give Austain the opportunity to put submissions on the material, but would not accept further evidence on it.

PN182

On 25 May 2001 Austain provided submissions and an affidavit from Nigel Cameron Webster dated 24 May 2001 in relation to Mr Mologousis's material. The Commissioner subsequently wrote to the solicitors for Austain advising she would not accept the supporting affidavit of Mr Webster in relation to that material. It is clear from paragraph 14 of the Commissioner's decision that she regarded the statements and material advanced by Mr Mologousis during the hearing as evidence. It is also clear in paragraph 9 of the further written submissions on behalf of Austain that Austain challenged the content of the material relied upon by Mr Mologousis.

PN183

In relying on the material of Mr Mologousis in these circumstances and refusing to accept the affidavit from Mr Webster dated 24 May 2001, we consider the Commissioner denied Austain natural justice amounting to an error of law. Accordingly, we grant leave to appeal in this matter and uphold the appeal. We quash the decision of Commissioner Whelan of 13 June 2001 and direct Commissioner Whelan to take further action to deal with the jurisdictional objection of Austain to Mr Mologousis's section 170CE(1) application having regard to this decision. We will refer the matter back on that basis to Commissioner Whelan and now adjourn.

ADJOURNED INDEFINITELY [11.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN MATERIAL SUBMITTED BY MINTER ELLISON PN8
EXHIBIT #R1 WRITTEN MATERIAL SUBMITTED BY MR MOLOGOUSIS PN8