R2001/184, Transcript of Proceedings [2001] AIRCTrans 2641 (4 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 0343
WORKPLACE RELATIONS ACT

MR T. NASSIOS, Deputy Industrial Registrar

R2001/184

REQUEST BY WILLIAM JACOMB PURSUANT
TO SECTION 268(12) OF THE WORKPLACE
RELATIONS ACT IN RELATION TO THE REGISTER
OF MEMBERS OF THE AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION (VICTORIAN SERVICES AND ENERGY BRANCH)

MELBOURNE

10.09 AM, TUESDAY, 18 SEPTEMBER 2001

PN1

MR W. JACOMB: I am the applicant.

PN2

MR N. HENDERSON: I appear for the Australian Services Union, and with me is MR R. ATTWOOD, the Branch Secretary.

PN3

MR JACOMB: Excuse me, sir, I would like to object to the appearance of Mr Henderson. With respect, I draw your attention to section 42 of the Workplace Relations Act, paragraph 3. It says:

PN4

A party, including an employing authority, may be represented by counsel, solicitor or agent.

PN5

Mr Henderson is a current holder of a corporate practising certificate with the Law Institute. Whilst he is an officer of the Australian Services Union, I would argue that since it is not by agreement or leave, it is improper for him and unfair in accordance with section 98A for him to be representing the union at these proceedings.

PN6

THE REGISTRAR: Mr Jacomb, I understand that Mr Henderson is an employee of the organisation; is that not the case?

PN7

MR HENDERSON: That is correct, Registrar.

PN8

THE REGISTRAR: I am not sure therefore how I could rule under section 42 in any event.

PN9

MR JACOMB: My submission would be that the Act is expressly clear with regard to being represented by counsel, solicitor or agent. Were Mr Henderson only to have a law degree that would be one thing, but as he does hold a current corporate practising certificate, he is a solicitor within the meaning of the Act. They have not approached me for agreement for him to represent them and I certainly have not agreed myself; therefore, that is the basis of my request.

PN10

THE REGISTRAR: All right, thank you, Mr Jacomb. Look, I am not sure of how section 42 would apply to me as a Registrar in any event, I have to be frank with you in that regard. Certainly I will be suggesting that for the purpose of these proceedings to continue, I will allow Mr Henderson to represent the union. Again that is a matter that certainly if you wish to continue with this matter in another place, that you can certainly raise that as an objection at that time.

PN11

MR JACOMB: Thank you, sir.

PN12

THE REGISTRAR: If I may, the intention of myself in starting this hearing today was to simply read from a letter that I wrote to both parties on 3 September, and it is important that I read from that letter so that we can have an understanding of what the purpose of today's hearing is. Now, the letter I refer to, as I say, is of 3 September. The sentence that I simply draw everyone's attention to is in the third paragraph which reads:

PN13

The sole purpose of this hearing is to enable me to adduce the evidence relied on by the respondent as to why I should not exercise my discretion to issue a direction of the kind sought by the applicant.

PN14

Now, that is the purpose of today's hearing and I will limit it to that purpose. I am not interested in any other material that is not directed to that purpose. I have to therefore say at the outset I have indicated to the respondent that I am inclined to grant the application. We are here therefore because of a letter that you have written indicating there are certain things you wish to put that you did not want to put by way of written submission, so I ask you to direct today's hearing to that evidence that you intend to put.

PN15

That being the case, I will be asking Mr Henderson to commence. What I will do, however, is I will give Mr Jacomb just a brief opportunity if you wish to say anything at this point in respect of what I have just said.

PN16

MR JACOMB: Only to say thank you for clarifying the situation, sir.

PN17

THE REGISTRAR: Okay, thanks, Mr Jacomb. Yes, Mr Henderson.

PN18

MR HENDERSON: Yes. Registrar, in terms of the submission which the union wish to put to you regarding Mr Jacomb's request, the union sought to adduce that material in a hearing convened by yourself in order to obtain privilege in relation to that information, given that we had concerns that had we simply published that information by way of correspondence to you, that the applicant may well then have sought to commence some action in relation to it.

PN19

Now, we are aware that the applicant has sent you material by fax yesterday afternoon which, in our submission, is grist to the mill of our view that the applicant is a very litigious person, and we are still not entirely convinced that material we lead in these proceedings would be privileged and we want to clarify that before we actually adduce the material that leading the material before you will not give rise to any other proceedings in relation to the contents of the material.

PN20

THE REGISTRAR: If you are asking me as to what protection you have by virtue of the Workplace Relations Act, I can't answer that question. I can only simply say that section 41 protects again Commission members as if they have the same protection as a Judge of the Court. From the point of view of my position as a Registrar again, I do not know the situation.

PN21

MR HENDERSON: Yes. On that basis, Registrar, it would make it very difficult for us to take the step of exposing witnesses to the potential for litigation in relation to what evidence they may give under oath. So in the absence of either an undertaking by the applicant in relation to the material or a ruling from yourself as Registrar, we would not be prepared to lead the material here. It seems a ridiculous situation that were we appealing from a decision made by you here, then we would be appealing to the Commission and perhaps then the material would be protected in that environment.

PN22

But absent either an undertaking or some sort of guarantee, I couldn't lead the material. We would need to simply make the decision - ask you to make a decision on the basis of what is before you.

PN23

THE REGISTRAR: All right. Well, I will ask Mr Jacomb what his view is.

PN24

MR JACOMB: I am a great believer in an open system. This is an open Court. The fact that they are not prepared to lead it without such protection of privilege implies to me that they feel that their evidence is dodgy in the first place. My reaction is, one, I am not prepared to give such an undertaking. If it is said in open Court, it is public knowledge, it is on the transcript. And the second thing is - I think the real issue is if they are not prepared to do it without the protection of privilege, I in my own mind must question the quality and validity of their evidence.

PN25

THE REGISTRAR: All right. Well, that places us all in a difficult situation. That is - - -

PN26

MR HENDERSON: Yes. I might just clarify for Mr Jacomb and for you, Mr Registrar, that we have got no doubt about the veracity of the material we have, and as you would be aware, Registrar, truth is a defence to proceedings for defamation, but you have to be there first to run the defence and we don't want to expose these witnesses to the unnecessary expense of having to put to proof that which we are clear in our own minds is true.

PN27

THE REGISTRAR: Yes, Mr Jacomb.

PN28

MR JACOMB: I think Mr Henderson hits the point. He says truth is a valid defence in defamation. If he truly does believe it is true, then he should have no hesitation leading his evidence. If he has got concerns about leading his evidence, that goes back to veracity, and I think if they are not prepared to lead the evidence, I request that my order be granted - sorry - my request that the order be granted.

PN29

THE REGISTRAR: All right. Well, Mr Henderson has indicated that if they do not present the evidence, that I should rule on the basis of what material I have before me, so to that extent Mr Henderson has agreed with you. I can see quite a few people in here and I don't want to inconvenience individuals. I don't know if, for example, if we look at this issue as to what is protected and what is not protected, we can come back another day. I just don't know if that is suitable to the parties. Certainly from your point, Mr Jacomb, I suggest you are probably going to say no to that, but it may very well be that it is a matter that is best dealt with before me rather than go to the Commission.

PN30

I have no doubt - I must be blunt up front, I have no doubt that whichever way I rule here, I expect the decision to be appealed one way or the other, so to that extent, I imagine it will go to the Commission, maybe these issues can be resolved there, but certainly I would prefer to be in a situation where I could make that decision in full knowledge of all the facts rather than partial knowledge of those facts. Now, does that provide any semblance of potentially coming back in a couple of weeks time or something?

PN31

MR JACOMB: I would be more than agreeable to allow you - sorry, forgive the poor choice of words - that if you were to make the decision on privilege after hearing the evidence, I would meet them halfway on that.

PN32

THE REGISTRAR: I am not sure if that would really resolve their issue, unfortunately, Mr Jacomb. If the material is on the transcript, it is very difficult for me to expunge the material. I just don't know what powers I would have in that.

PN33

MR JACOMB: And therein lies the problem for me. If it does prove defamatory, the fact it is now on the public record, even whilst I may be ultimately successful in either the Victorian or Federal Court suing for defamation, damage is done to me. If they are not prepared to put it in writing or have it on the public record, it does seem contrary to section 98A of the Act that the proceedings of the Commission be fair. All my material is on the public record; I see no reason why they should be exempted from the same.

PN34

THE REGISTRAR: Mr Henderson, do you wish to add anything?

PN35

MR HENDERSON: Not really, Registrar. I think the situation that we are faced with is that the unions are not prepared to expose either itself or its witnesses to Mr Jacomb and litigation. The Commission will be aware from the material that he sent to you yesterday that Mr Jacomb is the sort of person who tapes conversations without notice to the persons participating in that conversation. He is a serial complainant in relation to persons holding professional qualifications, and we are not prepared to let a person, who in our view is verging on being someone who is simply prepared to make complaints when there is no basis, an opportunity to take further action.

PN36

So all we can do, Registrar, on that basis is invite you to arrive at a decision based on what has been put before you and noting the concern that the unions expressed about the privilege or otherwise that attaches to proceedings such as these this morning and we may well have to ask a Full Bench to consider the matter afresh. If the Commission pleases. I am sorry to have to put you in that position.

PN37

THE REGISTRAR: All right. Well, what I intend to do is go back to my office, try to ascertain as best I can what the position would be. That being the situation, I will write to both parties indicating what I think the situation is. I will then again leave it up to both parties to give me an indication as to whether they wish me to proceed with this sort of hearing or whether I simply do make a decision based on the material that I have before me.

PN38

Now, Mr Jacomb, as I say, I am disadvantaging you by doing that, so it is your view that I am looking for.

PN39

MR JACOMB: I understand the difficult position in which you find yourself, sir. The only thing I would, if I may, draw your attention to for your consideration is in Thomas v Hanson paragraph 35 - I presume you have got the binder with you, sir?

PN40

THE REGISTRAR: I do, yes.

PN41

MR JACOMB: I will just find the exact page for you for convenience.

PN42

THE REGISTRAR: No, no, that is okay, the paragraph will be sufficient.

PN43

MR JACOMB: Okay. In paragraph 35 his Honour quotes a particular case where it says:

PN44

In this respect, it is important to note that the onus of proving lack of good faith or ulterior purpose rests upon those who seek to overturn the exercise of a power and not upon those who seek to uphold it.

PN45

Given that the union has refused, because they are concerned that they may be held accountable for the evidence they tend to lead, to lead any evidence today, they have not offered any proof of ulterior motive or fair grounds of the lack of good faith, and therefore perhaps in your consideration you might take that into account and consider saying, well, maybe enough is enough. I commenced this operation in May of this year and it just seems to be dragging out longer and longer.

PN46

I understand from the Commission's perspective that it wants to do everything correct, but then I would further draw your attention to Deputy President Moore's decision in 1982 in that in hearings of this nature the union does not have a right to be heard anyway. So they have asked for a hearing, they are not prepared to lead the evidence. With respect, I think it is not unreasonable to request that the order be granted forthwith.

PN47

THE REGISTRAR: Okay, Mr Jacomb. As I say, I don't believe, from listening to Mr Henderson, that he actually disagrees with what ought to happen. As I say, I have just tried to provide an opportunity here today to try to provide some of that evidence. If I was able to assist in any way in coming with some sort of conclusion as to - well, using this word, privilege - the privilege of the evidence, that it be heard before me, I have already expressed a view that I believe this matter will go to appeal if I grant the order for you or otherwise. I imagine at that point that section 41 certainly applies without any doubt and the evidence that is not being presented before me will probably be presented before a Commission member.

PN48

That is the other reason I ask. I acknowledge what you have said, that yes, I have disadvantaged you with that process. In view of what you have said, well, I will not proceed with trying to ascertain what is the situation with privilege and, yes, I will decide the matter on the material before me. Now, I will not make that decision today. Certainly I intend to do that by way of a written decision and, that being the case, it will take some days before we make that decision.

PN49

MR JACOMB: Thank you, sir.

PN50

MR HENDERSON: I have nothing to add.

PN51

THE COMMISSIONER: All right. Well, that being the case, as I say, we will cease the hearing here and I will formally issue a decision. The parties obviously have their own rights after that decision to do what they feel is appropriate in the circumstances. Thank you.

ADJOURNED INDEFINITELY [10.25am]