C2001/4369, Transcript of Proceedings [2001] AIRCTrans 3350 (3 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 1311
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2001/4369

APPLICATION UNDER SECTION 118A
BY UNITED FIREFIGHTERS UNION OF
AUSTRALIA AND INTERGRAPH BEST
(VIC) PTY LIMITED CONCERNING THE
REVOCATION OF THE INTERGRAPH BEST
(VIC) PTY LIMITED DEMARCATION
ORDER 1996 (PRINT N2621)

MELBOURNE

10.05 AM, FRIDAY, 16 NOVEMBER 2001

Continued from 6.9.01

PN100

MR P. ROSEN: I appear with MR R. CRAMPTON for the applicant.

PN101

MS. B. FORBATH: I appear for the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN102

MS A. SMEATON: I appear with MR J. ELLERY from the CEPU.

PN103

THE SENIOR DEPUTY PRESIDENT: For the CEPU as well.

PN104

MS SMEATON: Yes.

PN105

MR N. ANDERSON: I appear for the Australian Services Union.

PN106

DR G. SMITH: I seek leave to appear for the Department of Justice.

PN107

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Rosen. Could I just indicate first of all what I have received by way of contentions and materials. First of all I have the applicant's amended application, the applicant's folder of documents filed on 27 October, which includes five witness statements with exhibits. I have subsequently received three witness statements in reply for the applicant with exhibits. I have the ALHMU submissions in response to applicant's contentions filed on 18 October. The ASU folder of documents including ASU contentions and various documents but I don't have a statement of Russell Attwood which is included in the contents.

PN108

The CEPU contentions filed on 18 October 2001 and two witness statements. I have received from BEST contentions in support on its application for leave to intervene and subsequently on 26 October a letter indicating its role or the role it proposes to take in the proceedings. Those are all of the materials that I have received. Is there anything else that anybody thinks I should have?

PN109

MR ANDERSON: Well, your Honour, you should have a statement of Russell Attwood. It seems I might have the same sort of folder that your Honour has but I will obtain that.

PN110

THE SENIOR DEPUTY PRESIDENT: I think the other parties have received it - - -

PN111

MR ANDERSON: I think they did because they have replied to it.

PN112

THE SENIOR DEPUTY PRESIDENT: - - - because they are putting material in reply to it but - - -

PN113

MR ANDERSON: I will remedy that as soon as I can.

PN114

THE SENIOR DEPUTY PRESIDENT: Thank you very much, Mr Anderson. Yes, Mr Rosen.

PN115

MR ROSEN: Yes, thank you, your Honour. Just clarifying whether we have received everything that your Honour has. Your Honour listed the matter for a directions hearing today when directions were given for the filing of the material that was just referred to. There are two preliminary matters that the applicant wishes to raise before considering whether the application is in a state for it to be fixed for hearing. Ultimately we will be submitting that it is. I don't know whether there is a dispute about that at the bar table.

PN116

The first preliminary matter concerns the stance that has been taken by the party Intergraph and the intervener BEST, Department of Justice. There has been some correspondence between the parties, some of which may have been copied to the Commission, I am not certain exactly what has made its way onto the file. Essentially the issue is this, both Intergraph and BEST, in my submission, are having a bit each way. They are saying, we want to play a role in these proceedings, Intergraph is by right a party, BEST, I hear from Dr Smith has sought leave to intervene. I understood that such leave had already been granted and that it was an intervener.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes, I should clarify that. Leave is granted to BEST to intervene.

PN118

MR ROSEN: And rather than comply with the directions which require Intergraph as a party and BEST as an intervener to file witness statements and contentions, what we have told and what the Commission has been told by BEST and Intergraph is, we don't intend to file any witness statements, that is fine, they are under no compulsion to file witness statements, nor to we intend to file contentions.

PN119

Once again they are under no obligation to file contentions but they say we reserve our rights and in BESTs case, they say that they intend to make oral submissions at the conclusion of the proceedings so we are in a position where ultimately we could face submissions from parties who have the benefit or our material and other parties' material, haven't responded in any way nor have they indicated, even in the most general terms, what their attitude is to the proceedings and we are in a position where ultimately we could well end up with having to recall witnesses because matters are agitated in those final submissions but because we didn't know about them, were not properly canvassed with witnesses either in their evidence-in-chief or in the cross-examination of witnesses and it is those circumstances that we seek - we unfortunately have to seek from the Commission, a direction that if BEST and Intergraph are going to make oral submissions at the conclusion of these proceedings, that they only be allowed to do so if they provide to the parties and to the Commission, some indication of the contentions that they are making.

PN120

What we are really seeking is a level playing field, your Honour, and it seems quite inappropriate that they can sit back and not give any indication of what their case is going to be. I can give one example of how this issue might right in a practical sense. One of the matters, one of the factual questions before the Commission concerns section 118A(1)(b). In a nutshell, 118A(1)(b) is directed principally to an application for an 118A order and it limits the discretion of the Commission as to making such an order considerably.

PN121

Basically it is only able to make such an order if it has the concerns, if I can summarise it, set out there. That is that not making the order will lead to industrial disputation and so on of the type described. Now there is authority, I think it is common ground, that in considering a revocation application, the Commission should also have regard to those issues. The ASU in its contentions at paragraph 33 specifically contends that industrial action of the type referred to there and consequential deleterious effect to the employer's interests will occur if our application is granted.

PN122

Now one would have thought that if that is right and we will strongly disputing that ultimately but if that is right, then the present and future employers may well be parties that could shed some light on that issue as far as the Commission is concerned and some indication from them now about whether they agree with that proposition or will ultimately contend that that will be result of the revocation of the order, would be of assistance, not only to the parties but also to the Commission and it is in those circumstances that we feel that we have to seek a direction from the Commission along the following lines, that if as anticipated they intend to make oral submissions at the conclusion of the hearing, that they comply with the directions to provide contentions of fact and more now, before the hearing starts.

PN123

Now obviously that can be accommodated time-wise if necessary, it doesn't have to be today but we seek such an indication before the hearing starts. It is really a question of procedural fairness and the efficient running of the procedures. Your Honour, the only other preliminary matter is that it is the applicant's position that the Commission should timetable an inspection of both of the workplaces that are the subject of the demarcation order, that is the workplace in Burwood and the workplace at the World Trade Centre. We make that submission principally because an issue in the proceedings will be the coverage rights of the applicant particularly in respect of the Burwood site it seems.

PN124

That is a matter that is strongly agitated it seems by the ASU. The resolution of that issue will turn on the question of whether the work in question is work of a clerical nature. That according to the copious authorities on the issue is essentially a question of fact for the Commission to determine and it will be our submission that it would assist the Commission in determining that question of fact to see the work as it is performed and so it will be our submission that half a day, possibly a day will need to be set aside given the geographically location of the workplace, there is one in Burwood, one in the city.

PN125

THE SENIOR DEPUTY PRESIDENT: Why would I need to inspect that. Why can't the evidence tell me what the work is?

PN126

MR ROSEN: Well the evidence can tell you and there is some evidence in the proceedings about it but I mean I have had the opportunity of viewing the work myself, your Honour, and it is of, I found, considerable assistance and understanding the written accounts that have been given of that work to actually see it being performed. It is not, if I can put it this way, it is not everyday work that one might have, in one's general experience, have viewed. I can't put it any higher than that, your Honour, it is our submission that it will assist ultimately and it may in fact reduce the length of time needed - - -

PN127

THE SENIOR DEPUTY PRESIDENT: Sorry, what period did you say, half a day for both sites or half a day each, did you say?

PN128

MR ROSEN: Certainly a minimum of half a day for the two. The premises are not that large, certainly the Burwood one is not that large but there is travelling time that obviously needs to be factored in. It is a good 45 minutes from the city out to Burwood.

PN129

THE SENIOR DEPUTY PRESIDENT: If we start at 7 o'clock in the morning.

PN130

MR ROSEN: Well we could do that, your Honour, of course and we would be back here in time for a 10 o'clock start which would be perfect. The other parties may have a view about the time needed but it is our view that certainly half a time and it should probably take place if not on the first day then certainly early in the hearing.

PN131

THE SENIOR DEPUTY PRESIDENT: And how much time do you think would be required for the hearing itself?

PN132

MR ROSEN: As always, your Honour, it is a bit difficult to estimate with any certainty. The bulk of the evidence is of course the applicants.

PN133

THE SENIOR DEPUTY PRESIDENT: Do you have five witnesses?

PN134

MR ROSEN: We have five witnesses.

PN135

THE SENIOR DEPUTY PRESIDENT: The CEPU has two and ASU, I gather, will have one.

PN136

MR ROSEN: Yes. I can say for my part I will want to cross-examine certainly Mr Attwood, quite likely I will want to cross-examine the CEPU witnesses but not at any great length nor do I see Mr Attwood's cross-examination by the applicant taking a great deal of time but given the number of the parties, the range of issues that are raised and if the Commission accedes to our application for an inspection, realistically we are not going to get out of this in less than five days, I would think, if oral submissions are being made by everyone.

PN137

THE SENIOR DEPUTY PRESIDENT: Subject to what is finally decided in relation to Intergraph and BEST, I would expect that the evidence-in-chief would be that contained in the statements that have been filed for the witnesses and that there won't be a requirement to lead any further evidence-in-chief for those people.

PN138

MR ROSEN: Subject to that issue about Intergraph and BEST, I would agree with that as far as we are concerned. I don't anticipate leading any additional evidence-in-chief of any substance. I won't necessarily bind my hands on that, your Honour, but I wouldn't anticipate that taking any length of time at all. There might be some minor issues that need to be clarified. If the Commission pleases.

PN139

THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Mr Rosen. Dr Smith, is there any representation here today for Intergraph, by the way?

PN140

DR SMITH: Not that I am aware of, your Honour.

PN141

THE SENIOR DEPUTY PRESIDENT: Dr Smith, what do you say about the matter raised by Mr Rosen regarding the absence of any submissions or contentions or materials from BEST?

PN142

DR SMITH: We would say that we are an intervener with no present direct interest in the proceedings. It is an anticipated interest as I think we have indicated in our correspondence to the Commission. We would say it be oppressive to direct us to state our position prior to the completion of the hearing of the evidence. We indicated very clearly what the purpose of our intervention was in correspondence to the Commission dated 16 October at paragraph 5 in particular where we stated that BEST, perhaps if your Honour might find that letter dated 16 October.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN144

DR SMITH: At paragraph we stated that:

PN145

BEST wishes to ensure a smooth transition from Intergraph management to a State-owned company. BEST intends to intervene in the proceedings to provide background to the Commission about the transition process and to provide the Commission with other information relevant to the Commission in determining this matter.

PN146

We are here to assist the Commission, more than anything and we are willing to do that.

PN147

THE SENIOR DEPUTY PRESIDENT: I appreciate that but as I see it the impact of the revocation of the order that was made by Deputy President Drake, as she was then, will certainly be a matter that I will have to take into account and the ASU have put some material before me in submissions about that but surely the attitude of the prospective employer, if that be what BEST is, is a matter that needs to be taken into account as well.

PN148

DR SMITH: It certainly does. What I would oppose, as probably a outcome which might assist the Commission and Mr Rosen is, at the conclusion of the hearing of the evidence, we put our submission at that time rather than, as he put it, as if we are coming in right the end so once the evidence is concluded but prior to any of the direct parties put their submissions that we could put our oral submissions and then no-one would be prejudiced. If they thought it necessary in light of those submissions to call any further evidence then it shouldn't cause any difficulty.

PN149

THE SENIOR DEPUTY PRESIDENT: But that would delay the resolution of the whole thing because they would have to go back and call whatever other witnesses they need to respond to the material that is being put in by BEST.

PN150

DR SMITH: We don't propose to put any evidence, your Honour.

PN151

THE SENIOR DEPUTY PRESIDENT: I appreciate that. You propose to put submissions. I suppose realistically though, the union would want to know whether you support its position or whether you support the existing or status quo and if you support the status quo, do you do so on the basis of the submissions that are being advanced by the ASU.

PN152

DR SMITH: Yes, but the difficulty I am indicating is that until all of the evidence is heard and the parties cross-examined and the evidence comes out, it might be difficult for us to form a view about that matter.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes. Anything else you want to say?

PN154

DR SMITH: No, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Anderson.

PN156

MR ANDERSON: Your Honour, the ASCA has a couple of comments to make in relation to submissions for the UFU. Firstly, in relation to the position of Intergraph and Bureau of Emergency Services Telecommunications, I have to say and it may be the only time as I dare say this, that I find myself agreeing with Mr Rosen to some extent. Clearly from our case - - -

PN157

THE SENIOR DEPUTY PRESIDENT: Perhaps we should into conciliation, we might get a result.

PN158

MR ANDERSON: That is right, your Honour, because obviously from our case, if the employer, the current employer comes out and says emphatically one way or the other, that it supports either the applicant or it supports the respondent's case, that has a - I think no matter - I think it would be a common ground of very significant impact on the way in which the Commission may well approach its decision in the matter and it would clearly consequently have a significant impact on the way in which we put our respective cases.

PN159

Similarly in relation to the Bureau, albeit their interest is an anticipated one, clearly the Commission would have some interest in what their view of the world will be because it would seem to us, the Commission would not want to put itself in a position where its ruling in a way which is going to be discarded by a future employer that a way that renders these proceeding effectively nugatory. So it seems to us that there is some fairly good reasons for us the know - for the parties to know what the position of the employer is perhaps lesser significance in what the position of the future employer is but I don't think it can be put to one side, to the end of the proceedings.

PN160

I think that puts far less weight on it than it really should have and in that respect I can only comment that I don't what the significance of the lack of attendance today for any representatives of Intergraph is but I think we really need to know what their position is in relation to these proceedings. I don't know whether we should take their non-attendance today as meaning that they have no intention of participating and that is a question which I think needs to be answered probably before we get too excited about the applicant altogether. So that is all I have say in relation to that.

PN161

In relation to the programming of the hearing, your Honour, I don't know whether an inspection is of any great value. Ultimately that is a matter for the Commission. If it assists the Commission to digest the evidence well then it may well be beneficial. I note that really there is no major amount of evidence in the applicant's case in relation to the World Trade Centre operations as far as the argument about whether the work is clerical or not. In the ASU contentions it seems to me it would be capable for that to be determined on the basis of the witness evidence which has been foreshadowed by the applicant and the documents which have been tendered in support of that evidence so we are not, I suppose I would put it that we are not supporting that application for an inspection but ultimately it is a matter for the Commission. We leave it to the Commission.

PN162

In terms of the time to be taken for the hearing, if we go right through from start to finish including submissions, I think five days should well and truly pick it up. We don't intend to lead any further evidence other than what we have filed subject to providing the Commission with the missing statement and we don't intend to cross-examine all of the UFU witnesses and some of them the cross-examination would be very quick I would think so five days would definitely ensure, in our view, that the matter concluded. If the Commission pleases.

PN163

THE SENIOR DEPUTY PRESIDENT: Ms Smithton, I am sorry I didn't catch your name before.

PN164

MS SMEATON: Smeaton.

PN165

THE SENIOR DEPUTY PRESIDENT: Smeaton, sorry, yes.

PN166

MS SMEATON: Yes, your Honour, I don't see any need for an inspection of the sites and certainly not the World Trade Centre site. We don't have any evidence provided with respect to the World Trade Centre and I don't really see a need that they be inspected.

PN167

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Smeaton. Do you say anything about the absence of any submissions or evidential material from Intergraph or BEST?

PN168

MS SMEATON: I agree with Mr Anderson and Mr Rosen as well, I think there should be some information provided certainly from BEST and possibly from Intergraph.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN170

MS FORBATH: Commissioner, the ALHMU would concur with Mr Rosen's submissions in regard BEST and Intergraph providing some written submissions to the Commission as to what their position is unless of course the intention of their oral submissions is simply to provide information, that is not entirely clearly although Mr Smith did say previously that they are unsure as to which position to take until they have heard the evidence so I am assuming from that that they do intend to take a position on the application so on that basis it would seem to make the proceedings unnecessarily complicated if they don't provide written submissions now to make clear what their intentions are.

PN171

On the point of the inspections I think inspections would be helpful. I think the question of whether call-takers and dispatchers who are the two main occupational groups here who are, I suppose, are in contention in terms of coverage, whether their work is purely clerical, I think, is quite central to where we go with this and I think that having a look at the work in practice would assist the Commission as well as assisting the parties.

[10.32am]

PN172

DR SMITH: Your Honour, I just want to comment on what Ms Forbath has just said. I don't think that anything that I put to the Commission should be read or taken as meaning that the Department of Justice does intend to take a position one way or the other in this matter. Simply I said that it would be - we would be in a better position to put our submissions at the conclusion of the evidence.

PN173

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Rosen, anything further?

PN174

MR ROSEN: Nothing in reply.

PN175

THE SENIOR DEPUTY PRESIDENT: Mr Rosen, have you had any communication with Intergraph since you filed your submissions or your contentions?

PN176

MR ROSEN: We received a letter from them dated 19 October. I think it is since we filed. I am not sure.

PN177

THE SENIOR DEPUTY PRESIDENT: I hope I do have that.

PN178

MR ROSEN: In which they say that they prefer that the orders continue. Does your Honour have a copy of that letter?

PN179

THE SENIOR DEPUTY PRESIDENT: I do, yes.

PN180

MR ROSEN: They say they may make a final submission at the conclusion of the evidence, a position somewhat different to BEST, who say they will, but what we are unclear about is what it will contain. With Intergraph we are not even sure if they will.

PN181

THE SENIOR DEPUTY PRESIDENT: It doesn't appear to be on the file, I am sorry.

PN182

MR ROSEN: It is actually addressed to your Honour. I can hand up a copy, I think. Yes.

PN183

THE SENIOR DEPUTY PRESIDENT: I have seen it, actually, Mr Rosen. I can't explain why it is not on the file. Yes.

PN184

MR ROSEN: I note that Intergraph appears to be represented by the same firm of solicitors that BEST is.

PN185

THE SENIOR DEPUTY PRESIDENT: That is what I thought before, yes.

PN186

MR ROSEN: I am not sure where that takes us in this day of Chinese Walls and the like. Perhaps Dr Smith might try and explain that. I know Ms Russell is well known to Dr Smith.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, very well. Dr Smith, I would be assisted by material from both Intergraph and BEST. I appreciate that BEST at this stage might not be in the same position as Intergraph to foreshadow, if you like, the impact they suspect it might have on their operations, but Intergraph certainly ought to be in a position to give the Commission and the parties their views about what they consider the impact of the revocation of the order might have on the operations, so I will make a direction.

PN188

I will send it out by communication, that Intergraph and BEST provide to the Commission any documentary materials that they wish to rely on or advance in support of or against the application by UFU. Now, about the timing. I will undertake - is there any significant difference between the two sites, Mr Rosen, do you know?

PN189

MR ROSEN: I am probably not the best person to answer that, I must confess.

PN190

THE SENIOR DEPUTY PRESIDENT: Mr Anderson might be able to tell me.

PN191

MR ANDERSON: I am happily ignorant of both sites, your Honour, but as I understand they are the same sorts of operations but in relation to different organisations, police and fire, but I think probably I could say if you are going to see one, your Honour, you may as well see both and put it to rest.

PN192

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will allow a half day beginning at 9 am on the first day to carry out an inspection. Now, in terms of the available dates, how urgent is the matter, Mr - - -

PN193

MR ROSEN: We are keen as we have been from the start to have it determined as soon as practical for the Commission and the other parties. It is obviously not an ideal time of year to be trying to list a five-day case, we recognise that.

PN194

THE SENIOR DEPUTY PRESIDENT: Well, I haven't got any time in December at all or the rest of November. I have five days from 7 January to 11 January.

PN195

MR ROSEN: If I said yes to that I suspect I would be very unpopular at the bar table. We are certainly available on that date, and subject to what other parties have to say about it, we would be content with that hearing time.

PN196

THE SENIOR DEPUTY PRESIDENT: Well, the next five-day block available isn't until March.

PN197

MR ROSEN: If that is the choice we would take January.

PN198

THE SENIOR DEPUTY PRESIDENT: Dr Smith?

PN199

DR SMITH: Yes. I have got leave for the whole of January, but it is quite difficult. I guess the only benefit - I mean, obviously someone else could represent the department, but the primary benefit I think the department sees in my representing the department is that I was involved in all of the proceedings in relation to the making of these demarcation orders at the time, I understand the history in a personal sense, but my appearance isn't obviously critical.

PN200

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Dr Smith. Mr Anderson.

PN201

MR ANDERSON: Well, your Honour, the union's point of view, we are happy for it to be away as the Commission wants to put it, but if the Commission wants to hear it in January, we will be there.

PN202

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Anderson. Ms Smeaton.

PN203

MS SMEATON: I have just got some instructions that the secretary of - Mr Cooper is not going to be available in January. I do have some leave in the first part of the - the first three days. It needs to be January.

PN204

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Forbath.

PN205

MS FORBATH: Commissioner, either position would be satisfactory with us, either January or March.

PN206

THE SENIOR DEPUTY PRESIDENT: Thank you. Tell, me has there been any discussions at all between the parties to try and resolve this?

PN207

MR ROSEN: I think I might have indicated on the previous occasion, there have been quite extensive discussions auspiced by the ACTU, which have involved, I think I am right in saying, all of the unions. Certainly the principal protagonists, if I can say that, the UFU and ASU have been involved in those discussions. They have not ultimately, obviously, satisfactorily resolved the matter. I can also indicate that there are scheduled discussions between the UFU and the CEPU, which may lead potentially to some narrowing of the issues in dispute.

PN208

THE SENIOR DEPUTY PRESIDENT: Would the parties be assisted by conciliation with the Commission involvement? Has the ACTU been involved in the discussions throughout?

PN209

MR ROSEN: Yes, they have.

PN210

THE SENIOR DEPUTY PRESIDENT: They have?

PN211

MR ROSEN: Yes, extensively involved, I should indicate to your Honour. I am not normally one to say anything other than yes to a proposal for the Commission to conciliate a matter, but my inclination here is that it is unlikely to be of great assistance.

PN212

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN213

MR ROSEN: Can I also indicate, your Honour, as far as Dr Smith's attendance is concerned, with the greatest of respect to him, his knowledge and background and so on, can obviously be passed on to someone else.

PN214

THE SENIOR DEPUTY PRESIDENT: Yes, I think he has conceded that.

PN215

MR ROSEN: I think he concedes that. So far as Mr Cooper's absence is concerned, it would be my submission that from our point of view that would not be a reason for the matter not to proceed in January. There would be very little of anything, I think that we would want to be asking Mr Cooper.

PN216

THE SENIOR DEPUTY PRESIDENT: Well - - -

PN217

MR ANDERSON: I suppose I should say, your Honour, I am taking it for granted that Mr Attwood would be available.

PN218

THE SENIOR DEPUTY PRESIDENT: Yes.

PN219

MR ANDERSON: But, you know, with that caveat, it is in your Honour's hands.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes, I am going to set it down for 7 January and I do apologise to Dr Smith and Ms Smeaton, but because the next five days I would have would be the week of 25 March, which is the last week in March. So unless we broke it up and heard it a couple of days at a time, or a day at a time, but I don't think that is a satisfactory way of going about it. Dr Smith, have you got any idea of how much time you might need to put in some material for BEST?

PN221

DR SMITH: It may take some time, knowing the pace at which things sometimes operate in government.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, I gave you 21 days, is that satisfactory?

PN223

DR SMITH: That should be sufficient.

PN224

THE SENIOR DEPUTY PRESIDENT: Very well.

PN225

MR ROSEN: Your Honour, at the risk of being difficult, the original directions were that they file such material at a time which would give us an opportunity to consider whether we wanted to reply to it. And that is not an opportunity that I want to give up at this time. I don't know whether we are going want to reply to it, but I just ask the Commission to give us say, a further seven days beyond that date - - -

PN226

THE SENIOR DEPUTY PRESIDENT: Yes, I had intended - - -

PN227

MR ROSEN: - - - within which to do that.

PN228

THE SENIOR DEPUTY PRESIDENT: I had intended to do that.

PN229

MR ROSEN: If your Honour pleases.

PN230

THE SENIOR DEPUTY PRESIDENT: Very well, I will make the following directions:

PN231

(1) on or before 6 December 2001, Intergraph and BEST file in the Commission and serve on the parties an outline of the case that each of them seeks to advance in support of or against the application;

PN232

(2) on or before 13 December 2001, the applicant and each other party file in the Commission and serve on each other party any reply they wish to make in response to the outline of submissions by Intergraph and BEST;

PN233

(3) the matter be adjourned to 7 January 2002 for hearing;

PN234

(4) the morning of 7 January will be devoted to inspections of the two sites; and

PN235

(5) there be liberty to apply.

PN236

Any other matter? Very well, the matter is adjourned.

ADJOURNED UNTIL MONDAY, 7 JANUARY 2002 [10.47am]