C3933/499, Transcript of Proceedings [2001] AIRCTrans 444 (30 March 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 6395
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE
SENIOR DEPUTY PRESIDENT DUNCAN
COMMISSIONER DEEGAN

C NO 39334 OF 1999

APPEAL UNDER SECTION 45 OF THE ACT
BY THE AUSTRALIAN EDUCATION UNION
AGAINST DECISION OF SENIOR DEPUTY
PRESIDENT WILLIAMS AT MELBOURNE ON
16 NOVEMBER 1999 IN D NUMBER 3003 OF
1998 RE REGISTRATION OF ASSOCIATION

MELBOURNE

10.03 AM, THURSDAY, 15 MARCH 2001

CONTINUED FROM 14.3.01

PN2028

VICE PRESIDENT McINTYRE: Mr Howells.

PN2029

MR HOWELLS: I wonder if we could wait a moment.

PN2030

VICE PRESIDENT McINTYRE: Is Mr Bromberg around - Mr O'Connor?

PN2031

MR HOWELLS: He is. I think he has just stepped out.

PN2032

VICE PRESIDENT McINTYRE: All right. Maybe if Mr O'Connor could just get in.

PN2033

MR HOWELLS: If it please the Commission, I wonder if I could hand up a piece of that extract from the Industrial Relations Act as the section 55C that I read from yesterday at the Commission. It is at page 5 of the Anstat Bulletin. I think at least some of the remainder of the legislation is to be found in the materials. I have one copy of the Act that I can hand up, if I might. We will photocopy relevant extracts of it but the Commission will recall I simply went to that to show that there was provision in relation to the registration of organisations which were - it is page 5 of the set of extracts,and it includes an amendment to include a new 55C, which provided that an association - or a group of associations of a particular kind could be recognised under the Act. The second thing is - could I ask the Commission to mark that?

PN2034

VICE PRESIDENT McINTYRE: Yes. I do not think we have marked your written submissions.

PN2035

MR HOWELLS: I was going to hand up the remaining part of that and then ask for the whole lot to be marked, if I could. I will do that too, if I might do that now perhaps, if the Commission pleases.

EXHIBIT #VPF15 SUBMISSION OF MR HOWELLS

EXHIBIT #VPF16 EXTRACT FROM INDUSTRIAL RELATIONS ACT VICTORIA

PN2036

MR HOWELLS: Could I ask the Commission to mark the correspondence that I handed up yesterday, which was a letter of Ryan Carlisle Thomas, attaching two letters, one from Spring to Head, and the other one from Dorrell to Dotse - Dotse to Dorrell.

PN2037

MR BROMBERG: I object to that, your Honour. I didn't understand on what basis this material was being relied upon. My learned friend closed his case last week. He now seeks to tender more evidence in his submissions. That is not an acceptable basis upon which to run his case, in our respectful submission.

PN2038

MR HOWELLS: Your Honour, this material answers a submission which was made in - or a contention that was made in the contentions that I think my friend more or less said that he withdrew. And he is no doubt relying upon the bulk of the material that is contained in his contentions. This simply is a further part of the picture. It is material that was provided to him. He has been on notice about it. It ought to be received.

PN2039

MR BROMBERG: As I understood my friend, it is sought to be responsive to contentions which my learned friend has had over two months, I think. He closes his case. If he wanted to answer any of the contentions he should have done so by evidence, and done so properly. Done so by calling witnesses where it was necessary to do so. Not much turns on this, but we do object and will say something in our reply about the attempt here to answer the case put against the VPF without evidence, and this is an indication of it and we do not want it to go in without our objection.

PN2040

VICE PRESIDENT McINTYRE: We will not mark it as an exhibit at the moment, we will consider it further at the lunch break and come back to it later.

PN2041

MR HOWELLS: If the Commission pleases, can I go back to three documents that were referred to yesterday just to recap because of some matters that I will need to go to shortly. Firstly, in AEU14, that is volume 1 of the bundle of material provided by the Department, and particularly to document 6 and document 11, I want to refer variously to document 6 and document 11. This is in relation to paragraph 16, 18 of the contentions. You will see that document 6 and our response is on page 16 of our document.

PN2042

We understand what is advanced about this is that when you look at document 6 and document 11, and then look later at another document which we will come to which is in the other volume. It is a service agreement. But there are discrepancies. And I think what is suggested is that somehow some amounts that were identified as being provision of - or as it were, the payment of the on-costs of Geoff Head's salary was somehow built into another amount.

PN2043

If one goes to document 6 in the first volume, that is AEU14, it is dated 22 April. Does the Commission have that one? Yes. It is said to be a proposal, and on the third page it lists a number of items on one page. There is 23,000, which is said to be the value of leave without pay - with full service benefits for Geoff Head, and its provision - in return for the provision of direct advice on - in relation to certain matters. And what appears there is that the - you have that amount. Underneath it there is the legal - the reimbursement costs of 8500.

PN2044

Then there is a project for 107,000 described as:

PN2045

Delivery under contract of specified DSE Principal Leadership and Management Development and Training Programs.

PN2046

Then 10,000 to extend and enhance communication of DSE initiatives relating to principals and liaison with Principals' Forum. 80,000 for delivery of state-wide Principal Induction Program and administrative support of 15,000, and then 6000 for a report to the director in relation to certain matters. What seems to be said that when you get over to document 11, that somehow that is changed in a way which raises a problem, or that there is something improper about it. The difficulty with it is that the document 6 is a proposal. Document 11 seems to be at least the approval, briefing in relation to approval, and a recommendation approved for some of these funds.

PN2047

And it has changed. Now, the notion that a proposal might change before it is approved, with respect is not remarkable. When one goes to document 11, does the Commission have document 11? What does not appear there, when you compare it back to the table in document 6, is the amount of leave without pay, full service benefits of $23,000. And what seems to be being said in the submission is that that $23,000 got built into and amount referred to in document 11. And it appears to be being suggested that it got built into the amount in document 11 that appears on the second page of document 11, namely 145,000 for change management for new appointees to the principal class formerly described as the Principal Induction Program.

PN2048

Well, it is a different program. And there is no documentary basis for an assertion that this somehow got - or that the item of 23,000 got built into this amount of 145,000. There is just no document basis for that, and in any event, it does not add up. The arithmetic is not there, even when you add up the sums that it is said in the AEU's submission, amount to, or were included in the 145,000, it just does not add up. And the fact that a proposal changes to something which is ultimately given approval is, with respect, neither here nor there.

PN2049

Now the other thing that seems to be said about document 11 is that the Commission will see on the second page of document 11, there are some notes. Note 5 says that this service agreement incorporates components C and E of this total package. Item C and E are the participation in the development of the DSE Strategic Plan for Principal Leadership and Management Training and contribution to the development of a training package for Schools of the Future Principals, $10,000.

PN2050

And the other amount - you will see C and E - the annotations appear in the left hand column of the table. C and E is the administration support. Now the point that apparently he has got from this is that when you go over to the service agreement that ultimately ensues, which is in AEU15, folder 2, and in particular document 23, that when you look at item 4 of document 23, what is said is, well, there is the 28,000, which reflects items - the document 23 and in particular - it is apparently said to be the service agreement. When one goes to document 23, on the second page of it in item 4, one finds the financial provision details for a service agreement for the 28,000 component.

PN2051

And what seems to be saying - being said is that because the description underneath item 4 differs from the description of the items in the approval, which was document 11 in the other volume, that somehow there is something untoward about that. Well, the subject matter is very similar, because they both deal with the leadership and management training, and a report, and there are administrative matters involved.

PN2052

Now the fact that the description in the service agreement differs from what is in the approval, with respect, and the service agreement was signed, it seems, about two weeks after - sorry, a few days after the approval - with, respect is hardly a basis for an allegation that somehow the money does not reflect what was approved or that it was spent for other purposes. With respect, it is stretching. It requires the suspension of disbelief.

PN2053

VICE PRESIDENT McINTYRE: Excuse me a moment, Mr Howells. Sorry, I just seem to have mislaid my copy of the first part of exhibit VPF15, your submissions.

PN2054

MR HOWELLS: We have another copy of that.

PN2055

VICE PRESIDENT McINTYRE: Have you got a spare there?

PN2056

MR HOWELLS: Yes, we do. Can I hand that to the Commission.

PN2057

VICE PRESIDENT McINTYRE: It is no doubt here somewhere but - - -

PN2058

MR HOWELLS: And this point that I am dealing with at the moment, your Honour, relates to - it is page 16.

PN2059

VICE PRESIDENT McINTYRE: Yes, thanks.

PN2060

MR HOWELLS: Sub-paragraph 16, 18. I mean, I have numbered it paragraph 33 of our submission but it relates to 16, 18 of the AEU's submission. The other thing about it, I suppose, is that when one looks at document 11, there is a - the recommendation - recommendation number 1 for 28,000 is expressed on the first page of document 11, to assist Principal Associations to participate directly in the development of a DSE policy and strategic plan for principal leadership and management.

PN2061

That is on all fours with what one finds under - on the first page of document 23 in the other volume, that is the service agreement. The service agreement in document 23 in the second volume, says, well this agreement provides DSE finance to enable both VPPA and VAPPSS to jointly participate with the management development unit of the DSE to develop a policy and strategic plan for the principal leadership and management development which reflects the number of matters that are listed.

PN2062

With respect, it is on all fours with what is in the approval, but with respect it also would not need t be. If at the end of the day, what is in the service agreement and what the money is provided for, is what the Department chose to fund by way of the provision of professional development service,s then that is a matter for it. And with respect, you just don't get the distance that needs to be travelled to make good the sort of allegations that one finds in - that we find in paragraph 16.18 of the AEU's submissions.

PN2063

We have dealt with that 16.18, 16.19 and 16.20. And in our submission, in 16.20, could I just make a correction to 16.20. The allegation that document - reads:

PN2064

The allegation that documentation for the 28,000 payment is inconsistent simply misstates the document. See paragraph 4 of the contract for service which is AEU15, document 23.

PN2065

And document 3 is referred to also because that includes the - it should be document 3 and also document 2, because they are copies of what I took the Commission to in the other volume, which is document 6 and document 11. They are just duplicates. It may well be that they appeared on a number of different files or when all of this material was gathered together and bundled together, there was some confusion in what was copied.

PN2066

Can I go then to paragraph 16.23 of our - on page 18 of the submission. It is alleged that prior to the making of the payment of 28,000 the employer did not require the professional associations to provide a tender quotation or any other documentation substantiating the expenditure. The documents disclosed that the basis upon which the money was to be allocated. Again, we say the summons addressed to Peter Allen dated September 2000 and the written request under FOI dated 1 May 2000 for the documentation do not comprehend all documents which may have been submitted in relation to the provision of the funding for the programs.

PN2067

Bugden could not confirm that all possible material had been included, and in any event, it is not clear from the AEU's submission precisely what source it relies upon for alleging that the documentation was not appropriate. There is not, it is submitted, when we are talking about allegations of the inappropriate application, misapplication for funds, with respect, what the proponent of those propositions needs to do is to exclude all contrary hypotheses or propositions.

PN2068

It is their - in making these sorts of allegations, they really have to provide an evidentiary basis for suggesting some other - evidentiary basis for putting the propositions they put, and that would require them to be able to exclude other consistent possibilities, particularly in circumstances where what is being dealt with is a government department and a government department that is subject to parliamentary scrutiny as to its accounts.

PN2069

16.24. It is alleged that at no time subsequent to the making of the '93 service agreement did the employer require the professional associations to provide any account or appropriate record, verifying the expenditure of monies paid under the service agreement. Again, neither the summons directed to Peter Allen nor the request - written request for documents comprehend all such documents.

PN2070

Then there is the matter dealing with the payment of legal costs. It is alleged that the employer orchestrated for the letter in a particular form. What we have said about that already is repeated. The VPF complied by providing a request in relation to the matter. None of this was put to any of the persons available to the AEU listed in paragraph 2 of its contentions. And further, the VPF repeats what is said in paragraph 16.13 where this matter first arises.

PN2071

It is alleged that the payment of 8500 was hidden in the VPF's accounts as a donation. Documents do not disclose that it was hidden. They may not have been described in a way where it was readily apparent to anyone looking t the document what it was, although the data entry page describes it as a legal - reimbursement for legal expenses, but I think it is the cash receipts journal page that your Honour the Presiding Member referred to yesterday. It refers to legal expenses.

PN2072

Can I also ask the Commission to look at AEU - I think it is 16. I was trying to find yesterday another document which referred to the fact that on-costs and legal fee reimbursements had not been built into the contracts for service. There was an additional document and that is AEU16, the attached letter to that. It is a letter from David Wetherill, who was the secretary of the FVSA, writes to Geoff Spring. There was a deal of material about Geoff Head. It was identified in a lot of the material in the proceeding before Senior Deputy President Williams that Geoff Head, as the Director of School Education - - -

PN2073

VICE PRESIDENT McINTYRE: Geoff Spring.

PN2074

MR HOWELLS: Sorry, Geoff Spring.

PN2075

MR BROMBERG: Freudian slip, your Honour.

PN2076

VICE PRESIDENT McINTYRE: Too many Geoffs.

PN2077

MR HOWELLS: Yes, it might have been Freudian, but not perhaps for the reasons that my learned friend might think. It would suggest, I think, that he was brought in with the new government in '92 and was attributed with responsibility for a host of decisions about teachers and redundancies and what have you. And the material there identifies the strongly felt views that particular AEU officials had about him, and Wetherill writes to him and says, in item 5:

PN2078

Geoff Heads, on Costs and Legal Fee Reimbursements have not been built into contracts for service as agreed.

PN2079

So it just confirms it was not done. This idea of building them in and hiding it and so on, really the evidence is a bit thin about all of this, to say the least. And when one goes to the documents that I have just gone to, one sees that the 8500 amount has not been built in anywhere, it is plain as pikestaff. It is listed in the approved proposal, which was document 11 in that first volume. It is just listed there. So the idea that it had been built into something else, even if Mr Spring had suggested it, maybe he had, but even if he had, it was not done and where does that get it - where does that take the matter in terms of a suggestion of this being used as an inducement to produce a particular attitude on behalf of VPF.

PN2080

And at the end of the day, as we say in our written submissions, well, it is the FVSA, old VPF - the VPF, which is the applicant in this proceeding, was established in 1998. And we are talking about decisions that may have been taken, discussions that may have been involved in arrangements that may have been entered into by individual officers. At the end of the day, if it were the case, just assume that any of these matters could be proved, where would that get the AEU in relation to the VPF.

PN2081

[10.30am]

PN2082

Even if it was made out, it would amount to saying that if it could be shown that the current HSUA as another organisation which I think in the seventies there were cases reported in the ALRs, McClure v Mitchell is one that comes to mind, where there were suggestions of misbehaviour of one sort or another by officers, that that would justify an application for cancellation of the registration of this - of a current organisation. With respect, it just does not travel that far. On page 20 we deal with the material concerning the dispute finding, 16.27. It is alleged that the AEU log of claims seeking a dispute finding which it is understood extended to teachers and principals.

PN2083

These matters were the subject of evidence before Senior Deputy President Williams. The VPFs opposition to the AEU claim was understandable having regard to the AEUs contentions in relation to school principals and the existing substantial membership of the VPF. And that is dealt with at least in part by the Senior Deputy President Williams in paragraphs 226 to 228. 16.28, the evidence does not establish that the Department approached the VPF to intervene in the proceedings. The VPF had a legitimate interest in opposing the application. The relevant material was before SDP Williams in exhibit VPV35, appeal book volume 12, pages 31 to 33.

PN2084

Now, I think the document that is relied upon in 16.28 by the AEU is document 23 in volume 1, and 24. Now, the - does the Commission have document 23? It is the working party - what purport to be minutes of a working party meeting between DSE and VPF. And present include Mr Bugden, Mr Thorneycroft, Mr Pascoe, Mr Head, Mr Siemen, Ms McCall and Mr Wetherill, and I think the item that is relied upon in this document is 7.2 on the second page. Well, if it is suggested that the Department approached the VPF, that is not apparent from the note. If anything, it might have been the other way around.

PN2085

And document 2, the second document that he relies on is document 24, the same thing. The difficulty is that it does not get around two big problems. The first problem is that that document was before Senior Deputy President Williams.

PN2086

VICE PRESIDENT McINTYRE: Which? 23 or 24?

PN2087

MR HOWELLS: Both of them.

PN2088

VICE PRESIDENT McINTYRE: Both.

PN2089

MR HOWELLS: Before him. It did not seem to excite a great deal of agitation at that stage.

PN2090

VICE PRESIDENT McINTYRE: Who prepared 23 and 24? The Department or the VPF?

PN2091

MR HOWELLS: I do not think the evidence below Senior Deputy President Williams records that. I cannot answer that. But it has come from departmental records. I mean, I suppose one might examine the type-face of other documents which are manifestly departmental documents, but that probably would not - the short answer is, your Honour, I am not able to say. It certainly was not dealt with, as I recall it, below. Can I also indicate we - can I just hand up a list of the documents from the bundle of working party documents which were before Senior Deputy President Williams.

PN2092

You will see in the right-hand page, on the right-hand side column, Mr Gardiner has listed the document number from volume 1, that is AEU14, that is presently before you. And then in the left-hand side, these are documents which were attachment B to VPFs submissions. It is an index of them that was provided as attachment B to the VPFs submissions before Senior Deputy President Williams. And you will see both 23 and 24 were there.

PN2093

VICE PRESIDENT McINTYRE: The document numbers on the right-hand relate to AEU14, do they?

PN2094

MR HOWELLS: 14, yes, they do.

PN2095

VICE PRESIDENT McINTYRE: Yes.

PN2096

MR HOWELLS: Yes. And on the left-hand side is an index prepared and provided as an attachment to our written submission before Senior Deputy President Williams indexing the documents that were before him. There is a whole bundle of them. And I think the evidence before Senior Deputy President Williams was that the working party operated from either '92 or early '93 through to about '95. It had a bit of a hiatus I think at one stage when the parties were not getting on about their industrial relations and they did not meet. But what was dealt with was a range of issues including contracts and terms and conditions of employment and so on.

PN2097

Can I go back to the submission 16.29. It is alleged in 16.29 that the VPF intervened in the hearing of the AIRC concerning an application for a dispute finding at the behest of the employer, and that its legal expenses were paid by the professional associations. Again we say the evidence does not disclose that the VPF appeared at the behest of the employer. The VPF had its own legitimate reason for opposing the application. See VPFs submissions in relation to 16.7 and 16.27. The involvement of the professional association in paying the account reflected only the way in which the three associations were funded.

PN2098

The professional associations were collecting subscriptions that were paid and it was done by payroll deductions. And then funds were made available to the - out of that from the VPF. And as we saw, as of 1998 that was done pursuant to an agreement. The involvement of professional - the matter was the subject of evidence before SDP Williams. Ms Szmal gave evidence about; we have given transcript references. Linnett, Conway, Brierley and Szmal could have been cross-examined about these matters but were not. None of the witnesses which AEU foreshadowed it would examine about these matters were called.

PN2099

The evidence before Senior Deputy President Williams demonstrated that under the current agreement between VPF and professional associations, VPFs entitlement to a share of subscription moneys is made express. It is simply not the case that VPF had no members. This matter is dealt with in detail before Senior Deputy President Williams. And then we refer to the matters concerning membership and the fact that the FVSA operated as a federation of organisations and was able to be recognised under subsection 55C of the Industrial Relations Act.

PN2100

Can I also ask the Commission just to look very briefly at some extracts of the rules of the professional associations. And they are in volume 8 of the appeal book. Does the Commission recall that I went yesterday to the old FVSA constitution, which provided in 7.2 that branch membership would include the constituent members of the professional associations, even though the membership rule of the FVSA identified two organisations. At page 158 of volume 8, I think your Honour the presiding member yesterday pointed out that in rule 1 of the VPF rules that were ratified - said to be ratified in September '93, provided that the VPF would subsume the Federation of Victorian Schools Administrators; we say, well, and ergo subsumed its membership.

PN2101

And under 2.1 general membership of the VPF is open to persons employed in those categories and who are currently members of the appropriate sector association. When one then goes to the - goes back to AEU94, which is page 385 of this volume, some extracts of the rules of the professional associations were tendered. AEU94 you will see that is the exhibit number at the top right-hand corner. That was an extract of the rules as at - I think it must have been what were then the current rules. But it provides under joint membership there, during the currency of an agreement with the VPF which provides for joint or combined membership of the association, an applicant's membership may join both the association and VPF by signing one form, and so on. Over the page - - -

PN2102

VICE PRESIDENT McINTYRE: Sorry, whose rules are these?

PN2103

MR HOWELLS: These are the VPPA - extracts from the VPPA. I am sorry, your Honour, it is not spelt out there. Those were current. Going back, in '96/97 - this is on page 386 of the volume; this is again the VPPA rules, the extract, and it is rule 14. This association is a member of the Victorian Principals' Federation. Members of the association are therefore members of the VPF and it is recognised that from time to time this federation will act on behalf of the association.

PN2104

Now, the obvious answer to that rule is to say, well, ordinarily the rules of one organisation cannot themselves confer membership of another association. There would need to be a rule in that other association. But in terms of people's understanding, and there is argument that somehow the Commission, the Federal Commission, was misled about membership of the VPF at that time. We say, well, when one looks at the transcript, and I gave references yesterday to the transcript yesterday where people were asked what was their understanding about the way in which they became - they were a member of the VPF at that stage. This is the basis for it, at least in respect of VPPA members, and their understanding.

PN2105

It may be erroneous. But with respect it is - there is a basis. In '95 you will see on page 387 similar rule, '94 and '93. In '94 the rule simply said:

PN2106

This association being a member of the Victorian Principals' Federation, it is recognised that from time to time this Federation will act on our behalf.

PN2107

It does not refer there to members being members. Same rule in 1993. Then there is the VASSP rules. They are starting on page 392. Now, all that is included there, they were rules that were current at the time as at '97, and rule 3.7 refers again to the joint arrangement. Those extracts do not identify the sort of provision that is in the VPPA rules. Again we say that the question here is not whether the rules themselves - the Commission is not called upon to adjudicate upon those rules and their effect. The allegation that is made is that the VPF wrongly misled, deliberately misled the Commission about its membership, and it is submitted not a fair allegation.

PN2108

The officers - they might have a view that others would disagree with - they had their view about whether they had become a member. I think Mr Brierley talked about the fact that in his evidence that people knew because of what happened at annual general meetings that money was being paid to the VPF by way of a share of their subscriptions, and that objection had not been raised to that. Now, it is submitted that really the suggestion that somehow there is a - that a matter of this kind gives rise to an ineluctable conclusion that what the VPF was doing or what its counsel was doing on instructions involved misleading the Commission with respect is simply not open; it is not a fair allegation.

PN2109

SENIOR DEPUTY PRESIDENT DUNCAN: It does not arise out of what you have just been saying, but is the handwritten note against rule 14 on page 386 accepted by both sides? Deleted at VPPA AG in November 1997.

PN2110

MR HOWELLS: Yes. Replaced by the one that is on the preceding page, yes.

PN2111

SENIOR DEPUTY PRESIDENT DUNCAN: Yes.

PN2112

MR HOWELLS: I did not understand there was any dispute about that. But the allegation about misleading extends back to '93, '92, all the way through. Now, even if what is said is there is a deficiency about these rules and what might have occurred in terms of membership - and we do not accept that. If there is - bearing in mind that this was an association, not one that was incorporated and certainly not one that was subject to the requirements of the Workplace Relations Act or the then Industrial Relations Act. If the allegation is - the allegations seems to be that there was misleading, and it is submitted it is - there is no foundation for that.

PN2113

VICE PRESIDENT McINTYRE: Why, in some of the letters, do they have Inc after their names? They might have been incorporated under some other - - -

PN2114

MR HOWELLS: It depends upon the date, but we understand, at least in the case of VASSP in one of the documents, '95, is under the associations incorporation legislation in Victoria. There are a number - like in New South Wales, your Honour, there is one for associations and one for what were friendly societies charitable organisations. I think that has gone. And there was one for co-operative associations, an Act dealing with co-operative societies which were able to be incorporated and they could use that appellation. And I think at one stage it was under - we assume under the Associations Incorporation Act.

PN2115

VICE PRESIDENT McINTYRE: Right.

PN2116

MR HOWELLS: I think I took the Commission yesterday to our submission before - to paragraphs 165 and 169 in our submission yesterday before Senior Deputy President Williams, dealing with membership and whether there were members. I do not need to repeat that. Going back to the submission at 16.30. It is alleged that in October '93 Spring approved budgets for the '93/'94 financial year including commitments of 480,000 to the Principals' Associations. This allegation misunderstands the documentation. The documents do identify them out of 100,000 as an operating block. This amount of 100,000 was not paid to professional associations but rather included amounts expended by the Department in conducting the programs.

PN2117

None of that was put to Bugden. It is apparent from the document, just going to the document, that the operating block was a - it was outside the service agreement, not included in the service agreement, and it was part of the budgetary allocations that the Department identified for the amounts. No doubt the Department identified those amounts as relevant to expenditure by the Department in connection with the programs. We accept that the documents - this is in 16.31 - the documents disclose that the service agreement was entered into for '93/'94. In 16.32 it is alleged that certain amounts were to be paid under the '93/'94 service agreement for professional development, the amounts referred to and the services to be provided for them were subject of cross-examination of Brierley and were considered by Senior Deputy President Williams.

PN2118

The transcript in particular in respect of this amount which - it is appeal book volume 3, and in particular I have referred to a series of pages between 984 and 1005, and it goes on for a considerable period longer. But 988, for example, there is at line 13:

PN2119

Well, why does it cost 360 a year on a non-project basis and then why are further funds required for projects ...(reads)... professional development of one way of achieving that.

PN2120

Bearing in mind of course that if this funding was so important to the operation of the professional associations or to be funding the VPF, it is odd then that it would have been handed over by the professional associations to the Australian Principals' centre later on. And I think Mr Brierley will come to his evidence where he says, well - he was asked what proportion of the funding that was received this way - what proportion of their overall budget was it? He said less than 5 per cent. Less than 5 per cent of the professional associations' overall budgets.

PN2121

So it, with respect - then in that regard can I just ask the Commission to turn back to page 966 of the transcript at line 6:

PN2122

Now, Mr Brierley, does VASSP receive any funds from the DSC in relation to professional development activities ...(reads)... may not correspond to the areas that the DOE has decided to support for that year.

PN2123

It picks up those sorts of other issues:

PN2124

Have any of those programs made a financial loss?---Yes. ...(reads)... and the year before made a loss.

PN2125

And this is as of - this was the position but this was lead in evidence. It was open to be cross-examined about. And can I just ask in that context the Commission to look at in volume 2 in AEU15 document 49 and in particular there is a - one sees first of all the detailed service agreement for '93/'94. I think - does the Commission have the service agreement? It is the second page in in document 49. It is in the second volume, AEU15.

PN2126

VICE PRESIDENT McINTYRE: The interim report?

PN2127

MR HOWELLS: Yes, there is an interim report there, and it details the various programs. And then attached to that there is a detailed schedule about the induction program, of what was to be involved, over several pages. It would be odd that these things would be produced in such considerable detail and then not done. And then further over one gets the general leadership activities service agreement, and there is attached to that first of all Inner Western Principals' Group, the Victorian Primary Principals' Association '93 Annual Residential Conference.

PN2128

When one looks at the program for that conference, and perhaps it is mildly parochial, I do not know, but we have registration is educational agenda, Mr Tickle from Telecom, I imagine he would have been very popular in '93, Mr Jenkin from a business perspective from Inchcape, the Goethe Institute sponsoring morning tea, a workshop by Keith Lawson in relation to computers, Primary Schoolwear, then a series of programs on the second day - on the second page. It is not a conference of the kind that I think my friend is trying to suggest; that it is somehow an organisational conference having dealing with the sort of matters that the AEU might deal with in its annual conference, but it is - or state conference.

PN2129

And it is submitted that it is - it is just - these are professional associations; that is what they ran their conferences about. And they were funded to do so as part of professional development. Again in - 16.30 - sorry, the back of the next document is the VASSP conference, and again, there is day 3 and day 4 seems to be attached, and if one looks at the elective topics, it is just not dealing with the sort of thing - if it is being suggested that somehow these conferences are organisational conferences aimed at the functioning of the organisation, elections of office bearers, reports on the strategy, reports on where we are heading, and what we are going to do as an organisation, and - it is just not what they were.

[11.00am]

PN2130

Could I take the Commission back to our submission responding to 16.33. It is alleged that the amount of 60,000 for leadership programs was never used for that purpose. And it is on page 22 of our submission. It is alleged that the amount of 60,000 for leadership programs was never used for that purpose, and the amount of 20,000 for liaison and communication services was not used for that purpose for which it was purported to be provided - whatever that might mean.

PN2131

It seems that what is said is because there is no documentary account in the material that is being provided by the Department, that means that it was not used for that purpose. It just doesn't get far, with respect. 16.34, there is simply an account there of an amount that was paid and the documents reveal that. 16.35, it is alleged that on 9 November '93 VPF appealed the dispute finding decision. VPF did seek a stay of a dispute finding. Its legal expenses were paid on the basis of a third of the amount by each of the Principals Associations on the same arrangement, and we repeat the earlier submissions.

PN2132

Sales of VASSP and VPPA presidents. It is alleged that throughout '93 the employer paid the salaries and on-costs of the presidents of the Professional Associations and that during the course of that year administrative and office expenses of VPF were subsidised by expenses charged to the service agreement and paid for by the employer. It is further alleged that all other running expenses and running costs of the VPF were met by the Professional Associations. The documents we say simply do not make this out. Can I ask the Commission just to go back to the transcript of Mr Brierley's evidence. That was in volume 3. And in particular to 10.63, you will see there at the top of 10.63 deals again with the '94/95 service agreement and amounts paid under that, and amounts paid to provider services to pursue and provide those services.

PN2133

Then could I ask the Commission to turn over to 10.72 - sorry, line 5:

PN2134

$650, no, I think that would be for smaller seminars. It would not be for the annual conference. You will have to go back a little bit. It might be from a bit of the salaries of casuals, photocopying and printing ...(reads)... if you want me to get some more details I will.

PN2135

In relation to staff availability, down the bottom:

PN2136

Through your counsel help us where the money went ...(reads)... But there was no reimbursement required of the president's salary?---No.

PN2137

The assertion that the running costs were underpinned, or met by the Professional Associations, we say the documents simply do not - yes, that was Mr Brierley's evidence about the use of moneys that came from the professional development funding alleged on the AEUs contention to underpin costs. We also dealt with that in our submission before Senior Deputy Williams at page 64 at paragraph 111, and that is VPF6 before the - - -

PN2138

VICE PRESIDENT McINTYRE: It is also in one of the appeal book volumes, isn't it?

PN2139

SENIOR DEPUTY PRESIDENT DUNCAN: Number 4.

PN2140

VICE PRESIDENT McINTYRE: Number 4, yes.

PN2141

MR HOWELLS: It is number 4, I am sorry, your Honour, it is.

PN2142

SENIOR DEPUTY PRESIDENT DUNCAN: What was the page you took us to?

PN2143

MR HOWELLS: 64, paragraph 111. You will see the '93 Professional Development provided VPPA, the management fee referred to at 11.78 did not contain profit. That was the evidence given in relation to it. And we deal with these matters in relation to the professional development and the funding starting at page 60 of our submission, and going through to 62-63 with the relevant references. Can I go back to our submission dealing with 16.38. 16.38 is another allegation about the involvement of VPF in the proceedings in the Federal Commission.

PN2144

The VPF repeats the submissions, the earlier submissions made in relation to 16.27, 28 and 29. The evidence before Senior Deputy President Williams disclosed that '93, the FVSA altered its name to VPF, altered its rules so that instead of being an organisation made up of two professional organisations it came to be an organisation of individual members. The assumption by the officials and the members was that they, as individuals, were members of the VPF. Their belief was based upon provisions of their rules which on their face appeared to entitle individual members of the Professional Associations to corresponding membership of the VPF, that is, FVSA.

PN2145

Notwithstanding cross-examination Linnett and Szmal expressed the strong view and conviction that they were members of the VPF at that time and this was the general understanding amongst principals who were members of those organisations. And we refer to the submissions. Further down:

PN2146

Even if there were a misunderstanding about the legal effect of the changed rules in '93 this did not establish that VPF misled the Commission in relation to membership.

PN2147

Then in relation to the '94 service agreement, in particular 16.42:

PN2148

The assertion in the AEUs submission that funds were purportedly paid for the provision for services suggests that either the services were not provided or money was not paid in respect of those ...(reads)... examination and cross-examination before Senior Deputy President Williams.

PN2149

And we give again transcript references to the evidence of Mr Brierley. In 43:

PN2150

It is alleged that the funds paid to provide the services included costs for administration and office expenses and that funding largely underpinned the administrative costs of the three principals associations.

PN2151

As I have just taken the Commission to it, Mr Brierley and the evidence in relation to VPPA contradicts that, and there is nothing in the documents that have been produced that takes that any further. It seems to rely upon the proposition that somehow because there is not a complete set of documents relating to verification or evaluation or accounting of the kind that the AEU asserts, without a basis, asserts ought to have been there that somehow that proves that there was funding that was provided not for the nominated purpose.

PN2152

The AEU contentions are replete with suggestions that money was purportedly paid, ostensibly paid. Not a lot of evidence of the basis of those allegations. It is alleged that the funds paid to provide a services including costs for administration and office expenses. In relation to 16.45, again, this is a reference to enforceability of the agreements that were reached about the provision of that funding. And we repeat the earlier submissions in relation to that.

PN2153

16.46:

PN2154

It is alleged that the accountability requirements of the '93/94 service agreement were never met. The documents simply do not disclose that a valuation and reporting and financial auditing and accountability requirements were never met.

PN2155

And again we repeat the earlier submission about that nature of the documents produced. It is alleged that amounts paid pursuant to the '93/94 service agreement were aimed at sustaining the principals association and their various activities. In particular it is alleged that 60,000 provided by way of leadership programs was in truth no more than financial support for the Professional Associations for their annual conference, and 20,000 for communications through the publication of the Principals Associations.

PN2156

The evidence given by Brierley, which I have taken the Commission to, and then there is Szmal and Conway, made clear that the conduct at the conferences and the publication of bulletins and papers was part of the professional development provided to principals by the Professional Associations. It is entirely open to the DSE to decide to fund those activities.

PN2157

Further, in relation to the AIRC proceedings, on page 26 of our submission in response to 16.48, VPF intervened in the matter concerning the workload of teachers because it impacted upon the workload of the school principals. Its intervention was directed to excluding principals from the proceedings. And can we take the Commission to the transcript volume that our friends rely on. First of all tab 25 - - -

PN2158

VICE PRESIDENT McINTYRE: Sorry, what document is this? Volume?

PN2159

MR HOWELLS: I am sorry, this is AEU18.

PN2160

VICE PRESIDENT McINTYRE: Right.

PN2161

MR HOWELLS: Tag 25 is the transcript before Commissioner Frawley. On page 3 which the AEU did not specifically take the Commission to. Mr Whittaker says:

PN2162

Yes, Commissioner, we received a notice of listing as did all the other parties and clearly as a matter of courtesy we present ourselves today. ...(reads)... it is for those circumstances that we are seeking to attend today.

PN2163

And then tag 27 - - -

PN2164

VICE PRESIDENT McINTYRE: Mr Howells, just on that paragraph 16.48. You have got T35 at the bottom, 2.9.94, what is that?

PN2165

MR HOWELLS: It is the reference I am about to go to and I am sorry. Could I ask the Commission to indulge me by annotating something that I have failed to proof read correctly to include a reference to that tag that I have just taken the Commission to, which is AEU18, tag 25, page 3, per Mr Whittaker.

PN2166

VICE PRESIDENT McINTYRE: Yes.

PN2167

MR HOWELLS: I apologise for that, that is from line 5 to line 25. Then tag 27, which is referred to there, transcript page 35, this is transcript before Munro J on 2 September '94, at page 35 at line 34, Mr Whittaker just says:

PN2168

It would be my submission and certainly insofar as members of the principal class in Victoria are concerned, these proceedings should not involve them.

PN2169

Now, we say we are not attempting to get in the way of teachers. We are simply saying that the interest of principals was simply that they be excluded from it. 16.49, we go on:

PN2170

VPF intervened in the matter concerning selection and appointment of teachers because this impacted upon the involvement of principals in the process.

PN2171

And that, again, the issue was the subject of evidence before SDP Williams and we give the references. The '94/95 service agreements alleged that the '94/95 service agreement made provided services in which an allocation of 403,000 was made, purported to disavow that the funds were being provided to support services provided by the Professional Associations or their members. There is simply no basis in the documentation for that assertion. And we repeat what is said about that in 16.22 and 16.47. 16.52:

PN2172

The VPF repeats the submissions made in relation to paragraphs 43 and 47.

PN2173

The VPF says:

PN2174

Further, these matters were the subject of extensive cross-examination of Brierley before SDP Williams. There is no evidence of the VPFs administration that expense is being subsidised by expenses charged to the employer. The expense and running costs for VPF were met by the VPF under arrangements between the VPF and the Professional Associations which were subject again of evidence.

PN2175

And it is in this context we say simply for our friends to refer to their written submissions about this sort of in globo, as it were, and say, well, it is all there, it shows this is what happened. It is insufficient. We have taken the Commission to direct transcript reference where these allegations were denied. Some documents are produced, and it said, well, arising from these documents this is what one gets, a set of allegations. The trouble is the documents don't themselves make this clear at all. They just don't.

PN2176

In 16.54, it is alleged that some months after the '94/95 service agreement was finalised the Professional Associations sought an additional 15 per cent management fee, and this was agreed to in principle. The matter was subject to cross-examination before Brierley about the management fees, and he said management fee enabled him, particularly in relation to provide a service, it enable them to actually cover their administration costs of carrying out the professional development programs.

PN2177

And that is what we set out there in 16.55. In 16.57, it is alleged that the evaluation reporting and auditing and accountability requirements of the '94/95 service agreement were not met. The documents simply do not disclose this was the case, and again, nor would the documents have necessarily - the request and the summonses necessarily have produced those documents.

PN2178

16.59, you will recall that in paragraph 58 of the AEU submissions they say, well, look, this legal advice about the so-called unenforceability of these agreements was conveyed to the Professional Associations. Well, with respect, we say so what. What is not revealed either in the AEU contention or in the documents is whether there is any particular problem about that. What is it the problem about the fact that one party might say to the other party, well, you know, you understand that these agreement there is an enforceability issue in a particular way. Well, it might have been simply sharing their view about it.

PN2179

The fact of the matter was they continued to operate, continue to provide the services, or provider services did, and then later the Australian Principal Centre provided those professional development services and funding was forthcoming. No doubt if either side was not able to meet its end of the bargain the arrangements would have ended pretty quickly. On page 28 in relation to 16.60, it is alleged that in September '95 the employer made a service agreement with provider services for the period July/September for funding 235,000, including 60,000 for leadership programs, 15,000 for liaison and communication and management fee of 22,000.

PN2180

Again this matter was the subject of cross-examination of Brierley. There is no basis in the documentation or other evidence to support the inclusion of the assertion the money was purportedly for the purposes stated. The APAPDC Agreement, which is dealt with in 16.64 of the AEUs submission:

PN2181

It is alleged that an agreement was made on 24 May '96 with the APAPDC and it was suggested that an amount of 5000 to pay purportedly for professional development. It is further suggested that obligations of monitoring and financial accountability were not met. And there was no documentary request for such funds. The documents do not bear out the assertions made and neither the summons nor the request would necessarily have produced those documents.

PN2182

It is alleged that in May '96 an amount of 5000 was paid purportedly for a preventative health program pilot study for Victorian primary school administrators. Documents do not suggest that the amounts were not properly paid, nor can it be concluded from the evidence that the moneys were not spent.

PN2183

I mean, it is not as if our friends have extended a request for any reports produced as a result of this funding. I mean, a preventative health program pilot study would no doubt have involved the production of a report, a report about the subject matter.

PN2184

There is no reason for - when a search was done by Mr Bugden's staff for documents relating to the financial arrangements between the professional associations and the DOE - and the Department, that would not necessarily call up the results of that activity if a report was produced just suppose a research report of the kind - a number were in evidence before Senior Deputy President Williams - the fact that as part of that funding a report is produced, you would not necessarily - you would not expect necessarily to find the results of the work on the files relating to the financial transactions.

PN2185

There may be huge volume of material and documentation produced. There is not reason to support that a department will either keep that on the files relating to its financial transactions or that it would keep it at all. The 1996 arrangements we deal with in our paragraph 47 starting with a reference to the AEU contentions at 16.66:

PN2186

It is alleged the professional associations had not service agreement for '96, but that funding was provided for their state conferences. It is to be noted the professional associations voluntarily gave over the work and funding to the APC. The VPF notes the evidence before SDP Williams was that these conferences were professional development forums.

PN2187

That was the evidence before him. Nothing in the documents that has been produced contradict that. Further down 16.70:

PN2188

It is alleged that the 1997 VASSP Service Agreement purported -

PN2189

That should be "to relate" I'm sorry - it is purported to relate:

PN2190

It is alleged that the 1997 VASSP Service Agreement purported to relate to an annual leadership conference.

PN2191

VPF repeats the submission made in relation to paragraph 16.47. It says nothing in the documents suggest the conference was not conducted in the manner and for the purpose claimed. VPF refers to the submission made in relation to 16.23. It makes no other submission in relation to that.

PN2192

On the basis of all of this and we don't respond to the allegations, substantive allegations are not contained in those remaining paragraphs, we say, well, what we submit about this is that the - it seems that what the AEU wants the Commission to do is, on the basis of this material, make some findings that there were improprieties, serious improprieties in the transactions between the Department and these various organisations. It is submitted that is just not made out.

PN2193

The Commission to make findings of that kind, because that is what it needs to - that is how high the bar is in terms of the allegations that are made by the AEU, it requires, it is submitted, that the Commission should make findings that these arrangements were improper. And there is simply no basis for that, if the Commission pleases. We have said - - -

PN2194

VICE PRESIDENT McINTYRE: Is that what we are really being asked to do, Mr Howells? These submissions of Mr Bromberg's, as I understand it, go to a number of paragraphs of 189(1) of the Act.

PN2195

MR HOWELLS: They do.

PN2196

VICE PRESIDENT McINTYRE: And he says that they establish, for instance, that the VPF is not a genuine association.

PN2197

MR HOWELLS: Yes, that's right.

PN2198

VICE PRESIDENT McINTYRE: And so on.

PN2199

MR HOWELLS: Well, and the way it - well, as I understand the way the argument is put, is he says, well, look, first of all, I mean, and his first problem is he has got to connect that - any of this to the VPF that has sought registration. That is the first problem. The second problem is, he says, well, it's not genuine because one of your predecessor organisations has been, I think as your Honour put it yesterday, the stooge of government in relation to these matters, and that part of that is a suggestion that funding was provided as an inducement to produce a supine or compliant association in industrial relations terms.

PN2200

The difficulty with that, your Honour, is for that to impact upon any of those paragraphs that is, genuineness or improper control or improper influence, there need to be some findings about what the material shows. It needs to show that there were - inducements were paid and that it produced a result. And the trouble is the material just doesn't - that requires findings, that requires findings that the material gives rise to some conclusions about the genuineness of the VPF, which means you have got to make some findings about the predecessors.

PN2201

You have got to make some findings about the nature of the relationship between them and government and that there was financial impropriety demonstrated by the material. It is submitted, he does not get to the final conclusions that he seeks to make - that is, that it impacts upon genuineness and so on - unless those findings are made. We have dealt with those matters that are in paragraph 48 and 49 in the submission already and also that in paragraph 50 and 51 and 52, the conclusions drawn by the AEU as expressed in the contentions as to the purpose for which funds were dispersed to the VPF and the professional associations are not open on the evidence, we say. The conclusions drawn by AEU require a series of assumptions to be made to the effect that many individuals, both in government and within the principals' associations, were knowingly involved in a protracted process of deliberate falsification of records, misuse of funds and misappropriation of public money, and administrative contrivance and support of those activities.

[11.30am]

PN2202

We say the evidence just doesn't disclose it. I mean the language of the contentions themselves is important in this regard. Paragraph 12 of the AEU contentions:

PN2203

The VPF knowingly and actively co-operated with the employer in opposing the AEU and thereby hindered the effective operation of the AEU in its endeavours.

PN2204

Well, nothing in the Act prevents an employer and a union from having a co-operative approach about particular matters involving where there are proceedings in the Commission, nothing at all. Indeed, in some respects, in respect of bargaining, one might suggest that the Act in fact suggests it. Paragraph 13:

PN2205

The VPF made secret industrial deals.

PN2206

What we don't get is what the detail of them was. The best it got was the reference to a deal between Mr Head and Mr Spring about opposition - and it was said to be secret. And it is trumpeted in the principals' bugle, the newsletter, the Headlines was the name of the journal. Paragraph 14:

PN2207

VPF readily accepted funding and other inducements directly and indirectly.

PN2208

Readily accepted inducements. I mean presumably there must be inherent in that proposition a proposition that it knew what it was accepting and it was accepting something as an inducement, no doubt for an improper purpose. Well, where is the evidence? Paragraph 15:

PN2209

Misrepresented the status.

PN2210

16.8, third last line:

PN2211

It purported to portray itself.

PN2212

So knowingly misled. Paragraph 16.11:

PN2213

The funding would be organised so that it would be provided within the context of the employers' management plan.

PN2214

So it suggests that the organisation involved a falsification. Paragraph 12.12, further down towards the bottom of that paragraph:

PN2215

In order that the employer was not seen to be funding the VPF.

PN2216

Again, contrivance. The costs were to be built into the management fee. Well, built in, there is no evidence of it. What we had was two documents where the proposal was changed before it was finally agreed upon. 16.16 is a very serious case of it, 16.16(i):

PN2217

The proposed payment was falsely identified as being payment for services to be delivered by the VPF.

PN2218

Where is the evidence of the falsehood? There is no evidence of falsehood at all. The best that you get is the AEUs reliance upon the absence of what they say ought to be a complete set of documents provided by the Department, the absence of something that verifies a particular amount. Well, with respect, no. And if it were the AEU simply put these contentions forward in an endeavour to provoke VPF to feel that it had to respond to them, then the difficulty with that is that, if the material is not responded to other than by identifying the sheer deficiency of the contentions and the material, then that becomes the AEUs problem.

PN2219

Simply making an allegation based upon a suspicion, with respect, is not enough, particularly not when what is being talked about here is serious allegations of this kind, and are falsely identified by Government Departments. That is what he wants the Commission to find, Government Department, these senior officers, falsely identified? The Department wasn't served with these contentions, as far as we know. They are not put on notice, these officers whose names are on those documents, false identified. They are very serious allegations. 16.17 - - -

PN2220

VICE PRESIDENT McINTYRE: There is a distinction though, isn't there, between allegations against officers of the Department - that might be one thing - and allegations relating to officers of the VPF and its predecessors and the professional associations?

PN2221

MR HOWELLS: Yes. Well, there is in this sense, I suppose, your Honour, that one might say, well, look, you could make those allegations against the officers and forget about the Department and just concentrate on the effect that that might have upon a contention that somehow the VSA or some of its officers at that time were too closely aligned with government. The difficulty with this is that an element - the way it has been characterised has been that there was a collusive process.

PN2222

You either prove the whole thing or you don't, with respect. And the allegations are levied against Department and those departmental officers. And to make good the contention against the officers of the VPF, it wouldn't be necessary, in my submission. Having regard to the character of these allegations, what seems to be inherent in it was that they all knew that they were involved in this. It is a bit hard to just say, well, we will ask you to look at - now, we will ask you to look at this just in terms of what Mr Head might have done.

PN2223

VICE PRESIDENT McINTYRE: Your submissions - tell me if you agree or not - are akin to a "no case to answer" submission, that you say that on the strength of this, you don't have to answer it or to call evidence.

PN2224

MR HOWELLS: We have answered it by demonstrating the deficiency of the material. Bear in mind also, if the Commission pleases, that when the contentions document was first identified, what was said was: we are going to call these 20 people, the 12 people, or however many it was. That was said to be what was proposed: we may call any of the following 12 people, one or more of the following people. Well, you know, really a game of cat and mouse about allegations of this seriousness really is inappropriate.

PN2225

The allegations are, with respect, very serious allegations and to be able to make them and to force a party - I mean the suggestion that we ought to call people who are not currently officers of the VPF in relation to matters that occurred at this distance in relation to a whole sheaf of documentation which on any view, certainly on Mr Bugden's view, couldn't be guaranteed to be complete anyway, and then call officers of the Department, including officers who are no longer there. It may have been terrific for the AEU in terms of the length of time that would have been involved and how long it would take to deal with the matter, and how much delay there might have been involved in it. But, with respect, what probative worth is that exercise?

PN2226

VICE PRESIDENT McINTYRE: Which of the people in that list are officers or ex-officers of the Department?

PN2227

MR HOWELLS: Pascoe, Head became an officer in the Department after he left the VPF, Thorneycroft, Virtue, Marshall, Dorrell, Bugden, Evans and Spring. I think Virtue - did I mention him?

PN2228

VICE PRESIDENT McINTYRE: You have said Virtue, I think, yes.

PN2229

MR HOWELLS: And Marshall. 16.17, again we have got money purported to be spent on something, or allocated or spent on something. The best that it got was, in relation to that, there is no final invoice that corresponds with, and the payment, and an account and a report, in respect of some of these amounts. Then in 16.19, "ostensibly" - money ostensibly used for a particular purpose. 16.25, "orchestrated", the employer orchestrated - central proposition - the employer orchestrated. Well, with respect, in relation to your Honour's earlier - the presiding member's earlier question, how does that relate to an allegation in relation to 1(a) or 1(aa) in relation to the VPF, formed in 1998?

PN2230

"Payment of moneys hidden", again 16.33, purported, 16.42, "purported". 16.45 excluded any contractual obligation that might otherwise have existed. With respect, what we do want to suggest is that perhaps also there is some licence in the document that has been taken. There is an element of exaggeration about it. The suggestion that the document doesn't intend - where it says: "No intention to create legal relations", that that excluded any contractual obligation, is really on any view a patent misstatement of the position.

PN2231

The fact that the parties entered into an agreement, regardless of what the document might say, that they entered into an agreement and services were provided and money was paid, might of itself have given rise, and probably did, to contractual obligations in any event at common law. It is just pushed a little bit further over the edge than it needs to go. Particularly in the circumstances where that prescription seems to have appeared on Ms Manning's document, one really wonders whether this was just a matter of making the allegations for the purposes of creating a situation that it might be thought had to be responded to in a particular way.

PN2232

16.47, "window dressing". It is entertaining, but in terms of serious allegations certainly in any Court that would have to determine the propriety or otherwise of any of these arrangements, it just wouldn't cut the mustard, window dressing in 16.47. 16.50, "purported to disavow". 16.60, again "purportedly". 16.64, "No documentary requests for any such funds were received by the employer". The documents make that out. What they make out is there might not have been any in the material that was provided by the Department, but again the material provided by the Department may not contain all that was there.

PN2233

The document is replete with these sorts of assertions, and then in the summary material, these sorts of - on page 25 in paragraph 24, the end of paragraph 24 of the document:

PN2234

That conduct, as the new evidence discloses, was in furtherance of arrangements made with the employer and based upon - - -

PN2235

COMMISSIONER DEEGAN: Which document is this?

PN2236

MR HOWELLS: I am sorry, the AEUs contentions. I have been going through the AEUs - I am sorry, paragraph 24.

PN2237

COMMISSIONER DEEGAN: The summary ones, yes.

PN2238

MR HOWELLS: The bottom of that, if your Honour pleases:

PN2239

That conduct, as the new evidence discloses, was in furtherance of arrangements made with the employer and based upon inducements.

PN2240

And in paragraph 25:

PN2241

The new evidence now available indicates that the VPFs conduct was not the result of industrial naivete but rather the product of industrial skulduggery of the most pernicious kind.

PN2242

Well, apart from an averment as to what that might mean in any event, it may for the purposes of the debate be assumed that it means there is a suggestion of seriously improper behaviour. It looks like a borrowed phrase, and one wonders where from, but what is the purpose of that? And where does one get that from in the material? With respect, just to make the allegation and then wait to see whether it will be responded to, and then take advantage of that situation, is not satisfactory.

PN2243

Submissions of this kind were made before Senior Deputy President Williams. What was said was: this was an association that was in the pocket of government, in '92, '93 and '94. Well, they didn't persuade Senior Deputy President Williams on the basis - and those newsletters and all the rest of it, Mr Head's various writings about these matters and his reflections on the way in which the strategy might be approached was there.

PN2244

The transcripts of the material before the Commission, that is submissions made on the involvement of the VPF in appearing in the Commission was available to the AEU at that time, and it was material some of which was referred to before Senior Deputy President Williams, that is the opposition of the VPF in the Commission to these applications. My instructor reminds me, it is not - I accept the proposition your Honour puts about the answer to the material being in the nature of a "no case", but we do rely upon the existing material and the material that has been produced and the material before Senior Deputy President Williams to answer it by way of rebuttal. It is not as if we don't rely on any evidence about it. We rely on what has been put forward, and a deal of material that was before him. Paragraph 29:

PN2245

In any event the evidence which has now been disclosed and which the AEU seeks to tender is of such gravity and importance.

PN2246

Well, with respect, it just doesn't travel that distance. It is submitted - the document itself, the contentions document, aimed to produce a particular result. That would be fine if the material itself disclosed it but, with respect, it doesn't, and just because an allegation is made we are not forced to - with respect, we are not forced to call somebody to explain what might have happened 8 years ago about those matters, to what end. Have you got this document? What happened then? They might conceivably say, well, I don't know, there are the documents, or there might be other documents, but I don't remember any of it.

PN2247

These sorts of serious allegations, characterised in the way that they are in the AEU document, they need to get, with respect, your Honour, to first base. They have got to get to first base of having made out a prima facie basis, and they haven't done that; it doesn't come anywhere near it. And we simply repeat this in the submissions, and we say in any event, in paragraph 58, even if contrary to the contentions assertions contained in paras 7 through to 16 were able to be made out on the evidence, it wouldn't make out the case ultimately contended for by AEU. The assertions don't establish that the applicant VPF as an association lacks the qualities required under 189, including 189(5).

PN2248

The material does not demonstrate that the VPF even now or at the time of making the application for registration was a sham or not a real association for the purposes of section 189(1)(a). The Commission will recall that for the purposes of 189(1)(a) what is to be established is that the association is a genuine association for furthering the interests of its members, and the way in which that was identified in the authorities by Senior Deputy President Williams involved or required - what he identified that condition as being directed to was distinguishing between an organisation - an association that is simply a sham or not a real association or not directed to the purposes of its members at all.

PN2249

The sorts of cases that were referred to were, for example, cases where a number of employees at a particular workplace had been encouraged by the manager to form themselves into an association, and then had very shortly after that, without there being any proper minutes of meetings, applied for registration, that kind of situation. And secondly, as we say in 59(b), that its capacity to make its own decisions is or was vitiated by the will of any other body for a purpose abstruse to the interests of its members in terms comprehended by subsection 189(1)(aa), and again we refer to our submissions before Senior Deputy President Williams; they are in Appeal Book volume 4, and in particular paragraphs 17 to 22 which we have noted there, and 67 to 73.

PN2250

And we say, particularly at 67, the significance of this is that unless some structural or systemic control or improper influence is found affecting the association as a whole, or at least in relation to its governing body, then the association cannot be said to be subject to control or improper influence in a relevant way. The fact that some individuals may be influenced is not enough. The Commission should therefore confine itself to the record, that is the rules and the decisions of the VPF itself. Furthermore, in this context it would not be relevant to establish control or improper influence in relation to the applicant's predecessors, even supposing that this could be established.

PN2251

And the submission we rely upon goes further over to 73, dealing with the evidence. As we say in paragraph 60, the evidence does not establish the VPF will not conduct its affairs in a way that meets its obligations as an organisation under the Act. In this context, the AEU refers to 189(5) and to section 294 with the contention that the conduct of the VPF in opposing AEU applications prevented or hindered the achievement of an object of the Act, namely ensuring employee organisations are able to operate effectively.

PN2252

The trouble with this contention is that such a construction application of objects 3(g) places it directly at odds with object 3(f) and the provisions of the Act which enable one organisation to oppose claims applications or proceedings made or brought by another organisation regardless of whether one position or another happens to be similar to or the same as the position adopted by an employer in those proceedings. VPF refers to submissions made earlier at paragraphs 14 to 19 concerning relevance of recency of conduct, and so on.

PN2253

In respect of the contention on appeal concerning sub-paragraph 1(h) and the need for the applicant to establish the registration of the association further to the objects of the Act, VPF repeats submissions advanced before Senior Deputy President Williams at paragraph 131. Now, can we make some further observations about matters which have been raised in the running? The first of these is in relation to onus, and can we deal with - could I hand to the Commission - I don't know if the Commission desires to mark this - this is a supplement to the written submission.

EXHIBIT #VPF17 SUPPLEMENT TO WRITTEN SUBMISSION

PN2254

MR HOWELLS: An appeal by way of re-hearing, as is the case presently before the Commission, is directed to the correction of error, so much is apparent from Coal and Allied. Does the Commission have Coal and Allied handy?

PN2255

VICE PRESIDENT McINTYRE: We do in the - not in the report, but in the version that Mr Bromberg handed up, the A4 page one. The paragraphs are numbered, so that should be no problem.

PN2256

MR HOWELLS: In paragraph 14, the Court says:

PN2257

Ordinarily if there has been no further evidence submitted and if there has been no relevant change in the law, a Court or Tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing - - -

PN2258

VICE PRESIDENT McINTYRE: Sorry to interrupt you, Mr Howells. Can you just - the photocopy that we have got has got that last line cropped off, conferring appellate powers, even in?

PN2259

MR HOWELLS: I was going to say it was a conspiracy, your Honour, against the VPF.

PN2260

VICE PRESIDENT McINTYRE: Well, no one had referred to this line before. Even in?

PN2261

MR HOWELLS: That is because:

PN2262

Even in the case of an appeal by way of re-hearing are construed on the basis that unless there is something to indicate otherwise the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

PN2263

Now, even noting what is said about Brideson, the reality is that Brideson dealt with a different provision, and that is made abundantly clear in these reasons on it. The debate has been well travelled in this appeal so far. But that is not to say that the provisions of 45(6) and (7) don't have work to do. The envisage the eduction of further evidence, as is apparent from the further paragraph 14, the beginning of paragraph 14:

PN2264

Ordinarily if there has been no further evidence admitted and there has been no relevant change in the law.

PN2265

So it envisages that an appeal by way of re-hearing might consider further evidence, and that is not constrained to evidence up to the date of the earlier decision, nor is it in the Act, it doesn't say so in the Act, and it envisages taking into account change in the law. Well, what has to be submitted, what has to be the conclusion is that 45(6) and (7) enable the Commission to take a number of different courses of action in relation to an appeal. And the suggestion, one of the suggestions seems to be that you have to actually read 45 (7)(a) and (b), and presumably (c), as operating subject to sequential limitation, that you have got to deal with A first before you go to B: or you have got to decide first whether you are going to quash before you can decide anything else.

[12.00pm]

PN2266

With respect, there is no warrant for that in the provisions themselves. What it envisages is that the Commission can confirm. The Commission might confirm a decision, having found that there was an error in the manner of the decision making process, in the process of determination. Maybe an error, for example - and this is the case when one is dealing with any case involving what is broadly described in the cases as fresh evidence. It might be said, "Well this evidence ought to have been considered; it wasn't; but having considered it, it does not make any difference; we confirm the decision."

PN2267

The Commission can do that, notwithstanding that there is error found. And an Appeal Bench could do that, and an Appeal Court could do it. The AEUs proposition is that because there is an error, you simply have no course but to quash the decision. And that is supported by an adjunct proposition that somehow the error here was fundamental: that is, the 189(5) error was fundamental. Well, with respect, it is not. It is in the same category as a case where fresh evidence had to be adduced. It simply says - 189(5) says, these are matters that you need to take into account.

PN2268

The Commission has found in its reasons for decision of 19 July that those matters were not taken into account, were not had regard to. There is no warrant either under the Act or anything in Coal and Allied for coming to a conclusion that the Commission could not look at that material and then decide to confirm the decision, if it formed the view that the material that was advanced did not make a difference to the outcome. So we say in paragraph 2, the error found by the Commission was an error in the process of decision making.

PN2269

The error was the failure by Senior Deputy President Williams to have regard to 189(5) in dealing with and coming to his conclusions about 189(1)(d). Since Senior Deputy President Williams made no positive finding about 189(5), no assumption can be made that the evidence before him would have resulted in a conclusion against the applicant VPF. Coal and Allied says that the Commission is not required to re-examine a matter or re-hear a question unless it is satisfied that error has occurred.

PN2270

It is submitted that the error needs to be identified, and the re-hearing of the matter can only relate to that part of the decision which stems from the error or which is affected by the error. It is not a general licence then, or a window to then say, well, everything else is now up for grabs. Otherwise it would mean that in a case where you had a multiplicity of claims, if error could be found in the determination of one claim, that would give rise to an entitlement for the party to ask for the Commission - the Appeal Bench to revisit and make its own decision in relation to all other claims.

PN2271

Well, with respect, no: that is contrary to what in Coal and Allied is asserted to be the function of the correction of error. A correction of error, again, may involve simply determining whether by looking at the material that ought to have been looked at, determining whether or not, having looked at the material, it made a difference to the conclusion, to the ultimate conclusion: if it did not, then confirming the decision.

PN2272

In paragraph 40 the error found related to 189(5). That matter can be addressed by the Commission considering whether there is anything that could have prompted a different decision to that which Senior Deputy President Williams finally arrived at in the matter: that is to say, the Commission can proceed as it has done, and invite the parties to adduce evidence and make submissions in relation to the matter, and then determine whether the decision needs to be varied at all.

PN2273

The matter having been raised, the question is dealt with as a matter where the Commission is dealing with fresh evidence. Whenever the Commission is dealing with fresh evidence, it can apply its conclusions about that evidence to the decision appealed. No barrier exists to dealing with matters not dealt with by the primary decision maker, whether simply because of some change in the nature of the evidence, or it is evidence which relates to a matter not considered by the primary decision maker.

PN2274

The other possible error AEU seeks to have examined by the Commission is that which arises from the consideration of the further evidence. It is said that further evidence is necessary to determine whether there is an error. Now that that evidence has been put before the Commission, the Commission can decide whether in the light of the evidence the conclusions reached by Senior Deputy President Williams were erroneous. If the Commission does not so conclude, it can confirm the decision notwithstanding that it received the additional evidence, and that it was held relevant.

PN2275

Contrary to the AEUs submission, nothing in subsection 45(7) compels the Commission to first decide whether it will confirm, quash or vary the decision of Act concerned, and then make a further decision to take action or to refer the matter for action under subsection (7)(b), (c) or (d). The provisions simply do not require such a conclusion. There is nothing in subsection (7)(a) which limits its application: that is, it is not limited in relation to the effect that that will have.

PN2276

And in respect of (b), we will also say there is nothing in section (7)(a) which limits its application, and (7)(b) enables the Commission to receive all categories of fresh evidence, subject to their admissibility according to the exercise of the powers of the Commission. Subsection (6), 45(6) enables the Appeal Full Bench to admit further evidence. It does not say further evidence in relation only to such-and-such a period.

PN2277

It is going to be subject to whether or not the material is relevant to a matter of error which the Commission is to examine, or evidence that may give rise to such a conclusion. Further, there is nothing in section 45 which would prevent the Commission from noting an error in the decision making process, receiving further evidence and considering the matter, coming to a conclusion that even had the decision maker below considered the matter, this would not have change the outcome and thereupon confirming the decision below.

PN2278

If the Commission is to decide the matter - we go on in paragraph 7 - to decide the matter based on facts and circumstances at the time it decides the matter on appeal, then it may receive evidence of facts and circumstances up to that time, but need only consider matters raised by an appellant objector, and need not seek to satisfy itself about all the conditions in 189(1) unless matters are raised by the objector, and raised with some substance. Otherwise it may assume matters have remained the same as they were before the primary decision maker. It may if it chooses vary the date of grant of registration, if necessary.

PN2279

Now, the question was raised, and it has been debated in a number of ways about the time at which the decision is made. Well, with respect, there is no warrant for a supposition that if one matter is raised about the conditions in 189(1) the Commission has to deal and satisfy itself in relation to all of those matters which were heard and determined by the decision maker below, as at the time.

PN2280

If there is a need for updating evidence, well, one or other party will put it. If it is not put, the Commission can assume that matters have remained the same. There is no warrant for a conclusion or a supposition that it ought to be done again. If the Commission is to determine the matter by reference to circumstances, including facts and circumstances as at the date of the decision of Senior Deputy President Williams to grant registration, then it may do so by determining whether in the light of evidence and submissions about 189(5) there was any matter which would have caused the Commission at first instance to come to a different conclusion.

PN2281

If the Commission is not satisfied that there is any matter which would have prompted a different decision from that given by Senior Deputy President Williams, (there should be a comma there, I think, rather than a full stop) the Commission may note its consideration of 189(5) and confirm the decision of Senior Deputy President Williams to grant registration of the association. Given that the purpose of the conduct of a re-hearing is to correct error, it may do so without quashing the decision below.

PN2282

No doubt one of the key reasons for the AEU wanting to have the decision quashed is to prompt a situation where the application lapses and has to be started again: or, and/or to render void the act of the Registrar in entering the name of the VPF on the register and issuing a certificate. Well, the decision of the acts of the Registrar were not appealed to this Bench. That is their choice. They chose to do that, or not do it in this case, and to what end, for what purpose quash the decision.

PN2283

If the purpose of the exercise is to correct error it becomes a matter of looking at whether or not a particular - a conclusion may be reached adverse to the application that has been made by VPF. The fact that there is error in the way in which the decision was arrived at does not prompt of itself the quashing of the decision. The Commission is obliged, as identified in Coal and Allied and is identified in 45.06 and 7, to look at the matter and it may take into account evidence that is advanced in submissions that are put and come to a conclusion.

PN2284

If it comes to the conclusion that, even having regard to 189(5) there is nothing, particularly having regard to the appropriate strictness with which 294 has to be read, then what basis for quashing the decision if it comes to the conclusion that a different result would not obtain, even in the light of further evidence and submissions. In those circumstances, we say the Commission may appropriately confirm the decision. In the alternative, the Commission may refer the matter back to the primary decision-maker for further consideration.

PN2285

Now, we do not put that. We do not suggest it. We say that is put as a theoretical possibility having regard to the range of options that are available under subsections 45.7. We don't put that, but we notice that it was advanced in the debate. It may be an option simply because it is envisaged under subsection 7. We certainly don't put it. And in this matter VPF submits that there is no material before SDP Williams or advanced before the Full Bench that would lead it to a view that 189(1)(d) is not satisfied having regard to 189(5) and can itself be satisfied that VPF meets the requirements of 189(1)(d) having regard to section 189(5).

PN2286

Now, can I just also refer to section 190. In some of the debate there are submissions about, oh, well, at what point in time does one decide these things? Is the grant of registration decided as at the date of application being made or as at the date that the primary decision-maker makes his or her decision? Or as at the date that a Full Bench might consider the matter on appeal or as at some other date.

PN2287

Now, we say that certainly section 190 stands squarely against the proposition that you would decide it as at the date - what was the VPF and did it meet the criteria as at the date of its application, because 190 envisages that the Commission, a Presidential member can give leave to a party to amend the rules and its name while an application is pending. It tends to suggest that it is - you don't consider the VPF and its compliance with 189(1) as at the date of the application.

PN2288

And I have in mind here some comments that fell from the Bench earlier and also it is part of the debate that took place in the Federal Court. And it is submitted that there is simply not - or nothing in section 45.6 or 7 envisages that you would decide it as at the date of the primary decision-maker making his or her decision. It is just simply not limited in that way, and the fact that there is a gap between the time when the primary decision-maker makes his or her decision and the Full Bench considers it, might only be a matter of a short time extending beyond the time between when the evidence finishes in a case below and the primary decision-maker makes his or her decision.

PN2289

Inevitably, I think as your Honour the presiding member observed, there will inevitably be a delay, a gap of some sort in any event. What we say is there is no basis for an assertion that a Full Bench should not simply consider that unless a matter is raised by an appellant objector, or indeed, the applicant if he chose to updates its - thought there was something relevant that it needed to bring to the attention of the Bench, it simply quite properly assumes that matters have remained the same.

PN2290

Now, section 190, incidentally, of course, seems to have been included, or at least its predecessor provisions seem to have been included, prompted by those couple of decisions. One of them is the OPDU v Amalgamated Society of Carpenters and Joiners in [1951] CthArbRp 388; (1951) 71 CAR 67. We can hand some copies of - I don't need to take the Commission to them, but they identify what it was that prompted those - the amendments to include that.

PN2291

As to any suggestion that it might be thought, well, a problem is created by the fact that the Registrar has issued a certificate. It is submitted, well, that is a matter for the parties and for the Registrar. As we say earlier in the submission, one option would be for the - if the Full Bench desired, it could vary the decisions simply by varying the date upon which registration is to be granted and an amendment of that kind could be made by the Registrar on the certificate no doubt and in the register.

PN2292

But it is submitted in circumstances where one - what has been advanced primarily has been a - and this is dealing with the 189(5) point - an argument that certain material required or certain argument or matter and potential evidence required to be looked at, has not been looked at, the suggestion that that somehow of itself ought to result in the complete vitiation of the whole of the decision, with respect, is not warranted.

PN2293

To quash a decision on that basis, if the Commission can be satisfied, assuming the Commission can be satisfied having a look at the material, if it concludes that a different conclusion ought not to be arrived at, even having a look at the material comprehended by 189(5), the conclusion that seems to be advanced is that in any event you have to quash the decision first, because you found error. With respect, it is not error of that kind, it is not fundamental to the decision and it is not one which affects the whole of the decision.

PN2294

The best my friend gets, it seems, from his earlier submissions about this is to say, well, 189(1)(d) is but one component of a whole criteria. Well, it is a matter of sophistry. 189(1) has a list of items which might be described as criteria in it and this is but one of them. It is submitted, the matter is - it does not warrant the conclusion that our friends contend for. If the Commission pleases, I wonder could I seek an indulgence of an adjournment or an early lunch so that I can collect what remaining references we have and provide them as soon as we resume. I don't believe that I have much that I have to go to. I just want to collect it in a convenient way and check the submission to see whether we have missed anything.

PN2295

VICE PRESIDENT McINTYRE: All right. Mr Bromberg, do you have anything to say on the application for an adjournment or an early lunch?

PN2296

MR BROMBERG: Well, only this, your Honour, we complained some time ago, we complained some time ago about not having received proper contentions. It seems that the contentions that we should have received some long time ago were handed up, partly yesterday and partly today. I would have liked the luncheon adjournment in order to prepare a reply and my learned friend has other things to deal with. My preference would be that he deal with them to conclusion so we have some chance of digesting all of the material that comes without notice in over 40 pages of writing.

PN2297

But that is my only difficulty, your Honour. It may be that, in any event, we will ask the Commission to put something in writing in relation to the written material that has been provided today, but in terms of an adjournment I understand why my friend wants it for his purposes, but I was rather looking forward to it for my own.

PN2298

VICE PRESIDENT McINTYRE: All right. Well, how long do you think you would be, assuming we adjourn for five or 10 minutes now?

PN2299

MR HOWELLS: Your Honour, I doubt whether I will have more than further transcript references, but it's going to take me a while to find - to trawl through what I have got and check that I have not missed anything. I have noticed that there are one or two that might be in error. I don't have further topics to go to. I mean, I can attempt to do that. I mean, it may be that I will end up having to submit something in reply, but - - -

PN2300

MR BROMBERG: Well, if my learned friend seeks only to do that, that is, not raise any new matters of substance but just correct or - - -

PN2301

MR HOWELLS: I think in the circumstances it might be better if I withdraw the application. If I can ask the matter be stood down for 10 minutes, I will attempt to deal with it.

PN2302

VICE PRESIDENT McINTYRE: All right. Well, we will adjourn for 10 minutes.

SHORT ADJOURNMENT [12.21pm]

RESUMED [12.35pm]

PN2303

MR HOWELLS: Just two things. Could I ask the Commission to - in our written submission, the first part of it answering 1652, on the top of page 27, could we include just at the end there of the list of transcript references, especially transcript page 1063 and - - -

PN2304

VICE PRESIDENT McINTYRE: Sorry, where is this, page 27?

PN2305

MR HOWELLS: Yes, top of the page at the end of the list of transcript references, especially 1063 and 1072, and then going to the submission on the nature of the appeal and relief, that is the supplemental document that we handed, could I just - my instructor reminds me that I didn't go specifically to paragraph 5. We say that in relation to the further evidence which is advanced - we say that as to the further evidence which is advanced, that we oppose the adduction of that further evidence, the admission of it in any event and the leave that is required for our friends to advance that.

PN2306

We say in any event the onus is on them to establish that somehow this material as fresh evidence undermines significantly a conclusion reached by Senior Deputy President Williams, that it indicates an error, and it is on them to establish that that is the case.

PN2307

Now, to the extent though that what is put against us is, well, no, all we have to do is treat that as material that we would have put below and it is up to you to satisfy the requirements of 189(1), in any event we say those requirements are satisfied, there is nothing in that material that could prompt a conclusion different to the one that was arrived at in relation to the one at 189(1) criteria.

PN2308

Our primary proposition is, as we say in 5, that the onus is on the appellant objector to establish that this fresh evidence makes a difference and that it gives rise to a conclusion that there is error. We say that there is no available conclusion that just because they have found this material, the fact that it was not before Senior Deputy President Williams is an error, that we say is simply not open. They have not established that somehow the material was material which was called for and not produced, being material which could have been produced. It was always open to them to seek to advance - to pursue an application to subpoena material from the Department in advance, that they could have done that and they chose not to. They have chosen to do that on appeal.

PN2309

Now, to the extent that what is being advanced is the mere fact that that material was not there was, of itself, an error, we say just not open. The onus is on them to establish the basis for advancing it and that it, of itself, demonstrates an error. Now, if we be wrong about that, we say in any event the material itself doesn't prompt a conclusion adverse to what we say we have already satisfied in relation to the criteria in 189(1)(AA) and throughout. We say that on a fair view of it and the material that was advanced before Senior Deputy President Williams in relation to those matters, the VPF, which is the applicant, is not demonstrated to be an association which lacks the genuineness and the independence and the other criteria which are required to be established under 189(1). Those are the only matters.

PN2310

VICE PRESIDENT McINTYRE: Thanks, Mr Howells.

PN2311

MR HOWELLS: Can I just reserve a position though in relation to any incorrect references to transcript. I have not had an opportunity to check all of these references myself. I mean, we have been through them. I don't appreciate that there will be, but just in case there is one that proves to be a proof-reading error, I don't mean as to matters of substance, but it may be that there are errors there, but I - I am just a bit concerned about.

PN2312

VICE PRESIDENT McINTYRE: All right, thanks. Mr Bromberg, would you like us to adjourn now till 2 o'clock or thereabouts?

PN2313

MR BROMBERG: It might be convenient. I think I will be about an hour if that helps the Commission.

PN2314

VICE PRESIDENT McINTYRE: Yes, it would help because we have got transport arrangements and other things, so on that basis we will adjourn till 2 pm.

LUNCHEON ADJOURNMENT [12.40pm]

RESUMED [2.01pm]

PN2315

VICE PRESIDENT McINTYRE: Just before you commence, Mr Bromberg, that document that Mr Howells sought to tender this morning and we said we would consider over lunch time, it is our decision to allow the tender of that document but subject to such submissions as are made as to the weight or relevance of it in the proceedings, so we will mark it exhibit VPF18.

EXHIBIT #VPF18 DOCUMENT

PN2316

MR BROMBERG: If the Commission pleases. If the Commission pleases, I think my learned friend in his submissions described my approach to this case as Perry Mason like, I think that was his reference. It is probably part of the dismissive and quite contemptuous approach that he takes to our case. I can't recall, because I take my tips from real life not from television, but I can't recall whether Perry Mason was a prosecutor, but he may well have been and I think he was, but perhaps the reference is appropriate because really when one looks at my learned friend's submissions yesterday and today, what he sought to do is case me in the role of prosecutor and give to himself the role of defence counsel.

PN2317

He has required the AEU to prove its case not only to the criminal standard, but beyond the criminal standard. Mr Bromberg, he said at one stage, has not exhausted the realms of possibility. In relation to Mr Bugden's evidence and the reliability that can be placed on the search for documents, he said, well, Mr Bugden's evidence was that he couldn't be 100 per cent sure that all the documents had been found, and he says to you therefore that unless you can be 100 per cent sure in relation to each of the allegations that are made in our contentions, then you simply can't take them up and make findings in relation to them.

PN2318

There are many people sitting in our jails right now who have been sent there on the basis that the tribunal, be it a jury or a judge, were far less than 100 per cent sure of their guilt, far less than 100 per cent sure, merely certain beyond a reasonable doubt. This is not a prosecution. This is not a prosecution where the AEU seeks a conviction and the defendant, the VPF, is entitled to stay mute. This proceeding is an application by the VPF. It is the applicant and it is seeking to satisfy the Commission that it is an appropriate industrial citizen to be granted the privileges of registration.

PN2319

It must satisfy the Commission at the end of the day that it is a fit and proper association, to put a loose but somewhat accurate label upon the criteria in question. That is the finding that ultimately the Commission has to make: that the Commission is satisfied that the VPF has met the criteria in section 189(1) of the Act.

PN2320

In addressing that task, in making that finding, that ultimate finding, the Commission is entitled to take into account evidence brought to it in support of allegations made by an objector which leave open an inference of inappropriate conduct. The Commission is entitled to make a finding that it cannot exclude the existence of inappropriate behaviour in circumstances where the evidence before it demonstrates that that inference is open, and no evidence, or no satisfactory evidence was called to exclude the inference upon which the objector relies.

PN2321

An objector raises allegations. An objector is required to provide some substantiation of those allegations. We do not ascribe, and we have never suggested to anybody that it is the role of the applicant to bring evidence before the Commission showing that it has behaved in an appropriate and proper way, and done everything according to the rule book for the entirety of its existence. We accept that an objector has the kind of onus that the Full Bench in Re ASU talked about. You need to substantiate a bare allegation.

PN2322

His Honour, Senior Deputy President Williams, dealt with the question of onus at paragraph 34 of his decision. And whilst we say that he did not properly exercise the principle which he correctly here elaborates, nevertheless we say the principle, that is, the question of onus which he begins to deal with at paragraph 34, is here correctly set out. He says that he has dealt with onus in his prior decision in National Tertiary Education Industry Union. He says in the next paragraph:

PN2323

Under section 189 applications for registration may only be granted if and only if the designated presidential member is satisfied that certain criteria have been met.

PN2324

Skipping a sentence -

PN2325

... The ultimate responsibility for satisfying the designated presidential member that those criteria and requirements have been met lies with the applicant.

PN2326

And at 37:

PN2327

Unless the satisfaction of those prescribed conditions is put in issue by the designated presidential member or by an objector, the applicant is prima facie entitled to rely upon the material filed in support of the application to succeed in its application.

PN2328

A bit like a notifier being entitled prima facie to rely upon a paper dispute. He goes on to say:

PN2329

Where the satisfaction of those criteria and/or requirements is put in issue by an objector, a procedural requirement should be imposed on that objector to lead evidentiary material to put in a detailed manner its case in substantiation of its objection.

PN2330

Exactly what Re ASU says:

PN2331

The applicant would then be required to provide persuasive evidence proving satisfaction with criteria and/or requirements about which serious and substantial objection has been put in issue.

PN2332

Now, there can be no doubt that in this case serious and substantial objection has been put in issue. The question is, has the VPF by persuasive evidence, by any evidence, met the ultimate onus which it carries of persuading the Commission that it should be accorded the privileges of registration.

PN2333

I made some notes last night about this, and I was interested to hear the observation that your Honour, the presiding judge, made today. My learned friend's approach has been to run a no case submission. That is what he has done. And that, one must presume, has been done deliberately. The VPF is not a defendant. A defendant runs a no case submission. Applicants do not run no case submissions. Even if it were a defendant, it has a case to answer here, and unlike a defendant it is not entitled to stay mute.

PN2334

The approach has been to avoid the witness box at all costs. Even when we were here some months ago dealing with the production - not the tender, but simply the production of documents called upon by subpoenas to the VPF and to the Professional Associations, my friend resisted; took the unusual course - against our objection, which the Commission is yet to deal with, and probably does not need to - but took the unusual course of not permitting the person to come forward to produce the material. Not giving us the opportunity to even ask whether all inquiries had been made. Whether proper inquiries had been made. Avoiding the witness box at all costs has been the name of the game.

PN2335

What the VPF has sought to do is rely solely upon counsel's rationalisations, counsel's clinical-isation of the evidence, in order to make the claim that the AEU in its case has not done enough. So that, for instance, we had the common cry that the fact that the department's records do not reveal documents is the AEUs fault, because a summons that was forwarded to the department was not specific enough.

PN2336

Well, perhaps the Commission should look at that summons, and I invite the Commission do to that. When you do that, you will see this: that in relation to the Professional Associations there are three relevant paragraphs. The first is number 4 which deals with the VASSP, and it calls up correspondence, memoranda, minutes, invoices, reports, briefing notes, file notes, or other documents dealing with any arrangement or agreement between the VASSP and the State of Victoria by which support whether financial or by way of provision of resources is or was provided by the State of Victoria, and any documents relating to any request by the VASSP for such assistance.

PN2337

Paragraph 5 deals similarly with the VPPA. Paragraph 6:

PN2338

Any correspondence, memoranda, minutes, reports, briefing notes, file notes or other documents relating to any service agreements entered into between the Department of Education and the VPPA or the VASSP since January 1992.

PN2339

Now, why, might we ask, was that, or is that to be regarded as insufficient for the purpose of calling up reports dealing with evaluation and financial accountability. It asks for reports. It asks for any reports in relation to the service agreements. The service agreements require reporting, and the documents that were produced do include some interim reports. So that whoever did the search understood what was being asked for. The language of the subpoena was not hard to understand, and what was produced shows clearly it was understood.

PN2340

So what we get is lawyers' arguments in circumstances where what we could have had so easily, if the AEU was wrong, what we could have had so easily and so readily was somebody to go into the witness box and say, here is a report, here is a financial accountability statement: or, we did fill one out, we did provide one, but we have now lost it. How easily, how readily could that evidence have been provided. And if it wasn't able to be readily provided, then surely the Commission would need to be given some evidence as to why that is not the case.

PN2341

It is perhaps necessary to remind the Commission, because it seems that the VPF has forgotten, of that old chestnut, Jones v Dunkel. Can I hand up copies of the decision of the High Court in Jones v Dunkel. This was a civil case where negligence was claimed, and in essence it dealt with the correctness or otherwise of a direction made by the judge to the jury. And there were a couple of statements that I think the Commission will be familiar with, and I just want to refer to them.

PN2342

In the judgment of Kitto J at page 308, at about point 6 of the page you will see a sentence beginning at the margin with the word "But" - "But what should have been added ..." His Honour is there talking about what should have been added to the direction of the jury, and he says:

PN2343

But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence ...(reads)... and the evidence provides no sufficient explanation of his absence.

PN2344

Then in the judgment of Menzies J on page 312, his Honour in the middle of the page sets out what in his opinion would have been the proper direction, and we note point (iii) in that paragraph:

PN2345

That where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance of the defendant disputing it ...(reads)... as a circumstance in favour of drawing the inference.

PN2346

And Windeyer Js judgment is the judgment, I think, that is often referred to. The passage beings at page 320 towards the bottom, where his Honour referred to Wigmore On Evidence, and quoted as follows:

PN2347

The failure to bring before the tribunal some circumstance, document or witness when either the party himself or his opponent claims that the facts would thereby be elucidated ...(reads)... but the propriety of such an inference in general is not doubted.

PN2348

His Honour, in his own words, says this:

PN2349

This is plain commonsense. If authority is needed, two passages from Burdett made by cited -

PN2350

And he cites the following passage from Abbott CJ:

PN2351

No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him ...(reads)... but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected.

PN2352

Which is exactly what my learned friend wanted, mathematical demonstration. And then in the judgment of Best J:

PN2353

Nor is it necessary that the fact not proved should be established by irrefragable inference. It is not enough if its existence be highly probably, particularly if the opposite party has it in his power to rebut it by evidence and yet offers none, for then we have something like an admission that the presumption is just.

PN2354

And his Honour goes on to say:

PN2355

Unless a party's failure to give evidence is explained, it may lead rationally to an inference that his evidence would not help his case.

PN2356

And he refers to other decisions on the same point. How easy it would have been on so many of the issues that have been canvassed by my learned friend yesterday and tomorrow, how easy would it have been for a witness to go into the witness box, if my learned friend's propositions are correct, and just tell us: all the money was spent on professional development, all of it. Or: of course we put in financial accounts and verification, here it is. Or: can't find it, but I saw it, and we did it. Or: no, no, the costs weren't built in, the on-costs weren't built into our service agreements; never happened.

PN2357

The witness could have gone - if I can take the Commission, for instance, to volume 1D(9). And what D(9) tells us, and the Commission has seen it before, it refers to a previous agreement to build in Geoff Head's overhead costs, and then on the second - the third page of the document in relation to a meeting of 25 March 1993 it is reported that Geoff Head's on-costs and legal fee reimbursements have not been built into contracts for services agreed. The response is the agreements with the professional associations are not yet finalised, so there is still an opportunity to build them in. And the action, Vin Virtue to meet with Peter Paul, Peter Martin and Geoff Head to resolve.

[2.25pm]

PN2358

Now, how easy would it have been for either of Peter Paul, Peter Martin or Geoff Head to have been called, or Vin Virtue, to tell us that what appears intended here just did not happen. Why weren't they called? Surely this material does more than what an objector needs to do. Surely it takes what otherwise would have been a bare submission and closes it in evidence. Surely there is an inference open as a result of this evidence, that the on-costs were built in. And if Mr Head or Peter Paul or Peter Martin, all of whom were in the camp of the VPF, were able to tell us that that was not true. Why didn't they come forward? Why didn't the VPF have them come here and tell us that we are wrong.

PN2359

And if they were not available, why hasn't there been some explanation as to their availability? I should say that my learned friend sought to suggest by reference to AEU16 - he sought to suggest, and his submissions at paragraph 16.12 say conclusively that the documents show that the on-costs were not built in, and he sought to suggest that that was to be proved by reference to AEU16. AEU16 attaches - has attached to it a letter from the secretary of the VPF, or the FVSA as it was, to Mr Spring. And it is dealing with the agenda items for the meeting of Thursday 25 March.

PN2360

And number 5 on what the VPF wants to be an agenda item is the question of Geoff Head's on-costs, and the fact that they had not been built in. Document 9 that we have just been to is the meeting of 25 March. The agenda item in relation to Geoff Head's on-costs which the VPF sought be dealt with was dealt with. And it was dealt with by item 5 corresponding perhaps not coincidentally with the fifth item on Mr Wetherill's agenda. And how was it dealt with? It was dealt with in this way: it was acknowledged that the costs had not been built in. It was acknowledged that there was still an opportunity to do that, because the service agreements had not been finalised.

PN2361

And the action taken in order for that to be achieved is here set out. There is to be a meeting between the Department, Mr Vin Virtue of the Department, and each of the representatives of the Principals' Associations. Now, my learned friend kept saying that we had indicated we would call certain witnesses, which was firstly incorrect, and secondly a desperate attempt to attach blame or responsibility beyond his own client. What we aid and what we have always said is that we may call particular witnesses. We have always wanted to keep our options open about that until we were satisfied ourselves that on the basis of evidence we were seeking through subpoenas there was sufficient to make out - there was sufficient for the Commission to be able to infer or draw in inference as to the propositions that we were contending for.

PN2362

Now, if the documents had not done what they do for our case, it may well have been necessary for us to seek to make the propositions good through evidence of persons including those in my learned friend's camp. It may well have been necessary, because there was, and we accept an onus upon us to substantiate what otherwise would have been their allegations. But with the benefit of the evidence from the Department, it was no longer necessary.

PN2363

SENIOR DEPUTY PRESIDENT DUNCAN: You mean the documentary evidence?

PN2364

MR BROMBERG: The documentary evidence. It was no longer necessary for us to do any more to discharge the tactical onus upon us. And the fact that we kept our options open until we were able to make a final decision about that is not a matter of excuse nor is it a proper subject for criticism of our approach. At the end of the day, my learned friend's clients carry the onus. This is their application.

PN2365

Now, it might be worth making the point, if it is not already clear to the Commission, that Mr Head who was the President of the VPF, the longest-serving president of the VPF, he was President I think from - well, at least in 1992 and through to about 1996, he was in charge in the time period in relation to which many of the allegations, most of the allegations that we make by reference to the Department's evidence, he was in charge during that time period.

PN2366

He was not only not called here, but he was never called below either. The Commission has never, ever had the benefit of evidence from any official of the VPF who was an official in the years '92-93, 93-94, I think '95. Mr Conway, who took over as president in '96 may have held a position on the executive of the VPF before then, I can't now recall. But what the VPF did in the proceedings below was seek to make out its claim through its primary witness, Mr Linnett. Mr Linnett had been in the job for literally five minutes.

PN2367

He had never had an association as an official before with any of the various animations of the VPF. He hadn't been an official of the old VPF or the FVSA. He became president of the new VPF, and as our submissions tell the Commission, he candidly admitted that he knew nothing of the history. His statement sought to deal with the history, it does deal with the history, but he knew nothing personally of it. He simply exhibited various historical records.

PN2368

VICE PRESIDENT McINTYRE: What had he been before he became president; a school principal somewhere?

PN2369

MR BROMBERG: A school principal, yes.

PN2370

SENIOR DEPUTY PRESIDENT DUNCAN: Can the same be said about Mr Brierley?

PN2371

MR BROMBERG: Mr Brierley was on the executive of the VPF, he was president of the VASSP as well. When he first became associated with the VPF I can't tell your Honour. My recollection is that it certainly wasn't in those early years. But perhaps if we can find the evidence we will assist the Commission. Now, on the question of onus, my learned friend suggested that he had a lot to say, but in the end didn't say very much at all, in our respectful submission.

PN2372

He suggested that a lot of this material had been before Senior Deputy President Williams. There are assertions made to that effect. They are made, for instance, at paragraph 7E on page 4 of my learned friend's submissions, VPF and VASSP and VPPA did not fail to produce material relevant to the requests which were made. They reject any suggestion that any plainly relevant material was withheld. They say, in paragraph F:

PN2373

Such material as was contained on the records of the VPF and the professional associations was produced pursuant to relevant requests, and later in response to the summonses.

PN2374

Well, you don't know that. There is no evidence before you whatsoever on that question. This is pure assertion. The only evidence about what was produced below referable to the discovery process that was agreed to between the parties below is contained in Mr O'Connor's affidavit, which is AEU8. And he says, unequivocally, without contradiction by reason of any evidence, that in relation to very specific requests about financial assistance, about arrangements, including agreements to oppose AEU applications, there was two or three documents provided.

PN2375

And all of that, I think, is in paragraph 13 of Mr O'Connor's affidavit. And it was sought to be suggested that there was evidence about service agreements, and that we had had more than ample opportunity to below deal with the notion of the existence of service agreements, and cross-examine to our heart's content. Well, not a single service agreement was provided to the AEU in the discovery process, not one, not for any year, not from any of the two associations, not one.

PN2376

The way in which service agreements came up was totally cold in the cross-examination of Mr Conway, and thereafter taken up by whom I think was the next witness, Mr Brierley and the cross-examination of him. And it occurred in this way. Your Honour, I should say, not a single witness statement from the VPF, from any of its witnesses, including people like Mr Brierley and Ms Small, who were the respective presidents of the two associations, not a single witness statement mentioned service agreements.

PN2377

At page 765 of the transcript, on 14 December, Mr Conway was asked about a service agreement by reference to a document that we did have, which was a 1994 newsletter which referred to the 1993 service agreement. And he was asked what that was, and then it all started to be explained, but without the AEU being able to cross-examine on the basis of any prior knowledge of the existence and the nature and the form and the terms of these agreements.

PN2378

And all that was said in evidence - and my learned friend went to Mr Brierley and his evidence this morning when he was cross-examined in relation to service agreements - all that needs to be understood in these circumstances. We did not have a single document relating to a service agreement. We were cross-examining cold as a result of something that came up in the course of cross-examination. And all of the evidence given about service agreements needs to be appreciated in that context.

PN2379

How different it might have been if we had an opportunity to take Mr Brierley or take Mr Conway or take Ms Small to the terms of the service agreements, to their requirements, to state conferences and what had occurred in state conferences, and to the financial and auditing requirements. How different it might have been if the discovery which should have been produced to us had been produced.

PN2380

And on the question of onus, in circumstances where the VPF gives you no explanation on evidence as to why this material, which so obviously should have been and must have been in their possession, or the possession of the professional associations, in circumstances where no explanation is given to you as to why agreements with their names on it, correspondence emanating from their offices, correspondence addressed from the Department to the VPF and to the professional associations, where no explanation is given to the Commission as to why those matters were not produced to the AEU.

PN2381

VICE PRESIDENT McINTYRE: Were the service agreements - sorry for interrupting - provided before Senior Deputy President Williams after it had been raised?

PN2382

MR BROMBERG: No, they weren't, your Honour. It was something that was dealt with unexpectedly. It came up in the course of cross-examination without the preparation, without the reference to documents. I remember somebody commenting, your Honour, some time ago during the difficulties that Mr John Laws and others had about comments on radio, and the inquiry that that caused. I remember someone commenting about the cross-examination of Mr Burnside and how good it was.

PN2383

And the comment was made, well, how good could it have been or would it have been in the absence of all those documents that were used and were available? One doesn't need to have spent very long in court or in litigation to understand the benefit to a cross-examiner of some foreknowledge through documents and other records.

PN2384

VICE PRESIDENT McINTYRE: They were not called for, and they were not before his Honour at all?

PN2385

MR BROMBERG: They were not before his Honour. And they were not - their contents and importance, your Honour, was simply not appreciated in the way that it is appreciated now, in the way that it should have been appreciated, understood, if the discovery that should have been provided had been provided. Now, the point that I was trying to make, your Honour, was, my learned friend was suggesting that despite the fact that none of this material was properly before his Honour below, and despite the fact that no explanation has been given as to why it wasn't provided, no explanation on evidence, he was suggesting that on appeal all of a sudden the onus became ours.

PN2386

Whereas I think he would have to concede that if the material had been the subject of evidence below, the onus on the issues that the material raises will clearly have been his. And in our respectful submission that can't be right. That can't be right that a party withholding documents, or at least not explaining to the Commission that documents were not withheld, should be able to take the advantage of claiming a different approach to onus when those documents and that evidence is looked at by an appeal Bench.

PN2387

Now, my learned friend, in his valiant attempts to acclimatise the evidence, dealt with a couple of issues that - perhaps a couple of issues that I can use by way of illustration to make the point I am seeking to make. Can I go firstly to the membership position. Our position about that is that the VPF misled the Commission about its membership. And we say that was deliberate, and we say that inference is open, and without evidence to the contrary it is an inference that can't be excluded.

PN2388

My learned friend's position is, well, look, when the Commission was told by the VPF it had 1900 financial members, not simply members, but financial members, it was acting under an innocent mistake, and officials of the VPF, he says, were understandably mistaken. They didn't know that they didn't have members, they were mistaken about that. And there is no evidence called, but you should believe that, you should surmise that fact by reference to two things.

PN2389

Firstly, people like Mr Linnett, it was said by my learned friend, well, he thought he was a member. Well, he thought he was a member, but as the evidence shows, he didn't know a hoot about the VPF, not a hoot. He, as the president of the association, could not even tell the Commission whether the VPF had any assets. And what he thought is irrelevant. It is what the officials who were the officials at the time that these statements were made to the Commission which is relevant.

PN2390

The fact that Mr Linnett or Mr Brierley might have thought that they were members for all sorts of unconvincing reasons, doesn't tell us what Mr Head thought. Was Mr Head mistaken in his belief about the membership of the VPF? And my learned friend goes to rule 7.2 of what were then the rules of the FVSA. And can I just take the Commission there, it is volume 10 of the appeal book at page 220 - 229 it is - no, I am sorry, 220. I want to come back to 229. 220 is the old constitution of the FVSA. Then 7.2 says this:

PN2391

Branch membership shall consist of all principals, deputy principals who are themselves members of the constituent associations of the federation.

PN2392

Now, what does branch membership mean? That is not clear. And really at best all that can be said about this is that it might have been open for members of the constituent associations who were principals or vice principals to join; that is the best that can be said about it. In any event, it is in the constitution of the FVSA, constitution that was supplanted in 1993 by the constitution which appears on page 229. And most of the statements made to the Commission were made by the VPF. I think one or two on the question of membership may have been made by the FVSA, but most of them were made in 1993, and 7.2 no longer exists.

PN2393

The question of membership is dealt with by rule number 2. Membership is open to all principals. But the fact is, as the evidence shows, nobody joined. And one would have thought that in the context of having just changed their constitution to make it open clearly for principals to join as individual members, the people running the place would have had a pretty good idea how many had actually joined. They would have had a pretty good idea when, in the midst of 1993, they told the Commission that they had 1900 financial members. And can I also take the Commission to AEU33, which is volume 8 at page 122.

[2.55pm]

PN2394

VICE PRESIDENT McINTYRE: But did the constitution put, at the bottom of page 229, provide for fees, or just subscriptions to be paid by members? You mention somewhere - - -

PN2395

MR BROMBERG: Yes, I am pretty sure it did, your Honour.

PN2396

VICE PRESIDENT McINTYRE: Yes. No, I was just wondering when you said that financial members - - -

PN2397

MR BROMBERG: Yes. How could it be said that Mr Head didn't know how many financial members he had, in the context of this constitution. And then volume 8 at page 122. Now this is AEU33 - is a document written by Mr Head. It is a document that was referred to in VPF Executive Minutes of 1 June 1995. And you see that from transcript 489 at line 5. Now, Mr Head says in point 1:

PN2398

The VPF cannot claim a committed membership because people have not made an explicit choice to join it.

PN2399

Then he says over the page at 124 in the paragraph, for example, he says:

PN2400

Furthermore the VPF may jeopardise its survival if the membership base declined as a consequence of members being required to joint the VPF independently of joining VPPA and VSSP.

PN2401

And then in volume 7, at page 113, he says - this is a news brief from the VPF and you will see a headline - the Headlines, and Mr Head begins by telling us that the past year has been - I should say this is 1995:

PN2402

The past year has been one which the VPF has continue to grow and further extend its sphere of influence. Membership has passed a target of 2000, primary 1418, secondary 709. While it cannot be claimed that the 2127 members have actually joined VPF, those who now joint the VPPA and VASSP will be very conscious that they joined the VPF.

PN2403

Now, I do not know why he says that. Perhaps that is because those associations are sending out material and I think there is some evidence of that - sending out material that you have the benefit of the services of the VPF when you join the Professional Associations. But what is clear is that Mr Head knew that the VPF had no members. He knew that the members were the members of the Professional Associations, and he knew that it could not be claimed that anybody was a member of the VPF. But what did the VPF tell the Commission? The VPF made that claim, despite the fact that here Mr Head is telling us that that claim cannot be made.

PN2404

So that to suggest that what the Commission was told was the consequence of innocent mistake, in our respectful submission, not only is it untenable, but it is refuted by the evidence already before the Commission. And what should the Commission do with that sort of behaviour? Should we sweep it under the carpet? Should we say, well, from time to time we are lied to here in the Commission, and so be it. What onus is there - what expectation is there on the Commission for parties who come before it to be honest and candid with it; up front. Make qualifications when qualifications are required. Tell the truth at all times. Isn't that what the Commission expects? Isn't that what the Commission expects of a registered organisation?

PN2405

Should not the Commission take into account in a grave way the fact of an applicant for registration having behaved in a manner which on the evidence suggests falsehood. Suggests deception. Suggests misleading conduct. The Commission cannot operate properly, in our respectful submission, if every time somebody came before it and sought leave to intervene we had to have evidence of how many members they had, and whether they were there independent of the views of the employer or anybody else.

PN2406

The Commission expects candour and honesty. It expects that anything coming from the bar table will be put on instructions, and will be put in an honest, candid and frank way. The Commission is entitled to expect that. And when an association seeks registration in order that it cam become a player in this place, then the standards of behaviour which the Commission, in our respectful submission, should require are high. Not only have those standards been breached, they have been breached, and the applicant rather than confess, own up, seek forgiveness, or apologise for its behaviour - rather than the applicant doing that in order to wipe the slate clean, in order to say to the Commission, look, okay, we were wrong on that occasion, we should not have said what we said, we should not have claimed the membership that we did not have - rather than the applicant here seeking to absolve itself from the conduct, what the applicant here has done is clothe itself with the sins of its predecessor by essentially seeking to justify them.

PN2407

It has not sought to resile from them. It has not offered an explanation, or apology. It has sought to justify what happened. And, in our respectful submission, if you need evidence of recent conduct, here it is. We have seen it today and yesterday. Here it is. Here is an applicant which continues to run the lie. And it continues to do that on the membership issue, and it continues to do that also on the question of payments made to its predecessor by the employer.

PN2408

Now, let me just go now to that, because that is a matter of some importance. The Commission might look at document 9, if the Commission pleases, in volume 1 of the Department's records. There is there, as the Commission knows, the letter on the letterhead of the VPF and signed by Mr Head, dated 9 June 1993, which seeks reimbursement of $8,500.

PN2409

VICE PRESIDENT McINTYRE: Sorry, which document is this?

PN2410

MR BROMBERG: I am sorry, your Honour, it is number 14. It is the second document in bundle 14. It seeks reimbursement for costs incurred whilst acting on behalf of the DSC at the Commission on various dates. My learned friend says about that: no, look, that doesn't tell us, that doesn't even lead to the suggestion that the VPF appeared on those days as the agent of and on behalf of the employer. He says: the VPF, you should presume, was there in its own interests; not there on behalf of the employer at all.

PN2411

The way in which this request was characterised, he says, the words, "whilst acting on behalf of the DSC" were not the words of the VPF, they were the words of the Department suggested to the VPF. So, my learned friend says, the VPF sought moneys, saying that they were for a particular purpose, but in truth the moneys were not for that purpose.

PN2412

What my learned friend concedes by that submission is that public moneys were obtained by the VPF under false pretences. That is a criminal offence. Whether the words were suggested by the Department would not absolve the VPF from the criminality involved. Receiving moneys under false pretences is fraud. What my learned friend is saying is that that is how you should interpret what occurred here. You should not interpret it as the receipt of moneys for the purpose for which the letter gives. You should interpret it as a request for moneys in relation to something other than the pretence by which it was made.

PN2413

You cannot, in our respectful submission, have it both ways. Either the VPF was there on behalf of the Department, or the VPF has received money under false pretences. Whichever way you go, those are very serious allegations. That is evidence of serious impropriety which has not been answered. Again, rather than seeking to distance itself from the conduct, you have the VPF, the applicant in its current form, here seeking to justify it.

PN2414

Now, what is the Commission to do with that? What is the Commission to do with what either on one view or the other view, whichever way you want to put it, is conduct of the most pernicious kind; grave conduct; substantial and significant impropriety. What can it do? It cannot just be hidden under the carpet. No wonder my learned friend wanted these documents to be confidential. These ones might be, but the Freedom of Information documents are not. They are out there in the public domain. People will know what happened here. They may not know yet, but people will. And what is to be said that the Commission registered an association involved in conduct of this sort.

PN2415

What industrial interest of principals was the VPF intervening to protect? That is the question we say, with respect, needs to be asked. Let us just take an example. The redundancy case. Here is a situation which the material from the Commission's files and its own decision will reveal was a situation where the AEU was complaining about a method by which teachers were being made redundant. Teachers, not principals. Teachers were being made redundant. It was saying that there was a level of unfairness in relation to that process. And in particular that it was all happening at undue haste. That the circumstances in which it was happening had created unfair and unjust pressure upon teachers, and what the Commission needed to do was put a halt to the process, interim, in order that some considered method for dealing with the situation could be put in place.

PN2416

What industrial interest of principals was the VPF seeking to take up in opposing that application? My learned friend has not suggested any. His submissions do not suggest any. Insofar as he went to justify intervention, I think he went to the work load case. Mr Whittaker said himself - he appeared for the VPF - he said himself, principals don't have a direct interest here, don't have a direct industrial interest here, but we run schools. Is that a legitimate basis for an industrial association to intervene?

PN2417

In our respectful submission, one needs to look at that, and the answer in the context is no. Why did the VPF ask the Department whether the Department wanted it to intervene. That is what the working party minutes in D23 and D24 show: that it was the VPF asking the Department, do you want us to intervene. Now, if the VPF had its own agenda, its own interests to protect, why are they asking the Department whether they should intervene? And if the VPF was there protecting its own interests, as my learned friend suggests it was, why was it seeking recoupment of its costs from the Department?

PN2418

Why would anyone think that the Department should pay for the VPFs appearance by counsel in a case in which the VPF had an interest to be involved in. If the VPF had a legitimate interest to be there, then surely it would have expected to pay its own costs. It is not a question of sharing costs. Mr Spicer was not here for the Department and the VPF. The Department had its own counsel. Why does the VPF ask for the costs? And why then hide it as a donation?

PN2419

In our respectful submission, if all of that does not raise the inference that this was a contrivance, a dirty deal, then it is beyond us to know what else we could do. Clearly that raises the inference for which we contend. And in circumstances where nobody - nobody goes into the witness box and says, "No, no, no, no, that is all wrong, this is what happened; this is why we put it down as a donation; that is why we asked for the money."

PN2420

If nobody goes into the witness box and gives a rational explanation, what is the Commission supposed to do. We weren't born yesterday. The documents indicate fairly strongly what went on here. And what the VPF seeks to do is justify it. What the VPF here seeks to do is not apologise, resile, or provide some explanation. It seeks to justify it through rationalisations made from the bar table.

PN2421

Mr Brierley became a member of the VPF council and executive for the first time in 1998. He had been a Honorary Treasurer of the VASSP from January '95 to December '97. He was elected President of the VASSP on 7 November 1997. This is in VPF42, appeal book 13, page 137.

PN2422

SENIOR DEPUTY PRESIDENT DUNCAN: Thank you.

PN2423

MR BROMBERG: Which is his witness statement.

PN2424

SENIOR DEPUTY PRESIDENT DUNCAN: Yes.

PN2425

MR BROMBERG: Now, my learned friend went at length to what his Honour below found on the questions that are thrown up by this new evidence, in particular the question of genuine association, and undue influence, and the like, and what his Honour had to say about whether he could be satisfied of any conspiracies, as my learned friend put it.

PN2426

The conclusion that his Honour comes to, which my learned friend ultimately ended up at, is at paragraph 241. His Honour said this:

PN2427

In pursuing its agenda the VPF may have on occasions reached a compromise position. Compromise is a fact of life in any relationship that involves negotiation ...(reads)... However, I am not satisfied that it -

PN2428

that is, the VPF -

PN2429

... acted at the direction of the DOE, or as a result of the conduct of or threats explicit or implied by the DOE.

PN2430

Now, one thing that his Honour does not refer to there, of course, is financial inducement, which is now clearly a matter open on the evidence. He goes on to say:

PN2431

Nor am I convinced that the VPF has reached any compromises other than what is perceived to be the industrial interests of its members.

PN2432

We say that if his Honour had the material that the Commission here has seen, and in circumstances where just like here that material was not responded to, his Honour would not have come to that conclusion. His Honour would not have regarded the conduct in question here as a legitimate compromise. His Honour would not have been satisfied that the VPF acted only on its own initiative, and not as a result of pressure or inducement from the DOE. And nor would his Honour have been satisfied that the VPF had not made compromises - had not compromised the industrial interests of its members.

PN2433

VICE PRESIDENT McINTYRE: Is that what his Honour means by compromises? I was puzzled by the - what he is actually referring to there. Reached any compromises: it sounds like a settlement, in an industrial dispute, or something. Or whether it means compromised itself.

PN2434

MR BROMBERG: Yes. Well, that is what his Honour wasn't considering, which is what needs to be considered now. The VPF, in our respectful submission, did compromise itself, and as a result it compromised the interests of its members. Any organisation that comes before this Commission and falsifies - with falsified assertions, both as to its membership and as to its independence, compromises itself, and compromises therefore the interests of its members.

PN2435

VICE PRESIDENT McINTYRE: It starts off by saying:

PN2436

In pursuing its agenda the VPF may have on occasions reached a compromise position. Compromise is a fact of life.

PN2437

It just seemed to me to relate to settling a matter; maybe not a good settlement because the balance of power was against it, but it just was not particularly clear to me.

PN2438

MR BROMBERG: Look, I think your Honour is right. I think your Honour is right, because what his Honour did was essentially accept what was put to him by the VPF, and which I think I have referred to before at paragraph 78 of their submissions. What the VPF was saying was that they took a different industrial tack than the AEU. They made compromises which maybe the AEU would never have made, but those compromises without more, in the VPFs words, do not evidence control or improper influence.

PN2439

In our respectful submission, the "more" that the VPF call for is available. And it was not available before his Honour. It is available now. And his Honour would not have come to the view that any compromise that the VPF made was properly to be attributed to an ordinary industrial compromise of a form that might be brought about by the nature of the balance of power, or the relationship between the parties.

[3.25pm]

PN2440

And of course if his Honour had come to the conclusion that we ask the Commission here to come to, and that is that one on the evidence - that on the evidence before the Commission now impropriety cannot be excluded. You cannot be satisfied that impropriety, serious and significant impropriety, did not exist and did not occur. You cannot be satisfied of that. If his Honour had come to that same view based on this evidence, it would have changed, in our respectful submission, his whole approach. He would have tested everything the VPF did, whether it was to prefer contracts to federal awards, whether it was to do a deal about remuneration packaging, whether it was to convince its members not to take strike action.

PN2441

Whatever it was that was pointed up to his Honour, in our submissions, as being evidence of collusion and improper less than arm's length relationship, all of that his Honour might have seen, and in our respectful submission should have seen, in a different light with different glasses on. His Honour never came close to the view that anybody involved with the VPF had been involved in conduct of the kind that we now point to. And if his Honour had known that, in our respectful submission his whole approach would have been different. And at the very least, the Commission should be satisfied that his whole approach may have been different.

PN2442

And it is not safe, in our respectful submission, for the Commission now to rely upon any of the findings that his Honour makes in this area of debate that was before him. Because whatever findings his Honour came to, his Honour came to on the basis of different evidence and without the benefit of the evidence that the Commission now has and without the benefit of being able to take that evidence and use it as a measuring rod for assessing each aspect of the behaviour of the VPF which was called into question.

PN2443

My learned friend said something about the state conferences, that money was provided to the professional associations from the Department. He said they were not organisational conferences because there were speakers and other people involved in those conferences. In our respectful submission, that is not at all a sign of what one would expect. I am sure the AEU has a state conference. It too invites people to talk about issues relating to teachers and principals, notably the material that my learned friend went to included the VPF and Mr Head addressing the conference.

PN2444

It involved what was called an annual VPPA conference, I think held at Moama over three days, and involving the members of that association. In other words, it was not open as a professional development exercise for any principal. It was a members' conference. And the VPFs submissions at paragraph 99 concede the financial benefit that the VPF got out of the arrangement. Paragraph 99 on page 61 in the submissions below they said contributions by government to the annual leadership conference would not affect its being run, but contrary to AEU submissions at page 63 it would simply affect the amount which the members would have to pay and the amount of the sponsorships that would have to be found.

PN2445

In other words, the $30,000 was going to make the stay at Moama Golf Club cheaper for all of the VPPAs members, and it no doubt did; in circumstances where the service agreement says you shall not use this money for your members. My learned friend sought to suggest that section 189(5) ought to be construed strictly. He said section 294 is a penal provision. It might be, but section 189(5) is not a penal provision. It is to be read in the context of section 189(1)(d). It is part of the section 189(1)(d) criteria, and it is not to be read strictly as though it were a penal provision, simply because it uses section 294 as a litmus test or perhaps partly as a litmus test for setting up particular criteria.

PN2446

In any event, we emphasise, as I think we have already emphasised sufficiently, that we do not just rely on 189(1)(d) in relation to the evidence that we seek leave to utilise. We rely on that evidence for each of the paragraphs in the test that we identified in our submissions. And I think that is most of them. Now, can I come then to deal with my friend's submission on the nature of the appeal. Our submission is that the Commission should quash the decision of Senior Deputy President Williams and it should do it primarily for two reasons. The first is that it is vitiated by error, and error of the most fundamental kind.

PN2447

It was made without regard to all of the considerations which the legislation requires. Secondly, if the Commission admits the further evidence that we ask it to admit and if the Commission moves to place reliance upon it, as we say it should, then it is obvious that a decision based on evidence not then available but now available here, should not stand, not necessarily because there is error. It is a bit tough on Deputy President Williams to say he was in error by reaching conclusions in circumstances where the evidence that we now rely upon was not available to him.

PN2448

But the fact of the Commission's reliance upon it here, if the Commission chooses to place reliance upon it, means that the Commission must come to its own decision on the application. And in those circumstances it is appropriate that the decision of Senior Deputy President Williams be quashed. Now, let me come back to the first reason, and that is that his Honour's decision is vitiated by error. Unlike the example that my learned friend went to, where a decision may have a number of different components and the Commission below might go wrong on one and get 99 others right, we are here dealing with one decision, one composite test, every element of which must be satisfied and if error is made in relation to any element then the whole decision must fall.

PN2449

If error was made, as the Commission has found, in relation to section 189(1)(d), then his Honour could not have come to a correct view on the single decision that he had to make, and that is whether he was satisfied that the criteria in its whole had been met. If you have a look at page 4 of VPF17, which is my learned friend's submissions on the nature of appealing relief, in the middle of - perhaps a little towards the top of page 4, the key to the submission is really there set out, and it is in these words:

PN2450

The failure to refer to section 189(5) does not vitiate the decision as a whole.

PN2451

Now, with respect, how can a decision stand that failed to take into consideration one of the essential elements of the test that the legislation requires. It cannot stand. His Honour made an error of law. An error or law vitiates the decision. And once a decision is - once a decision is made in error, it is not a decision at all, especially in this case. Because what the legislation does is say once a decision is made registration is made effective by the Act. There is nothing in the Act which says if the decision is made wrongly then registration is overturned. There is nothing there that does that.

PN2452

The way that it works is a decision wrongly made is a nullity. A decision afflicted with error of law is not a decision at all and therefore there is no decision upon which registration can be founded. That is the way that it works and that is not surprising. A decision which is afflicted with error by reason of the failure of the Commission to exercise its jurisdiction in relation to the subject matter that the legislation requires it be exercised over is not a decision at all, and in our respectful submission all the Commission should do in that situation is quash the record, and do that by reference to 45(7)(a); quash the decision and, as we said at the start of these proceedings, leave it at that.

PN2453

Whether or not you quash, it is clear that if you move yourselves to consider the test that his Honour should have considered but did not, or in the alternative if you move yourselves to admit the further evidence and place reliance upon it, then what you are doing is making your own decision by reference to those considerations; the matters that his Honour should have considered but did not, together with the matters that have been led into evidence. In those circumstances, what the Commission is doing is exercising its power under 45(7)(b). You would be making a decision.

PN2454

It seems to us that an ordinary and proper reading of 45(7), especially given a reference at its opening to the Full Bench's capacity to do one or more of the following, an ordinary reading suggests that if the Commission is minded to exercise the power to make its own decision under B, it would do so in circumstances where it has quashed the decision below. It is difficult to see what role there is for B if, as my learned friend puts it, you can simply look over the facts again, come to a view about them, and confirm under A.

PN2455

The fact of the Commission moving to a new decision, its own decision under B, is - let me start that again. The way that the legislation reads, the sequence in which the subparagaphs are set out, in our respectful submission makes it clear that to move to B the Commission needs to quash or vary - no, needs to quash the decision of the Commission below. In any event, whether the Commission does or does not quash that decision, once you move to your own decision, as the legislation seems to contemplate in circumstances such as this, once you do that in our respectful submission it is no longer a matter of the appellant needing to demonstrate appellable error.

PN2456

What the appellant needs to do is demonstrate appellable error for the purpose of the Commission exercising its power under 45(7). We accept that. But once appellable error has been found, the principles upon which the Commission moves to make its own decision replacing the decision below, if it chooses to do so, are not bound up with the notion of finding error in the approach taken below. For instance, if new evidence is led and admitted and the Commission decides the matter on the basis and in reliance upon that evidence, the notion of looking for error in what happened below is really a nonsense because it cannot be said his Honour was in error when the material that is now being relied upon by the Full Bench to come to a different conclusion was not before him.

PN2457

So it is no longer a question of looking for error; it is a question of the Commission moving to make its own decision in circumstances where the decision below is vitiated by legal or factual error. Can I take up lastly what our friends say in paragraph 1 and following of their submissions on the nature of the appeal. They say an appeal by way of rehearing, as is the case presently before the Commission, is directed to the correction of error. So much is clear from the observations of the High Court in Coal and Allied and particularly at paragraph 14. Now, I suppose when I observe some irony in the notion that if a rehearing is directed to the correction of error, error can be corrected by confirming the decision below, which is what our learned friends seek.

PN2458

It is a rather strange notion that you can correct error by confirming a decision vitiated by error. One would have thought that what the Commission does is correct error by quashing the decision vitiated by error and moving to make its own decision, if the Commission decides that it ought to exercise its power under B and, as we said in our opening of our submissions, the Commission need not go down that path and, in our respectful submission, ought not go down that path, nor ought it go down paragraph C path.

PN2459

What the Commission should do here is quash the decision and allow the matter to be re-agitated if the VPF so chooses. That would be, in our respectful submission, the best way of disposing with the proceeding. Now, can I just quickly go to Coal and Allied. What our learned friends say in paragraph 1 is not correct. Paragraph 14 of Coal and Allied does not stand for the proposition that an appeal by way of rehearing is directed to the correction of error. What the High Court said was this: this is paragraph 14:

PN2460

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a Court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker.

PN2461

So ordinarily that is so; not where further evidence has been admitted. And what the Commission needs to be satisfied about is error on the part of the primary decision-maker. Well, we have that. The door is open. The Commission has found error. There is no prohibition in the Commission quashing the decision below. There would have been, if the Commission had not found error. But the Commission has found error, and therefore the door is open for that error to be corrected if the Commission chooses to correct it.

PN2462

The Commission does not need to make its own decision; the Commission could simply correct the error by quashing the decision below. What the High Court emphasises, in our respectful submission, in dealing with the difference between a rehearing and a hearing de novo is this: that with a hearing de novo, an appeal de novo, the Commission is required to re-exercise - the Commission is required to exercise the power exercised by the primary decision-maker again. It is required to. With a rehearing, the Commission is not required to do that in the absence of error. But where error is found the door is open for the Commission to exercise its power under 45(7), and in our respectful submission the Commission can and should do that.

PN2463

It can and should quash the decision below, firstly because it is vitiated by error, secondly because if the Commission moves to decide for itself the subject matter of the decision, in our respectful submission the Commission should, on the basis of the matters now before the Commission, come to the view that the application for registration should not be approved. Now, there are just two other very short matters. We have not had a proper opportunity to peruse the written submissions that we were provided either yesterday or during the course of today.

PN2464

They refer to transcript references, they refer to material that my learned friend skipped over, did not even read. We have not had a chance to look at that in a way that we should have been provided with. We have complained before about the fact that no contentions or proper contentions were provided to us. We do seek - we may not need to do this, but we do seek the opportunity to put in a written - a short written submission if it is the fact that with a closer look at each of the paragraphs in our learned friend's submissions, what they refer to and whether or not the evidence supports the material, we may want to make some short written submissions about that.

PN2465

And in our respectful submission, given that my learned friend had our very full and detailed conditions for months, that is the least of opportunity that we should be afforded. We suggest that we be given a week in order to deal with that, if the Commission pleases. Lastly, I would like to raise with the Commission one matter. If the Commission is against us in this application, we would seek an opportunity before the Commission removes the stay that currently is in place, we would seek an opportunity to persuade the Commission that the stay ought to be maintained pending the disposition of the proceedings in the Federal Court.

PN2466

In our respectful submission, there is a strong case for the maintenance of the stay in circumstances where that Court is in the midst of dealing with the question of jurisdiction, and we would seek an opportunity to put submissions. And it might be that it can be done in writing without the need to reconvene. But we would respectfully welcome an opportunity to try and convince the Commission that the maintenance of the stay is appropriate, rather than need to trouble the Full Court of the Federal Court with that issue prior to that Court disposing of the application before it. If the Commission pleases.

PN2467

VICE PRESIDENT McINTYRE: Thank you, Mr Bromberg. Mr Howells.

PN2468

MR HOWELLS: We oppose the course of a written submission at this stage. It is simply inappropriate, if your Honour pleases.

PN2469

VICE PRESIDENT McINTYRE: Mr Howells, do you want to say anything about the stay point of Mr Bromberg?

PN2470

MR HOWELLS: Your Honour, I cannot see on what basis he would suggest he is entitled to be heard on that question in any event, but I am not quite sure the way in which he is proposing to deal with it.

PN2471

VICE PRESIDENT McINTYRE: Well, if we are against you, he would like, before we revoke the stay order, to be heard as to - - -

PN2472

MR HOWELLS: I suppose we say it follows, but other than that - - -

PN2473

VICE PRESIDENT McINTYRE: But it is our view, Mr Bromberg, that you should be entitled to in the response along the lines you mentioned and for the reasons you gave earlier. If there is any problem arising from that, if my associate is advised - - -

PN2474

MR HOWELLS: I wonder if we could have a copy of it, your Honour.

PN2475

VICE PRESIDENT McINTYRE: Yes, you will get a copy.

PN2476

MR BROMBERG: Obviously.

PN2477

VICE PRESIDENT McINTYRE: Yes. And if anything arises from it, please let my associate know and we will consider what should be done. But if that could be done as you suggested within a week from today.

PN2478

MR BROMBERG: Thank you, your Honour.

PN2479

VICE PRESIDENT McINTYRE: All right. Well, subject to that, we will reserve our decision.

ADJOURNED INDEFINITELY [3.56pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VPF15 SUBMISSION OF MR HOWELLS PN2036
EXHIBIT #VPF16 EXTRACT FROM INDUSTRIAL RELATIONS ACT VICTORIA PN2036
EXHIBIT #VPF17 SUPPLEMENT TO WRITTEN SUBMISSION PN2254
EXHIBIT #VPF18 DOCUMENT PN2316