C2001/1507, Transcript of Proceedings [2001] AIRCTrans 971 (24 May 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2001/1507

APPEAL UNDER SECTION 45 OF THE ACT
BY M. KYRIAKOPOULOS AGAINST A DECISION
OF COMMISSIONER WILKS AT SYDNEY ON 22
FEBRUARY 2001 IN U NO 20395 OF 2000
RE TERMINATION OF EMPLOYMENT

SYDNEY

2.00 PM, FRIDAY, 4 MAY 2001

HEARING CONTINUING

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have the appearances in this matter.

PN2

MS M. DULHUNTY: If the Commission pleases, I appear for the appellant.

PN3

MR G. FREDERICKS: If the Commission pleases, I appear for the respondent.

PN4

THE SENIOR DEPUTY PRESIDENT: I have spoken to other members of the Full Bench constituted to hear this appeal and it has been decided that I should call the matter on today for mention and give you both an opportunity to make submissions about at least two matters that I need to consider together with the other members of the Full Bench. Ms Dulhunty, there are two matters in particular and we might deal with the state of the appeal books first, that is there are none, is that right?

PN5

MS DULHUNTY: Yes, there are none. I came to the registry about two weeks ago to look at the exhibits and one of your associates spoke to me and brought the exhibits down and indicated to me that the appeal books would be prepared in the registry. I don't know if that was correct so I was intending to prepare appeal books, is that correct of not?

PN6

THE SENIOR DEPUTY PRESIDENT: It is certainly not usual for the registry to prepare appeal books. I can't challenge what you say you were told, but it would be unusual and certainly I did not approve that that should occur. Has any application been made to any member of the Commission for relief in relation to the filing of any particular documents?

PN7

MS DULHUNTY: As far as the exhibits, yes.

PN8

THE SENIOR DEPUTY PRESIDENT: All right. That might provide the answer. Have you been given relief from filing them, have you?

PN9

MS DULHUNTY: Yes, I don't actually have the form here however.

PN10

THE SENIOR DEPUTY PRESIDENT: That is all right, I will be able to find it. Senior Deputy President Drake on 15 March gave you an extension of time for filing your documents until 9 April.

PN11

MS DULHUNTY: Yes. There was also in that paragraph an exemption which was not deleted. So I understood that there was an exemption from filing the exhibits.

PN12

THE SENIOR DEPUTY PRESIDENT: Well that wouldn't make sense, would it, if you had received - - -

PN13

MS DULHUNTY: I queried that at the registry, because I actually came up to the registry to photocopy the exhibits for the purpose of attaching them to the notice of appeal. Then remain to photocopy the exhibits because I didn't have copies myself. The exhibits were not produced until the actual hearing.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, I see. I think the order signed by the Senior Deputy President could only make sense if it related to relief for a period of time; that is to 9 April from filing something, rather than relief for all time. Because, of course, at that stage a notice of appeal had been lodged. We do we need to deal with this matter soon. It is usual that you prepare appeal books. Will you be able to attend to that urgently?

PN15

MS DULHUNTY: Yes.

PN16

THE SENIOR DEPUTY PRESIDENT: I have not sufficient knowledge of the matters before the Commissioner, I have certainly read his decision, to know whether really the Full Bench does need a full copy of all exhibits. I certainly think it is always wise to have ordered the transcript, but I suspect from this yellow file up here on the bench before me, it is the exhibit file and it is quite weighty.

PN17

MS DULHUNTY: Senior Deputy President, with the appeal notice was the judgment and the full transcript.

PN18

THE SENIOR DEPUTY PRESIDENT: So you have already got that?

PN19

MS DULHUNTY: Yes. It was just the exhibits that was difficult because at the time I was preparing the notice of appeal the registry couldn't find the exhibits.

PN20

THE SENIOR DEPUTY PRESIDENT: All right. They have turned up, but I don't know where they have been before. Mr Fredericks, can you offer anything in respect of this debate as to whether you and Ms Dulhunty would be able to agree that something less than this large bundle might be adequate for the Full Bench?

PN21

MR FREDERICKS: Certainly it might be useful for us to explore that. As I read the notice of appeal, and the submissions filed, it seems that it does traverse rather a lot of the exhibits unfortunately. I am safe in saying most exhibits were the respondent's contained in a folder, but I will have a discussion with Ms Dulhunty about that. The other point, in terms of transcript I note, and maybe again this is the practice of the Commission, that the transcript for what ultimately turned out to be the two hearing days has been filed, but there is no transcript of the earlier mentions and directions hearings. I don't know whether it would be normal to file that - - -

PN22

THE SENIOR DEPUTY PRESIDENT: I don't know. Do you think the Full Bench wants to have that?

PN23

MR FREDERICKS: Again it probably depends upon, to an extent, what happens today, but it might be best if Ms Dulhunty and I try and sort of knock it out between us what would be most useful for the bench.

PN24

THE SENIOR DEPUTY PRESIDENT: Even though I made the comment that in my view all of the transcript should be before the Full Bench I made in ignorance of the fact there might have been some relevant transcript before, in effect, the start of the arbitration. I just don't know whether it is going to be relevant to any of the matters raised by the grounds of appeal. There is a lot of volume here, I don't know whether there is necessarily a lot of exhibits, but in the matter it would be good if you could reach some accommodation between the two of you as to how much of this needs to be before the Full Bench.

PN25

Certainly, Ms Dulhunty, we can release this file to you. I don't know what the arrangements are that might allow you to take it off the premises. I don't know that that's accommodated, but we could release it to you. But then you really have to undertake the burden of having it copied within the premises.

PN26

MS DULHUNTY: Yes. I did copy part of it at the library last time for my own, as I indicated before, the matters produced weren't produced until the hearing, so I hadn't actually got copies of them at that stage.

PN27

THE SENIOR DEPUTY PRESIDENT: All right. I don't know how much more I can really say about this. The bench needs three copies of it. Mr Fredericks, even though he mightn't have to have an appeal book it would have to be at least paginated in the same way as the Full Bench copies are so that the exhibits in his possession can be readily linked into any submission you make. So, do either of you want me to pursue this issue any further? Shall I leave it to both of you?

PN28

MR FREDERICKS: I think we will probably have to sort it out ourselves.

PN29

MS DULHUNTY: Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: All right. Ms Dulhunty, by all means access this file either when we adjourn or at any other time up to the date set aside for the hearing. Now you wrote to the Registrar advising that if leave was granted in this matter the appellant would seek to adduce additional evidence?

PN31

MS DULHUNTY: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: You thought if that occurred both would not be able to be done within the time set aside for the appeal. You thought it might be appropriate for the matter to be listed for mention to talk about these issues. In the event leave was granted, what evidence, from whom and about what would you lead?

PN33

MS DULHUNTY: Firstly, we would be wanting to adduce evidence from Vanessa Seagrove. She was in the Finance Sector Union and she was involved with the negotiations with the National Australia Bank at the last stages of Mr Kyriakopoulos' employment. She was able to observe the process of review and what had happened. She is able to give evidence about his termination and an objective view of the process by which he was terminated and by which he was being reviewed.

PN34

We did apply at the beginning of the hearing before Commissioner Wilks for an adjournment to get Mrs Seagrove to come to the hearing to give evidence, but that adjournment was not granted. I had also written to Commissioner Wilks' associate in the week before asking for an adjournment to bring evidence in reply. Part of the problem with this matter is that Mr Kyriakopoulos for a period of between about August and the week before the matter was listed for hearing was basically doing the matter himself.

PN35

I was then instructed only in the week before, and so had no time really to properly review it or to subpoena witnesses, and that sort of thing. We received statements from the respondent in the last week before the hearing. They were unsigned and no signed statements were ever proffered. We also received the respondent's documents only in the last four days or so prior to the hearing. They raised issues, in particular, the issue requiring Vanessa Seagrove to give evidence. We would also seek the evidence of Katrina Tsialis. She must be subpoenaed. I have spoken to her. She apparently is in a difficult domestic situation and cannot give evidence unless she is subpoenaed to give evidence.

PN36

THE SENIOR DEPUTY PRESIDENT: How do you spell her surname?

PN37

MS DULHUNTY: T-s-i-a-l-i-s.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN39

MS DULHUNTY: She worked alongside Harry Kyriakopoulos at the Burwood business office and is able to give evidence about what happened, how he was treated and that sort of thing which is also an issue in the case. Finally, John Beaver. There was an issue about Mr Kyriakopoulos could be transferred or not rather than terminated. He sought to be transferred and he was refused by the manager at the Burwood business office. He had contacted John Beaver and there was somewhere for him to go.

PN40

THE SENIOR DEPUTY PRESIDENT: Where is Mr Beaver from?

PN41

MS DULHUNTY: The Waterloo branch.

PN42

THE SENIOR DEPUTY PRESIDENT: I see, he is an employee?

PN43

MS DULHUNTY: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: What sort of position?

PN45

MS DULHUNTY: He is a regional business banking manager, I think. Now the issue of the transfer was an important issue such that Commissioner Wilks actually recalled Mr Blair for the bank to give evidence on that and also on the performance system. That was basically the last evidence that was given in the case, so it was not practical at that stage to bring any evidence in reply without having to get another date. So there is also an issue of procedural fairness there.

PN46

THE SENIOR DEPUTY PRESIDENT: On the appeal file I have in front of me I think there is two days of transcript, but it seems apparent there was more than two days. I think I only have the transcript for 12 February and 16 February.

PN47

MS DULHUNTY: Senior Deputy President, there were only two days, but the first day the Commissioner sat until 6 o'clock at night, so that was a very long day. Then the judgment was on the 22nd.

PN48

THE SENIOR DEPUTY PRESIDENT: On the Commissioner's file though there is transcript for the 19th. I think there is an error there because on this file which shows 19 February he takes appearances. Now that seems to be in similar terms to another set of transcript bearing 12 February. I suspect that was an error in the date. So there were only two days of transcript?

PN49

MS DULHUNTY: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: I will just change that so it doesn't mislead anyone else. Now tell me why weren't these people called to give evidence before the Commissioner, with the exception of someone who you wanted to call - did he decline you the opportunity to call the person?

PN51

MS DULHUNTY: Yes.

PN52

THE SENIOR DEPUTY PRESIDENT: Did you have the person in court?

PN53

MS DULHUNTY: No.

PN54

THE SENIOR DEPUTY PRESIDENT: I see. You needed an adjournment to call the person?

PN55

MS DULHUNTY: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: All right. Then I suppose that may raise other issues, but in relation to two of the three, were they available to give evidence in February?

PN57

MS DULHUNTY: I don't know. One of the witnesses, as I indicated, has to be subpoenaed. She is happy to be subpoenaed, but she said she can't just come. She will have to be subpoenaed because she has a domestic problem.

PN58

THE SENIOR DEPUTY PRESIDENT: Is she currently in employment with the respondent?

PN59

MS DULHUNTY: Yes.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, I see.

PN61

MS DULHUNTY: It is not problems with the respondent though - - -

PN62

THE SENIOR DEPUTY PRESIDENT: No, I think in your choice of words I had rather assumed that, but in any event it helps me to know that she was and is an employee of the respondent.

PN63

MS DULHUNTY: The other person, John Beaver, the necessity to bring him became apparent only at the end when Mr Blair was recalled. He gave further evidence about the performance system and also the reasons for the failure to transfer. Now Mr Kyriakopoulos has given some evidence in his affidavit about his transfer and the fact that John Beaver had indicated that there was a position available for him there. That evidence seems to have been disregarded or whatever.

PN64

So in reply to the additional evidence that Ian Blair was allowed to give on behalf of the respondent we would want to call Mr Beaver to give the evidence that, yes, there was a position for him to go out to Waterloo and he could have been transferred from Burwood rather than terminated. I would submit that that is quite significant that a person could be transferred rather than terminated, yet the bank chose to terminate him.

PN65

THE SENIOR DEPUTY PRESIDENT: I will come back to you in a moment. Mr Fredericks, I am of course not making any ruling, nor when I report back to my colleagues, if we get to that stage, fresh evidence should be led. But it might help us to know that if we did get to that stage, and the application was made, what you would be likely to say.

PN66

MR FREDERICKS: Foreshadowing my submissions? I am happy to do that. Your Honour you might be surprised to hear that we say that it is only on rare occasions does an Appeal Tribunal admit fresh evidence. Rare might be overstating, but it is an unusual course of events. There are some, we say, procedures or rules which have been adopted, both in the Full Bench of this Commission and elsewhere, that the Commission is generally reluctant to admit new evidence on appeal.

PN67

The fact that the Commissioner might have made an error at first instance is not a ground for bringing new evidence. Calling new evidence is an unusual course. The party seeking to bring the fresh evidence must be able to demonstrate the evidence was not available to be brought at first instance. The Commission may accept new evidence if the new evidence is likely to change the result. But unless those sort of exceptional circumstances arise then the usual practice should be followed. We say that is particularly so in this case given the appellant's conduct in the course of the hearing at first instance.

PN68

Your Honour, Ms Dulhunty has raised the fact that the applicant wasn't legally represented for a period. I might hand up a chronology and, lest I be accused of bringing fresh evidence myself, I think I am correct in saying this reflects what is on the file, your Honour.

PN69

THE SENIOR DEPUTY PRESIDENT: What is on the Commission's file, not the Full Bench file.

PN70

MR FREDERICKS: Yes, on the Commission's file, including probably the transcript which, you don't have in front of you, so it might not be on the appeal bench file but it will be on the file at first instance. A possible exception is, and I will ask perhaps your Honour to cross it out, I thought I had said this but I couldn't find it in the transcript: Your Honour will see the dates 15 December. It has got:

PN71

Applicant filed to serve respondent

PN72

If your Honour could strike that out and then strike out the words next to 19 December as well. I just couldn't find the reference to that in the transcript. So it might not be just a matter of record.

PN73

THE SENIOR DEPUTY PRESIDENT: So I am striking out just 15 December entry, the second sentence?

PN74

MR FREDERICKS: That is correct.

PN75

THE SENIOR DEPUTY PRESIDENT: What am I doing with the 19 December?

PN76

MR FREDERICKS: The whole of that, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: All right, I have done that.

PN78

MR FREDERICKS: Your Honour, the chronology in this matter shows that the hearing dates which, finally, went ahead were the third set of dates which are set down for this matter. In terms of bringing any new evidence the applicant, as he then was, had more than enough time to prepare for this case. The matter was initially listed for hearing before Commissioner Wilks on 31 August. He was legally represented at that hearing. The applicant made an application for adjournment which was granted over our objections on the basis that McLelland had only just be briefed and he needed time to prepare. There was conciliation and the matter was re-listed for hearing on 19 and 20 October.

PN79

Your Honour, we turned up again for the hearing and yet again the applicant sought another adjournment on the basis that he wasn't ready for the hearing. Again he was legally represented by McLelland. The Commissioner said on the record that:

PN80

If the applicant failed to comply with directions again the matter would be struck out.

PN81

I could add there were some directions to file material which wasn't met in the meantime. So then directions were issued by the Commissioner in light of the warning and the matter was re-listed for hearing on 20, 21 December. The applicant failed to comply with the directions as he didn't file materials by 3 November. On 7 November, I think I am correct in saying, McLelland filed a notice of discontinuance. On 9 November the matter was struck out.

PN82

It appears that however that the notice pertaining to the Commission's direction was not delivered to the correct address and it appears that the applicant in fact did not receive those. So the strike out order was revoked and the new directions were issued. You can follow the rest of that: The hearing was initially on 10 and 11 January. It was later changed to 12 and 13 February. Ms Dulhunty talks about the respondents filing their material a week before. That was in accordance with the timetable sent by the Commission. She also complains about statements being unsigned. Your Honour, I don't have the directions in front of me but I think the directions were to file material upon which the respondents were going to rely, and that was done. No objection, as I recall, was made to reliance on that material during the hearing. So I don't think he can really come along now and say, look it wasn't signed, we suffered some injustice by way of that.

PN83

Now that gives from the date the application was filed, or even the date from the first vacated hearing dates to the date the matter ultimately proceeded, you have got some six months in which the applicant could have prepared a case. The issues which were going to be relevant in this case were no secret. The applicant had more than enough time. Ms Dulhunty came in late, that is fair enough, but it is not her application, it is the applicant's application. For the bulk of the time he was legally represented. He had more than enough time to prepare for this case, he just didn't do it.

PN84

Ms Dulhunty properly informs you that the issue of Ms Seagrove giving evidence was raised before Commissioner Wilks and that the Commissioner refused the application. Your Honour, I might add that as well as having two sets of hearing dates vacated, when the third hearing date finally turned up the applicant then made a fresh application to have the matter adjourned on the basis that he wasn't ready to proceed. Commissioner Wilks did not accede to that request.

PN85

Your Honour, in the transcript of 12 February from PN66 onwards, we deal with the issue of the adjournment request which was made and that also encompasses the issue of Ms Seagrove not being available. I said some things to the Commission about that, posed the matter quite strongly. I put to Commissioner Wilks then, and I will put this again now, that Ms Seagrove is from the FSU, the union of which Mr Kyriakopoulos was a member and she was his representative in certain of the meetings relating to his termination.

PN86

Her involvement was not a secret. It is not as if Mr Kyriakopoulos did not know who she was or of her involvement prior to receiving our folder of documents by way of evidence in this matter. As I go on to say, she will be an obvious person to call on this matter. The Commissioner, at PN78, says he is not going to grant the application. Then at PN79 Ms Dulhunty says:

PN87

If something arises in relation to matters for Vanessa Seagrove I may reapply to get her here ...(reads)... under the rules.

PN88

Then the Commission says:

PN89

Well, we will see later if she will make a further application.

PN90

Your Honour, I haven't read this transcript through from front page to back but as far as I recall Ms Dulhunty did not make a further application to call Ms Seagrove, so she didn't do it. She made the application then, the Commissioner quite properly refused to call Ms Seagrove and it's not appropriate now to revisit that decision by way of request to the Full Bench. In any event, the Commissioner didn't close off the opportunity during the hearing at first instance of Ms Dulhunty making a further application with respect to Ms Seagrove.

PN91

Your Honour, the calling of Ms Tsialis and Mr Beaver, this is the first time I've heard that they were the people concerned and the issues that their evidence would go to. The issues of his performance and his treatment and the issue of a transfer were matters that were squarely before the Commission in the hearing, and on any reasonable reading of the evidence and any reasonable reading of Mr Kyriakopoulos' own evidence to this Commission, they were clearly going to be important matters in this case. We don't walk away from that, and they were matters which were squarely addressed by both parties and the Commissioner properly considered.

PN92

It's not as if the existence of Ms Tsialis and Mr Beaver and unknown to Mr Kyriakopoulos. He worked with Ms Tsialis, he knew who Mr Beaver was and he had more than enough time to file the summons if that was the necessary way to get one or both of them here. He had more than enough time to do that and he just didn't do it. Commissioner, the issues were not secret, they were squarely before the Commission and they were dealt with by the Commission.

PN93

In respect to the issue of transfer, I think Ms Dulhunty puts some greater weight on that issue than we do. Mr Blair was re-called and again, as I recall that incident that was by consent of both parties. Ms Dulhunty can correct me if I'm wrong but I don't recall that Ms Dulhunty raised any objection to Mr Blair being re-called on the basis that she wasn't properly prepared to deal with the issues or on the basis that she would need an adjournment to address that. Commissioner, I'll leave it to the bench at its own convenience to read that part of the transcript. I think it's towards the end of the second day's hearing.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, about paragraph number 1327. It just so happened that I just opened it up at that page so it obviously wants me to read it.

PN95

MR FREDERICKS: I just don't recall there being any objection to Mr Blair being re-called or that being done at any contingent basis.

PN96

THE SENIOR DEPUTY PRESIDENT: Nothing one way or the other seems to be reflected in transcript but I don't know what else might have been said elsewhere.

PN97

MR FREDERICKS: What page are you looking at?

PN98

THE SENIOR DEPUTY PRESIDENT: I'm at paragraph number 1327, 1328 on the second day of hearing.

PN99

MR FREDERICKS: I don't think there's anything on the record to indicate any objection.

PN100

THE SENIOR DEPUTY PRESIDENT: Neither one way or the other. Why was he re-called?

PN101

MR FREDERICKS: There was an issue raised about whether Mr Kyriakopoulos, the applicant, could have been transferred from the branch in which he was employed to another branch. The Commissioner I think had some concerns about whether he could have been satisfied in his own mind that the matter had been properly addressed in evidence before him, so of his own motion, if I can put it like that, he suggested that Mr Blair be re-called to give some evidence on that and also on some aspects of the performance appraisal system, I think, but I think it was mainly the transfer. I think the Commissioner just wasn't satisfied that he had heard enough on that particular issue, and in particular hadn't heard why the bank hadn't transferred him.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes, I can see that in the transcript.

PN103

MR FREDERICKS: Again, if that was a problem the objection could have been made then. I'm instructed that even as late as yesterday and this morning that Ms Dulhunty on behalf of Mr Kyriakopoulos was attempting to contact Mr Beaver with a view to see whether he could give evidence in this case. That again smacks not of someone not being available at the time but again of some last minute frenzied preparation which, can I suggest, is typical of how Mr Kyriakopoulos has participated in this matter, some last minute frenzied preparation with a view not to bringing evidence that couldn't have been brought the first time around but with a view to bolstering up the case and bringing the evidence that should have been brought the first time around with the hope, presumably, of a better result before the Full Bench.

PN104

We would just say these people were there from April onwards, the issues were there from April onwards, there was no secret to them, no surprises. These people could have been called whether by summons or otherwise. That should have been done. The chronology shows and I think the transcript will reflect that any difficulties Mr Kyriakopoulos had in this case were of his own making. The bank has the benefit of the decision below, it's entitled to some finality in this, so that will be the bulk of the submissions I will be putting to the bench on leave to bring further evidence.

PN105

THE SENIOR DEPUTY PRESIDENT: Ms Dulhunty, this argument is going to occur again before all members but nonetheless there might be something in particular you want to reply to now. We will have that transcribed.

PN106

MS DULHUNTY: In relation to McLellands, I think there might correspondence to the Commissioner about this, McLellands pulled out on the basis of a conflict of interests, on my instructions, and I think there was, as I say, some correspondence to the Commissioner about that. In relation to the dates of 10 and the 11 being changed to 12 and 13 February, my understanding is that was at the request of the respondent rather than the applicant.

PN107

MR FREDERICKS: That's correct, your Honour. Our potential witnesses were on leave and we just simply couldn't get statements from them.

PN108

THE SENIOR DEPUTY PRESIDENT: Those hearing dates?

PN109

MR FREDERICKS: Yes, 10 and 11 January 2000 were vacated at our request.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes, this is back on the chronology, yes.

PN111

MS DULHUNTY: In relation to the witnesses, procedural fairness is the basis on which further evidence can be adduced. Senior Deputy President, you are probably aware of the decision of Dunn v Francis and Henderson where further evidence was granted in both those cases on the basis of procedural fairness. Mr Kyriakopoulos was acting for himself at a critical time and whether he was aware that he knew how to issue a summons or a subpoena, I don't know and I don't know if that was explained to him or what inquiries he made but there is certainly an issue of procedural fairness there.

PN112

The issue for Vanessa Seagrove was raised at the beginning of the case. There should be on the file a letter from me dated 8 February 2001 asking for an adjournment to reply to the material provided by the respondent. So there was an application for an adjournment before the day of the hearing and again on the day of the hearing.

PN113

Also, in relation to the extra evidence by Ian Blair, that would have been reason, I would think, for the Commissioner to have taken into account the appellant's evidence in relation to that; but, as we say, it was the very last thing that happened before addresses so there really wasn't the opportunity at that stage to bring anybody along in reply to that. I would have to say that I have had some difficulty in contacting John Beaver. I've been trying for several weeks, I think, and only this morning managed to speak to him finally.

PN114

THE SENIOR DEPUTY PRESIDENT: All right. Well, I'll have the transcript prepared as soon as possible, Madam Reporter. I'll discuss the matter with the other members of the Full Bench. There's only one day set aside and I'm reasonably sure that for the members of the Full Bench, when we were conferring about what time was available that we all had, the next day wouldn't be available even if counsel didn't have any difficulty. So we don't have another day in that week or at around that time.

PN115

So I'm just wondering whether, if we were to rule that the matter that we wished to hear, submissions on leave, and in the event leave was granted, why fresh evidence should be called and perhaps give our decision on that - Mr Fredericks, how does that grab you?

PN116

MR FREDERICKS: I'm happy with that course though in fact it's usually, i think, the respondents who want leave to be terminated.

PN117

THE SENIOR DEPUTY PRESIDENT: Often, often that's right, yes.

PN118

MR FREDERICKS: So you won't be surprised to find we're quite happy for that issue to be dealt with separately.

PN119

THE SENIOR DEPUTY PRESIDENT: It seems to me that would be probably a full day's hearing anyway. it's not as if we 're - - -

PN120

MR FREDERICKS: That's right. I was going to say, in fairness though, I don't know that the hearing would be shorter if both matters were dealt with together if leave - - -

PN121

THE SENIOR DEPUTY PRESIDENT: It might be that sort of case but in any event I think if that ens up being the decision of the Full Bench, we would be putting a fair bit of pressure on both of you to ensure that your submissions on both those matters are finished, albeit, from what I know now about this matter, I can see that even on the leave there might be a reasonable amount of the merit case that is addressed to understand that.

PN122

We'll let you know the ruling of the Full Bench as a matter of urgency. Similarly, Ms Dulhunty, after conferring with Mr fredericks, you need to prepare for us some appeal books as soon as possible. In the event there are any difficulties there is, of course, liberty to apply and I'll call it back on again urgently. Now we will adjourn until 18 May.

ADJOURNED UNTIL FRIDAY, 18 MAY 2001 [2:40pm]