C2002/770, Transcript of Proceedings [2002] AIRCTrans 2651 (12 July 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N VT04714
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/770

APPEAL UNDER SECTION 48 OF THE OCCUPATIONAL
HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT)
ACT 1991 AGAINST THE DECISION ON 11 JANUARY 2002
TO REMOVE THE PROVISIONAL IMPROVEMENT NOTICE
AND AGAINST THE FINDING THAT TELSTRA HAD
TAKEN ADEQUATE ACTION TO REMOVE A THREAT TO
HEALTH AND SAFETY - M.K. VOGT and S. FRY

MELBOURNE

3.09 PM, THURSDAY, 27 JUNE 2002

Continued from 3.4.02

PN800

THE COMMISSIONER: Now, I think on the last occasion Dr Gras was still being cross-examined.

PN801

MR LINDERMAN: If the Commission pleases, my instructing solicitor has indicated to Mr Vogt that we would be seeking to make some legal submissions about where this proceeding ought to go at this time and we have also indicated to our learned friends for the first respondent that that was the position, sir. And if I could say this just by way of summary. This case, of course, is about an allegation that the building in which the first applicant and members of his designated work group work is a building which suffers from the sick building syndrome.

PN802

But since we convened on the last occasion in early April, sir, the first respondent and all members of his designated work group have been shifted to an entirely new building. So we would say that in principle the basis for the provisional improvement notice has, in a sense, evaporated but we want to put that a little bit more fully and for that purpose if I could - I should, firstly, ask if the Commission is prepared to accept the submission at this stage.

PN803

THE COMMISSIONER: Mr Vogt, what do you say about this?

PN804

MR VOGT: Commissioner, I would believe that, firstly, my opponent is in error. I have not used the term "sick building syndrome". The - - -

PN805

THE COMMISSIONER: Has everybody moved out of the building that was the subject of the PIN?

PN806

MR VOGT: We have moved out of the building, yes. However, the computers which were the subject of the triphenyl phosphate have gone with us. I would contend that the work group itself is still the same work group. Now, Telstra, its technicians, they have no fixed place of abode. Where they go with their equipment is their work group and we are in this case in a similar situation. I would believe that Telstra and Comcare should not be able to avoid this information that we have here being presented purely on the basis of a legality of where we are.

PN807

Also we have a number of people who were in our work group who have ongoing problems as a result, indeed, some Comcare claims that relate to the conditions of the air-conditioning system ..... triphenyl phosphate in that building.

PN808

THE COMMISSIONER: In the new building?

PN809

MR VOGT: In the old building but having gone to the new building we are already showing signs of high absence rates which seems to indicate that the condition is continuing.

PN810

THE COMMISSIONER: I will hear your application.

PN811

MR WATSON: I might just - - -

PN812

THE COMMISSIONER: Yes, of course.

PN813

MR WATSON: - - - because we do take a position on it, Commissioner. On behalf of Comcare we, too, would wish to ask the Commission now to terminate this appeal. And in doing so we will, in part, rely upon remarks just made moments ago by Mr Vogt as to why he says the appeal should continue. We say that they are indicative of why this appeal should stop. Before I go further in support of the fact that entertaining such an application now is no futility.

PN814

We have thought long and hard, based upon the materials we have been given in the history of the case today as to how long this case will take to be heard, and I don't say this as a terror factor but we have come up with an estimate of 10 days. So if we can deal with this now it would be, we would respectfully submit, of some utility to the Commission.

PN815

THE COMMISSIONER: Yes, thank you.

PN816

MR LINDERMAN: I am indebted to the Commission. If I may just have passed to - and could I hand up for the Commission a copy of an outline which I hope will facilitate ability to get through my arguments a little more quickly. Just by way of background, sir, in paragraph - and this is an appeal pursuant to section 48(2)(a) of the Occupational Health and Safety (Commonwealth Employees) Act against the decision by the first respondent to cancel a provisional improvement notice which applicant purport to issue in his capacity as a health and safety representative.

PN817

The grounds I have set out there, sir, for the sake of ease of reference, just by glance, I have highlighted, you will see grounds 3, 4 and 5, are highlighted. They appeared, on my reading of the grounds, to be the only grounds which are directed in effect to matters which could ultimately be relied upon by the applicant as supporting any argument that this Commission should be moved to do anything other than to dismiss the appeal. The other grounds, as I read them, sir, are really a tax upon the process and for reasons which will become self-evident it is submitted that notwithstanding that those sorts of challenges can be made, this is not the jurisdiction in which to make them. Sir - - -

PN818

THE COMMISSIONER: Yes. Before you go on I was just going to look for the Rutjens decision.

PN819

MR LINDERMAN: Of course that decision of the Australian Railway Commission v Rutjens is a matter, sir - it was before the Full Bench on 27 May 1996. It was a case involving a prohibition notice but it dealt, in broad terms, with the operation of section 48. This is an appeal under section 48. In my respectful submission everything that is said in respect of the nature and the purpose and what is to be achieved in any section 48 appeal with respect to prohibition notices applies with equal force to an appeal against either an improvement notice or in this case an appeal that is brought by a health and safety representative against the refusal of a Comcare officer to confirm the provisional improvement notice or what actually happens is he has to issue his own improvement notice.

PN820

THE COMMISSIONER: Yes. The reason for me going to this decision was to again refresh my memory. It was my recollection that the Commission concluded that the powers contained in section 111 were available in matters of this character. And I was wondering whether or not you were asking me to dismiss the appeal or refrain from further hearing of it.

PN821

MR LINDERMAN: No, sir. The reason why I am not seeking you to exercise the power under section 111(1)(g) is because as I read the decision of the Full Bench in Rutjens that is one of the powers which was excluded specifically.

PN822

THE COMMISSIONER: Oh, I see. Later.

PN823

MR LINDERMAN: We don't seek, sir, to have you determine this matter on the basis that, for example, the matter is trivial or that it is not in the public interest to do so. In the end we are asking you to make, at this stage, a decision on the merits having regard to what hasn't been done notwithstanding that it has been required of the applicants by way of a series of directions. There has been a total failure, in my respectful submission, on the part of the applicants to file any material which in any material way attacks the evidence upon which the first respondent relied in acting as he did to refuse to confirm the provisional improvement notice.

PN824

Now, in the absence of that sort of material, having regard to the nature of the power that exists in this Tribunal to review the actions of a Comcare officer, it is my respectful submission that at the end of the day this Commission, as was the case with Mr Fry, can only act on evidence and you either have evidence before you or you do not have any evidence before you. And we say that notwithstanding that the Commission has, on both prior to the commencement of this hearing in early April and again at the end of the first day's hearing, directed the applicants to file affidavits.

PN825

I do recall that there was some discussion about whether or not they strictly needed to be sworn but in any event affidavits which, from relevantly - well, sir, you just simply said he needs to file affidavits on any evidence that he relies. Now, those affidavits, whether sworn or otherwise, are either before you or they are not and on the material that I have received and reviewed and I understand this to be the position of my learned friends as well, there is not a scintilla of evidence which directly challenges the evidence of the expert evidence upon which Mr Fry relied and equally the three bodies of expert evidence that Telecom relied in calling the inspector in to review the provisional improvement notice.

PN826

So what we say at the end of the day is that whilst the applicants can talk to a great body of material that they have provided, at the end of the day, sir, you cannot be assisted in any material way by anything that has been served on us because it simply doesn't challenge in the way that it would need to the evidence that the first respondent relied on. And therefore you must do as the first respondent was obliged to do, sir, unless you, yourself, have the relevant scientific evidence to go out and make the relevant assessments.

PN827

Now, that is saying in a nutshell what is contained in this document. And if I could just quickly go through it, sir. Paragraph 3. So insofar as some of the grounds of this appeal seek to call into question the process by which the first respondent decided to cancel the PIN, while capable of - it should say being raised in other forms of judicial challenge, are not relevant to the section 48 appeal process given that the latter appeals are de novo hearings.

PN828

And we refer there to Whitaker v Dellner Proprietary Limited. That is a decision of the Victorian Supreme Court in which Hanson J at page 23 indicated in that short extract that other well-known grounds for appeal such as seeking prohibition or seeking declarations with respect to any matter that goes to process are available. Then in paragraph 4. Any challenge by the applicant which is directed to the scientific opinion or advice upon which the first respondent relied, while capable of being raised in a de novo hearing, to have any validity must be soundly based on alternative, informed, expert evidence.

PN829

And then in paragraph 5, sir, I simply recite what I had indicated before that there had been prior directions given. "On 3 April" - this is going to paragraph 6. On 3 April 2000 the applicant opened his case and cross-examined the first respondent and partly cross-examined expert witness, Dr Gras. Throughout this day's hearing the applicant was called on several times to point to alternative expert opinion which contradicted the expert evidence relied on by the first respondent to cancel the PIN. When pressed as to the existence of the statutory pre-conditions for his PIN, that is, the belief on reasonable grounds that his employer is contravening or had contravened - I won't read those fully. The applicant, dealing with TTP and EMR conceded at paragraph number 334, quoting that:

PN830

...that information is impossible to get. It is a catch 22 situation unless the employer is prepared to provide the information.

PN831

Then we have referred, sir, to a number of paragraph references which are all in the same vein. They simply indicate what the applicant's position has been throughout that first day's hearing and that was simply this, sir, that he was seeking testing to be done to determine whether there was a problem. And he cannot and he has not and he never has put it any higher than that. The applicant has been doing no more than simply fishing. Then at the conclusion of the day's hearing further directions were issued.

PN832

We say that while copious quantities of material, indeed, sir, there are two folders, sir, on my instructing solicitor. There are these two folders here. They represent for the purpose of the transcript about I would say five inches of material. They appear, on their face, to be extracts from publications. Some appear to be extracts taken from the web but when one examines them as we have in some detail they do not, in any direct way or any informed way, challenge the evidence or the opinions that the first respondent relied on.

PN833

THE COMMISSIONER: There are two documents, questions and answers by Dr Dingle, and there is some material from Dr Little. You have got that material - - -

PN834

MR LINDERMAN: I have, sir. You will note with interest that the material which refers to Dr Peter Dingle, although on its face - the last page of it has Dr Peter Dingle's name and his position and his contact numbers. This is a document which appears to be on the applicant - or the first applicant's letterhead. And if one reads it one can see that there are many grammatical and spelling errors in the document. It doesn't purport to be on its face a document that has been written by Dr Peter Dingle and indeed I instructed my instructing solicitor to contact Dr Dingle to ask him whether or not he was prepared to adopt this material as his own and indicate we haven't had a response from Dr Dingle.

PN835

But, importantly, sir, it is not signed. When one examines in detail both Dr Dingle's material and, if you like, the similar questions and answers that were directed to Dr Colin Little, one sees that while they raise some peripheral concerns about the testing that was done they don't, in turn, suggest an alternative conclusion. They talk - there is much in these documents about what is possible but we are not concerned here in this case whether or not something is possible. What we need is some clear evidence that in this particular workplace, as it was, there was evidence of the presence of aspergillus or some other form of mould that could be deleterious to health and safety.

PN836

Now, the second point to make about Dr Dingle - sorry, Dr Colin Little's material and that which is attributed to Dr Peter Dingle is this, sir, that it deals exclusively with the moulds or the aspergillus matter which of course is referrable entirely and it is building specific because we are now in a new building and on any view, sir, any matters - and we don't understand even in his short address this morning that the first applicant is challenging the fact that both he and the members of his designated work group are now in a totally new working environment.

PN837

What he says is that they are still working with the same computers. What we say, sir, is that neither Dr Little or Dr Dingle deal with the issue, the computer issues or - whether TTP or EMR-based. So we say that in substance you cannot be assisted in any shape or form by the material that is attributed to either Dr Little or Dr Dingle. What concerns us, sir, is exactly the point that has been raised by my learned friends for the first respondent and that is this. That the sheer magnitude of this material and the diversity of its sources and the apparent lack of relevance is singularly frightening. In itself it is a potential occupational health and safety risk, I would suggest to you, sir. I don't say that lightly.

PN838

So we say that going to half-way through paragraph - I put simply the applicant's material does not contradict the opinions of experts relied on by the respondents. In the circumstances any further general cross-examination could not assist the Commission in determining this appeal and would be an unproductive waste of resources. Further, in the light of further recent developments if the applicant demands the right to continue cross-examination and he fails to demonstrate a proper technical basis for such cross-examination the second respondent gives notice it will seek costs on the grounds that such conduct would be either vexatious and/or without reasonable cause within the meaning of those terms as used in section 347 of the Workplace Relations Act.

PN839

And we want to make this point, sir. We will be seeking those costs ultimately against both applicants. Now, a recent development of course is the move from the building to Greenwood Park, 301 Burwood Highway, Burwood. And notwithstanding what the applicant said I don't resile from the proposition that certainly as I understood his case based on the material I am positive and if I am pressed I will find references to sick building syndrome. That is clearly the understanding that I have had as to the basis of this case and I thought that the applicant had used those very words on 3 April.

PN840

So we say in paragraph 10. The current position may be summarised as follows. The applicant has been unable to point to reasonable grounds for his belief that the Occupational Health and Safety Act and a regulation was contravened in the manner required for any PIN to be able to be lawfully issued. Indeed, the applicant has conceded the existence of the catch 22 situation. That is, he needs his employer to conduct tests to determine whether there are any relevant risks to health.

PN841

Sir, section 29, on any view, is not a power to embark on a fishing expedition. If it is and if this Tribunal can be waylaid and taken down the Yellow Brick Road of embarking on these sorts of exercises it will not be long before this Commission does no other work. And, sir, it is certainly a matter that we believe needs to be nipped in the bud at this stage. (b) Notwithstanding directions have been issued by the Commission to oblige the applicant to serve affidavit evidence, support his case, this has not been done.

PN842

And we don't take the point that they have to be sworn but we take the point that what the Commission, we understood, was referring to because it was based on specific requests made by myself, at least, in relation to the order you made on 3 April, was that the fair intent of the direction was that the applicants embrace the requirement that they had to find relevant experts who were prepared to say that the respondents experts were wrong in their opinions, not the methodology but in their ultimate opinions and they had to be prepared to do that - that he had to provide evidence by way of relevant statements, that they were prepared to do that to support his case.

PN843

Then (c), neither the applicant nor any other person employed at his designated work where he currently works on the premises. And we have made that point. Now, just going quickly to Rutjens case. This is as much for the benefit of the applicants as anyone else. The Full Bench of this Commission observed with respect to these appeals, albeit they were dealing with a prohibition notice, but I have already explained that for present purposes the same tests apply. That, quoting:

PN844

The essential issue to be determined by the Commission of appeal. It is whether it is, on the evidence before it, satisfied that it is reasonably necessary to issue a prohibition notice in order to remove an immediate threat to the health and safety of any person.

PN845

You would alter that to put into that reasoning the relevant part of section 29 where it talks about belief based on reasonable grounds. The conclusion reached by the primary decision-maker in this regard will be relevant to the determination of the issue before the Commission but they are not decisive. The task of the Commission on appeal is to make its own decision in place of the investigator on the basis of the evidence of the material before the Commission. There is no presumption that the investigator's decision is correct. End quote. Then further at page 247:

PN846

Given the nature of the proceedings before the primary decision-maker the terms of section 48 of the Occupational Health and Safety Act, we have concluded that an appeal pursuant to section 48 is to involve a hearing de novo. As previously stated an appeal of this nature involves a fresh hearing with the parties entitled to begin again and to adduce new evidence.

PN847

Immediately before that the Full Bench said this:

PN848

The power to make on appeal such a decision as it thinks appropriate subject only to the requirement that it is a decision of the kind appealed against points to the conclusion that the Commission is required to decide the case...

PN849

and this is very important, in our respectful submission -

PN850

...on the facts and the law which exist at the date of its decision.

PN851

And I will not refer to a number of citations that are contained in the case. Now, what is critically important, sir, from those highlighted words, in our respectful submission, is that it doesn't matter whether at the time that the PIN was issued or any date prior to that any relevant risk existed. For this Commission to be able to confirm the provisional improvement notice by issuing its own improvement notice under section 48 it would have to be able to be satisfied of the necessary requirements of section 29, that is, a belief based on reasonable grounds that my client had failed to comply with the Act and/or regulations or there was evidence they had done so in the past and a likelihood that they would do so again in the future. Now - - -

PN852

THE COMMISSIONER: And now against the factual matrix only in relation to the computers.

PN853

MR LINDERMAN: Yes. And we will remind you, sir, I haven't got this in the advice but the evidence that is effectively before you from the experts that were engaged by the respondents was that the TTP that is likely to be emitted from these screens or a combination of them are in order of magnitude - I am saying an order of magnitude below those that are allowed by way of the current objective exposure levels in workplaces as set by the relevant authorities.

PN854

On EMR, sir, there have been inquiries - this is contained in the material - which have indicated - I mean, we are not talking here about some special computers. There are computers - you and I work with them. Just about every office worker works with them and the relevant agencies have looked at computer screens and determined that, amongst other things, EMR is not a relevant occupational health and safety risk.

[3.37pm]

PN855

Now, what the applicants seek to do really is to somehow railroad this jurisdiction into some form of general scientific inquiry. That is just not its role. At the end of the day, pursuant to what was said in Rutjens, the Commission as currently constituted is put by the legislature into the position that was occupied by Inspector Fry to make a determination on material which is the current objective state of knowledge about these matters. Now, to rely on independent experts - in fact, we would say that Inspector Fry could do no more than rely on informed evidence by relevantly qualified experts.

PN856

He said that those people are somehow not appropriately qualified or their conclusions are not sustainable for some proper scientific reason. That is the sort of material that the applicant has to find if it exists. In my respectful submission, the material that he has filed doesn't get within the proverbial bull's roar of even beginning to make out that sort of test. Going to paragraph 30:

PN857

The approach enunciated by the Full Bench in Rutjens, assuming this appeal is valid or that the applicant applies for a waiver of any irregularity, etcetera, and such a waiver is granted by the Commission pursuant to section 111(1)(q) and/or (r) of the Workplace Relations Act would oblige the Commission to review the facts as existing at the time of the hearing of this appeal as the material against which to make a decision to either affirm or revoke the decision appealed against and may, if it revokes the decision, substitute for the decision such other decision being of the kind appealed against as it thinks appropriate.

PN858

That is citing the relevant provision of section 48(6) of the Act. It is submitted in paragraph 14 the very nature of the section 48(6) appeals as stated by the Full Bench in Rutjens case means that for every one or more of the reasons contained in paragraph 8 herein there is effectively nothing for the Commission to resolve in this case. Alternatively, the Commission only has before it a body of expert opinion based on current occupational exposure limits for either TTP and EMR, which is uncontradicted and, accordingly, this evidence must be accepted.

PN859

Just looking at the issue of the challenge by the applicants of the process, claims by the applicants that the first respondent when conducting his investigation failed to comply with the Occupational Health and Safety (Commonwealth Employees) Act calls into question whether that party exercised the power as intended by the legislature. We refer to Connell's case. In substance, that says simply that a person acting under a statutory power can't confer power on himself by misunderstanding the statute which is the source of his power.

PN860

Now, we say it is somewhat ironic that the first applicant who appears to be unable to demonstrate compliance with the statutory prerequisites for issuing his PIN, would seek to criticise the first respondent on this ground. It is submitted that, to be trite, the qualification imposed by the words "reasonable grounds" on any belief formed by health and safety representatives, the basis for issuing a PIN imposes an objective criteria. That is, the existence of a belief must be one capable of being held by a reasonable man. We refer to the Newrev case. It follows that the first applicant's belief and/or whether he acted reasonably are not in issue here.

PN861

Rather, the question is whether a reasonable man could have held such a belief. It is submitted unless the applicants can point to informed scientific evidence which contradicts the opinions provided by experts, which are relied on by the respondents, there are no reasonable grounds within the meaning of section 29(1) of the Act. In those circumstances, sir, we say that this Commission should, at this stage and in the absence of there being any evidence of the requisite type, dismiss this appeal on the merits. If the Commission pleases.

PN862

THE COMMISSIONER: Before you resume. We are in the middle of Dr Gras' cross-examination. Do you say that it is not necessary to continue that?

PN863

MR LINDERMAN: No, sir. Look, on the last occasion we didn't press the point because, as I understood the applicant, when you asked him several times to, in effect, take us to or point to the scientific evidence upon which he relied, he kept making references to these other people that would be available and hence, at the end of last day's proceedings, sir, you will recall that I asked and you accepted and, in fact, made relevant orders requiring those people - in effect, requiring the applicant to put up the material that it relied on.

PN864

Now that opportunity has been extended to the applicant and him having been able to, in effect, satisfy the requirements of the direction, sir, in our respectful submission, we cannot remain silent. This is a case where it is so patently obvious on the material that there is no evidence and that all the applicant has been doing from day one is simply engaged on a fishing expedition. He may believe that he has every right and he has all the relevant beliefs and that he has acted reasonably. I make the point it doesn't matter.

PN865

A reasonable person - a reasonable man has to be prepared to - has to be capable of being shown to be prepared to form the belief that the applicant's employer breached the legislation, in summary, and I say that is not possible. I should just read into the transcript again what was said at paragraph number 178 of transcript of the first day's hearing. It says this:

PN866

By its very nature, as I said -

PN867

This is Mr Vogt speaking,

PN868

it is difficult. Intuitively, these computers are a possible major health problem. There are health and safety welfare problems. Intuitively, ...(reads)... one by one the possible factors.

PN869

So it is a process of elimination we are fishing through.

PN870

Most obvious and pertinent at the moment is the computers themselves. Intuitively, I believe that ...(reads)... biocumulative. I believe this is, in fact, the case now.

PN871

And he goes on to speak about organophosphates. So we are dealing with what I submit is just simply a fishing expedition. Sir, the problem is that the applicant seeks you to join with him in that fishing process and, in my respectful submission, that is not the role of this Commission and certainly the parties should not be required - the respondent should not be required to sit by and watch this process go on at potentially huge expense. It might be said there has already been a huge amount of money expended.

PN872

But my learned friend says 10 days and I join with him that certainly that would be our estimate of the duration of this hearing. We are talking hundreds of thousands of dollars in loss of costs to certainly the respondent parties, with their experts, and, in my respectful submission, this Commission must have better things to do. If the Commission pleases.

PN873

THE COMMISSIONER: Thank you. Mr Watson.

PN874

MR WATSON: May I just pick up on that remark and say it is not really, in fact, a question as to whether the Commission has better things to do. It is more fundamental than that. It is, in fact, if time is spent inappropriately on this case, not only is the Commission's time wasted but other ordinary Australian litigants who are seeking the assistance of the Commission must be denied it because of the Commission's time being taken up on what we will submit to you is an inappropriate exercise. There is a general public interest in terminating inappropriate litigation.

PN875

Commissioner, we for Comcare, ask that you dismiss the appeal here and how this afternoon. We adopt and we endorse the remarks and submissions made by Telstra and, Commissioner, I will add a few words. I will keep it as brief as possible. I will hope that they are helpful. At the outset we put them as the regulatory authority and on the basis that there is a genuine interest in the regulatory authority to make certain that these processes are properly utilised. These kinds of appeals are relatively rare and there have been relatively few such appeals before the Commission.

PN876

These proceedings today do provide an opportunity, an important opportunity, we would respectfully submit to this Commission to lay down some guidelines as to how such proceedings should be brought. Now, those guidelines, we would respectfully submit, may act as appropriate controls. Before I go to the substance of the submission, may I just remind you of one or two things and I am quite aware that you know of them but it is helpful just to lay the context by going back to them.

PN877

That is, that section 29(1) of the Occupational Health and Safety Commonwealth Employment Act requires that the health and safety representative hold a belief upon reasonable grounds. As you know, just while we are in that section, this whole appeal derives from an action taken under section 29(10) following - and you have already seen evidence of this and heard from Mr Fry - a detailed investigation, a decision by Mr Fry to cancel the PIN. Now, if I take you from there to the actual operative section under which we come here today, that is section 48.

PN878

I know that you have already spoken of your understanding that it is section 48(2)(a) which brings us here; that is, an appeal against the decision of Mr Fry to cancel the PIN. May I also point you in the direction of subsection 6 of section 48, which gives to the Commission ample and widespread power to affirm or revoke the decision, and we are going to ask you to affirm it. Now, I will just deal very briefly with Rutjens. On no view can Rutjens be held up as an authority which inhibits this Commission's control of its own processes.

PN879

All courts, tribunals, this Commission and even domestic bodies have the power to control their own processes so that they are not misused or abused. An example is this, any court, tribunal and this Commission is able to prevent proceedings continuing when they are so hopeless that they could not possibly succeed. That is an obvious thing or otherwise tribunals, courts and this Commission might be caught up in endless litigation on a hopeless point. We are asking you to invoke those considerations in dismissing this appeal. Now I will turn, if I may, to the substantive submissions we wish to make as to why that should be so.

PN880

We ask you to view this appeal, particularly in light of the way that it was put forward orally by Mr Vogt on the last occasion, as a legal misconception. That is the most charitable characterisation of it. May I just remind you of something which occurred in the transcript on the last occasion, which was an exchange between the Commission and Mr Vogt following a question of Mr Fry. In the transcript it commences with Mr Vogt's question at paragraph number 328. The pages themselves are unnumbered and I will just give the Commission the opportunity to find that. It is right at the top of a page.

PN881

THE COMMISSIONER: Yes, I have it, thank you.

PN882

MR WATSON: The question was:

PN883

Does the PIN anywhere state or suggest that there has been exposure? Where does this question of my allegation ...(reads)... neither does anybody else, do they?---No.

PN884

Then there is a question which commences, "They don't", and it goes on. The Commission there interrupted and there was an exchange between the Commissioner and Mr Vogt which was to the effect that by that very question you concede that you couldn't hold the relevant requisite under section 29. Mr Vogt did not, I respectfully submit, have an adequate answer to that interjection by the Commission. It is a matter of significance. Moreover, there are other references which litter the transcript and I am only going to read to you a couple, and I won't ask you to go to them for the moment but in paragraph number 175, Mr Vogt said in opening the case:

PN885

The study has been initiated because of computer worker ill-health. I, therefore, reasonably infer that the monitors there may be a source of ...(reads)... The PIN is therefore reasonable.

PN886

With respect, that is, at best, most charitably, a misconception. At paragraph 178:

PN887

By its very nature, as I said, it is difficult. Intuitively, these computers are a possible major health problem. ...(reads)... I believe this is, in fact, the case now.

PN888

There is in paragraph 179 further reference to intuition as being the basis of the issue of the PIN and the need for further information. We also ask you to take it into account in dismissing this appeal the way in which the appeal has been presented. You may look at the cross-examination for the purposes of that. You may look at the cross-examination of Mr Fry and to look at it we would ask you to determine objectively that it is just plainly discursive, irrelevant and, in some ways, an abuse. I give you the example at paragraph number 312.

PN889

Being questioned by Mr Vogt after he had established that Mr Fry had been an investigator for 12 months, question:

PN890

Just over 12 months and they threw you into this one. Goodness. And one of the biggest corporations in the country?

PN891

That is not an appropriate use of this appeal process. We also ask you to take into account the very fundamental fact that Telstra has now left the building as being indicative of no proper basis for the appeal continuing. I pause there and say Mr Vogt may be able to correct me if I am wrong but the reports of Dr Dingle and Dr Little do not deal with the computer screens, which is the only thing which has remained continuous between the two premises. We submit that these proceedings have about them the characteristics of an abuse of process.

PN892

I put to you before the way in which they have been presented, including the cross-examination, suggests that. Secondly, the very length of them suggests that. There was very extensive cross-examination of Mr Fry and one could imagine easily that this case will take 10 days of hearing. Thirdly, we point to the lack of focus and although it is not before the Commission just yet, we understand, as pointed out by Mr Linderman, that two volumes of articles comprising literally dozens of articles will be put before you.

PN893

Can I just tell you what some of the issues which this Commission will hear about if this appeal continues include. They include "Something from America", where a company was boasting that their Golden 86 wheat is certified chemical free. The only connection between that document and this case is that, amongst other things, they boast that it is free of triphenyl phosphate. Another one, which is in the volume provided behind guide card 21, is an article about the toxicity of commercial jet oils.

PN894

Another one, with great respect to the newspaper, can't be of academic support for any contention, is an article from The Australian newspaper about F111 workers receiving free medical care because they were exposed to substances while repairing fuel tanks. There are so many more, I could stand here for 10 days showing you irrelevant articles. Finally, this is our submission and it has been a matter that we flagged at the commencement. There is authority which suggests that this case could never get to the threshold. I am so sorry about this; I was too late to provide you with a copy of the authority but I will just refer the Commission and I will just read a part from it.

PN895

It is a case of George v Rockett, reported in 1990, 170 CLR at 104. It was an appeal to the High Court following the issue of a search warrant. The search warrant was issued under the Queensland Criminal Code, which made it as a prerequisite before a justice, a magistrate, that is, could issue such a search warrant that there be certain matters made out. Some are irrelevant but in section 679B of the Criminal Code one of the grounds for a search warrant was whether in respect of a thing there are reasonable grounds for believing that it will, of itself or by scientific examination, afford evidence for the commission of an offence, the crucial words being "are reasonable grounds for believing."

PN896

That meant that the High Court had to look at what those words meant and they did it in a context where one of the other provisions in the same section had spoken of reasonable grounds for suspecting. What the High Court did at page 111 - I might add that this was a joint judgment of all seven judges - about point 3 on the page, they said:

PN897

It will be convenient to consider the relevant conditions prescribed by section 679 under three headings: the justice's function, the material to ground an issue of a warrant, and the facts to be established.

PN898

Then under the consideration of the justice's function at page 112 at about point 3, the Court said this:

PN899

When a statute prescribes that there must be reasonable grounds for a state of mind, including suspicion and belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

PN900

Thereafter, the High Court referred to authority for that proposition and they went on at about point 5 on page 112:

PN901

Therefore, it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.

PN902

Now, the High Court, under the consideration of the facts to be established in a particular instance, at page 115 point 5 said this:

PN903

In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which section 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind.

PN904

They went on at about point 7:

PN905

The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief. Yet some factual basis for the suspicion must be shown.

PN906

In other words, a suspicion is less than a belief. This case is a belief. At page 116 point 3, the Court said this:

PN907

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter, in fact, occurred or exists. The assent of belief is given on a more slender evidence than proof.

PN908

In other words, belief is something more than suspicion and something less than proof on balance of probabilities. That is High Court authority for the meaning of the particular words which are invoked in this particular provision. What we do know is that this case has been brought forward on no more than speculative intuition of the existence of a problem. We would respectfully submit it, at all times, on the concession of the way that it has been brought forward fail and we ask you to dismiss the appeal under section 48(6). Thank you.

PN909

THE COMMISSIONER: Thank you, Mr Watson. Mr Vogt.

PN910

MR VOGT: I am stunned, sir. This is the first I have heard of these arguments. I am not a lawyer. They are very weighty. I received a fax from Telstra's lawyers late in the - I asked for indications of what line and what argument would be taken so that I wouldn't be ambushed. We have been given a very lengthy and, I presume, learned discussion. Now, on my feet at the moment it is difficult to answer. I will try as far as I can - - -

PN911

THE COMMISSIONER: No, what would you like to happen?

PN912

MR VOGT: I would like time to examine the words that have been said. I can give answer to them. There has been emotive language used and flights of fancy. I have been quoted out of context. The use of the terms were part of one of three arguments I was using in terms of logic regarding inference. It was only just one. It was not the basis. That is what comes to mind immediately. So I have been quote incorrectly there. I have in those documents that have been presented, I think it is clear that what I have done is not facetious; it is not done lightly.

PN913

I have gone to one hell of a lot of work, put a lot of my time - my colleagues have spent their time also in their concerns about health. It seems that Telstra and Comcare would rather take up the time, 10 days they say, of the Court in legal argument rather than getting down to looking at the health of my people. My people have suffered for 18 months. I am suffering. There is no question about that.

PN914

THE COMMISSIONER: How much time do you think you need, Mr Vogt? There are a couple of options. I can adjourn and hear you tomorrow at 10. I can adjourn and allow you to put in some written submissions. I must say that I am minded to hear and determine the point raised prior to continuing.

[4.05pm]

PN915

MR VOGT: Am I able just at the moment to contribute these documents. I have been told about evidence and points have been made about those documents; again, they have been highly selective. Some of them have been in there just to point to times at which Dr Gras and Drs Bisby who were the experts would be aware of these things, the reference to the Australian - there are documents there from - also from major authorities from many countries. Whether they came from the web or not is irrelevant, and it may just mean they are more readily available to everybody, but there are protocols that have been set up by the Canadian Government, that have been set up by California.

PN916

There are laws now, there is a law being enacted in California, the Toxic Mould Act, for goodness sake. If what - the comment, the decision of Dr Gras was, and I quote the words:

PN917

There is no health risk to normal, healthy people -

PN918

why would California have to pass a special law about it if that were the case? These are the sort of things that I am questioning. The - - -

PN919

THE COMMISSIONER: Do you think it is relevant to talk about the areas that go to air quality now?

PN920

MR VOGT: Yes, I think it is still, partly because there are people - and here is where the conflict of interest - I am not a lawyer, I don't know about jurisdictions and what have you, but we have people who have WorkCover claims before Comcare; this was the point of my conflict of interest thing in Comcare's position. Comcare is not only the authority that has sat on this matter and made a decision, it is also the body as I understand it, I may be wrong, which is responsible for the workers' comp claims.

PN921

There are people who are - who may be disadvantaged as a result of us not going ahead with this, that, you know, if they are claiming that their illness is due to what happened in the building, if that building is not examined then where do their claims go? These people are disadvantaged if we don't proceed. I would also comment that moving into the new building I have been refused or delayed access. I haven't actually been refused, but every obstacle has been put in the way of my looking at the air - even just looking at the air conditioning system in the new building.

PN922

We didn't want to move into there until I saw that. They have failed consistently to give me that access. The union has sought to have a - to inspect the system. We have sought even just the plans of the air conditioning system, they have been refused to us. So, Telstra is continuing to as I believe go against the spirit of the Act. I would appreciate also a consideration of the fact that this appeal is in fact against a decision of Comcare. It really, it seems to me - again, I am not a lawyer, but it seems to me the pin itself is not really all that relevant.

PN923

Comcare right or wrong made a decision, and this appeal is against that decision. Finally, my reasonable belief was based on a scientific article from a reputable university. That university has now created a stir world-wide about a food chemical. It is a reputable university. It stated quite clearly that there were allergenic effects. I believe that I, a reasonable person, perhaps if I can just chide my opposition to that, it is not reasonable man, it is reasonable people, reasonable persons, that a reasonable person looking at that document, looking at the conditions under which we existed, a reasonable person would come to the conclusion there is something wrong.

PN924

It would be wrong, I believe, also for an employer to be able to hide behind a restriction of information so that it will not provide the information. I make the point that my reasonable belief was vindicated at least in part although they had withheld the information, my belief based on the fact that 60 per cent of computers had this in them, the triphenyl phosphate, that it was reasonable for me if they failed to give me the information, if they refused to give me the information, it is reasonable for me to infer that it is highly likely that it is there. And this is what in fact I did.

PN925

There is - can I put the point that Galileo on reasonable grounds, reasonably believed that the sun stood still. The majority of reasonable people had a reasonable belief that it did not because they had authorities that said so. Galileo was right. And even if my friends can't read the weight of evidence that is in fact there, and I would like - I beg you to give me the chance to have Dr Gras on the stand there, take him point by point through each of the things he has said as an authority. He has set himself up as an expert, and as an expert he is in error, and all the authorities show that he is in error.

PN926

They are all there. There are 138-odd documents in there, all of which go to the fact that the statements made by Dr Gras and by Comcare on his advice are wrong.

PN927

THE COMMISSIONER: How long do you need, Mr Vogt? I am prepared to give you two options; tomorrow at 10, or in writing in a fortnight. In writing in a fortnight?

PN928

MR VOGT: Yes. Thank you.

PN929

THE COMMISSIONER: That is - very well, Mr Vogt. That means that it is - close of business of 11 July. Now, Mr Vogt, if you could concentrate on a couple of matters; a response to the arguments put against you, and in particular I would be interested in your view as to the relief that you say exists in relation to the air quality in circumstances where persons have moved. So - - -

PN930

MR VOGT: In which building?

PN931

THE COMMISSIONER: - - - what I am saying is, if your appeal was upheld, what do I do? Now, if you could file in the Australian Industrial Registry your submissions by close of business 11 July and then I will provide the other side with an opportunity to respond to that by close of business 25 July.

PN932

MR LINDERMAN: If the Commission pleases.

PN933

THE COMMISSIONER: And then I will issue a decision subsequent upon considering those matters.

PN934

MR COOPER: May it please the Commission.

PN935

THE COMMISSIONER: Thank you. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [4.14pm]