C2002/3628, Transcript of Proceedings [2002] AIRCTrans 3120 (14 August 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2002/3628

APPEAL UNDER SECTION 45 OF THE ACT -
NO STAY ORDER SOUGHT - BY FINANCE SECTOR
UNION OF AUSTRALIA AGAINST A DECISION OF
SENIOR DEPUTY PRESIDENT DUNCAN ISSUED
ON 1 JULY 2002 IN C2002/2377

C2002/3713

APPEAL UNDER SECTION 45 OF THE ACT -
STAY ORDER SOUGHT - BY GIO AUSTRALIA
LIMITED AGAINST A DECISION OF SENIOR
DEPUTY PRESIDENT DUNCAN ISSUED ON
1 JULY 2002 IN C2002/2377 RE DISPUTES PROCEDURE

SYDNEY

9.18 AM, TUESDAY, 30 JULY 2002

Hearing continuing

PN1

THE VICE PRESIDENT: May I have the appearances, please?

PN2

MS D. HANNAN: If the Commission pleases, I appear for the Finance Sector Union of Australia.

PN3

MR P. SMITH: If the Commission pleases, I am a solicitor and I seek leave to appear for GIO Australia Limited.

PN4

THE VICE PRESIDENT: Thank you. Is there any objection to the application for leave to appear?

PN5

MS HANNAN: No objection, your Honour, and whilst I am on my feet may I apologise for the delay, complicated by some further discussions on the direction this morning.

PN6

THE VICE PRESIDENT: That's fine, Ms Hannan, leave is granted, Mr Smith. How do you want to proceed given that you are both appellants? Yes, Mr Smith?

PN7

MR SMITH: Your Honour, there are two matters that need to be dealt with this morning. The first one is that GIO Australia has made an application for a stay order and it appears that having had the opportunity to confer with the FSU and also obtain an indication from Senior Deputy President Duncan's chambers, it is not proposed to list those proceedings that are subject to the appeal pending the determination of the appeals that a sensible practical solution may emerge where the parties can simply consent to an adjournment of those proceedings pending the outcome of the appeal and we need not press your Honour with issuing a stay order today.

PN8

THE VICE PRESIDENT: Well, leave can be given to apply for a stay order in the unlikely event that it becomes necessary. That deals with the stay order issue. Have you had an opportunity to confer in relation to directions, or not as yet?

PN9

MR SMITH: Yes, we have, your Honour. It appears that FSU is requesting some further time to consider a timetable that we propose. Our timetable has some elements in it and an opportunity for the parties to supplement the appeal books, some additional material that has occurred to us, to agree on any further agreed facts that we could possibly reach, and then there is a timetable that we propose with the filing and serving of written submissions and the parties, you know, respond and reply to each of those preliminary to a hearing date. Is your Honour able to indicate whether a hearing date has been allocated yet?

PN10

THE VICE PRESIDENT: Yes, I can. It is to be set down for Thursday, 10 October. Given the nature of the issues raised in each of the appeals, the Appeal Bench would propose to deal with the appeal substantially by written submission but supplemented by oral argument on the 10th so any directions that are issued would reflect that fact, hence you should put whatever it is you want to put in the written submissions, they should not be outlines but rather deal with the totality of the argument you want to advance. The hearing on the 10th, well, the purpose of that would be for short oral argument and to provide the Bench with an opportunity to engage the submissions in questions.

PN11

The normal directions provide that copies of authorities are provided on the day of the hearing or the day before. Given the large number of authorities that are referred to, at least in the proceedings below and I would apprehend on appeal, can I ask you to confer in relation to that issue and perhaps if you can file a couple of weeks before the matter is listed for the appeal hearing a composite folder with all of the authorities on which each of you will rely. Given that there is a degree of overlap, you might save a few trees and also if we can get them early then it will save us - in the normal course in reading the written submissions we would go to the authorities on which you rely anyway so the earlier we can get those the better. Yes, Mr Smith?

PN12

MR SMITH: The FSU has indicated that they would require till close of business today to consider the dates and timings that we propose for the exchange of submissions.

PN13

THE VICE PRESIDENT: That's fine, given we have got some time to deal with the matter, if you can agree amongst yourselves about it. If you have reached an agreement you can convey that to my associate and if you haven't then I'll probably deal with it by way of short telephone conference between each of you, so if you could provide your contact details to my associate and we will resolve it that way.

PN14

MR SMITH: Thank you, your Honour.

PN15

THE VICE PRESIDENT: Can I raise something, and I raise this with some hesitancy given that I've not been through all the material but I've read his Honour's decision and the grounds of appeal, can I ask each of you in your written submissions to address the question of why the issues that were before his Honour needed to be determined as threshold matters? I say that because in a number of instances his Honour says that a particular matter doesn't need to be determined at this stage so it seems that he is in contemplation addressing the issues that are put to him at some point in his decision-making process but doesn't see the need to deal with them as threshold issues.

PN16

I accept that is not true of all of the observations he makes but in relation those where he does make that observation I wondered, and I emphasise in a tentative way, whether the appeals in relation to those matters might not be premature given that he has not made any final decision about the construction arguments put on a number of those issues. I say it is a tentative view and it is that, I have not had an opportunity to read the transcript or to see the context in which those matters were put and it may well be that they did need to be determined as threshold issues because without them being determined in a particular way the matter could not proceed any further, but as they were matters that occurred to me I thought I would bring them to your attention and encourage you to address those in your written submissions.

PN17

MR SMITH: Yes, thank you, your Honour.

PN18

THE VICE PRESIDENT: Is there anything further?

PN19

MR SMITH: No, your Honour.

PN20

MS HANNAN: Nothing further, your Honour.

PN21

THE VICE PRESIDENT: Thank you both and I will hear from you, or my associate will, this afternoon. If you have reached an agreed position just convey that. I might provide you, and this is not intended to influence you, with the standard directions and obviously if you both agree a departure from those is not a difficulty as far as I am concerned, but it's just in terms of transmission in electronic form, where they go, etcetera. I will provide you a copy of that draft and it may assist you in your deliberations.

PN22

I would encourage you to reach an agreed position in relation to the background facts. I note his Honour refers to a chronology, I think the FSU had some reservations about some of the issues in it. Given that at least as far as I can tell the issues raised on appeal are essentially jurisdictional rather than the resolution of the factual issues though obviously there might be a connection between the two, the narrower we can frame the issues the better. If there is nothing further, I will adjourn.

ADJOURNED UNTIL THURSDAY, 10 OCTOBER 2002 [9.28am]