C0093/998, Transcript of Proceedings [2002] AIRCTrans 4121 (18 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT253

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C No 00939 of 1998
C2002/3437
C2002/3438
C2002/3439
C2002/3665
C2002/3669

AMBULANCE EMPLOYEES - VICTORIA
INTERIM ORDER 1994

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re
conditions of employment

Applications under section 113 of the
Act by Victorian Patient Transport and
Others to vary the above award

MELBOURNE

1.52 PM, THURSDAY, 3 OCTOBER 2002

Continued from 2.10.02

PN3229

THE COMMISSIONER: Yes, Mr Quigley.

PN3230

MR QUIGLEY: If the Commission pleases I would like to call Mr John Brown.

PN3231

THE COMMISSIONER: Certainly.

<JOHN FRANCIS GEORGE BROWN, AFFIRMED [1.52pm]

<EXAMINATION-IN-CHIEF BY MR QUIGLEY

PN3232

MR QUIGLEY: Is your name John Francis George Brown?---Yes.

PN3233

And is your address 1834 Ferntree Gully Road, Ferntree Gully in Victoria?---It is.

PN3234

And did you make a statement in relation to these proceedings, Mr Brown?---I have.

PN3235

And is that statement you have made true and correct?---True and correct.

PN3236

Are there any changes that you wish to make or have made to that statement?---No.

PN3237

Do you have a copy of that statement with you?---I have it with me.

PN3238

Can you tell the Commissioner if that is the statement you made?---This is the statement I made, Commissioner.

PN3239

Could we mark that if the Commission please?

EXHIBIT #P13 WITNESS STATEMENT OF J.F.G. BROWN

PN3240

MR QUIGLEY: Mr Brown, I would like to ask you a few questions in relation to that statement before Mr Friend cross-examines you. You are now the general manager of Medical and Transport Services Australia?---I am.

PN3241

And you say that the company was established in October 1993. Did you establish the company?---I did, yes.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3242

You indicate in your statement that it provides a range of services and in your statement you have identified some seven particular services that the company provides. Do you see those?---Yes.

PN3243

And are they still the sorts of services that the company provides?---They are.

PN3244

Your company operates public duty standby work as it says at point 4 of your statement. Can you advise the Commission what that public duty standby work involves?---It involves attendances at places where there is a requirement for an ambulance to be on duty, such places as horse racing or football or triathlons, motor racing. Those sorts of sports, events.

PN3245

In relation to horse racing what sort of circumstances would occur that an ambulance would deal with in those sort of cases?---They may be required to attend to a jockey that has fallen from a horse or a barrier attendant that has been injured in some way. They may be required to attend to the public on occasions.

PN3246

And does your company also do standby duty at harness racing events?---They do.

PN3247

Are the harness racing events any different from a thoroughbred horse racing event or the gallops as they are called?---There can be a difference in that the way that the race is organised, that the jockeys in flat racing are riding on one horse, in harness racing they are riding on a cart and it can be that the cart, not the horse, is the problem, it has caused an incident.

PN3248

And would that - if a cart that was at the tail of the race, if that fell over for some reason or other, would that cause as much problem as if the lead horse were to fall?---No. If the lead horse fell it would be significant.

PN3249

You mentioned amongst the services that you provide special purpose patient transport. What does that involve?---Special purpose is the transport of people or patients that ordinarily would have difficulty being moved in a standard ambulance.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3250

What would cause them to have difficulty to being moved in a standard ambulance? Could you give the Commissioner an example?---Yes. Well, a type of patient that is moved is an extremely obese patient and these patients generally range from 200 kilograms to 300 kilograms and they require a special purpose vehicle because the stretcher to accommodate them is a special stretcher and the room inside the ambulances needs to be able to accommodate those sorts of people.

PN3251

You have mentioned in your statement that there are distinguishing differences between the three classifications whom you employ. You say that the ambulance officer has emergency experience and you say that the ambulance attendant has similar training to an ambulance officer but does not have emergency experience. What is the emergency experience that you refer to?---The emergency experience is being able to cope with an incident where people are injured such as in a motor accident and in such a situation quite often the people involved somewhat other than themselves can be irrational and it is the training of managing an incident that is quite different. That is what I mean by emergency experience.

PN3252

And are MTS ambulance crews called to respond to emergency calls such as motor accidents?---No, we don't do emergency response.

PN3253

Have you known of your employees to come across a motor accident and render assistance in such circumstances?---Yes, they do. Our staff are trained in first aid and they can render assistance the same as probably anyone else that has been trained in first aid.

PN3254

Is that in the manner of acting as a good samaritan, Mr Brown?---To some extent it is, yes.

PN3255

Are your employees expected to work beyond the limits and the training and experience that they have?---Not at all.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3256

You say in your statement that your company's vehicles are classified as emergency vehicles operating for and on behalf of an emergency ambulance service. What does that mean?---It means that under the Road Traffic Regulations, if required to do so, they could use warning devices.

PN3257

Right. You also say in the third last paragraph on the first page of your statement that:

PN3258

Under the terms of its contracts MTS can decide to reject the transport of a patient if it is felt that the transport of that particular patient is unsuitable and that it would be putting the patient's health and safety at risk.

PN3259

Is that your company's policy on that matter?---It is our company's policy but it is also our policy that if the - if that patient required attention beyond the capacity of our staff that we wouldn't move that patient, that we would call an emergency ambulance.

PN3260

Evidence has been given in these proceedings that amongst the private operators within the patient transport sector crews have found themselves in the position where they are called upon to take a case even though it might be beyond that which it was originally designated as or beyond that which they are qualified to deal with. What is MTSs policy in relation to such situations?---Our policy is that all of our crews would take their direction from the communication centre at Intergraph and the relationship between our staff and Intergraph is that if the patient was one that required attention greater than the skills of our crews that our crews will notify Intergraph that that is the case and that they are unable to manage that patient, that a high level of skill would be required.

PN3261

Does your company have an arrangement that in such circumstances the company will discuss that with Intergraph itself?---Yes. If it reaches the stage where the duty team manager at Intergraph becomes involved the duty team manager may feel that the crew could probably manage the case. If the crew felt they couldn't then they contact us. The policy is that they contact us and we deal with the duty team manager.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3262

Who is the best person in your view to make an assessment of the case in hand?---We have always regarded the people at the scene the people most important. They are the ones who are on the spot and they know what the situation is. They are the ones who should really be deciding.

PN3263

Do commercial considerations of the company become involved in these sorts of circumstances?---No, it is not for our company to deal with it on that basis. It has always been on a professional basis as to whether the patient was receiving the level of care that was required.

PN3264

Mr Brown, there has been evidence given in these proceedings regarding the development of training courses for ambulance officers, ambulance paramedics, ambulance attendants and patient transport officers. To your knowledge has the non-emergency patient transport sector private sector area been involved in the development of any of those training programs?---Not as an industry, not on a collective basis, and on an individual basis there has been some input but it is not representative of the industry, put it that way. I know that on an individual basis people may have been asked to give an opinion or be involved in a committee but collectively the industry itself hasn't.

PN3265

Are you aware of any involvement - of other private operators being involved in the development of national competencies for ambulance employees?---Not that I am aware of, no.

PN3266

At the bottom of the first page of your statement, Mr Brown, you make a reference there to patient care records or PCRs as I believe they are known within the industry. Could you indicate to the Commission how many of those would have been completed by people in your company in that time period that you have referred to?---I have no idea how many patient care records we would have completed. I only know that it would be voluminous.

PN3267

You make a reference there to 81 crews. What does that refer to?---Well, they are the people that are qualified to look after the patient and they are the ones who fill out the patient care records.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3268

It is not a case as - - -

PN3269

MR FRIEND: Don't lead, please.

PN3270

MR QUIGLEY: If I put it to you that - - -

PN3271

MR FRIEND: Don't put things to the witness. You can't put things because you are leading. Don't lead.

PN3272

MR QUIGLEY: I will withdraw that, Commissioner.

PN3273

THE COMMISSIONER: Thank you. Mr Quigley, whilst it gets you the answer you want, in fact it makes it more difficult for me to weigh the evidence.

PN3274

MR QUIGLEY: Yes, I understand, Commissioner.

PN3275

Mr Brown, can I take you to the second page of your statement? At the third paragraph there you talk about the number of patients carried by your company who have required the operation of a defibrillator, do you see that?---Yes.

PN3276

Over what period of time are you referring to there?---Well, since our inception.

PN3277

Yes, I have no other questions at this stage, Commissioner.

PN3278

THE COMMISSIONER: Yes. Mr Friend.

PN3279

MR FRIEND: Thank you, Commissioner.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3280

MR QUIGLEY: Excuse me, Commissioner. I wonder if Mr Friend could indulge me, I did want to ask another question which I - - -

PN3281

MR FRIEND: Of course.

PN3282

MR QUIGLEY: If you would allow me, if the Commission pleases.

PN3283

THE COMMISSIONER: Proceed.

PN3284

MR QUIGLEY: Mr Brown, can I show you some documents and ask you to comment on them if it pleases. There are in fact two documents there, Commissioner.

PN3285

THE COMMISSIONER: I take it you want them marked.

PN3286

MR QUIGLEY: Yes, please.

PN3287

THE COMMISSIONER: I will just mark them as one, I think, P14.

EXHIBIT #P14 LETTERS FROM MS CSUPOR AND MR BARGER TO MR BROWN

PN3288

MR QUIGLEY: Mr Brown, do you see with the documents that have just been handed to you a letter addressed to you dated 1 October this year from Ms Beata Csupor, I presume it is pronounced?---Csupor.

PN3289

Csupor, which details the clinical updates conducted or delivered by MAS?---Yes.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3290

And was that information that you sought in order to clarify the timing of training, in particular drugs, etcetera?---It was.

PN3291

Commissioner, we have put that forward to assist the Commission. There was some argument or a debate at least in relation to that and we think that that might be helpful in that regard in that the organisation that conducts those courses has put that forward and we put it no higher than that, in that it might assist the parties.

PN3292

And the other document that you received is a letter from Mr Bill Barger, is that correct?---Correct.

PN3293

Can you tell the Commission what that letter from Mr Barger indicates?---It indicates that a qualified ambulance officer, which is the wording of the Mental Health Act, is permitted to manage psychiatric patients of a certain classification and that they are the only people referred to in the Act who are able to perform that sort of work. So that ambulance attendants do not appear in the Act as a person or - sorry, as a trained person who is permitted to handle those psychiatric patients.

PN3294

I would like to show the witness another document if the Commission pleases. The document in hand, Commissioner, is a discussion paper prepared by the Department of Human Services in Victoria on the subject of regulation of the non-emergency patient transport sector. If the Commission could mark that.

EXHIBIT #P15 DISCUSSION PAPER PREPARED BY DEPARTMENT OF HUMAN SERVICES VICTORIA RE REGULATION OF NON- EMERGENCY PATIENT TRANSPORT SECTOR

PN3295

MR QUIGLEY: Mr Brown, did you receive a copy of this discussion paper from the Department of Human Services?---I did.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3296

And did your company take the opportunity to respond to it as was called for?---Yes, it did.

PN3297

And are you aware if within the document there are discussions in relation to the question of emergency and non-emergency work?---Yes.

PN3298

Is it your understanding that at this stage it is - - -

PN3299

MR FRIEND: Don't lead, please.

PN3300

MR QUIGLEY: Sorry, I withdraw that, Commissioner.

PN3301

THE COMMISSIONER: Just say, what is your understanding.

PN3302

MR QUIGLEY: Yes. What is your understanding of the status of this document, Mr Brown?---This document is an inquiry from the industry that deals with patient transport, as to how best to provide the service to the public, to hospitals, to the industry and how non-emergency transport is to be conducted in the State of Victoria.

PN3303

They were the questions I had for the witness. If the Commission pleases.

PN3304

THE COMMISSIONER: Mr Friend.

PN3305

MR FRIEND: Unfortunately, Commissioner, I haven't had an opportunity of reading this document as it hasn't been included in the materials. I will have to put it aside for one moment.

**** JOHN FRANCIS GEORGE BROWN XN MR QUIGLEY

PN3306

THE COMMISSIONER: Sorry?

PN3307

MR FRIEND: I have to put it aside for one moment. I should, perhaps, while I am on my feet - - -

PN3308

MR QUIGLEY: Excuse, Commissioner, it is referred to in considerable detail in our submissions.

PN3309

MR FRIEND: In that case I will deal with it. I should ask Mr Quigley if he intended to tender those letters of 1 and 2 October.

PN3310

THE COMMISSIONER: I marked them - - -

PN3311

MR FRIEND: You marked them, did you?

PN3312

THE COMMISSIONER: Yes, P14. I was requested to mark them. The verb "tendering" wasn't used.

PN3313

MR FRIEND: No, no. Well, I missed that. I just wanted to make sure that they were in.

<CROSS-EXAMINATION BY MR FRIEND [2.10pm]

PN3314

MR FRIEND: Now, Mr Brown, you say in your statement that you were an ambulance officer for 41 years or you were an ambulance officer of 41 years experience, do you remember saying that?---Yes.

PN3315

Some of that was with MAS, is that correct?---Correct.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3316

Yes. When did you leave MAS?---In 1993.

PN3317

Yes. Was your rank ambulance officer then?---It was superintendent.

PN3318

Superintendent. How high do the ranks go there?---Well, they went to regional superintendent.

PN3319

Yes, and was that the one above yours?---No, it was two above mine.

PN3320

So you were at sort of the third level?---Yes.

PN3321

Okay. How long had it been since you were an actual ambulance officer?---Last week.

PN3322

No, the time you left MAS?---Sorry?

PN3323

When you left MAS - - -?---Yes.

PN3324

- - - you were a superintendent. Before that at some stage you were an ambulance officer?---If you distinguish an operational superintendent from an ambulance officer I was an ambulance officer - prior to that I was a district officer, prior to that I was a station officer.

PN3325

Yes?---If you want to go back to when I was an actual ambulance officer only?

PN3326

That is the question, yes?---Is that the one?

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3327

Yes?---1968.

PN3328

Right. But you still would have, I suppose, to use that expression from another industry, worked on the tools? You still would have gone out in an ambulance after that, wouldn't you, perhaps as station officer?---Absolutely, yes. Still do now.

PN3329

I am not - I am trying to get back to MAS because things might have changed since then?---Okay.

PN3330

When you were a superintendent did you go out in an ambulance?---Yes.

PN3331

How often?---On an emergency ambulance?

PN3332

Yes?---Not very often at all.

PN3333

No. You didn't do normal shifts, you had other duties?---I had other duties, yes.

PN3334

And the same when - I forget what rank it was you said you had - - -?---District officer?

PN3335

District officer, same when you were a district officer, you had other duties?---I had other duties, yes.

PN3336

And station officer, you had other duties?---Sometimes, yes. There were other duties, yes.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3337

Yes, all right. Now your business, Medical Transport Services, you say have 81 ambulance officers employed and nine attendants. Has it been more or less constant at that level or has that built up over the years?---No, it varies. I mean there are some people that have - we haven't seen for years. So in total there has been a number greater than that but I am referring to a number that occurred at the time when the document was written.

PN3338

Yes. When you say there are a number that you haven't seen for years, you don't still regard them as employees?---No.

PN3339

No, all right, and does your operation operate a 24 hour service?---It does.

PN3340

So some of those people will on occasion be working shifts at night or at the week-ends or what have you?---Yes.

PN3341

Now you say you have done more than 100,000 transports and you were asked about patient care records and you said that they would be voluminous?---Yes.

PN3342

Every time there was a defibrillation a PCR would be filled in, wouldn't it?---Yes.

PN3343

But I take it you didn't go back and check to see through all the PCRs how many defibrillations there had been?---No.

PN3344

So the figure of less than 10 over the last nine years is something that you have - it is an estimate?---Yes.

PN3345

You wouldn't, of course, use a defibrillator on someone who had a letter signed by the doctor marked "Not for resuscitation"?---No.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3346

No, because that would be an attempt at resuscitation?---Yes.

PN3347

You don't use the defibrillator until the person is actually dead?---That is right.

PN3348

Yes. Now when you use one - I take it you are still, you keep your CEP7 qualification up?---Yes.

PN3349

So you are au fait with this right up to the minute?---Mm.

PN3350

When you use one you would need to use drugs afterwards for proper treatment?---Possibly.

PN3351

Not necessarily?---Not necessarily, no.

PN3352

Drugs would enhance the chances of recovery?---Yes, if they were available, if the person was trained to use them, yes.

PN3353

Yes, and they are not actually available in your ambulances?---No.

PN3354

But the chances actually of recovery if a person is defibrillated are actually quite small, aren't they?---That is a time thing. It just depends on time.

PN3355

Are you saying that none of those people that has had a defibrillation over the years in your service, none of them has died?---No. What I am saying is they didn't die in our care. An emergency ambulance was called.

PN3356

Well, how were they kept - wait on. They were dead before you start using the defibrillator. You try and resuscitate them?---Well, no, I have to say no to that because that is not true.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3357

All right. You agreed with that before but you now say that is not true. Their heart stopped?---Okay. Well, we are talking about the definition of dead and that doesn't mean they are dead, it just means their heart stopped.

PN3358

I understand that. Their heart has stopped?---Yes.

PN3359

You use the defibrillator to keep it going?---To restart it.

PN3360

To restart it?---Mm.

PN3361

And then you hand them over to the ambulance?---Yes.

PN3362

The chances are they have died in the ambulance?---Yes.

PN3363

All things being equal?---Yes.

PN3364

Thank you. So when you say that no one has died it is really being a bit technical about the way that it is all worked, isn't it?---Yes. I realise that, yes.

PN3365

Okay. The truth is that the people that work in your service have to be in a position to take, to start that life saving treatment and they have done so?---Yes.

PN3366

And similarly if they are involved in emergency transport, such as neo-natal emergency, they have to take life saving steps in respect to the treatment, don't they?---No.

PN3367

No, okay. Are you saying there is no prospect in a neo-natal emergency of there being some deterioration in the condition of the baby?---No, it is quite possible that there is some deterioration.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3368

And your employees have to be in a position to take steps in relation to that, don't they?---No.

PN3369

Well, would it be just the same as if the baby was taken in a taxi, would it?---No, it wouldn't.

PN3370

Well, why not?---Well, a taxi is not an emergency vehicle.

PN3371

No?---That is one thing.

PN3372

Yes?---The other thing is that the people who look after neo-natal emergency transports are nurses and doctors that do that work. They look after the patient, we don't.

PN3373

So they are in the ambulance with you?---Yes.

PN3374

All right. What about other emergency transport?---Which other emergency transport?

PN3375

Did you ever do any emergency transport when you were on public duties?---Yes.

PN3376

There is no doctor there then, is there?---No.

PN3377

Well, do your employees have to look after the patient then?---The ambulance officers do.

PN3378

Yes. You don't have many ambulance attendants, do you? Do you ever have ambulance attendants on public duties work?---No.

[2.21pm]

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3379

But you could have, couldn't you?---We don't have.

PN3380

Yes, but you are allowed to?---No, we are not.

PN3381

MAS says you are allowed to, doesn't it?---No, they don't.

PN3382

All right. You have to have two ambulance officers?---Yes.

PN3383

Now in relation to these 81 crews - how did you arrive at that figure?---It was the crew - that would have been the number that was available at the time.

PN3384

How did you arrive at it?---Looked at the roster.

PN3385

That is the number of crews you have got?---At that time, yes.

PN3386

That is all of the crews?---Well, there is - - -

PN3387

Every one of the crews at that time?---81 ambulance officers, 9 attendants and 33 patient transport officers, yes.

PN3388

So every one of them you are saying has completed a PCR?---No. I am saying 81, the ambulance officers have.

PN3389

Every ambulance officer has completed a PCR?---Yes.

PN3390

Have you only had 81 ambulance officers since 1993?---No.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3391

Have a look at the last paragraph on the first page:

PN3392

Since its establishment in October 1993 MTS has undertaken greater than 100,000 patient transports.

PN3393

So you are talking about the period from 1993 to now, correct?---Yes.

PN3394

During this time only 81 crews have filled out a PCR.

PN3395

?---Well, 81 was the number that was available at that time but I didn't go back through the records to see how many people have worked for us in that time, since 19 - - -

PN3396

But you said, "during this time"?---Okay, well, I mean at this time. At this time 81 have filled - - -

PN3397

And 81 is every single one of the ambulance officers, isn't it?---Yes.

PN3398

Why did you say "only"?---Well, perhaps you could take out the word "only".

PN3399

You could, couldn't you?---Yes.

PN3400

And why did you contrast that with greater than 100,000 transports?---Well, we have done more than 100,000 transports.

PN3401

But you were trying to paint a picture that hardly ever was a PCR filled in, weren't you?---Well, I don't know. I have said 100,000 patients. Maybe there is a PCR for every one of them. That is a lot.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3402

Well, there might be, mightn't there?---That is a lot of PCRs.

PN3403

But you have said there is 100,000 patients and during the whole time, from 1993 to date, only 81 crews have filled in a PCR, which just happens to be every one of the crews. I suggest that this statement was deliberately meant to be misleading. Do you agree with that?---I would have said that it was factual.

PN3404

Well, you are saying now that it is factual that you have only had 81 crews from 1993 to date. I thought you agreed with me before that that wasn't true?---No, I thought I said before that I said there were 81 ambulance officers at the time that I made this statement.

PN3405

Yes, and your sentence says:

PN3406

From the whole period from October 1993 to date there has only been 81 crews filled out a form.

PN3407

Before you changed that and you said that should be changed, it should be "At the moment 81 of the crews" have filled out a form. It is not factual to that extent, is it?---No, well, I have said that I didn't go back through the records to see how many officers we had had so - - -

PN3408

It is not factual to that extent and it is not factual in the way that it uses the word "only" because it is 100 per cent of the crews that have filled out a PCR. That is right, isn't it?---No, it is not right.

PN3409

It is 100 per cent of the ambulance officers, isn't it?---That is right, yes.

PN3410

Yes, and your use of the word "only" and your statement that it covers the whole period and your contrast of the number 81 with the greater than 100,000 transports is, I suggest, deliberately meant to be misleading?---Well, that is a suggestion.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3411

Was it a mistake?---No. How was it a mistake?

PN3412

Was it just carelessness?---No, it wasn't careless.

PN3413

Well, you agree it is wrong, don't you?---No, I don't. I am saying that at the time there was 81 - when I made this statement there were 81 crews that had filled them out.

PN3414

But you are saying that is for the whole time from - - -

PN3415

MR QUIGLEY: Commissioner, the witness has given explanation after explanation to the same question. There must come a time when Mr Friend moves on, surely.

PN3416

MR FRIEND: Commissioner, so long as the witness continues to say that black is white I am entitled to cross-examine him about it, at least within a reasonable limit and that limit hasn't been reached yet, in my submission.

PN3417

THE COMMISSIONER: Mr Quigley, do you wish to put any more?

PN3418

MR QUIGLEY: Mr Brown has indicated and he has clarified the points that Mr Friend wanted him to clarify. He has indicated that what he meant to say or that the statement might not accurately reflect what it is he meant to say. He said that instead of saying "during that period" he really meant - sorry, "during this time" he meant "at this time". He has conceded that all of the ambulance officers do it and to the suggestion that Mr Friend is making that it is a deliberate attempt to mislead it is scurrilous because, as the Commission has heard evidence on, these are public documents that are provided to the Metropolitan Ambulance Service. They are available. They can be checked. The union has access to all of this stuff so I mean there is - - -

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3419

THE COMMISSIONER: Mr Friend, I will allow you to pursue the issue one more time.

PN3420

MR FRIEND: If the Commission pleases.

PN3421

Mr Brown, what was the point you were trying to make in that paragraph, that last paragraph? What was the point?---As I have already stated to you and the Court that, you know, we have transported more than 100,000 patients since we started. At the time of filling out this document 81 ambulance officers, at that time, had filled out case sheets, patient care records.

PN3422

Well, was the point you were trying to make that you had done a lot of transports and a huge number of PCRs had been filled out? Was that the point you were trying to make?---A huge number of PCRs had been filled out.

PN3423

Was that the point you were trying to make with that paragraph?---Yes.

PN3424

Yes. Can you understand how someone reading it might get a different impression?---Well, I thought the impression you would have got was that if 81 crews had filled out 100 PCRs then they must have done a hell of a lot of them each.

PN3425

Yes. So why did you say "only"?---Well, because - - -

PN3426

Was that a mistake?---Because we don't have 1000 employees. At that time we had 81 that were doing it.

PN3427

So why did you say "only" if that is every one of them? Was it a mistake?---Well, I don't - it is not a mistake in my mind. It might be in yours but the point is that if I say only 81 I mean 81.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3428

Only 81 instead of how many could it possibly have been if there are only 81?---Well, it could only be 81 because there was only 81 available to do it.

PN3429

Well, I suggest that you have done it that way to mislead. You reject that, don't you?---I do. I don't believe it is misleading.

PN3430

You still don't believe it is misleading?---No, I don't.

PN3431

All right.

PN3432

THE COMMISSIONER: I think we might leave it there, Mr Friend.

PN3433

MR FRIEND: I have finished, Commissioner.

PN3434

If you turn over to the next page, you say in the middle paragraph:

PN3435

The nature of the services provided by MTS and the other private sector ambulance services, important to the overall operation of the health industry, could not be regarded as life saving in every sense of the word.

PN3436

So you would accept that there are some senses in which it could be regarded as life saving?---Definitely.

PN3437

Thank you. Then you say:

PN3438

The service is one provided to patients who require attendance of trained people. It might be called a 'what if' or 'just in case'.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3439

Just in case what?---Well, just in case they are needed.

PN3440

Why would they be needed?---Because they are not walking patients, they are stretcher patients.

PN3441

Yes, but why - so just need stretcher bearers, does it?---Well, I don't know. You might have to wipe their bottoms or something like that.

PN3442

So that is the reason you have ambulance officers and ambulance attendants because they might have to wipe people's bottoms?---No, it is not. In fact that is a very minor reason because it rarely happens.

PN3443

Yes. Well, then, what is the "what if" or "just in case"? Could it be that there might be development of some emergency type of situation?---Yes, it could be.

PN3444

Thank you. Now you have given evidence that you weren't involved or rather I think you put this rather carefully, you said that there had been no industry group involvement in the development of the ambulance attendant's course. Do you recall giving that evidence before?---Yes, I do.

PN3445

When you - Mr McDonell, do you know him from Victoria University?---Yes. I have met him.

PN3446

Yes. Have you ever been at a meeting with him?---I have had a meeting with him, yes.

PN3447

About these sorts of things?---No.

PN3448

No, not about ambulance - the nature of the course or things in a course?---No.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3449

What about?---About whether or not our company would be prepared to put observers from the university on our ambulances.

PN3450

Now could the witness be shown attachment RM4 to Mr Morris' statement please.

PN3451

Do you have that there? It is a document headed, Ambulance Patient Transport Officer's Course?---Yes.

PN3452

Yes. I would like to take you through to - well, it is about half-way through, there is a page headed, Part B - Course Information. Early on you will see that this is from the Monash University Centre for ambulance and paramedic studies and - I am sorry, we are looking at, in fact, the November 1999 Certificate - Patient Transport?---Yes.

PN3453

And there is a page 2 of that document, towards the back, half-way through?---That one there?

PN3454

Keep going. If you perhaps hand it to me I will get you to the right page?---Sure, good idea.

PN3455

And I will assist the Commissioner as well.

PN3456

THE COMMISSIONER: You might have to assist a number of other people.

PN3457

MR FRIEND: It is half-way through, Commissioner, at - - -

PN3458

THE COMMISSIONER: Part B, is it?

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3459

MR FRIEND: Part B - Course Information, yes.

PN3460

THE COMMISSIONER: Right, I have it. Purely by accident, I should say.

PN3461

MR FRIEND: Course Information for Ambulance Transport Assistant. Australian Qualification Framework, Certificate II - you see that in 1.3:

PN3462

The ambulance transport assistant performs a range of skilled operations in context of occupational health and safety legislation related to the ambulance service. The performance of these operations requires the application of routine and contingency procedures in a variety of situations.

PN3463

And that is really what you have been talking about, about doing the transport and dealing with emergencies if they arise, correct?---Yes.

PN3464

Yes. If you look down to number 2, Course Development, in the second paragraph:

PN3465

As part of the course development the manager of external programs at the ambulance officers training centre consulted with all private providers in ambulance transport. The providers were consulted regarding the preferred course content, the number of ambulance assistants needed to be trained and the structure of the course.

PN3466

Do you say that is wrong?---No.

PN3467

So you did have input to that extent?---You were talking about Mr McDonell.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3468

No. I have moved on from Mr McDonell?---Okay, right.

PN3469

Yes. Then if you look over the page you see competency standards, unit T3, drive to an emergency - that is something that is part of the course?---Yes.

PN3470

Yes. And then at the bottom pre-hospital patient care - the last bullet point there. Do you see that?---Yes.

PN3471

And that is something that is part of the course and needed for ambulance attendants, correct?---Yes.

PN3472

All right. Might the witness be shown RM10, please.

PN3473

Just before you open it you were asked about your employees happening upon an accident and I think Mr Quigley put to you, well, if they stop it is like being a good samaritan and your answer was, "To some extent, yes", something along those lines. Why did you say "to some extent", do you know?---Well, because they are not trained paramedics, they are not trained - a number of our people are ambulance attendants, they are not ambulance officers, and they don't have the qualifications to treat people in the same way that an ambulance officer would. So to the extent that if they were qualified as ambulance officers they would approach the role at that scene as an ambulance officer.

PN3474

Yes. How familiar are you with the training of ambulance attendants?---I am familiar with it. What particular part of the training?

PN3475

Well, just in general I am asking?---Yes.

PN3476

Have you read the - you see this is the description of the course. Have you read that?---Yes.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3477

You have?---Yes.

PN3478

Well, if you turn through that to page 27?---Page 27?

PN3479

Yes?---Don't have a page 27.

PN3480

You don't have a page - - -?---I mean, there will be a page 27 but it doesn't have a number 27 on it.

PN3481

I have got them at the bottom of the page, all right?---Well, mine has obviously been cut off. It goes up to 16 and then they are sort of cut off, I think.

PN3482

THE COMMISSIONER: Well, you are in front of me. Mine don't have any numbers?---I have found one with a 16 on it. Does that help?

PN3483

MR FRIEND: Okay. Go to page 2, that might help?---Okay, right, page 2.

PN3484

I will do it another way. You see that one of the things they are taught is approach to an incident and resuscitation?---Yes.

PN3485

Dangers and scene appraisal?---Yes.

PN3486

At scene logistics, approach to the patient, the shock to patient. Now I was going to take you to all the descriptions of those in here later on but they are all things that would be useful in that type of situation, aren't they?---Yes, they would be useful, yes.

PN3487

Of course a person can't get to be an ambulance attendant unless they have got some other background, some other form of recognised prior learning, can they?---Yes, yes.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3488

So it is not really fair to say, is it, that they are not trained to deal with those sorts of situations?---Well, I mean, a first aid officer is trained to deal with those sorts of situations too but only to a certain extent.

PN3489

Yes?---And a doctor to even more extent, I suppose, although that is debatable as well.

PN3490

Yes.

PN3491

THE COMMISSIONER: I hope you are not going to pursue that, Mr Friend?

PN3492

MR FRIEND: I am not. I have left the meaning of death and that alone, Commissioner. I have been very restrained.

PN3493

THE COMMISSIONER: Yes, well, I had to restrain myself in relation to death given some experiences that I have had of a personal nature.

PN3494

MR FRIEND: Now your employees, if they are working at night, won't have access to a hospital canteen if it is closed, will they?---It is possible, yes.

PN3495

So they just have to eat their dinner in their car or go to McDonald's or something?---No, that is not true. When you say a canteen, they have the opportunity to sit in the canteen, even if it is on their own.

PN3496

Well, we have heard evidence that people have not been able to do that at times when they are closed. Would you say that that is not possible?---I am saying that there are canteens available and we have made sure that there are canteens available during the night or them but hot food is not available, the canteen - there is no one working in there, but they have got access to the canteen.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3497

So that is because you have made special arrangements with the hospitals that you deal with?---Yes.

PN3498

That wouldn't necessarily be the case across the industry, would it?---Probably not.

PN3499

You haven't rung every hospital in Victoria?---No, no.

PN3500

No, all right. Where you talk in your statement at the bottom of page 2 and the top of page 3 about your requirements, those are really references to your commercial requirements, aren't they?---Yes, they are.

PN3501

I mean, that is what you need, you say, to make your business work?---Yes.

PN3502

And it would be true to say the lower the costs to your business the easier it is to make it work?---No, I have undertaken to provide the service on that basis.

PN3503

Because of an agreement you have entered into?---Yes.

PN3504

That is the first part of it but the second part of it on the next page is about:

PN3505

MTS is required to operate on a commercial basis to meet the needs of shareholders.

PN3506

?---That is right.

PN3507

Yes, and my question then can be directed to that, the lower the costs the easier it is?---I suppose you could give that opinion, yes.

**** JOHN FRANCIS GEORGE BROWN XXN MR FRIEND

PN3508

Well, if you don't agree - as a business operating in a commercial sense you want to keep your costs as low as possible?---Yes.

PN3509

Right. Pardon me a moment. I have nothing further, Commissioner.

PN3510

THE COMMISSIONER: Mr Quigley.

PN3511

MR QUIGLEY: Thank you, Commissioner.

<RE-EXAMINATION BY MR QUIGLEY [2.43pm]

PN3512

MR QUIGLEY: Mr Brown, has the extent of experience that you have had over years in the ambulance industry one way or another been diminished at all by the effluxion of time or has it been enhanced?---I think it has been enhanced.

PN3513

The patient care records, are they provided to the Metropolitan Ambulance Service?---They are.

PN3514

Why can't people be transferred or sent to hospital just in a taxi?---Well, some people can. In fact some clinic patients are transferred by taxi I believe still. The Ambulance Service sometimes has patients transferred that way. I think that some of the renal patients are transferred by taxi but the number of patients that can be transferred in that way is limited by the patient's capacity to use a public type transport.

PN3515

Just returning to the PCR question, are your activities audited by MAS or some other government agency?---By MAS.

PN3516

Mr Friend asked you about the "just in case" or "what if" scenario. Have you had cases where your crew have attended at horse race meetings and nothing has happened?---Yes.

**** JOHN FRANCIS GEORGE BROWN RXN MR QUIGLEY

PN3517

Have you had cases where your crews have attended at horse race meetings and jockeys have fallen off horses and been injured?---They have.

PN3518

How does the training that might be received in an ambulance attendant's course "At the scene appraisal" compare with actual exposure to what happens at a scene where an accident has occurred?---I think that the ability for a person who has been trained to a level of am ambulance officer to be able to manage an emergency scene comes with experience. I think that a significant difference is the ability to be able to manage an emergency scene to prioritise patients, which one goes first and which one goes last, if necessary. Which ones would require an intensive care ambulance or which ones could actually go in a ..... car and I think that that is one of the things that separates ambulance officer from ambulance attendant is that experience over time to be able to quickly assess the needs of a number of patients at a scene.

PN3519

Mr Friend asked you about the commercial aspects of running a business such as Medical Transport Services. When you were in a management position at MAS, or whatever the government agency was called at that time, did you have a budget that you had to work to?---Yes, we did.

PN3520

Mr Friend also asked you in relation to the question of your crews having access to hospital canteens or facilities where a meal might be taken. Did you yourself make those arrangements for the availability of the facilities?---Yes.

PN3521

Did you find there was resistance on the part of those whom you contacted to having those facilities made available?---None at all. They make it available for the public during the day hours and make it available for us in - late hours in the evening.

PN3522

Just one last question, Mr Brown. The commercial basis upon which you say you operate does that affect the quality of the service that you conduct?---Not at all.

**** JOHN FRANCIS GEORGE BROWN RXN MR QUIGLEY

PN3523

I have no other questions of the witness, if the Commission pleases.

PN3524

THE COMMISSIONER: Thank you, Mr Quigley. I just have a couple.

PN3525

Mr Brown, looking through the list in your statement of the services that you provide does that include the transport of psychiatric patients?---Yes, it does.

PN3526

And do you transport involuntary mental patients, if one might use that expression?---Yes, we do.

PN3527

And are they - what are the limits that apply in terms of which of the involuntary patients you can transport?---Those that are not sedated and those that are not required to be restrained.

PN3528

So any other psychiatric patient, voluntary or involuntary, you could be given the task of transporting them?---We could be given the task. We could be asked to do it. It is really whether or not the staff, when they arrive to pick up the patient, feel that they can manage the patient or not. That is the difference.

PN3529

Thank you. In relation to your ambulance officers in terms of their level of training and skill what level, if you can answer this in general terms, are they trained to?---In a general way I would say they are post-trained above CEP7.

PN3530

And how would their skills compare with an ambulance officer employed by MAS at the time that you resigned or left from MAS?---They were the same.

PN3531

Do you know what the skills of MAS ambulance officers or paramedics as they are now termed, how they would compare now with one of your ambulance officers?---They have some additional training in the administration of a classification of drugs. There are some drugs that ambulance officers are currently being trained in which our ambulance officers haven't yet been trained in but, you know, they will be trained in them.

**** JOHN FRANCIS GEORGE BROWN RXN MR QUIGLEY

PN3532

When you say they will be, is that a policy or protocol that has been - - -?---It is policy, yes.

PN3533

Of the companies or - - -?---Yes, of the company, yes.

PN3534

So presumably they will require accreditation or will they require accreditation for the use of those drugs by MAS or some - - -?---By MAS, yes.

PN3535

Thank you. I don't have any further questions but does anyone else have questions as a result of mine?

PN3536

MR QUIGLEY: No, Commissioner.

PN3537

MR FRIEND: Yes, Commissioner.

<FURTHER CROSS-EXAMINATION BY MR FRIEND [2.51pm]

PN3538

MR FRIEND: You said that you had a company policy to train your ambulance officers in the administration of these new drugs. Can I just ask you which ones those apply to? Now Salbutamol is something that we have seen in the document introduced today that ambulance officers were trained in in 1986. So most of your people would have training - - -?---All have, yes.

PN3539

Yes. What about Narcam? Is that something you are going to train your people in?---Yes.

PN3540

What is Narcam?---It is a narcotic inhibiter, if I can put it in general terms.

PN3541

When do you use it?---Sorry?

**** JOHN FRANCIS GEORGE BROWN FXXN MR FRIEND

PN3542

When do you use it?---When someone has an overdose of a narcotic.

PN3543

That is an emergency situation?---Yes, it is or it can be, yes.

PN3544

And do you have a licence to carry Narcam on your vehicles?---Not at the moment.

PN3545

Is there any official proposal rather than a company policy to allow your vehicles to carry Narcam and your employees to administer it?---In the future.

PN3546

Is there any official policy?---There is a policy that they will be trained in the use of the administration of the drugs.

PN3547

Not company policy, an official policy, government policy?---Well - - -

PN3548

Any proposal?---I don't know that there is a government policy.

PN3549

Well, wouldn't that require some - a legislative amendment to allow administration of that drug by your people?---I am not sure that it does.

[2.54pm]

PN3550

What about - I am not going to get it right - Glucagon?---Midezolam?

PN3551

No, Glucagon - the one I keep getting wrong?---Glucagon, yes.

PN3552

Are you going to train people in that?---Yes.

**** JOHN FRANCIS GEORGE BROWN FXXN MR FRIEND

PN3553

But you are not aware of any official policy again?---Well, there wouldn't need to be. I mean, you could give them a lolly, it is the same thing.

PN3554

So you don't really need training for that?---Yes, you do.

PN3555

You do?---I am saying the drug is the same thing. Glucagon and a lolly is the same thing.

PN3556

Anginine?---Yes, they already administer Anginine.

PN3557

Your people administer Anginine?---Yes.

PN3558

PR Valium?---Yes.

PN3559

They administer that?---Yes.

PN3560

Glucose - - -?---Under - - -

PN3561

But a doctor's - - -?---Under doctor's - yes.

PN3562

Glucose paste?---No.

PN3563

Intra-muscular Midezolam?---Midezolam, no.

PN3564

Adrenalin?---No.

**** JOHN FRANCIS GEORGE BROWN FXXN MR FRIEND

PN3565

They use glucometers?---No.

PN3566

They use Nasopharyngeal airway devices?---No.

PN3567

Oxysavers?---Yes.

PN3568

Now those ones that you said no to you have got a company policy to allow people - to have people trained in all of those?---To be trained in those, yes.

PN3569

And you are not aware of any official policy that that is going to take place?---No government policy, no.

PN3570

Have you had discussions with MAS about it?---Yes.

PN3571

And are they prepared to train them?---Well, they are prepared to - they are prepared to have the people assessed after they have been trained.

PN3572

To assess them after you have trained them?---Yes.

PN3573

And if they are trained in that they will be much closer to ambulance paramedics than they are now?---I guess you could say that.

PN3574

Thank you.

PN3575

THE COMMISSIONER: You are excused, Mr Brown. I don't think there is anyone else who is yet to give evidence at least that I am aware of so I don't need to give you any instructions about not talking to other witnesses?---Okay, thanks.

**** JOHN FRANCIS GEORGE BROWN FXXN MR FRIEND

PN3576

Thank you for your evidence, Mr Brown.

<THE WITNESS WITHDREW [2.56pm]

PN3577

THE COMMISSIONER: Mr Quigley.

PN3578

MR QUIGLEY: Commissioner, you should have received by now a copy of a summons that we had lodged in the Registry this morning with notice to bring it to your attention.

PN3579

THE COMMISSIONER: I have.

PN3580

MR QUIGLEY: It is in - it is addressed to Mr Bill Barger, the manager of non-emergency operations, I think it is, full-time at the Metropolitan Ambulance Service and we are suggesting that there are three things that Mr Barger could provide that would be of considerable help in these proceedings. The first is statistical data which we understand the Metropolitan Ambulance Service holds on the utilisation of what we have referred to there as lights and sirens or sirens and lights which is that bit that distinguishes, we argue, what involves an emergency activity.

PN3581

There has been evidence given in these proceedings by a number of the unions' witnesses that they have at times, and it varies between these various witnesses, of the number of times of which they have used lights and sirens. Now over the course of somebody's career you could imagine how accurately or specific they might be able to be on something like that will depend upon the capacity of an individual to recall particular events. We believe that the Commission would be much assisted if it had access to the actual data that is provided to MAS, which has to be provided to them, on that point.

PN3582

So that if there is an argument about the incidence of the use of lights and sirens by employees of the companies that are involved here, or for that matter you will notice that we refer to any other companies involved, we believe that Mr Barger would be in a position to provide that data to the Commission. It would, we argue, be unequivocal, it would be impartial and it would be open to be tested. We don't believe there should be any argument about the ability of Mr Barger to provide that on an impartial basis to the Commission. If it is against us or against the other side it would be material that would unarguably assist the Commission and that would be the purpose upon which we would ask Mr Barger to provide that.

PN3583

The second thing that we have asked for is documentation that has been produced by Mr Barger's employer, the Metropolitan Ambulance Service, to understand what that organisation means when it refers to emergency and on-emergency work. In the evidence you have heard from the parties before you in these matters you are aware that the work that the private operators do rose from a decision back in 1993 by the then government to outsource non-emergency work and there has been submissions put to you by, amongst others, Mr Morris and some of the other union witnesses that have indicated that there is not a clear line between what emergency and non-emergency is. Now we believe that the agency in Victoria that is responsible for these services would be well placed to provide to you just what that distinction is.

PN3584

In the documentation that we provided to the Commission, including the discussion paper that was put forward today and which we have referred to in our submission of 23 August, the definitions, if you like and I use the word definitions loosely, the distinguishing features, might be a better way of describing it, of non-emergency, emergency, urgent, public duties was addressed but that was - that is addressed in the context of a discussion paper by the Department of Human Services, it is not a document that is produced by the Metropolitan Ambulance Service and - or not per se in any event and so for that reason we felt that Mr Barger, being the person within MAS who we believe is responsible for the overall management of the non-emergency patient transport sector, again could provide his views to the Commission - sorry, he could provide documentation to the Commission regarding what the Metropolitan Ambulance Service believes to be the situation regarding what those various areas are.

PN3585

Thirdly, we suggested that because of his position, because of his experience, that Mr Barger himself would, in addition to whatever the Metropolitan Ambulance Service might be able to provide in a documentary sense, that his own experience and position would offer, we believe, him as an opportunity to be questioned by the Commission and to provide his own views as to what those distinguishing elements are of those parts of the ambulance industry.

PN3586

THE COMMISSIONER: In what capacity in relation to point 3, Mr - had you finished, I am sorry?

PN3587

MR QUIGLEY: Yes, Commissioner.

PN3588

THE COMMISSIONER: When you use the terms "your own opinion" is that his opinion given his experience in the ambulance industry or is it as the person holding the position of manager non-emergency operations and therefore the official MAS view?

PN3589

MR QUIGLEY: The official MAS view, in a sense, would, we believe, probably come from the documentation that we refer to in our second point. The second one is, and this might be a question that Mr Barger, if able to be called, could clarify with the Commission and depending upon if there - and I don't know whether there would be constraints upon him in that capacity to speak freely, I would think there shouldn't be, but as I understand it Mr Barger is a person held in considerable regard in the ambulance industry in Australia, a man of considerable experience and his views could be regarded as impartial but particularly one that is - essentially one of considerable experience.

PN3590

As you know in these proceedings that have taken place the Metropolitan Ambulance Service hasn't been making any submissions and in that respect we believe that Mr Barger would have no barrow to push, if I can put it that way, and would therefore be seen to be something akin to an expert witness, if you like. I don't know whether the Commission - and the Commission, of course, will be making up its own mind in relation to the evidence that has been given in this matter but it could be the case that a lot of the evidence that has been given is something akin to a school yard situation where there are two parties saying, yes, I did, no, I didn't, and that might go on forever and no one will ever work that out. The calling of Mr Barger - - -

PN3591

THE COMMISSIONER: Sadly I have to, Mr Quigley.

PN3592

MR QUIGLEY: It would help conclude - we believe it would assist the Commission. The other point we make, Commissioner, is that in calling or in subpoenaing Mr Barger there isn't any prejudice to anybody. If Mr Friend is of the view that that required him to recall his witnesses we would have no objection to that and when I say that most of the witnesses on the unions' side are employees of those whom I represent. So to that extent the - if there is inconvenience caused it is to us but the underlying and overall gravamen of this approach is for the assistance of the Commission in unravelling what is one of the fundamental aspects of this application. If the Commission pleases.

PN3593

THE COMMISSIONER: Thank you, Mr Quigley. Mr Flower.

PN3594

MR FLOWER: Could I put a small fly in the ointment perhaps, Mr Commissioner, and that is this, I haven't had the opportunity to obtain full instructions on the likely magnitude of the task that Mr Barger would need to undertake to drag out all of these records that Mr Quigley requires. I have taken some preliminary instructions and those preliminary instructions are that to go back and produce five years of records could well be a very onerous task.

PN3595

Further, I don't yet have instructions in what form these records are, whether they are a bunch of mildewy old documents in cardboard boxes in some Dickensian vault or whether they are on some high-power computer disk somewhere. Perhaps those are the two extremes. To retrieve the information in either of those forms could be quite an onerous task. So what we - we flag the possibility that the subpoena in its current form is oppressive and that we would seek to resist the production of all of the records that Mr Quigley requires.

PN3596

Now Mr Barger is apparently this afternoon trying to clarify the true position and what perhaps I might suggest is a middle ground, subject to the Commission and no doubt the objection or otherwise of my learned friend. We are quite happy to have him come along and if the subpoena issues he must but that pending - if he does turn up before this Commission in this proceeding that the question of the oppressiveness of the documentary production be reserved in the event that MAS wishes to argue it more comprehensively on that day.

PN3597

At the moment, and I don't wish to be deliberately obstructive - if we can drag them out we will - but at the moment I am just not in a position to determine whether this is an oppressive subpoena or not. If the Commission pleases.

PN3598

THE COMMISSIONER: There is a question about what the first item actually means in terms of - - -

PN3599

MR FLOWER: Sorry, sir, which - - -

PN3600

THE COMMISSIONER: The first - the records. I mean from the evidence which has been given I understand that a report is prepared each time that the sirens and lights are used and on its face what is written there requires that each one of those forms over the five years must be brought here.

PN3601

MR FLOWER: Yes, yes, sir, and - - -

PN3602

THE COMMISSIONER: Now I wondered whether in fact what was intended was simply a document which had across the top each of the private companies and down the side the years and maybe the months and the number of incidences in each of those times but, I mean, even to produce an aggregation I could appreciate - I am not pre-judging the issue, I am just, from my past experience as an administrator in the public sector, have some idea of what might be entailed.

PN3603

MR FLOWER: Yes, sir.

PN3604

THE COMMISSIONER: And certainly I wait to be enlightened by you in that regard but I am not sure that what on its face is being asked for is actually what is being asked for. I don't know, I may be wrong about that.

PN3605

MR FLOWER: Well, that is a matter for my friend in drafting the summons in a sense but there is an incidental issue to which the Commissioner alludes. If indeed there are either spreadsheet documents or summaries of these records without having to drag out the primary source then that is what we will produce, if to drag the primary source out is oppressive, and we can assist the Commission in that regard but again, and I apologise for this, I still don't have enough instructions to give - - -

PN3606

THE COMMISSIONER: No need to apologise, that is the fact. That is the situation you are in. I mean you only got advice of it either late last night or this morning so - - -

PN3607

MR FLOWER: Yes.

PN3608

THE COMMISSIONER: I understand your situation perfectly.

PN3609

MR FLOWER: Thank you, Mr Commissioner.

PN3610

THE COMMISSIONER: Mr Friend.

PN3611

MR FRIEND: Thank you, sir. Our position is that if Mr Quigley wants to have produced certain documents if they are available we are not sure how far they will advance the case either way but it is his case, he is entitled to seek to do that and we don't see that as causing a significant problem in the conduct of the case although we would want to reserve our rights. So if documents about the number of lights and sirens jobs and about MAS definitions of emergency and non-emergency work are available, well, they could be put in, they are documents.

PN3612

I am not sure about all of the statements about that being the crucial issue of the case and impartiality. We rather thought the crucial issue of the case is the nature of the work that is done. This is one aspect of it. The fact that it occurs at all is really the point that we are trying to make but we will deal with that in due course. We have rather considerable more concern though with the prospect of a new witness who, and it doesn't appear on the face of the document but as Mr Quigley has described, will be put up as some sort of - he even went so far as to say some sort of impartial expert about these things.

PN3613

Now the simplification process, as I am instructed, started at least two years ago. The issues that we are dealing with now were raised by Wilson's right at the end of that process, in July of this year. A whole new range of things was brought out and you may remember, Commissioner, we sat either in this court room or one just like it on one of the other floors and we worked out a quick timetable to try and deal with things.

PN3614

Now the parties have, with reasonable promptitude, complied with that timetable and the witness statements have been put in, including all of our witness statements raising all of the issues. Mr Quigley now complains about it and says they are confusing. He had his opportunity to put in evidence. Now ordinarily one would say, well, a party wants to mount a case, put something in, there may not be too much prejudice by additional delay, let it happen.

PN3615

If the evidence that was proposed to be given could on any view of the case as properly understood be regarded as crucial or of high importance to the case then it would perhaps be improper to shut it out. But, Commissioner, as we understand it the evidence is the opinion of Mr Barger of what is emergency work and what is non-emergency work, or rather MASs opinion of what those things are, and there doesn't really seem to be any basis on which it could be said that that evidence has any substantial bearing at all on the matters before the Commission as they have been developed in the course of proceedings and we oughtn't to be put to the prejudice of having to chase that red herring down a - I was going to mix a metaphor very badly. I was going to chase a red herring down a burrow. Perhaps that is what we would - - -

PN3616

THE COMMISSIONER: Right under the sea.

PN3617

MR FRIEND: Perhaps that is what we would be doing. In different circumstances it might be different but in this case there really isn't - Mr Barger is not going to help you understand what work these people do. He, at best, will be able to help you understand how MAS categorises certain work but that isn't going to take the matter any further and we will have to, when we see some outline of his evidence if we are lucky enough to see one, we may not, or when he has given his evidence and we have got the transcript, we will have to take it away and consider it and not just perhaps recall our other witnesses but call someone else to give expert evidence about exactly that sort of point and it will be never ending.

PN3618

Now if it was important to the case I would resist it but I wouldn't fancy my chances but I really can't see in all truth that there is any significant importance in what Mr Barger's opinion is about those issues. So we are prepared to co-operate to have the case potentially extended and to go to the extra work of dealing with what we say are very likely to be relevant documents about lights and sirens work and what have you but so be it if that is what they want to do but once we start opening out a whole new field of inquiry, a whole new field of expert evidence at this late stage after we have closed our case we say it just shouldn't happen.

PN3619

The Commission has a duty not only to act with equity and good conscience and what have you but to deal with matters speedily and efficiently and it is a balancing act. Now once you balance all of this up, given the likely weight of the proposed evidence, my submission is that that part of the subpoena shouldn't issue. If the Commission pleases.

PN3620

THE COMMISSIONER: Mr Friend, just one question. I haven't had a chance to read exhibit P15 but I notice in it reference to:

PN3621

...Ambulance Services Act 1986, regulations and any conditions of licence.

PN3622

It became clear in a number of witness cross-examinations that there are some quite specific regulations dealing with the operation of the ambulance service in Victoria and I certainly haven't taken it upon myself yet to examine those statutes or - - -

PN3623

MR FRIEND: We will have copies brought up for next time.

PN3624

THE COMMISSIONER: But what was going through my mind is whether you could tell me whether the legislation, either in the Act itself or whether under the regulations or statutory rules even, the terms emergency and non-emergency have been defined or spelt out in some way?

PN3625

MR FRIEND: We don't think so, Commissioner, no. There certainly are regulations about lights and sirens because that involves breaches of the Road Traffic Regulations or what would otherwise be but I don't think emergency and non-emergency have been defined.

PN3626

THE COMMISSIONER: Thank you. Mr Quigley.

PN3627

MR QUIGLEY: If Mr Friend is suggesting that this would unnecessarily draw out the matter we would argue that it won't and that in fact it would curtail it and if there is any question about the length of time that these proceedings have taken, if there is any blame to be made, it goes onto all of the parties. The Commissioner himself would be aware there have been requests from the unions' side and from the employer's side for extensions of time and so forth.

PN3628

So for something like this which is important we don't believe that that is a particular problem. The discussion paper that we tendered today, as I did indicate, that did feature in our submissions of 23 August and highlighted that that was a discussion paper only. I am not aware that the unions refer in their reply to our submissions on that issue at all. But to say that the distinction between the - a clear distinction between what is the emergency sector and the non-emergency sector as not being important to these proceedings is quite astounding because it is the environment in which the work is performed that is a work value element which goes to a significant part of our case and the lights and sirens issue is an important element of that itself.

PN3629

The fact that there is the suggestion that the legislation that governs ambulances and the operation of ambulances in Victoria doesn't distinguish between the emergency and the non-emergency area highlights even further the necessity for the Commission to have some clear view of - if the employers in what is called the non-emergency side operate a type of service and they say it is different from the government side, then it is all the more important that that point be made clear and that is what - that is again at the risk of over-stretching the point - it is providing the assistance to the Commissioner that we are seeking to achieve by this.

PN3630

To say that Mr Barger won't help you understand what these people do, well, he is not going to stand there and say what Richard Bearup does or what Pam Brunswick does but he is going to be able to say that when MAS provide contracts to contractors, the likes of Mr Brown or Mr Dawson, this is what their expectation is of the work that would be performed in that area and that is what we believe he would be able to provide to the Commission.

PN3631

Can I just clarify the point of what we were seeking in the first point of the summons that we provided, Commissioner. It wasn't, and Mr Flower's clients will be pleased to hear this, we - if there are spreadsheets which indicate the extent of the incidence of these things that is all that we were talking about. We weren't expecting that a huge research exercise would be undertaken. In relation to the period of time that was called for if it is considered that a period of 12 months would be sufficiently indicative of the use of those things that would be sufficient for our purposes.

PN3632

We have asked for five years in order to allow for the peaks and troughs that would often occur if you are looking at any statistic analysis of things. But if, in the view of those who are experienced with these things, a 12 month period, whether it is the year 2000 or the year 1995, if their view is it doesn't matter which year you pick the lights and sirens issue is going to be roughly the same, we wouldn't press for more than 12 months. If that is of assistance, if the Commission pleases.

PN3633

THE COMMISSIONER: Thank you.

PN3634

MR FLOWER: Well, it is not really with respect, Commissioner, and I don't want to be too brutal about this or too rude to Mr Quigley but it is his case, not ours. It is not for us to determine whether 12 months rather than five years is "indicative" of the lights and sirens incident to illuminate this case or to illuminate my learned friend's case. All I can say is that we will do the best we can to comply with the subpoena but as at presently instructed it may be a difficult task. That is the first point.

PN3635

The second point, I am grateful to Mr Quigley for indicating that secondary or tertiary documents would be of benefit and to the extent that we can generate those then we will and to the extent that by reason of the fact that they are secondary or tertiary documents their probative value can be drawn into question or whatever, that is not our problem. So all I can say is that if this evidence is allowed Mr Barger will attend and he will attend with such documents as it is reasonable to have extricated in the meantime.

PN3636

Of course if there turns out to be a problem and it is a matter that the Commission ought to be aware of then we will communicate with the Commission and the parties to make sure that that fact is made known and is crystal clear. That is all I can say at this point.

PN3637

THE COMMISSIONER: Thank you. Well, what I propose to do is not issue the summons at this stage. I will await advice from you, Mr Flower, in terms of those who instruct you. It is clear that the request in relation to 1 is simply for an aggregation, I take it, on an annual basis if it is possible over the past five years. I wouldn't have thought that the use of ambulances was cyclical in the sense of year by year in terms of a business cycle in the economic sense but rather would have something to do with weather patterns or celebratory events and things like that.

PN3638

MR FLOWER: Yes.

PN3639

THE COMMISSIONER: So - - -

PN3640

MR FLOWER: I am no expert on the demographics of those statistics, sir.

PN3641

THE COMMISSIONER: No. Well, others in this room no doubt know far more about it than you or I but from my point of view if you could ask those instructing you whether in fact from what they know there are significant variations up and down from year to year or whether it is a steady growth pattern or whatever, I would be - that would assist me in coming to a conclusion but if I do decide to issue the summons, and it shouldn't be taken that I have decided yet one way or the other, it would help me in terms of the terms that it would contain.

[3.26pm]

PN3642

MR FLOWER: I will endeavour to do that, sir.

PN3643

THE COMMISSIONER: Thank you. Now I understand we have some practical homework to do, if I might use that expression, in a couple of weeks and I gather that there is a desire for an additional day for inspections apart from the 15th and the 16th. Looking at my program I would be available on the 17th or the 28th or 31 October. So I will keep those days free at this stage whilst you - if you can let me know early next week which day suits you all. Do you want to go off the record? It might be simplest.

OFF THE RECORD

PN3644

THE COMMISSIONER: Well, we will adjourn then until the 15th. We will wait to hear from Mr Flower or those who instruct him in terms of the request for the subpoena in which case my Associate, as I have indicated, will contact the parties with a view to arranging a short hearing just to deal or for me to consider what he puts and then to determine whether or not I grant the application for a subpoena. This matter is adjourned.

ADJOURNED ACCORDINGLY [3.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN FRANCIS GEORGE BROWN, AFFIRMED PN3232
EXAMINATION-IN-CHIEF BY MR QUIGLEY PN3232
EXHIBIT #P13 WITNESS STATEMENT OF J.F.G. BROWN PN3240
EXHIBIT #P14 LETTERS FROM MS CSUPOR AND MR BARGER TO MR BROWN PN3288
EXHIBIT #P15 DISCUSSION PAPER PREPARED BY DEPARTMENT OF HUMAN SERVICES VICTORIA RE REGULATION OF NON-EMERGENCY PATIENT TRANSPORT SECTOR PN3295
CROSS-EXAMINATION BY MR FRIEND PN3314
RE-EXAMINATION BY MR QUIGLEY PN3512
FURTHER CROSS-EXAMINATION BY MR FRIEND PN3538
WITNESS WITHDREW PN3577