C2002/4142, Transcript of Proceedings [2002] AIRCTrans 4277 (30 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N VT402
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER FOGGO

C2002/4142

APPEAL UNDER SECTION 45 OF THE ACT
BY DANIEL LA ROSA AGAINST THE DECISION
OF COMMISSIONER EAMES AT DARWIN ON
2 AUGUST 2002 IN U2001/8369

MELBOURNE

10.10 AM, MONDAY, 14 OCTOBER 2002

PN1

MR B. SHAW: I seek leave to appear for the appellant in this matter.

PN2

MR N. HARRINGTON: I seek leave to appear for the respondent in this matter.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Yes, we have had the benefit of written submissions as required by directions.

EXHIBIT #A1 WRITTEN SUBMISSIONS OF THE APPELLANT

EXHIBIT #R1 WRITTEN SUBMISSIONS OF THE RESPONDENT

PN4

SENIOR DEPUTY PRESIDENT WATSON: The purpose of the proceeding today is for brief oral submissions in support, although there appear to be questions as to the admission of further material that need to be dealt with. Mr Shaw.

PN5

MR SHAW: Thank you, your Honour. As you have already said, the Commission has had the benefit of fairly complete written submissions from both parties and I would simply propose to make some very brief submissions in a sense partly responding to the respondent's written submissions. I suppose the threshold matter is, in fact, the admission of further evidence in which the appellant has sought to have admitted in evidence a further affidavit from Mr Lennon and the respondent - sorry, I will move away from my instructor and stand closer to the microphone.

PN6

The respondent has both opposed that and then sought to have further evidence admitted. In the opposition, the respondent points out the content of the additional material and in particular makes the point that a number of the paragraphs in that new affidavit are simply repetitive of other matters that have been previously before the Commission and were before the Commission - before Commissioner Eames. It then goes on to say that the paragraph 3 and paragraph 8 are further evidence but could have been or part of paragraph 8 could have been adduced before Commissioner Eames.

PN7

Now it goes without saying, that is correct, but the reason it is being sought to be admitted here is because it could only have been - it could have been admitted before the Commission at first instance. It couldn't have been put before Commissioner Eames without the adjournment that Mr Mazzeo sought.

PN8

SENIOR DEPUTY PRESIDENT WATSON: Well, it could have been put - I understood there was an affidavit by Mr Lennon in the proceedings. It didn't deal with these matters. It could have been put in that affidavit, could it not?

PN9

MR SHAW: Well, it could have been if in the preparation of the material, Mr Lennon had thought that a matter of major significance. He didn't, and that comes out through the basic conduct of the case.

PN10

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN11

MR SHAW: And it was only during the course of proceedings that it became apparent that Commissioner Eames regarded, in particular the matter at paragraph 8 that Mr Lennon's failure to attend, as being a matter of major significance.

PN12

SENIOR DEPUTY PRESIDENT WATSON: Well, I was thinking more to be directed to paragraph 3 which dealt with instructions given by Mr La Rosa to lodge the election which is a matter in the context of Clark v Ringwood which would have been relevant to the proceedings before the Commission.

PN13

MR SHAW: I think that is not a matter - not a point that I can disagree with, your Honour. However, I mean nothing more can be said other than Mr Lennon clearly assumed that went without saying in the light of the correspondence as he knew it at the time and the material, and didn't include it in that affidavit. The question of Mr La Rosa's non-attendance became a major issue also before Commissioner Eames at first instance and the additional material sought to be adduced there is simply to hopefully put that to bed, that Mr La Rosa simply gave the instructions and had nothing more to do with it. And as you can see from the written submissions, it is the submission of the appellant that is not reasonable to expect him in the circumstances to have had anything more to do with it.

PN14

SENIOR DEPUTY PRESIDENT WATSON: What was the basis from which a case was put before the Commissioner, that there was a technological problem which meant that Mr Lennon was not - or the firm of solicitors was not aware of the certificate?

PN15

MR SHAW: At first instance, your Honour, as you will see from the transcript, that wasn't put in that sense. It was simply put as a question of fact that Mr Lennon was not aware of the proceedings then having searched the file, nothing got him. Now a point is made by my learned friend in his written submissions that both in my summary of the facts and in the next affidavit of the material we are just talking about of Mr Lennon, there is a concession of a possibility. Now I would have thought it is a tautology to suggest that people need to concede possibilities. Clearly if something doesn't get there, there is a number of ways that might have occurred.

PN16

What was put before the Commissioner at first instance on the instructions Mr Mazzeo had at the time and the material he had to put, was that Mr Lennon was completely unaware of this; that the fact that Ms Glennon had sent the material out. Now I am not going to stand before this Commission and suggest that somebody of the - well, having appeared before Commissioner Tolley on many occasions, that Ms Glennon wouldn't have done her job properly, but there are probably a number of possibilities as to why the material never got there. It may have rolled off the fax machine and the cleaning staff might have put it in the waste paper bin. It might have got filed on a wrong file. It might still be there somewhere.

PN17

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN18

MR SHAW: It might - technologically, it may not have got through. I presume that is possible.

PN19

SENIOR DEPUTY PRESIDENT WATSON: Yes. Well, the issue of tautologies and possibilities does ring a bell with me. I would like a dollar for each occasion an advocate has asked the witness if something were possible.

PN20

MR SHAW: Yes. Now I mean, as far as the further evidence is concerned, the appellant has no objection to the admission of the respondent's further evidence and I really have nothing more to say about that particular point. I was trying to deal with that as a threshold matter now.

PN21

SENIOR DEPUTY PRESIDENT WATSON: Yes. Yes, very well. Yes, Mr Harrington, on the issue of the additional evidence.

PN22

MR HARRINGTON: Yes. Notwithstanding my learned friend's non-opposition to the respondent's further material going in, the respondent maintains it opposition to the appellant's further material. In the first instance that opposition is maintained in relation to I suppose you could say, members of the Bench, a policy ground in that there is a lot of repetition in the statement per se and the submissions of the respondent tries to deal with that in terms of breaking down what is sought to be admitted as further or fresh evidence. A lot of it is simply not fresh and not new and actually was before the Commissioner at first instance.

PN23

So that at a minimum should not be admitted pursuant to the Act and the ability of this Bench to admit further evidence. But it is the contentious matters, I suppose, that I should take the Bench to and that is particularly, in my submissions, at paragraph 6 which is - once again it deals with the breakdown of the evidence that is sought to now be adduced and really the major point in issue is the evidence that there were certain instructions received from the appellant prior to the hearing before Commissioner Eames and that is at paragraph 3 as my learned friend pointed out.

PN24

In my respectful submission, and I will keep this brief, the authorities are clear. There was an opportunity to adduce that evidence before Commissioner Eames, and in fact Commissioner Eames had before him two affidavits, one dated 18 July and one dated 19 July, where that matter was simply not adverted to at all. But a compounding issue, I suppose, and the reason that evidence is now sought to be adduced is that the appellant today did not show up on the day; didn't attend to give evidence.

PN25

In fact, in transcript in the latter part of the transcript, the submissions are made with the effect that the appellant could have turned up and simply said I told my solicitor to proceed forward with the application. But Commissioner Eames just didn't have that evidence before him at all, but it could have been there. The background to why - possibly why it was not there was that a Ms Anderson - Ms Kim Anderson first handled this matter on behalf of the appellant, then Mr Lennon whose - obviously his evidence is in issue today - handled the matter. And then before Commissioner Eames was Mr Mazzeo, who is actually in attendance today, arguing the matter.

PN26

So there was a case before Commissioner Eames of shifting deck chairs, if you like, when it came to solicitors. So it was very difficult to get an accurate response on anything and what has happened is that the appellant has come along today and said we didn't really have the opportunity to put that before the Commissioner given the circumstances. And it is the simple response to that, members of the Bench, is that there was that opportunity. If Mr Lennon had have been there he could have said what his instructions were. I don't know what Ms Anderson knew. Ms Anderson seems to be somewhat evanescent in this application. She wasn't involved after a certain time.

PN27

SENIOR DEPUTY PRESIDENT KAUFMAN: To some extent this seems to be a compounding of the representative error. They mucked it up when they failed to put in the notice of election on time. They mucked it up again when they told the appellant that he needn't attend the hearing because it was something that he couldn't be involved with.

PN28

MR HARRINGTON: If the evidence is admitted today, that is what that paragraph 3 says, and it might also be said that there is a further representative error in that the appellant in direct evidence, still doesn't say or give any support to paragraph 3 today, however, I suppose it is hearsay under section 110 of the Act, if the Commission can accept that.

PN29

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, paragraph (c) only goes so far as to say that they were instructed to put in the notice of election.

PN30

MR HARRINGTON: Yes.

PN31

SENIOR DEPUTY PRESIDENT KAUFMAN: And you say they had that opportunity, and I agree with you, but why is that not just a compounding of the - why should the appellant be the person who suffers the consequences of that error too?

PN32

MR HARRINGTON: Senior Deputy President, that analysis is absolutely accurate. It is a compounding of the error, and thus we are met with a situation of a number of instances of error, if you like, and then we shift to the question of fairness in the context of CFA(8) - section 170CFA(8) and also section 170CA, fair go all round, to the employer as much as the employee. So in that instance - but moving back to the issue of the importance of policy and that this Commission in relation to admission of further evidence on appeal, this is the sort of case that can open up a floodgate.

PN33

You have three different solicitors involved and Commissioner Eames is put in a very difficult position on the day because he can't - and you will see it in transcript. He says well, I don't know what the applicant says, and with respect I also jumped up and said and I will object to any evidence of what the applicant says from the Bar table because the applicant should be here. It is said later in transcript too, for what it is worth and if it assists the Bench today, that the applicant chose not to attend. I don't know that that takes the matter any further because paragraph 3 simply says he - the appellant today said well, I wish to pursue my claim. But maybe it is a submission I can make later in relation to the conduct of the appellant. But at paragraph number 218, Mr Mazzeo says:

PN34

This is an interlocutory application, sir, and the applicant has chosen not to attend.

PN35

Now that choice may arise out of the matters dealt with in paragraph 3. It might just be a choice in relation to the way this appellant chooses to pursue his application. So members of the Commission, the opposition is maintained, particularly in relation to the general policy argument and I won't rehearse through the authorities because the submissions do take the Bench to those authorities. Particularly in the APESMA case there is a reference there by Marks J and the notion of rehearsing the evidence. I am not sure if he meant rehearing, but there are - the respondent today does have a folder of cases and the APESMA case appears at tab 12.

PN36

Just on page 2 - it is a very short decision:

PN37

Furthermore, the evidence sought to be brought by the applicant for leave could with reasonable foresight, have been available to it at the time of hearing the application before the Registrar.

PN38

I am not sure - maybe I read that reference to rehearsing in a different case. Nonetheless, members of the Bench, as Senior Deputy President Kaufman pointed out, the failure to adduce that really is a compounding of error. But notwithstanding that, and I possibly move onto other submissions here, in relation to that compounding of error there are other avenues the appellant can take in relation to that compounded error; what otherwise might be described as negligence by the solicitor.

PN39

There is a decision referred to and relied upon by the respondent today. It is a first instance decision of Commissioner Grainger in a case called Ackary, however, I do understand that that decision - Renee Ackary, it is at tab 2, A-c-k-a-r-y, print PR921353. My instructing solicitor advises me that that is actually under appeal this morning as well. You may wish to liaise with the other Appeal Bench on how that matter is being decided. But all I can say in relation to that decision is Commissioner Grainger, who in my experience is a very level headed, fair Commissioner - - -

PN40

COMMISSIONER FOGGO: Aren't they all?

PN41

SENIOR DEPUTY PRESIDENT KAUFMAN: Aren't they all, yes.

PN42

MR HARRINGTON: No, but he stands out.

PN43

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, now you are going to have a minority decision, Mr Harrington.

PN44

COMMISSIONER FOGGO: Yes, I think the transcript should show my disapproval there.

PN45

MR HARRINGTON: Yes, Commissioner. I noted the look on your face and it should show that look. Commissioner Grainger just noted in that case that he felt - well, I can't say what he felt, but it was a situation where I think he felt that he had been led around the garden path a few times in terms of the evidence that was before him. That resulted in a determination under section 170CFA(8) that the matter was discontinued and Commissioner Grainger made it quite clear that the applicant might want to take the matter up in another place with his solicitors.

PN46

SENIOR DEPUTY PRESIDENT KAUFMAN: That is all very well in theory, but in the real world how fair is it to expect a person who in the circumstances that confront us, to take on his former solicitors for negligence, when one looks at the costs involved in doing that?

PN47

MR HARRINGTON: Senior Deputy - - -

PN48

SENIOR DEPUTY PRESIDENT KAUFMAN: It is a nice theoretical possibility.

PN49

MR HARRINGTON: Well, it is theoretical, but I think it is practical in this respect, that there must be a line drawn by the Commission. I understand what the authorities say, but there has got to be a point where the Commission says, as I think Commissioner Grainger did, whether he was right or wrong and we will find out in the future, but Commissioner Grainger said enough is enough. I think he felt he was being lied to in that case, or at least being misled. And my submission is that notwithstanding the authorities and really an extension of those authorities is that in certain cases the Commission must say, to protect its own processes, well, that is enough. The applicant may well have a case of unfair dismissal, but given what has gone on; given what we have been - this Commission has had to endure in trying to hear this application and the level of call it negligence involved by the representatives, the applicant should take that matter to another place. Which might involve some difficulty, but that is to be balanced against the considerations under section 170CA fair go all round.

PN50

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, that is to what I was addressing my question, Mr Harrington.

PN51

MR HARRINGTON: Yes. And in respect of that, Senior Deputy President, an employer who engages a major law firm who is fighting these cases at that level - at the level of a first instance before Commissioner Eames and is here again today before the Appeal Bench, and if the appellant succeeds today, this employer - this respondent is back in a position potentially before a single Commissioner again, although it is likely this Bench might decide the matter for itself in relation to the CFA(8) application, and it has to go on.

PN52

And it is almost certain that there is no costs consequences arising out of that, particularly - definitely there are no costs consequences arising out of today, and it is a moot point whether section 170CJ can be used by a respondent employer to assist in the correction of its financial position in relation to the first hearing to defray some of those costs. It is possibly not open, which raises a moot point about if this Full Bench decides the appeal itself, whether any application under section 170CJ is then available to the respondent at all. Possibly it is in relation to the Commissioner - the hearing before Commissioner Eames.

PN53

SENIOR DEPUTY PRESIDENT WATSON: Why would it be any different in respect of the appeal proceedings?

PN54

MR HARRINGTON: Well, because the matter is being determined by the Full Bench. Assume that occurs. I am not sure that the application can then be made in relation to the first instance hearing that was - in which the employer respondent was successful under section 170CJ when the Full Bench has said that was wrong, here is a new decision.

PN55

SENIOR DEPUTY PRESIDENT WATSON: I see, yes.

PN56

MR HARRINGTON: Because it follows that the Full Bench would have to say it was wrong in order to deliver a new decision.

PN57

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN58

MR HARRINGTON: That is - I think I have probably diverged a little bit, but that is just merely a consideration that goes to the fairness of adducing this new evidence. Members of the Bench, unless I can assist you further, those are the submissions of the respondent.

PN59

SENIOR DEPUTY PRESIDENT WATSON: On that point, yes. Anything further on that point, Mr Shaw?

PN60

MR SHAW: Just a couple of things that have come out of that. The issue raised by you, Senior Deputy President Kaufman about the compounding of error, again one can as a lawyer who practises in this field, concede that. But it does bring this matter fair and square into line with the decision quoted in paragraph 27 of my submissions with Commissioner Lacy where the fact that Mr Lennon had an incorrect view of the law perhaps should not be visited upon his client and that the fact that he didn't realise that that evidence was important might summarise his understanding of it.

PN61

But in the case of Senior Deputy President Lacy he was dealing with the question of constructive dismissal where a counsel for the particular party had a somewhat misconstrued view of what constructive dismissal was and indeed in the way the Commission has in the past applied it. In that case the Senior Deputy President made it very clear that he should have sought an adjournment so that he could, in this case, get further evidence and presumably go away and study the law too. And in this case that was asked for.

PN62

Without admitting the additional evidence, if the Bench were to find in favour of the appellant for the grounds that it has entered its appeal upon and based on its submissions, I would think the Bench would be left with no alternative but to refer the matter back to a Commissioner. I suppose in a sense I am trying to short circuit that, being mindful of the costs issue. And I must say that the first thing I want to raise is this question of the fact that there were three solicitors involved and that somehow it opens floodgates if you let further evidence in.

PN63

My understanding of the matter, and I am only adducing this from the Commissioner's file that has already been put before the Commission, Ms Anderson was involved in conciliation. Mr Lennon was involved entirely in the preparation of the late application. Mr Mazzeo went along because Mr Lennon was required to be at the Victorian Civil and Administrative Tribunal on that particular morning. It is not a case of people coming up with different ideas or different approaches. Now as I say, if Mr Lennon had an incorrect view of the law and Mr Mazzeo sought to correct that by seeking an adjournment.

PN64

And that adjournment was denied which is a matter we have to come to later. The issue of costs, I think, is somewhat irrelevant. One could equally argue that if an employer wants to go to a major law firm and presumably pay all the costs concerned, then that employer has to wear that and perhaps the additional material which is sought to be adduced by the respondent on the file note there, might be considered also. The fact is, this matter had it simply gone ahead, would have probably lasted a day at the most and instead we have gone through all of this over what Mr Lennon attempted apparently to explain to Mr Harrington's instructing solicitor at tha time, was simply a simple error.

PN65

I think that is probably as irrelevant as Mr Harrington's submissions. But certainly, in my submission, the additional material is sought to be adduced to overcome what clearly is a technical issue. I don't - I can't resile from that. It is material that could have been and perhaps I could say should have been put before the Commission at first instance. It wasn't, and the gentleman sought to enable it to be put and it was denied. We are now seeking to put it to short circuit what might be - I am not trying to pre-empt the Commission's decision - what might be a possible outcome of a favourable decision as regards the appellant's submissions today.

PN66

SENIOR DEPUTY PRESIDENT KAUFMAN: Could you assist me by taking me to the passages in the transcript where you sought an adjournment?

PN67

MR SHAW: I think they are quoted in the written submissions.

PN68

SENIOR DEPUTY PRESIDENT KAUFMAN: I just can't find them in your submissions.

[10.37am]

PN69

MR SHAW: Yes, I am sorry. Paragraph 13, your Honour. One can only educe from reading the transcript, I wasn't there, that it seemed to be a fairly whole series of rather sharp interchanges. And in that sense there was no formal application for an adjournment, you know, in the sense of an application with authorities argued and so on. But there clearly was a request for an adjournment and it was denied three times.

PN70

SENIOR DEPUTY PRESIDENT WATSON: Yes. We will adjourn briefly to consider that.

SHORT ADJOURNMENT [10.38am]

RESUMED [10.59am]

PN71

SENIOR DEPUTY PRESIDENT WATSON: Yes. In relation to the admissions of further material, we have considered the submissions of the parties and the nature of that material. To the extent that most of the material is repetitive of what was already before the Commissioner here is no purpose by its admission in another form. However, to the extent that the affidavit the applicant seeks to now rely on raises new material, it is material in our view which was available to the appellant at the time and was able to be put before the Commissioner in the hearing below.

PN72

And we have decided that it would be inappropriate to now admit that material on appeal. To do so would be inconsistent with the longstanding approach of the Commission in appeals not to allow admission of material which could have been put at first instance and effect to allow an appellant to rectify deficiencies in the case at first instance on appeal.

PN73

We would propose not to admit either of the affidavits which are now - now seek to be tendered in the appeal. Mr Shaw, go perhaps then to anything you wish to say in relation to your written submissions.

PN74

MR SHAW: Thank you, your Honour. As regards the written submissions, as I said there is very little to be added in the form which the Commission conducts appeals where written submissions have been submitted. The issue that I have dealt with, and the issue that arises from the submissions of the respondent, appears to be - apart from obviously being in direct conflict with the submissions of the appellant, which one would expect and which I don't propose to address the Commission on - the question of the element of surprise, the issue of whether the appellant now was taken by surprise by material put before the Commission.

PN75

And the argument being put is that Mr Lennon had been put on notice by a telephone call, indeed there is a telephone call apparently now in the respondent's evidence which has been deemed not admissible today - but the - it is fairly clear that Mr Lennon simply, in his second affidavit, simply once again dealt with what was on the file. And he presumably thought that was sufficient. And it simply can't be taken away that the material that was put by the respondent at the hearing at first instance was material which was provided to Mr Mazzeo that morning.

PN76

And during the course of the submissions the issues within in, plus the non-appearance of the applicant, became matters of some degree of contest. And it clearly became important to Commissioner Eames. And is covered in the written submissions, Mr Mazzeo asked for an adjournment to rectify that problem and was in fact not granted the adjournment. It is clear the Commissioner found that there was representative error and he made - he exercised his discretion in a manner which did not allow the applicant to proceed to have his matter heard.

PN77

In that he took the view, in the absence of evidence, that the applicant was to some extent at fault for the failure to pursue the matter. As the evidence - - -

PN78

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, he had to draw that inference, didn't he, in the absence of any evidence? I think Mr Harrington referred to ..... before the Commissioner.

PN79

MR SHAW: Your Honour, I - in my submission he didn't have to draw that inference. The - - -

PN80

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, let me put it more positively, given that there was no evidence that the applicant sought to pursue with his application, or to pursue the election to go to arbitration, the Commissioner couldn't find that he had done anything to further his cause, could he?

PN81

MR SHAW: Yes, in think in rephrasing it you have overcome my - the one point I could raise there. Look, you are correct. But it comes back to - run through the submissions on the issue of whether there should have been an adjournment or not and, clearly, the applicant wasn't there to put it. It wasn't in Mr Lennon's material that he had received instructions to do so. And in the absence of that then I don't think there is anything much I can say other than agree with your Honour on that point.

PN82

The submissions are, I mean, essentially boiled down to the question of whether the applicant should have been present. And in the absence of evidence before the Commission that there had been steps taken by the applicant to pursue his claim, then it certainly can be argued that he should have been. But it is solely on that one point which of course is, to some extent, not - whether he actually issued instructions or not to proceed, the Commissioner, through the transcript - and given that he read his decision into transcript and edited it later - he takes the view that, in my submissions, that the applicant should have done more than just do that in any event.

PN83

The way I rad the transcript, there appears to be no doubt that in pursuing the matter, Mr Lennon was in fact purely acting under instructions. The doubt seems to be as to how strong those instructions were and what the applicant did in the meantime to ensure that Mr Lennon was pursuing the matter. And in their submissions in this matter, the respondents suggest that the submissions of the appellant seem to raise the issue that Davidson might have been wrongly decided.

PN84

Now, firstly, I have no particular problem in appearing before a Full Bench of this Commission and suggesting that an earlier one might have made a wrong decision. But that is not really what the submissions say, in any event. And dealing with the question of representative error, Davidson does - unfortunately Davidson was in the era before paragraphs were numbered so - but dealing in their decision, dealing with heading 2 "Representative Error" the Bench there does, at point 3, deal with the question of the conduct of the applicant.

PN85

And once again it leads us, in the absence of the admission of fresh evidence, it leads us to a dead end because it does clearly say that, for example:

PN86

It would be generally not be unfair to accept an application which is some months out of date ...(reads)... and carry out those instructions through no fault of the applicant.

PN87

Now, it is the submission of the appellant in this instance that the - the failure of the applicant to pursue in any sort of vigorous way the question of whether the matter had been - the notice of election had been lodged, and presumably the application wouldn't have even known what a notice of election was, but whether the proceeding was going on simply can't be visited upon him in all of the circumstances, including his own circumstances.

PN88

Which one doesn't need him to appear to see that. We can read that from the application form, from his date of birth and when he started employment and when he left employment. And it is the submission of the respondent - sorry, the appellant, that the applicant should not have visited upon him, because he was subject unfortunately the dead end we reached because of a problem with the application in the first instance - pursuing the case in the first instance, that the error - if there is an error - the error of the representative ought not be visited upon the applicant.

PN89

And again, in Davidson, the Bench in dealing with whether the Commissioner in that case had erred in exercising his discretion in the way he did, dealt with it in this way, he said:

PN90

Under the circumstances of this case it was appropriate for the length of the delay to be considered in the context of the explanation for the delay.

PN91

Now, that delay was only 11 days, I can see that, as this one is longer. But, in my submission, again looking at the circumstances of the delay and the apparent cause of the delay that the error, such as it may have been, ought not be visited upon the applicant. The - without being repetitive, I don't - and subject only to questions from the Bench - I don't propose to address the Commission further other than on the point which it seems Deputy President Kaufman has already covered to some extent.

PN92

And that is the question of the negligence and insurance. The issue clearly, and the legislative regime, is such that the Parliament has set up a process which is supposed to give a fair go all round in circumstances where termination of employment occurs that an employee wishes to challenge. The regime set up by the Parliament, and by the Workplace Relations Act - notwithstanding the tortuous nature of the course of this application has taken - is designed to provide speedy, and as far as possible, cheap remedies.

PN93

And that is obviously necessary because when one looks at the maximum amounts that can be awarded, they are clearly the processes of the legal system, as it exists in our Common Law Courts, is not appropriate. And whilst there is no evidence before the Commission, or is it relevant as to what an ultimate award might be in this matter, we know - again from material on the file - that the applicant, Mr La Rosa, was a car alarm fitter aged 21.

PN94

We are not talking about huge amounts of money in this instance. And clearly to suggest that the alternative of going - which in his case would presumably be to the Magistrate's Court to take action agains his solicitor, or assuming that he could get up on that in any event, would simply be a waste of time and money. The statutory remedy is the only one that in my submission is practical and appropriate. It is the one which does provide the fair go all round.

PN95

There is no material before the Commission the respondent would be, apart from the cost of these interlocutory steps, would be particularly disadvantaged if the matter was to proceed. And in my submission, the appropriate place for it to proceed is in this Commission. And this Commission and its predecessors since 1904 have been providing level playing fields for parties in unequal situations. And in my submission, it ought to take the same approach here and allow this application to proceed.

PN96

So that whatever has occurred in the office of the applicant's representative, it is not visited upon the application with the draconian result that this claim simply cannot be heard at all, and its true merits cannot be determined by the Commission. If the Commission pleases.

PN97

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Shaw. Mr Harrington.

PN98

MR HARRINGTON: Thank you, Senior Deputy President. If I might first take the Full Bench to my submissions - the respondent's written submissions, really they are matters of housekeeping. If I might take you to paragraph 36, to start with, there is a reference there to Dunn v Vann Francis Pty Ltd. There is a print number - it is page 10.

PN99

SENIOR DEPUTY PRESIDENT WATSON: yes.

PN100

MR HARRINGTON: There is a print number which is 7453 which I do rely upon. But there is a Full Bench decision, S0280, print S0280, which is actually contained in the folder which is before the Full Bench today. I apologise tha the first instance decision before Commissioner Wheal is not in the folder, but it somewhat summarised in the Full Bench decision. As a matter of fairness, if I might also refer you to paragraph 34 of the respondent's written submissions. At that paragraph the respondent makes the submissions, and I quote:

PN101

There was no objection to the tendering of the material.

PN102

And this the Lewindowski statement with the Glennon documents. Ms Glennon is the associate to Commissioner Tolley. That is accurate because at paragraph number 24 and 28, there was no objection. There was seen to be an acceptance that it was a public document of whatever was on the Commission's file. However, it is incumbent upon me to point out that at paragraph number 105 of the transcript, after that matter has been in effect ruled upon because the document statement has been tendered, Mr Mazzeo states as follows, and I quote:

PN103

The documents in the file note, having read it only this morning, are hotly contested. I am submitting, sir, that without Ms Glennon providing an affidavit I do not believe it should not come into evidence.

PN104

I only point that out as a matter of fairness because there had been a ruling, by consent in effect, earlier on that that evidence would go into - that material would go into evidence before Commissioner Eames. But there then does seem to be somewhat of a later - or attempt to revive the contest at a later point. That is relevant simply for the submission made in relation to the Vakauta - V-a-k-a-u-ta - v Kelly, which I won't take the Commission to in any detail.

PN105

That simply - the principle there is that if an objection is not taken below then a party cannot revive that objection upon appeal. And that is - the counter is relied upon in that respect, only. I just think it was appropriate to point out to the Commission that possibly some later objection was made by the appellant at the original hearing before Commissioner Eames. And finally, in relation to paragraph 31 of the submissions, it is now not appropriate for the respondent to rely upon at least the first two lines of paragraph 31 of the respondent's written submissions, which deals with the statement of Ms Kassenous, dated 7 October 2002, which of course is not in evidence pursuant to the ruling made earlier today. So the respondent does not rely upon that.

PN106

In dealing briefly in oral submission, obviously the respondent refers to and relies upon his written submissions in this application. But the question that is posed is this: what is the error that is now relied upon by the appellant today. The Commissioner, at first instance, accepted into evidence the material adduced by both the applicant at that point and the respondent. The Commissioner considered that material and drew certain conclusions and arrived at a decision. The Lewindowski statement that was relied upon by the respondent, which attached the Commission's file, was not objected to at the time it was tendered.

PN107

Particularly in the transcript, at paragraph number 73 - and this goes to the issue of natural justice - the Commissioner says, and I quote:

PN108

It is not as though you are not on notice.

PN109

And that is a key issue so far as the respondent makes its submissions today. The appellant's solicitors were on notice at all times what the nature of this application was going to be about. In relation to the grant of appeal concerning the misdirection concerning whether or not the appellant had pursued the matter post-conciliation, it is critical in the submission of the respondent that there is now no evidence before this Full Bench as to what the appellant did or did not do in relation to further pursuing the claim.

PN110

It goes without saying that there was no evidence before Commissioner Eames, and in the respect that he drew an inference, that inference was open to him. And in respect of what the appellant did or did not do in relation to pursuing the claim post-conciliation, the authorities are clear - particularly in the decision in Clarke which is at tap 8, at page 419, at the bottom of the page:

PN111

The conduct of the applicant is an essential consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application.

PN112

Members of the Bench, it is a situation today where - I am not sure that my learned friend concedes representative error but, in my submission, Commissioner Eames was not in error in deciding that there had been representative error. Given that, it was then appropriate for Commissioner Eames to consider, in accordance with the decision in Clarke, what did the appellant do? What is the conduct of the appellant between conciliation and this point today, being the first instance hearing of the application pursuant to section 170CA(8).

PN113

At transcript paragraph number 218, Mr Mazzeo stated:

PN114

The applicant has chosen not to attend today.

PN115

That is the evidence, at least from the bar table, before Commissioner Eames. And Commissioner Eames importantly drew an inference, which was open to him in my respectful submission in accordance with the decision in Brown v Dunne - sorry, I think it is Jones v Dunkeld. And that was the submission made on the day. I referred in my - sorry, I withdraw that. In my submissions I failed to refer to a decision in Kyvelos - K-y-v-e-l-o-s. And that is at tab 3 of the respondent's authorities.

PN116

And, Commissioner Foggo, you obviously may have some awareness of that case as it was an appeal on a first instance decision that you had made. And in fact Commissioner Foggo, your decision at that point was affirmed on appeal. This is a copy of the case, it does not have paragraph numbers. But if the Bench would like to turn to paragraph - sorry, page 5 of 7 pages, and a little way down there is a paragraph commencing:

PN117

...issues. Evidence is rarely called on the merits...

PN118

And that goes on. And about two sentences in, and I quote:

PN119

If the applicant does not call evidence on contested issues relevant to those matters, the Commission may nevertheless make findings based on the opposing contentions of the parties, or conclude that on a particular issue the applicant has not made out its case.

PN120

And in the appeal before you today, that is simply what Commissioner Eames did. He drew an inference it was open to him and he considered a relevant consideration. And the relevant consideration was: what has the applicant done, what has the appellant today done? And the Commissioner was in a situation where he had no evidence, just as the Full Bench today has no evidence. In my respectful submission, in accordance with the position in Clarke, that is not determinative of the issue. It is but one consideration.

PN121

But in my respectful consideration that should weigh heavily on the mind, or the collective minds, of the Full Bench today. Because, conceivably, if a decision today is handed down and this appeal is successful, it stands for a proposition that an applicant, or an appellant, who chooses not to attend and there is some level of representative error, can then come along on appeal and succeed merely on the representative error with no investigation or no consideration of what the applicant/appellant had done in pursuing a claim - - -

PN122

SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Harrington, what is troubling me at the moment, is what do you submit the applicant should have done? Speaking for myself I have no difficulty accepting your submission that it was open to the Commissioner to draw the inference, but the applicant had done nothing since conciliation. But in the circumstances of this case, what is troubling me is: what should the applicant have done?

PN123

MR HARRINGTON: The applicant should simply have given instructions to his solicitor to pursue the application. And there is no evidence before this Full Bench today, nor before Commissioner Eames, that he did so.

PN124

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. Nor is there any evidence to suggest that the certificate ever reached the applicant.

PN125

MR HARRINGTON: No, but it was provided - - -

PN126

SENIOR DEPUTY PRESIDENT KAUFMAN: There was a finding of representative error.

PN127

MR HARRINGTON: Yes.

PN128

SENIOR DEPUTY PRESIDENT KAUFMAN: And that finding seems to carry within it a finding that the solicitor had not done what he should have done, and made the application in time - assuming that it had come to Mr Lennon's attention and had not got lost somewhere in the firm.

PN129

MR HARRINGTON: Yes.

PN130

SENIOR DEPUTY PRESIDENT KAUFMAN: But there is no evidence, is there, that the applicant knew that a certificate had even issued.

PN131

MR HARRINGTON: There is - well, in my respectful submission there is - there is a constructive knowledge. If there is a finding that the legal representative was provided with the material, and in fact there is a concession now that it is possible - - -

PN132

SENIOR DEPUTY PRESIDENT KAUFMAN: It is possible.

PN133

MR HARRINGTON: - - - yes, that he was provided. Then given that the applicant has chosen to be represented in the proceeding is a constructive knowledge.

PN134

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, how do you say that?

PN135

MR HARRINGTON: Because he is being represented by a representative - by someone who is receiving his mail - - -

PN136

SENIOR DEPUTY PRESIDENT KAUFMAN: But isn't that the very nature of representative error? You don't force the knowledge or the inaction of the solicitor onto the applicant, do you?

PN137

MR HARRINGTON: But in certain circumstances, for example in this case, where there is documentation that is received, I agree with the Senior Deputy President that there is no positive evidence - we cannot say that the applicant knew that they had received documentation. That can't be said. Just excuse me for a moment. My instructing solicitor points out, without going into the without prejudice atmosphere or nature of a conciliation, that it is - and once again, this is just general observation in terms of the practice of the Commission, most conciliators point out, once the formal part of the conciliation has ended, a certificate will be issued, as Commissioners do.

PN138

SENIOR DEPUTY PRESIDENT KAUFMAN: Well even going that far, the conciliation concludes, the conciliator points out that a certificate will issue and the applicant goes on his merry way and it is not some months later; it is a few weeks later nothing has happened. How are we to draw a conclusion that the applicant should have known that the certificate had issued and that nothing had been done to act on it within that time period?

PN139

MR HARRINGTON: That evidence, that knowledge, is not before you but in my respectful submission, that is potentially a relevant consideration but that does not outweigh the relevant consideration of the applicant's - the evidence, if you like, of what the applicant did or didn't do.

PN140

SENIOR DEPUTY PRESIDENT KAUFMAN: Well assume the applicant did nothing. This is what I am getting back to. The conciliation proceeding concludes, the applicant may or may not know that an election is to be made within seven days of getting the certificate but we have no suggestion either way as to whether or not the applicant got the certificate. Three or four weeks goes by and the notice of election is filed but what do you say that the applicant should have done after the conciliation process, knowing that a certificate was going to be issued? Why should he have to have done anything?

PN141

MR HARRINGTON: In my respectful submission, the applicant should have known that the application itself was still live. The Kornicki decision makes the point that these time lines are not just numbers in print, that they mean something and they should be abided by.

PN142

SENIOR DEPUTY PRESIDENT KAUFMAN: I am not suggesting to the contrary.

PN143

MR HARRINGTON: No. At the same time, ignorance of the operation of the legislation is no excuse either. That is the law. Now in the circumstances that we find - - -

PN144

SENIOR DEPUTY PRESIDENT KAUFMAN: I am not postulating to you ignorance of the operation of the legislation. The operation of the legislation is that a certificate will issue. The applicant is waiting to be told a decision was issued. His solicitor has fouled up but the applicant doesn't know that a certificate has issued, on the evidence in front of us, and indeed in front of the Commission. The applicant - there is no evidence to suggest either way that the applicant, as the person, knew that a certificate either had or hadn't issued or certainly no evidence to suggest that the certificate had been brought to the applicant's attention, so we have got the situation that conciliation concludes, the applicant is waiting on the issue of a certificate. What should he have done?

PN145

MR HARRINGTON: Well in my respectful submission, Senior Deputy President, he should have been liaising with his solicitors and that evidence should have been adduced at the hearing.

PN146

SENIOR DEPUTY PRESIDENT KAUFMAN: Why should he have been liaising? Why in that time frame? Why is it unreasonable for an applicant to wait a month?

PN147

MR HARRINGTON: Senior Deputy President, in one respect you are asking me to delve into hypotheticals in this sense, that there is no evidence also - and this is not said facetiously, that the applicant didn't know.

PN148

SENIOR DEPUTY PRESIDENT KAUFMAN: No, there is just no evidence either way.

PN149

MR HARRINGTON: There is no evidence at all. The applicant is prosecuting a claim under the Act. I am not suggesting that an applicant in the generic sense should ring a solicitor or union official every day prosecuting that claim but we don't know, and it is possibly irrelevant, what was said at the end of the conciliation about a certificate and time frames but come July, there is a hearing before Commissioner Eames in relation to late lodgment and what this full bench has before it, as did Commissioner Eames, there is no applicant, so the inference that was drawn is this applicant - - -

PN150

SENIOR DEPUTY PRESIDENT KAUFMAN: Well we are back to that. I have drawn the inference that the applicant did nothing.

PN151

MR HARRINGTON: Yes.

PN152

SENIOR DEPUTY PRESIDENT KAUFMAN: And my question to you, which you are very skilfully evading, is what should he have done?

PN153

MR HARRINGTON: Well I don't know that I avoided it. I said he should have rung his solicitor, I think, Senior Deputy President. He should have prosecuted his claim. He should have agitated and then there should be evidence, as with the first case under the tab 1, which was Fitzsimmons, and that is only - it is used in an illustrative sense where an applicant turned up and gave evidence about - Mr Fitzsimmons gave evidence that he received a certificate and notice of election after 6 June, by 12 June. The simple fact there is that the applicant turned up at the CF(a)(viii) hearing and said this is what has happened.

PN154

SENIOR DEPUTY PRESIDENT KAUFMAN: But you are saying the applicant here should have turned up and said "I didn't get the certificate," "I didn't know a certificate had issued."

PN155

MR HARRINGTON: Or, "I told my solicitor to handle the matter." And quite often I think I make the point in the written submissions in a very general sense that that is what occurs in the jurisdiction, and looking at the CF(a)(viii) cases, and this is at paragraph 43:

PN156

The conduct of an applicant after conciliation is legitimately the subject of inquiry.

PN157

And I think, Senior Deputy President, you would agree with me in that respect. Often the applicant will only need to give evidence that he/she relied upon the evidence and professional skill of his or her solicitor. At that point, the applicant's conduct is usually blameless and the Commission must return to a consideration of the representative failings but in the application before Commissioner Eames and the matter on appeal today, the only focus for the Commissioner was an attempt to get an adjournment and quite a harsh light shone upon a solicitor or a legal representative that could not provide an explanation. Excuse me.

PN158

Members of the Full Bench, my instructing solicitor has referred me to a decision, which once again is probably not a lot more than an illustration, but it might help deal with the issue raised by yourself, Senior Deputy President. It is Marks v Australian Postal Corporation and that is print 920577 and going to - that dealt with representative error as well under section 170CF(a)(viii). Going to paragraph 20, and that was a case in which Ms Marks, the applicant, had given evidence:

PN159

It appears to me, that while there may be some shared accountability for the delay in lodgment between Ms Marks and Mr Clark -

PN160

that was the representative:

PN161

the primary accountability resides with Ms Marks. Ms Marks evidence in respect of the knowledge of a seven day time period is contradictory.

PN162

That case, I suppose, is an example where an applicant has attended and said what they knew about the seven day time period and having to respond to the certificate. It goes on and deals with the situation where the member there, which is Deputy President Ives, finds that there is a shared accountability. In this case, Commissioner Eames, I think really by implication, determined that there was a shared accountability, there was representative error and that the applicant had not attended, therefore in consideration of the principles in Clark, he deemed that they were both accountable and it wasn't appropriate to extend the time.

PN163

Senior Deputy President, one further point, I suppose, is this; that if a Commissioner or a member does not know whether the applicant has received a certificate, that may well be evidence of representative error that it is never forwarded on but the situation is then, if there is a delay and there is a challenge and a jurisdictional hearing, that the applicant should attend to simply say "I didn't know".

PN164

SENIOR DEPUTY PRESIDENT KAUFMAN: Is there any evidence as to whether the certificate was sent to the applicant as well as to his solicitor?

PN165

MR HARRINGTON: I don't believe it was.

PN166

SENIOR DEPUTY PRESIDENT WATSON: I think the file discloses if it was not sent to the applicant directly.

PN167

MR HARRINGTON: I think the practice is when someone has a representative, it tends to be forwarded directly to the representative.

PN168

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, one should be able to rely on one's representatives.

PN169

MR HARRINGTON: I suppose that was the point, Senior Deputy President, I was making earlier. I don't think I need to be heard on the issue of representative error but I am happy to answer any questions you might have. I have made a number of submissions in the written submissions concerning that point. In my respectful submission, in terms of the House v The King approach and was there an error by Commissioner Eames, there was no error in making a finding as to representative error. The evidence was quite clear that - well importantly Commissioner Eames made a finding that the fax had been sent to the office. That was hotly contested and in fact - - -

PN170

SENIOR DEPUTY PRESIDENT KAUFMAN: Well not by way of evidence, though.

PN171

MR HARRINGTON: No, not by way of evidence and on that issue, members of the bench, the second affidavit of Mr Lennon, dated 19 July, deals with the issue of what the office had or had not received. I believe that is before you by way of exhibit and paragraph two says:

PN172

I say further that I have inspected our file and could see no record of Ms Glennon, associate to Commissioner Tolley, having contacted our offices between 3 April 2002 and 17 April. I can see no record whatsoever of our office having received a facsimile transmission of 18 March 2002.

PN173

And that is crucial because in that affidavit, Commissioner Eames had before him evidence of what the solicitor had or had not received in this case. He had not received - or the solicitor alleged he had not received. There was contrary evidence from Ms Lewindowski which went in without objection that said that attached to a document from Ms Glennon which said it was sent and the Commissioner found himself in the age old situation, in this case on pure documentary hearsay evidence, who do I believe? I have got to make some findings. And in making those findings, in my respectful submission, he made no error.

PN174

On the issue of representative error, just briefly, at paragraph number 158 of the transcript, my submission was:

PN175

But it is now compounded by the fact that the representative does not put up their hand and says mea culpa in a sense that well, there is, look, you called or I got a fax and I just made a mistake.

PN176

The submission was made by myself on behalf of the respondent on the day. That is all you have to say - well maybe not all you have to say because Commissioner Eames still has to exercise a discretion but if you say that, that potentially deals with a large part of the application before Commissioner Eames. At paragraph 199, Mr Mazzeo in reply says:

PN177

My learned friend has made reference to a gross error on the part of the representatives and it is my submission that on the material before you there is nothing that would suggest that. In fact Mr Lennon has got an affidavit setting out that he hadn't received a fax transmission, he didn't received the telephone calls. There is no suggestion they weren't made, sir, or the fax wasn't transmitted, it is that they were not received.

PN178

And finally, dealing with the submission that there was an error by Commissioner Eames in failing to grant an adjournment, and it is said that there were a number of adjournment applications made, the respondent does not concede that. The refusal to grant an adjournment obviously is an exercise of discretion and my learned friend and I don't cavil on that point. He relies on the authority Galvez v York Security and that is exactly what that decision said but one other thing that the Full Bench and Galvez v York Security says is that the Full Bench should be slow to interfere with any exercise of discretion.

PN179

At the transcript at paragraph number 68, and there is much said by myself in the written submissions on this issue, it is my respectful submission that Commissioner Eames was put in an invidious position because the first and possibly the only application for adjournment was put like this:

PN180

Just in relation to Mr Lennon, I wish to point out, sir, that if my client would suffer any prejudice as a result of him not being here for the purpose of cross-examination, I would ask that the matter be adjourned, given that there are dire consequences if obviously -

PN181

and the Commissioner says at paragraph number 69:

PN182

Well we had no application earlier. The matter has been listed for some time.

PN183

In my respectful submission, the adjournment - the application for adjournment is conditional. I don't need an adjournment if you are going to find in favour of the submissions I make but in case you are going to go against me, I would like an adjournment. How was Commissioner Eames supposed to deal with such an application?

PN184

SENIOR DEPUTY PRESIDENT WATSON: Which of the three references is that?

PN185

MR HARRINGTON: That was at paragraph number 68. Sorry, there is no page numbers on the transcript. It is at the bottom of the page.

PN186

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN187

MR HARRINGTON: And the only other reference I can find and my learned friend might be able to assist me here, is at paragraph 117 where the Commissioner says at paragraph 116 to Mr Mazzeo:

PN188

Yes, what else do you want to put to Mr Mazzeo -

PN189

probably "to me", that should read:

PN190

Well, sir, if you are not prepared to entertain my application to adjourn, I will proceed.

PN191

That seems to - do you have that?

PN192

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. And there was another reference at paragraph 91 referred to in the submissions of Mr Shaw.

PN193

MR HARRINGTON: That may be the 2 April. Yes, the last paragraph:

PN194

There is also for the reason that I believe there should be an adjournment so Mr Flemming can be called.

PN195

That is echoed again at paragraph 105 - sorry, I withdraw that. It is echoed at paragraph 117, which is what I was referring to, so I am not sure that there are three separate adjournment applications. There is just an echoing of an earlier application, which in my respectful submission, was conditional and the reason that Commissioner Eames did not fall into error is because he had the material before him in documentary form, although it was hearsay evidence and it is not said on appeal today - or there doesn't seem to be any challenge to Ms Glennon's evidence. It was earlier, in effect, conceded on transcript at the first hearing by the appellant's counsel that it forms part of the public record. That is not important for today but Ms Glennon's documents form part of the Commission file. That goes in and then the adjournment is sought in relation, first of all to cross-examination of Mr Lennon then it is sought in relation to cross-examination of Ms Glennon on her file note. However, there was no cross-examination of any person on the day, therefore there is no error in relation to the findings that were made on the evidence before Commissioner Eames.

PN196

Finally, just dealing with the issue of surprise, it is my respectful submission that given the contents of the 19 July affidavit by Mr Lennon, there was no surprise as to what was in issue. It was about receipt of this fax, receipt of the certificate and even if there were surprise, it is my submission that no objection was taken to the tendering of the evidence of Mr Lewindowski, the statement which contained the file notes of Ms Glennon, the associate to Commissioner Tolley. They went before Commissioner Eames. Commissioner Eames read them. He accepted the underlying facts contained in those hearsay documents and made a ruling in accordance with law. At the conclusion, really, Commissioner Eames simply preferred the evidence of the respondent and in that respect, he didn't fall into error and that is true across the application but also true in relation to the adjournment application.

PN197

The final submission I would make is in relation to my learned friend's submissions on the substantive appeal and that goes back to echo where I started, which is what is the error made by Commissioner Eames? And in the absence of the applicant's evidence as to what he did to pursue the claim, which is a relevant consideration pursuant to the decision in Clark, Commissioner Eames, as with this Full Bench today, is left with a situation where it has to give weight to that consideration. Commissioner Eames gave it fairly significant weight. He couldn't say he didn't know what the applicant had done or not done. Similarly today, this bench will have to consider whether, on appeal, too much weight has been attributed to that factor and that really, in my respectful submission, seems to be what this appeal now comes down to. And on that issue, it is the respondent's submission that Commissioner Eames gave it the appropriate weight.

PN198

SENIOR DEPUTY PRESIDENT KAUFMAN: If he had given it too much weight, is that an error within House v R?

PN199

MR HARRINGTON: In my respectful submission it is but there is a lot of argument about that, Senior Deputy President Kaufman and I am not well versed in that argument to be able to put that today. My learned friend can try and put it but it is often an administrative appeal ground, the question of, you know, attributing too much weight to a relevant consideration or failing to attribute significant weight and the Federal Court generally is clear about that, particularly in immigration cases and they say well, that is not a House v The King ground; it might be another ground somewhere else but is definitely not House v R. If there are no other questions, that ends the submissions on behalf of the respondent.

PN200

SENIOR DEPUTY PRESIDENT KAUFMAN: There is one other matter that I would be assisted with, Mr Harrington. Was there any evidence as to any detriment that your client would suffer if the certificate issued - if the election - - -

PN201

MR HARRINGTON: Of time being extended? There was no evidence led as to detriment and in fact I think if you look at the transcript, that is not a ground that we agitated on the day. The only detriment - well, it wasn't a detriment on that day but it is a detriment now if this appeal goes against us. It is just, as I have already - - -

PN202

SENIOR DEPUTY PRESIDENT KAUFMAN: Time.

PN203

MR HARRINGTON: Time, significant cost and the issue of the operation of this statute in the sense that there are rules, if you like, under the statute about time frames. All the respondent has done in the substantive application is pursue its right, in this respect. It has said you haven't lodged your election under 170CF(a)(vi), I think it is, in time and we object. Kornicki is clear about that. You are entitled to take the point and say why aren't you in time? You have got to provide a reasonable explanation.

PN204

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes and then the Commission has regard to giving both sides a fair go and looks at the reason for the delay and it looks at the detriment to the other side if the extension is granted. Are they the - and performs a balance act, is that right?

PN205

MR HARRINGTON: It has to, under section 170CF(a)(ii) at least in terms of a fair go all round. The balancing act and the unfairness. And they are - the point, I suppose, is this; that whichever way this goes today, there is going to be unfairness. To the extent that the respondent makes the concession that it might be unfair to the applicant, so be it but it is also incredibly unfair to the respondent having to run this process through, having to face an attempt to put new evidence on appeal and finding a situation where the mea culpa hand has gone up on appeal but it wouldn't go up at the first instance and that, fundamentally, has been unfair to the way that the respondent has had to run its application.

PN206

SENIOR DEPUTY PRESIDENT KAUFMAN: Whichever way it was put at first instance, whether it be by admission that the solicitor made an error or a submission that the papers had never got to the solicitor, doesn't it create an unfairness on the applicant in denying him the opportunity to put his case? And when one balances that at that time against the submission that there was - or the fact that there was no submission that there was any detriment to the respondent, isn't it at that time that the balancing might well have gone in favour, or should have gone in favour of the applicant?

PN207

MR HARRINGTON: Senior Deputy President, you are absolutely correct in terms of when the test has to be applied in terms of the balancing. It is at the time of that first instance application. But once again, without rehearsing what I have already said, I suppose it might be of assistance to the Full Bench to put themselves in the position that Commissioner Eames was in. He is there to hear an application, it has been listed for a while, he has read the file, he knows what is in the file, he knows what the issues are. The applicant's legal representative turns up with a couple of affidavits and says this will do and then when it is put, less than subtly, well there is gross representative error, no there isn't! There is no error here.

PN208

SENIOR DEPUTY PRESIDENT KAUFMAN: No, it is Commission error, they are saying.

PN209

MR HARRINGTON: Well, with respect, I haven't hammered that point today but I did before Commissioner Eames. The natural outcome is that it is the Commission's error but this is not a case of the Commission's error.

PN210

SENIOR DEPUTY PRESIDENT KAUFMAN: But either way it is not the applicant's error. That is the point I am making. It is not the applicant's error - - -

PN211

MR HARRINGTON: That is the black hole, Senior Deputy President Kaufman. We don't - we don't know. There is no evidence before this Full Bench and there was no evidence before Commissioner Eames and so we are drawing inferences out of the black hole in that respect.

PN212

SENIOR DEPUTY PRESIDENT KAUFMAN: But assuming that inference is sustainable, did not the Commissioner, in not granting the extension in the circumstances where assuming there was no error on behalf of the applicant, it was either the representative or the Commission that erred and there was no detriment to the respondent, did the Commissioner err?

PN213

MR HARRINGTON: If you are asking me to deal with a hypothetical involving assumptions I can answer that question and in a situation where an applicant comes along and says I left it with my solicitors, did nothing wrong, solicitor says, "I made the mistake," and the respondent says, "No detriment to us," it is more likely than not that that application will be granted. That is not the case before Commissioner Eames and it is not the case that is being recited, if you like, before the Full Bench today.

[11.52am]

PN214

SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.

PN215

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Harrington. Mr Shaw, have you got any reply?

PN216

MR SHAW: Just a couple of points as the rest would simply be engaging in debate for debate's sake. I just - the point that you made, Senior Deputy President Kaufman, I was going to make in respect of this issue of unfairness and obviously what happens today may result in unfairness in additional definition thereof to one side or the other, but the time for fairness was when the matter was before Commissioner Eames and this Bench is either going to determine that should be corrected or determine that it doesn't need to be corrected.

PN217

SENIOR DEPUTY PRESIDENT KAUFMAN: But we also have to accord fairness, don't we?

PN218

MR SHAW: I think you have to employ fairness but I don't think that one of those issues is whether it is going to cost somebody a lot of money to keep pursuing it. And just on that final point, it shines through the transcript - I was just trying to find the exact reference, and I can't find it, where the Commissioner makes comments about how thorough Ms Glennon was, but it shines through the transcript that both the respondent, and it seems to have been picked up by the Commission, were taking exception to what they saw as being the applicant's representative blaming the Commission.

PN219

Now, on the evidence that is before the Commission, and the only evidence from the applicant were the affidavits of Mr Lennon - he doesn't blame the Commission. He just says he never got them and he can't find a record on his file, and we will never know - we will never know what occurred. He has gone through his file. As I said earlier,

PN220

they could have been shoved in the waste paper bin. They could be on another file somewhere in his place. They may not have arrived. I don't understand - the fax machine may have run out of paper and its memory may have been exceeded; who knows.

PN221

But they certainly - he says they never got to him and he doesn't blame the Commission, yet it seems to be almost a response to that that the wrath of the Commissioner has been visited upon him and, therefore, upon the applicant and it is that that we come here today to seek to try and correct. If the Commission pleases.

PN222

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, but why did the Commissioner go wrong in saying as - it is Mr Harrington's position the Commissioner had no evidence to suggest that the applicant had not received the certificate or that the applicant knew that the certificate had not been received, or that the applicant believed that he was entitled to wait on something to happen, and without the benefit of that sort of evidence why do you say that the Commissioner erred?

PN223

MR SHAW: By the evidence that was before the Commission, whilst it might not have been submitted that way by Mr Mazzeo, he clearly had evidence that the applicant hadn't received it, because the applicant's representative, who was the only person that the Commission's file reveals was indeed sent it, hadn't received it. So clearly the applicant hadn't received it. You are correct in - and we do - it is a bit like trying to find the queen's tomb in the Pyramids I suppose where we run down this tunnel and then we reach an end because of the lack of evidence on what instructions the applicant actually gave at the conclusion of the unsuccessful conciliation.

PN224

But we certainly have no evidence as to regard - that suggests the applicant could possibly have been aware of the certificate being issued.

PN225

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, why shouldn't he have been pursing his solicitor in relation to it, as Mr Harrington says?

PN226

MR SHAW: Well, if - I mean to go into hypotheticals people just don't do that and not think the Commission is entitled to inform itself of that. I mean this is not evidence so much. I have been involved in proceedings where - on behalf of where I have been going to very expensive solicitors too and paying huge bills and my wife says, what are they doing? I say every time I ring them up it costs me $66. You know, we rely on them. Now, you just don't do it and I suggest - and that is men. I suggest that a person such as this gentleman could be less expected to do that in such a short time frame.

PN227

If he had heard nothing after four or five months, then clearly one could assume he wasn't serious in pursuing his application if he hadn't raised it with his representative, but in my submission it is not unreasonable for him to not have done anything by the time the election was in fact made.

PN228

SENIOR DEPUTY PRESIDENT KAUFMAN: Thank you.

PN229

SENIOR DEPUTY PRESIDENT WATSON: Yes. We will reserve our decision in the appeal.

ADJOURNED INDEFINITELY [11.58am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WRITTEN SUBMISSIONS OF THE APPELLANT PN4
EXHIBIT #R1 WRITTEN SUBMISSIONS OF THE RESPONDENT PN4