C2001/5511, Transcript of Proceedings [2002] AIRCTrans 529 (20 February 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER HARRISON

C2001/5511

APPEAL UNDER SECTION 45 OF THE ACT
BY D.C. WEBSTER FOR AN EXTENSION OF TIME
TO LODGE APPEAL AGAINST A DECISION OF HARRISON SDP
AT SYDNEY ON 3 OCTOBER 2001 IN U NO 40241 OF 1999 - TERMINATION OF EMPLOYMENT

BRISBANE

9.57 AM, TUESDAY, 5 FEBRUARY 2002

PN1

SENIOR DEPUTY PRESIDENT MARSH: Can I take appearances, please?

PN2

MRS D. WEBSTER: I'm Daisy Webster. I'm the applicant in this case. My representative is unable to be here. Dr Cephus Lumina who has been representing me in this case, due to financial difficulties on my part, I couldn't afford to bring him here for this hearing. The proceedings are a bit too technical so I'm just here to observe.

PN3

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mrs Webster.

PN4

MRS WEBSTER: Thank you.

PN5

MR E. SCUDERI: I represent the respondent, Queensland University of Technology.

PN6

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Scuderi.

PN7

MR SCUDERI: Thank you.

PN8

SENIOR DEPUTY PRESIDENT MARSH: Perhaps before we commence we could mark some documentation that's been received. I'd just like to be sure that both of you have received all the documentation and indeed that we have. The first document I received is the draft notice of appeal filed by Dr Lumina. That was received on 1 February. We'll mark that exhibit W1.

EXHIBIT #W1 DRAFT NOTICE OF APPEAL FILED BY DR LUMINA ON 01/02/2002

PN9

SENIOR DEPUTY PRESIDENT MARSH: The second document is the affidavit of Mrs Daisy Webster. We'll mark that W2.

EXHIBIT #W2 AFFIDAVIT OF DAISY CHELINO WEBSTER

PN10

SENIOR DEPUTY PRESIDENT MARSH: The third document is the sworn affidavit of Dr Lumina. We'll mark that W3. That was faxed on 1 February.

EXHIBIT #W3 AFFIDAVIT OF DR LUMINA FAXED ON 01/02/2002

PN11

SENIOR DEPUTY PRESIDENT MARSH: The applicant's outline of submissions was e-mailed on 4 February. We'll mark that W4.

EXHIBIT #W4 OUTLINE OF SUBMISSIONS E-MAILED ON 04/02/2002

PN12

SENIOR DEPUTY PRESIDENT MARSH: And this morning we received the applicant's submissions in reply. We'll mark that - from Dr Lumina - W5.

EXHIBIT #W5 APPLICANT'S SUBMISSIONS IN REPLY

PN13

SENIOR DEPUTY PRESIDENT MARSH: And we also received an e-mail from Dr Lumina seeking leave to vary some of the words in paragraph 10 of his sworn affidavit. We'll mark that W6.

EXHIBIT #W6 E-MAIL FROM DR LUMINA SEEKING LEAVE TO VARY AFFIDAVIT

PN14

SENIOR DEPUTY PRESIDENT MARSH: Turning to the respondent's material, we have the respondent's written submission which was filed by Corrs Chambers Westgarth on 31 January. We'll mark that QUT1.

EXHIBIT #QUT1 RESPONDENT'S WRITTEN SUBMISSION FILED ON 31/01/2002

PN15

SENIOR DEPUTY PRESIDENT MARSH: And the sworn affidavit of Mr Clague. We'll mark that exhibit QUT2.

EXHIBIT #QUT2 AFFIDAVIT OF MR CLAGUE

PN16

MR SCUDERI: Commissioner, there's just a couple of other document and one clarification I would like to raise.

PN17

SENIOR DEPUTY PRESIDENT MARSH: Yes, certainly.

PN18

MR SCUDERI: Ten minutes ago I was shown an affidavit by Mrs Webster. I'm not sure if that's the one which has been filed and you've referred to as W2.

PN19

SENIOR DEPUTY PRESIDENT MARSH: I can't help you with that. Maybe if you could identify - - -

PN20

MR SCUDERI: It's sworn apparently on 4 February by Mrs Webster. It has 15 paragraphs.

PN21

SENIOR DEPUTY PRESIDENT MARSH: Well, the document that I've marked W2 was sworn on 1 February and it has 16 paragraphs. All right. Well, my associate has now handed me another document which I have not sighted before. That has got the registered stamp of 4 February and indeed is sworn on 4 February, but I think it's an amendment, because the date has been changed.

PN22

MR SCUDERI: It sounds like - I beg your pardon. The one I've got does have 16.

PN23

SENIOR DEPUTY PRESIDENT MARSH: So I will replace my exhibit W2 with the document you've just referred me to. Thank you very much.

PN24

MR SCUDERI: Thank you. The other - - -

PN25

SENIOR DEPUTY PRESIDENT ACTON: Could I just ask in that regard, Mrs Webster, is it intended that the affidavit you've given Mr Scuderi this morning is to replace the affidavit that was filed earlier.

PN26

MRS WEBSTER: It's just what I had.

PN27

MR SCUDERI: Perhaps if I could assist the Commission.

PN28

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN29

MR SCUDERI: I'm guessing here but I think that is the only affidavit.

PN30

SENIOR DEPUTY PRESIDENT MARSH: I think that's right. When I look at the original W2 it's not been sworn.

PN31

MR SCUDERI: In any event, we have no objection to that affidavit going in.

PN32

SENIOR DEPUTY PRESIDENT MARSH: All right. So that will become W2.

PN33

MR SCUDERI: Thank you.

PN34

SENIOR DEPUTY PRESIDENT MARSH: Thank you for that, Mr Scuderi.

PN35

MR SCUDERI: Thank you. If it please the Commission, I would seek leave to file some supplementary submissions by the respondent. They are responding to material that was served on us after the initial submissions were filed, so they respond to the affidavit of Dr Lumina and the notice of appeal and so forth.

PN36

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN37

MR SCUDERI: And for convenience at the same time I might hand up the bundle of cases which our submissions rely upon and also a chronology of events and they're all bundled together there.

PN38

SENIOR DEPUTY PRESIDENT MARSH: Do you want this material marked as one exhibit?

PN39

MR SCUDERI: Yes, please.

PN40

SENIOR DEPUTY PRESIDENT MARSH: Yes, all right.

PN41

SENIOR DEPUTY PRESIDENT ACTON: These supplementary submissions go to what?

PN42

MR SCUDERI: They respond to the material which was filed by Dr Lumina. The affidavit and his submissions. The Commission had made a direction previously that we file our submissions by a certain date which we did. When we did that we didn't yet have Dr Lumina's submissions or any material from him. He filed it later than we did, so consequently we've prepared some supplementary submissions that go directly to those issues that were raised by Dr Lumina, and he has subsequently responded to those and that's one of the exhibits that were marked earlier.

PN43

SENIOR DEPUTY PRESIDENT ACTON: He's responded to these supplementary submissions.

PN44

MR SCUDERI: Yes. Yes. They are - I beg your pardon. He's responded to our initial submissions, not this latest lot.

PN45

SENIOR DEPUTY PRESIDENT MARSH: So have these submissions been sent to Dr Lumina?

PN46

MR SCUDERI: No. We only prepared them yesterday. I have given a copy to Mrs Webster.

PN47

SENIOR DEPUTY PRESIDENT MARSH: Can I apologise for that alarm that's going off? We might adjourn just for five minutes and see if we can attend to that. We'll adjourn for five minutes.

SHORT ADJOURNMENT [10.07am]

RESUMED [10.15am]

PN48

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much. Can I apologise for the delay? We took the opportunity of the adjournment to confer with respect to admitting the supplementary submissions and the materials in the bundle of materials you seek to tender. Mr Scuderi, we've decided that it won't be necessary to admit that material.

PN49

MR SCUDERI: Thank you.

PN50

SENIOR DEPUTY PRESIDENT MARSH: Mrs Webster, I think you've indicated already that you're relying on the written submissions and the material in the affidavits and you don't wish to put any further submissions to us today?

PN51

MRS WEBSTER: Yes.

PN52

SENIOR DEPUTY PRESIDENT MARSH: Very well. Can I indicate that we've read all the written material up to and including the material received earlier this morning. Mr Scuderi, as I've said we've read all your written material. I take it that you don't wish to elaborate upon that material in today's proceedings?

PN53

MR SCUDERI: I was planning to highlight some points as a result of Dr Lumina's affidavit which I think are critical to the question of the delay and the reasons for it. It wouldn't take very long, but I did intend to do that.

PN54

SENIOR DEPUTY PRESIDENT MARSH: Very well, you proceed.

PN55

MR SCUDERI: Thank you. The Commission is aware obviously that two of the factors which the Commission is required to take into account are the reasons for the delay and the length of it. And there are some matters which Dr Lumina deposes to which I think are critical to those issues. At paragraph 10 of Dr Lumina's affidavit, he says:

PN56

The applicant advised that she has managed to sort out and post the documents on or before 28 October.

PN57

That's a conversation he apparently had with the applicant at the end of October when he hadn't yet received the material which was required to file this application or, sorry, the notice of appeal. So by the applicant's own material, the first time that the documents were posted to Dr Lumina was 28 October: that's four days after the date by which the appeal should have been lodged in the first place. There's absolutely no reason or explanation given for why there was a delay in filing the material in the first appeal period. Dr Lumina goes on in paragraph 11 to say that by mid-November he hadn't yet received those documents.

PN58

And he again contacted the applicant who reiterated that she'd posted them earlier on 28 October and expressed the belief that they may have been lost in the post. In paragraph 13 of Dr Lumina's affidavit, he says:

PN59

On 27 November -

PN60

that's two weeks later -

PN61

the applicant telephoned me to advise that she had earlier that day posted the replacement copies of the documents.

PN62

So there's no explanation as to why there was any delay between mid-November when Dr Lumina said, "I haven't received them", and the applicant says to him apparently, "They must have been lost in the post" and when she actually posted them. There's a further two weeks there without any explanation as to the reasons for that delay. Dr Lumina says he got the documents finally on 3 January but can't say when he actually received them at his place of work where they were posted to, because in paragraph 16 of his affidavit he says that between 20 December and 3 January the university at which he works was in recess.

PN63

So in other words, he doesn't make any arrangement to receive them. He just goes back to work at the end of his holiday on 3 January and then finds the documents have arrived some time before that. Again there's no explanation, no reason given, why he didn't check earlier than 3 January to see where those documents were. In relation to the reasons for the delay, paragraph 18 says:

PN64

I believe that the applicant has not been tardy in proceeding with the appeal and that any delay has been occasioned by her dire financial situation and the distance between herself and myself which makes it difficult for prompt and proper consultation.

PN65

However, when you go to the exhibits to that affidavit, exhibit CL1, is a copy of the envelope in which the documents were posted to Dr Lumina and the ones which he actually received. And if you go to that exhibit, you'll note that it contains a photocopy of the Australia Post stamps on it which were sent with the package. If you add the value of those stamps up it comes to $24: that's what it cost the applicant to send this material to her legal adviser in Africa and their reason for not doing it was financial consequences or incapacity. It's just - it beggars belief that that couldn't have been done way back at the beginning of the appeal period let alone some 104 days have elapsed since the appeal period commenced.

PN66

It's also instructive if you go back to paragraph 15 of the affidavit of Dr Lumina that he swears to the fact that:

PN67

It's very costly for the applicant, who is currently unemployed, to arrange for my air travel from Africa to Australia for the hearing as she did for the hearing before Harrison SDP.

PN68

So in other words, the applicant has previously paid for Dr Lumina to come to Australia, and yet their reason for not getting the material to Dr Lumina within a relevant time frame has been incapacity of a financial nature. It just doesn't sit. Commissioners, there are many other factors which I could go to but in light of the submissions which have already been made and the fact that most of it is covered in the written material, I don't propose to make any other submissions unless you wish to discuss any particular issue with me. Thank you.

PN69

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Mrs Webster, did you want to make any submissions in response to what Mr Scuderi has put this morning?

PN70

MRS WEBSTER: I may if you wish me to.

PN71

SENIOR DEPUTY PRESIDENT MARSH: Well, it's entirely up to you.

PN72

MRS WEBSTER: Oh, yes.

PN73

SENIOR DEPUTY PRESIDENT MARSH: We just want to make sure we give you the opportunity to respond to anything new that has been put over and above what is in the written submissions that we've accepted.

PN74

MRS WEBSTER: I think from what I've just heard he's questioning my financial ability to have brought Dr Lumina or the issue about the postage. And I can elaborate that and clarify that and - - -

PN75

SENIOR DEPUTY PRESIDENT MARSH: Very well.

PN76

MRS WEBSTER: Yes. I've been unemployed since I left QUT and my husband took out a loan. He's a teacher at St Francis College and he took out a loan to bring Dr Lumina to come for the last hearing and he's still trying to pay all that off. We had to pay for his flight and all his accommodation and everything. And I only get $132 every fortnight to take care of my needs and the child's needs so we are having dire financial problems. And on top of all that, my telephone was disconnected in October due to lack of payments, and the reason why was because we used to contact Dr Lumina and try and discuss this.

PN77

So I think from October to date I've had no telephone in the house and that can be verified and because of that I don't have access to e-mail. I don't have telephone and these are the difficulties that I'm having trying to communicate with him. In fact, a few minutes ago I just asked him if he could kindly post what he's given to me because I can't afford to send this to Dr Lumina. I've asked him if he could kindly just send what he's given to him and he said he'll do that.

PN78

SENIOR DEPUTY PRESIDENT MARSH: Is that material that we haven't admitted?

PN79

MRS WEBSTER: I'm not sure. He just - - -

PN80

MR SCUDERI: That was the supplementary submissions that you've not admitted; that's correct.

PN81

MRS WEBSTER: Yes.

PN82

SENIOR DEPUTY PRESIDENT MARSH: So they haven't been admitted so they'll be handed back.

PN83

MRS WEBSTER: Oh, I see.

PN84

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN85

MRS WEBSTER: Okay.

PN86

SENIOR DEPUTY PRESIDENT ACTON: You should understand, Mrs Webster, that because we haven't allowed them in they're not matters that we would take into account.

PN87

MRS WEBSTER: Okay. That's a bit too technical for me as I pointed out a bit earlier. So I believe that clarifies the issue of financial difficulties that we are experiencing as a family because of what is going on.

PN88

SENIOR DEPUTY PRESIDENT MARSH: Do you wish to convey the contents of the transcript to Dr Lumina to see whether or not he wishes to respond to what has been put this morning? Understanding that the written material is not before us, we will have no regard to that. We're handing our copies of the documentation back.

PN89

MRS WEBSTER: I beg your pardon.

PN90

SENIOR DEPUTY PRESIDENT MARSH: The written material that was handed up this morning has not been admitted by the Bench which means we have not looked at it; we will not take that into account in reaching our decision. We will be relying on the written submissions provided by you, Dr Lumina and QUT up to this morning.

PN91

MRS WEBSTER: Yes.

PN92

SENIOR DEPUTY PRESIDENT MARSH: There have been submissions put orally this morning by Mr Scuderi. You've responded to them. I'm asking you whether you want Dr Lumina to have the opportunity to respond to those oral submissions further or whether you are content to rely on the material that is before us to enable us to reach our decision.

PN93

MRS WEBSTER: Yes, I'd like Dr Lumina to get a copy of the transcripts and then he can respond. As I said this is a bit too technical for me so I was just clarifying an issue of finances.

PN94

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes. I understand. Very well, then. We will ensure that the transcript is made available, and you will be in a position to send a copy of that to Dr Lumina?

PN95

MRS WEBSTER: I'll get my husband to use his school e-mail to post them to him - to e-mail them to him.

PN96

SENIOR DEPUTY PRESIDENT MARSH: Well, subject to the transcript being made available within the next few days we will give Dr Lumina 21 days in which to make a written response.

PN97

MRS WEBSTER: Maybe I should not have spoken because, as I say, it is a bit too technical for me. I'm not sure - I was hoping that the decisions that you would make would be based on what we had given earlier. I'm not sure which directions - - -

PN98

SENIOR DEPUTY PRESIDENT MARSH: Well, we're content with that but Mr Scuderi chose to put some oral submissions. Given he chose to put the oral submissions I have got to give you - we have to give you a right to respond and you have responded - - -

PN99

MRS WEBSTER: I see.

PN100

SENIOR DEPUTY PRESIDENT MARSH: And to ensure procedural fairness I'm asking you whether you want to rely on the written submissions or Dr Lumina be given an opportunity to respond to what has been put this morning.

PN101

MRS WEBSTER: If we may please rely on the written submissions and give you the chance to make a decision.

PN102

SENIOR DEPUTY PRESIDENT MARSH: So you are content if we make a decision on the written submissions that have been filed by both parties with the proviso that the material that the respondent sought to tender this morning has not been admitted by the Bench?

PN103

MRS WEBSTER: Yes. Yes, please.

PN104

SENIOR DEPUTY PRESIDENT MARSH: The only additional material will be the oral submission put by Mr Scuderi this morning in respect of Dr Lumina's affidavit and the response you put with respect to your financial position.

PN105

MRS WEBSTER: Yes.

PN106

SENIOR DEPUTY PRESIDENT ACTON: And you don't wish Dr Lumina to make any further comment on what was put orally by Mr Scuderi this morning?

PN107

MRS WEBSTER: I'd like him to respond, yes.

PN108

SENIOR DEPUTY PRESIDENT ACTON: If that's the case, Mrs Webster, we won't be able to make a decision just on the written material.

PN109

MRS WEBSTER: Okay.

PN110

SENIOR DEPUTY PRESIDENT ACTON: It will also be on whatever Dr Lumina had to say in reply.

PN111

MRS WEBSTER: Sure.

PN112

SENIOR DEPUTY PRESIDENT ACTON: Is that what you wish?

PN113

MRS WEBSTER: Yes, please.

PN114

MR SCUDERI: Commissioners, if I may interrupt for a moment. I am concerned that this whole case in process is having quite a detrimental effect on my client and more particularly not the institution by the individuals that are the subject of the allegations which were made by Mrs Webster. I don't want to drag this on any longer than it needs to be dragged on. We have had a history of non-compliance with timetables by Dr Lumina. If it assists the Commission and it is capable of being achieved, I am happy to proceed on the basis that my oral submissions not form part of your reasons for a decision. I'm happy to proceed on the basis of the written submissions which you have before you, if that assist in concluding this matter more quickly and without the need for any further delays through Dr Lumina.

PN115

SENIOR DEPUTY PRESIDENT MARSH: I don't think that is possible, Mr Scuderi. We might adjourn for a couple of minutes to find out when the transcript can be made available as a matter of urgency and that will clarify the timetable that we can definitely put in place to receive any further comments from Dr Lumina. Otherwise, by necessity, there could be ambiguity and lack of clarity with respect to a deadline that we will fix.

PN116

MR SCUDERI: There is one other matter that arises from that, Commissioner. In respect of the submissions which Dr Lumina will be entitled to make, I am anxious that we constrain those to the issues which were the subject of the oral submissions and not other informational material that he wishes to produce. I'm not sure how best to achieve that but that is a concern based on the history of this matter. Perhaps if a direction could be given to that effect - that it be limited to solely to the matters that were raised in the transcript by way of oral submissions.

PN117

SENIOR DEPUTY PRESIDENT MARSH: Yes, well, we will consider that while we have a very short adjournment while my associate ascertains when we can get urgent transcript.

PN118

MR SCUDERI: Thank you.

PN119

SENIOR DEPUTY PRESIDENT MARSH: Thank you. We will adjourn for a few moments.

SHORT ADJOURNMENT [10.30am]

RESUMED [10.38am]

PN120

SENIOR DEPUTY PRESIDENT MARSH: We have taken into consideration what has been put and we direct Mrs Webster to e-mail, as a matter of priority, the transcript of today's proceedings. To facilitate that procedure the Commission will endeavour to e-mail the transcript to Mrs Webster's husband to facilitate the further e-mailing of the material to Dr Lumina. The transcript will be available tomorrow morning. We further direct Mrs Webster or her representative, if they wish, to make further written submissions in response to the matters raised by the respondent's in the oral submissions made today. That is the only basis on which we wish to receive any further submissions. Any such submissions should be filed and served by close of business 20 February 2002.

PN121

We make it clear to the parties that our decision in this matter will be made on the basis of the material set out in the exhibits W1 to W6, QUT1 and 2, oral submissions made by both parties today and any further written submissions that are filed by Mrs Webster or her representative by 20 February 2002. We reserve our decision and the Commission stands adjourned sine die.

ADJOURNED INDEFINITELY [10.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 DRAFT NOTICE OF APPEAL FILED BY DR LUMINA ON 01/02/2002 PN9
EXHIBIT #W2 AFFIDAVIT OF DAISY CHELINO WEBSTER PN10
EXHIBIT #W3 AFFIDAVIT OF DR LUMINA FAXED ON 01/02/2002 PN11
EXHIBIT #W4 OUTLINE OF SUBMISSIONS E-MAILED ON 04/02/2002 PN12
EXHIBIT #W5 APPLICANT'S SUBMISSIONS IN REPLY PN13
EXHIBIT #W6 E-MAIL FROM DR LUMINA SEEKING LEAVE TO VARY AFFIDAVIT PN14
EXHIBIT #QUT1 RESPONDENT'S WRITTEN SUBMISSION FILED ON 31/01/2002 PN15
EXHIBIT #QUT2 AFFIDAVIT OF MR CLAGUE PN16