RE2003/787, Transcript of Proceedings [2003] AIRCTrans 2524 (20 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

RE2003/787

APPLICATION FOR PERMIT TO
ENTER PREMISES

Application by the Construction, Forestry,
Mining and Energy Union, Construction and
General Division, WA Division Branch

PERTH

10.13 AM THURSDAY, 5 JUNE 2003

Continued from 28.5.03 in Melbourne

PN158

MR T.R. KUCERA: I seek leave to appear for the Construction, Forestry, Mining and Energy Union, the applicant in these proceedings and ultimately I suppose, sir, Mr McDonald.

PN159

THE VICE PRESIDENT: Yes, thank you Mr Kucera.

PN160

MR R.L. HOOKER: I appear, pursuant to leave previously granted, I think, for the employment advocate.

PN161

THE VICE PRESIDENT: Thank you Mr Hooker.

PN162

MR H.J. DIXON: I appear with my learned friend, MS HARRIS, for Woodside, I think leave was previously granted to legal representatives, but to the extent that I need leave, I seek your Honour's leave.

PN163

THE VICE PRESIDENT: That is fine. Leave is granted in each case, thank you Mr Dixon. There are two matters, preliminary issues, that occur to me and my apologies for the delay in getting under way. They both relate to Woodside.

PN164

The first Mr Dixon, you might make some inquiries after the hearing but for some reason we don't seem to have the affidavit evidence that was filed by Woodside. Because of the nature of the union's objection, I don't think that is a critical matter. The objection turns as I understand it on whether or not the evidence is pre or post the previous revocation. So the precise nature of the evidence put isn't a critical issue but there is that matter. The second issue is that on the last occasion I deferred Woodside's application for leave to intervene.

PN165

Now because again of the nature of the objection taken and it is also taken in relation to certain OEA evidence, it is if you are not in a position to argue intervention it is not an issue that I need to determine now either. Because it may be that the ruling in relation to admissibility impacts on the intervention question also. But I thought I would raise that with you. As you may be aware, the union has filed a submission that deals with Woodside's intervention application. I thought I would raise that now. It may be a convenient time to deal with it today, but I hadn't raised it on the last occasion so I understand entirely if it is not a matter that you want to address on this occasion.

PN166

MR DIXON: If your Honour pleases. I must apologise to the Commission about the fact that the affidavit material is not in the Commission.

PN167

THE VICE PRESIDENT: I don't think it is necessarily your client's fault. I suspect it has got something to do with being filed in the registry here and the tyranny of distance.

PN168

MR DIXON: We will take that up as well to try and remedy that aspect. Your Honour, in relation to the question of intervention we are conscious of the fact that your Honour hasn't formally ruled in relation to that. It would be our preference if it is convenient to your Honour to leave that to the hearing. But having said that I should indicate to your Honour that the evidence that is objected to as we understand the position by the CFMEU in part goes to evidence which Woodside seeks to put on about the conduct and more particularly misconduct of Mr McDonald when a Woodside project was under way at Laminaria in Western Australia. That evidence is relied on, as we will submit to your Honour today in part to justify Woodside's interest.

PN169

THE VICE PRESIDENT: Yes, I see.

PN170

MR DIXON: Going on the footing that whenever Woodside has had a project for construction going on that affects its interests, Mr McDonald has taken an interest in the construction work and has behaved himself in pursuance of his interest in a manner that adversely affects Woodside's rights and interests.

PN171

THE VICE PRESIDENT: I can see there is a degree of circularity in the - - -

PN172

MR DIXON: Yes. But if it more convenient, your Honour, for us to argue the intervention so that it is out of the way, we are able to do that today, if your Honour would prefer that.

PN173

THE VICE PRESIDENT: Well, I am content to leave it for the moment and deal with the evidentiary issue because I'm conscious that that was the issue that the parties were on notice would be dealt with today. So perhaps it is easier to deal with it that way.

PN174

MR DIXON: If your Honour pleases.

PN175

THE VICE PRESIDENT: Okay. Mr Kucera, you filed a submission in relation to your objection to the witness evidence. I wonder if I might put to your mind the standing of the argument you advance? In part it is a construction point, if I deal with that first and what you say about the statutory context. There doesn't seem to be a dispute amongst those at the Bar Table that the power to grant an application under 285A(i) is discretionary. Nor does it seem to be disputed that the sole criterion expressly stated in the Act for consideration in dealing with such applications is in section 285A subsection 6.

PN176

Now that seems to be where the level of agreement stops. As I understand your submission you are advancing two contentions in relation to section 285A(6). First you say: because it is the sole matter specified it would follow that as a matter of construction when I'm considering an application such as the one before me, then I'm limited in my inquiry as to whether or not the person, the applicant, has continued to engaged in some of the similar conduct that warranted the revocation of his permit. The second point you put is that subsection 6 of 285A confines my consideration to the fact that a previous permit has been revoked. And you contend that it is the fact of revocation that is to be taken into account and not the circumstances which led to the permit being revoked.

PN177

Now that is put on the basis as I understand it that those circumstances have either already been considered in leading up to the revocation or they ought to have been considered. That is, for want of a better description, your estoppel point that I will come back to later. For the moment I just want to deal with the 285A(i) and (vi) point if I can before turning to the other specific arguments you advance in relation to the admissibility issues. So am I correct in my characterisation of what you are putting - - -

PN178

MR KUCERA: Yes. In a nutshell, sir, that is our argument.

PN179

THE VICE PRESIDENT: The difficulty I'm having with it if I can put it this way is that there seems to me to be some tension between the two contentions. On the one hand you say: I'm limited to the fact of revocation but not the circumstances which led to it. And on the other you say that: in looking at conduct post-revocation I can only have regard to - the purpose of that is to see whether Mr McDonald in this case has continued to engage in the conduct which led to his previous revocation. Right? Well, if I'm confined to the fact of revocation and not the circumstances, how do I undertake the examination of what he has done since revocation.

PN180

See, you are putting it as I understand it, on the basis that the test is: has Mr McDonald continued to engage in the inappropriate conduct that led to the revocation, and I use that word in the context of 11A - that led to the revocation of his permit. Has he continued to do conduct of that nature, that seems to be what you are putting. That is the scope of the evidence. That is what relevant to the determination of the issue before me and nothing else.

PN181

Well, to do that necessarily involves an examination of the factors and circumstances which led to the revocation of his permit on the previous occasion, which you say I can't look at?

PN182

MR KUCERA: No, except - no, there is a subtle difference, sir. I accept that a decision that led to the revocation of McDonald's permit contains certain findings of fact upon which you can weigh his conduct since the permit was cancelled. For instance, the decision in 2001 which led to McDonald's permit contain a statement of agreed facts.

PN183

THE VICE PRESIDENT: It did and then there were findings on the basis of those facts, yes.

PN184

MR KUCERA: Exactly, sir. So the findings in that decision I suppose then become the benchmark against which you can assess conduct that has occurred since 2001.

PN185

THE VICE PRESIDENT: Okay.

PN186

MR KUCERA: The difference or the objection that we're taking is that what we're arguing that Woodside is seeking to re-open or re-agitate are things that should have been dealt with in the previous application and shouldn't now be brought up. I mean, much of the material that relates to the Laminaria Project, for instance, and I noticed there is an additional affidavit that was filed by Rebecca Harrison in these proceedings. Annexed to that affidavit is a transcript of the proceedings in a CFMEU rules case. And I notice that there was evidence in those proceedings that was given by Mr McDonald.

PN187

All of that evidence on that particular transcript goes to, in part, some of the things that occurred on the Laminaria Project back in 1998. All of that material would have been available to both the office of the Employment Advocate and all of that material would have been available to Woodside at the time. And so what we say is that the benchmark is the decision that was issued in 2001. There were certain findings of fact in relation to that decision. That can then be used as the benchmark against which conduct subsequently occurred. There is no point in going back into what happened previously because that should properly have been the subject of those proceedings.

PN188

THE VICE PRESIDENT: And that is your estoppel argument?

PN189

MR KUCERA: Exactly.

PN190

THE VICE PRESIDENT: Okay. Well, I will come to that in a moment. When you say the benchmark against which one measures conduct since, I'm not sure how you see that working in a practical sense because Mr McDonald presumably shouldn't have been entering any premises pursuant to any sort of Federal right. So the conduct or the inappropriate behaviour on the last occasion - or he acted in an improper manner, rather, the findings were that he held discussions with employees at a time other than the employees meal time or in other breaks. Well, in contravention of 285(c)(1), had he entered premises without giving the requisite 24 hours notice.

PN191

That is conduct that is consequent on the exercise of a right of entry. Well, he doesn't have one. How do you - I mean, let us assume that he hasn't held discussions with employees at a time other than the employees meal time or other breaks or entered premises without giving the requisite 24 hours. You wouldn't have expected him to do either of those because he doesn't have a right of entry.

PN192

MR KUCERA: I understand that, sir, but what the submissions and the evidence that has been put in by the Office of the Employment Advocate so far suggest is that any time he went near a workplace and held a meeting with the employees, that is conduct which would then be assessed against what happened in that previous decision. What they effectively say is that if he has gone on to work - on to premises since that permit was revoked, he was trespassing and therefore as a result of the trespass, he has committed conduct which would therefore disentitle him to a further permit being reissued.

PN193

THE VICE PRESIDENT: Yes.

PN194

MR KUCERA: And so I suppose they would say if he hasn't gone on and sought to exercise powers but he nevertheless hasn't got a permit, he has then trespassed. And that is what we want to be in a position to respond to.

PN195

THE VICE PRESIDENT: Okay. So you see the evidence as to trespass allegedly since the revocation is relevant.

PN196

MR KUCERA: Yes.

PN197

THE VICE PRESIDENT: But you will no doubt put forward evidence against it and - - -

PN198

MR KUCERA: There is an alternative view, obviously.

PN199

THE VICE PRESIDENT: - - - yes, no, certainly. And so it is relevant but you say - the issue is relevant but the evidentiary basis, when I have regard to all the material, including the material you will file, won't support a finding that he has acted in the manner alleged by the OEA?

PN200

MR KUCERA: Exactly.

PN201

THE VICE PRESIDENT: The essence of where it will go?

PN202

MR KUCERA: Yes, exactly.

PN203

THE VICE PRESIDENT: That is the drift of what you will be putting?

PN204

MR KUCERA: Yes, exactly. And I mean, as I say, in terms of when we say in relation to the first contention about the construction of 285(6) and it is fact of the previous revocation that you should be taking into consideration. In essence what we are trying to say is the same thing that we are saying in relation to our estoppel argument, is that we don't want to see a re-opening of matters that should have properly been before the Court the first time around. I suppose that is how our argument is constructed.

PN205

THE VICE PRESIDENT: What do you mean - you say in your submission that it is the fact of revocation that is to be taken into account, not the circumstances which led. So, when you are talking about the circumstances which led, you say: this isn't the occasion to revisit either the evidence that was point before the Full Bench of the Commission on the previous occasion, or evidence which could have been put to it.

PN206

MR KUCERA: Exactly, that is what we mean.

PN207

THE VICE PRESIDENT: Well, is there anything else you want to say about the construction point before I go to your estoppel?

PN208

MR KUCERA: No, not at all.

PN209

THE VICE PRESIDENT: As I understand it the other arguments, they turn on the question of relevance on the basis that the central proposition is that evidence of conduct prior to the revocation is only remotely connected to the central issue as 285A(6) requires:

PN210

That the Commission is to confine its consideration to the fact of revocation only.

PN211

It is the argument we have just been discussing. So, that is your primary proposition as I understand it, only remotely connected to the central issue. There are other matters which you advance also. You say that - and I will deal with - I will set them all and then come back to deal with some questions. You say that the character of the evidence is propensity evidence, or what is sometimes referred to, maybe inaccurately as similar fact evidence. And that that is inadmissible. You say that all of the evidence of Mr McDonald's conduct prior to the revocation of his previous permit is of that character and as a result should not be admitted. You deal with this I think at paragraph 7 of your submission on the evidence.

PN212

Your next point, or group of points is that the evidence prior to the revocation of the permit, or the matters prior to the revocation are both temporally removed from the current proceedings and are more appropriately considered - or should have been more appropriately considered in the previous proceedings. And that is where your estoppel - it is the second of those points where your estoppel argument comes in. You say that the more appropriate forum for the evidence, this is Mr Stavick's affidavit in relation to Woodside, was in the previous proceedings for the revocation of Mr McDonald's permit. And a similar proposition is put in relation to the OEA evidence of Rory Power and Ian McGiven.

PN213

Can I deal with the propensity evidence the - lets assume for a moment that your characterisation is correct and the evidence can be characterised in that way. Why is it that propensity evidence is not admissible in civil proceedings? I can refer you to the Full Bench Commission that I was on where we found it was admissible, that might assist. In King v Freshmore Print S4213. Now, it is dealt with at paragraph 47 and onwards. It may be that you want an opportunity to look at that and I provide the opportunity to all the parties to make a short supplementary submission after these proceedings.

PN214

But the conclusion in that matter was that propensity evidence was admissible in unfair dismissal proceedings, as consistent with the New South Wales decision also. And in any event there is that matter, but still with the estoppel argument first. What is the nature of the estoppel, I'm not clear whether it is cause of action estoppel, or issue estoppel, what is the - - -

PN215

MR KUCERA: Yes, it is cause of action estoppel sir, and essentially what we say is that the - all the material that relates to, I suppose, what happened prior to the revocation permit, like the Laminaria or say other projects. It is material as I say that would have been readily available to both the office of the Employment Advocate at the time or Woodside should have run it at the time.

PN216

THE VICE PRESIDENT: Okay, but res judicata or cause of action estoppel is an estoppel that applies to parties or their privies. In what sense can Woodside be said to be a privy of the OEA?

PN217

MR KUCERA: Well, in the sense that - well in the sense that - it appears that what the Office of the Employment Advocate did previously, when it sought to have Mr McDonald's permit revoked, was to engage a broad ranging inquiry into employers who may or may not have been adversely affected by the conduct. And Woodside at that time was involved in a construction project, as my friend just said, which could well have been the subject of the Office of the Employment Advocates inquiries.

PN218

THE VICE PRESIDENT: Well, it could well have been, but we don't know any of that.

PN219

MR KUCERA: Yes, but another point that needs to be borne out sir, is that noticeable absent from the affidavit material in relation to the Laminaria project, is the reality of what actually took place, or what transpired on that particular project. I will just go to some points I made about it last night when I was going through. That evidence needs to be viewed in a proper context, and the proper context in which the conduct occurred at the time was that the CFMEU then, as it is claiming now in Federal Court proceedings that are on in relation to the Woodside project, was that it had been excluded from construction projects to which they had a valid right - they had valid rights to be a part of and had been unlawfully excluded.

PN220

What transpired as a result of Mr McDonald's entry to the site was ultimately a settlement and an agreement, whereby the CFMEU - its officials were granted right of entry to the project. Possibly the reason why that matter wasn't first brought before the Commission at first instance by the Office of the Employment Advocate, or Woodside for that matter, was the fact that there was a resulting settlement of those issues and the parties were then able to move on. In a sense that wouldn't have - I mean that wouldn't have assisted them somewhat.

PN221

THE VICE PRESIDENT: But how does the fact of a settlement - did the settlement have a deed or release or anything of that nature attached to it, any undertakings - - -

PN222

MR KUCERA: Well it is certainly an issue. I understand that there was accreditation given to officials to go onto the project and that there was a settlement of notice. I noticed that that was also referred to in Mr McDonald's evidence that he gave in the rules case. But one would have to ask the question, possibly the reason why the Office of Employment Advocate haven't made mention of the fact and nor have Woodside that the reason why that possibly wasn't brought before the Court last time around was before it had been the subject of a settlement and was of limited probative value to the parties.

PN223

But was the nature of the settlement such that it gave rise to an estoppel?

PN224

MR KUCERA: Exactly and this - - -

PN225

THE VICE PRESIDENT: No, no, but - did the settlement provide that Woodside would not rely any conduct - - -

PN226

MR KUCERA: Oh I see what you're saying.

PN227

THE VICE PRESIDENT: - - - alleged conduct of Mr McDonald in relation to the Laminaria project in later proceedings?

PN228

MR KUCERA: Well, that is something that sir, I am unable to answer. But I will say though sir is that - the matter does need to be viewed in a proper context in the sense that McDonald never went back to the project again after that settlement was reached between the parties. So, in essence that is what - that goes to argument about relevance. It also goes to the argument about the matter should have properly been brought before the Court last time around and wasn't.

PN229

THE VICE PRESIDENT: I note - - -

PN230

MR KUCERA: The Office of the Employment Advocate is a statutory authority charged with the responsibility, of as I said before, making broad ranging inquiries into these matters. The dispute on the Laminaria project was a rather public dispute and one would have thought that if issues relating to McDonald's right of entry to premises were to be raised, in relation to the Laminaria project, they should have been raised then.

PN231

THE VICE PRESIDENT: Is a consequence of your argument that - - -

PN232

MR KUCERA: I suppose the privity arises sir, in the sense that the Office of the Employment Advocate had a statutory responsibility, it chose not to rely upon those Woodside matters and didn't and that is why we don't want to see those matters reagitated again. And it was a matter of public record that there was a dispute over right of entry at the time.

PN233

THE VICE PRESIDENT: Well the consequence of that argument would be because the OEA took the action that led to the revocation, and because of the OEA's position as a public body, that any employer who was operating a major project at that time or the period immediately before, is regarded as a privy and is stopped from bringing material now?

PN234

MR KUCERA: That would be a logical consequence of that argument, yes.

PN235

THE VICE PRESIDENT: The other argument that I neglected to mention is that you say, and this I suppose goes to the general policy position the Courts have also adopted, that where evidence is only peripherally related to a central issue, that it is a balance between the extent of the time that will be taken up in dealing with the evidence. And in this case you say the evidence that is being sought to be advanced will significantly increase the hearing time and you rely on section 98A and point to balance the relevance of the evidence with the impact it will have with the conduct and scope of the hearing. Is there anything else - I will give you an opportunity - to all the parties to put something short in writing about the propensity evidence point, but is there anything else you wish to say?

PN236

MR KUCERA: No, other than I would like an opportunity to deal with the similar fact evidence, most definitely.

PN237

THE VICE PRESIDENT: Yes, certainly. Yes Mr Hooker?

PN238

MR HOOKER: The starting point in an assessment of an issue of this kind lies in my submission with a characterisation of the decision making process. As your Honour, observed at the outset with Mr Kucera, it is a discretionary task for this Commission to determine whether a further permit should be entered. That has a number of consequences in my submission. It means first and foremost as we have submitted in our initial outline of submissions which was filed on 16 May 2003, that one must take into account the text, the structure and the context of the governing legislation in determining that range of matters that may potentially be relevant.

PN239

The first manifestation that proposition has is that this so called confining effect, said by the applicant to arise from section 285A, subsection (6) is fallacious. There is nothing in my submission in the text of 285A, or any evident or apparent policy that supports that construction. And when one is cognoscente of the fact that this is from start to finish, a discretionary exercise for the Commission, it simply can't follow that that mandatory requirement, if you like, is expressly mentioned. It follows that there is some sort of limiting process or confining process that must be undertaken in statutory construction thereafter.

PN240

THE VICE PRESIDENT: When you say there is no policy that would lead to that conclusion, is there anything in the explanatory memorandum or second reading speech that spreads any light on any of this?

PN241

MR HOOKER: Not so far as I - I don't pretend that I have read that in recent times your Honour. I think I did prior to the revocation. I would accept, with respect, that is potentially a relevant source of information. It might be that when we address in writing the propensity evidence point I can - - -

PN242

THE VICE PRESIDENT: Certainly each of you can have an opportunity to have a look at that material.

PN243

MR HOOKER: - - - I can address that as well. The second material consequence of your Honour's task, and it being discretionary from start to finish, is that this notion that there is some kind of cause of action estoppel that does arise, simply can't be correct. We say that is a flawed analysis for a number of reasons, but first and foremost, these aren't proceedings that are of akin to litigation. They are not strictly adversarial, there is - the spectrum of inquisitorial proceedings as opposed to adversarial proceedings is something of a dynamic and flexible one. But this is a process in my submission that has a substantial component of an inquisitorial nature of proceedings.

PN244

It is not a case first and foremost of one part suing another or taking proceedings viz a viz another. It is in that kind of framework that cause of action estoppel can apply. I understand my learned friend, Mr Dixon, is going to comment in a little more detail on one or more of the authorities on which Mr Kucera has relied. But we say fundamentally, at a conceptual level, this notion of cause of action estoppel, simply can't apply to a decision making process where your Honour is implicitly empowered to take into account, in my submission, whatever range of factors the Commission considers relevant to determining whether this gentleman should be authorised to enter in accordance with the structure that Division 11A of part 9 is concerned with.

PN245

THE VICE PRESIDENT: So, it is the nature of the exercise, because the Federal Court has held in Blajobich and later in Miller that estoppel does arise in unfair dismissal matters, but presumably they are either quasi judicial depending on how one wants to phrase that.

PN246

MR HOOKER: Yes.

PN247

THE VICE PRESIDENT: They are more directly analogist to litigation in the true sense.

PN248

MR HOOKER: Quite. Strictly - there is a strong adversarial component to unfair dismissal proceedings in my submission.

PN249

THE VICE PRESIDENT: But isn't the right of entry - the revocation matter - it is instituted on application?

PN250

MR HOOKER: Yes.

PN251

THE VICE PRESIDENT: What distinguishes it from civil litigation or the unfair dismissal analogy?

PN252

MR HOOKER: The distinction is that in an unfair dismissal proceeding or a piece of civil litigation you have got a party, an applicant or a plaintiff seeking literally to vindicate his or her rights and seek some sort of exercise of in effect judicial power to make factual findings on those right and obligations as they have accrued to date and you normally have a - - -

PN253

THE VICE PRESIDENT: I don't want to go too far down the path of whether the unfair dismissal jurisdiction was the exercise of initial power but - - -

PN254

MR HOOKER: A hornets nest we don't need to get into. But the fact is you have got a party seeking a vindication of those rights and you have got a contradictor. In these proceedings you have got an application for revocation, as was the case initially, or you have got an applicant for a fresh permit, who then comes to this Commission and it is an administrative discretionary power exercised by a Registrar or Presidential Member, such as your Honour, and the process of fact finding, determination of facts and balancing of those facts in light of what the Commission considers to be relevant is then undertaken. So, it is fundamentally different in character in my submission from a piece of civil litigation in the Federal Court or an unfair dismissal proceeding in this Commission.

PN255

It follows in my submission from the fact that there is no confining effect from section 285A, subsection (6), that the range of materials that we have put on, capable of disclosing the range of characterisations that we pointed to in paragraph (4) of our outline of submissions filed on 16 May, is material to which your Honour, can properly have regard to. We fully accept that there may be an issue of weight with respect to any or all of those matters in due course. We fully expect that the balance of those matters is a matter for comment in closing submissions and it can only be seen in light of the totality of the evidence as it emerges. But - - -

PN256

THE VICE PRESIDENT: Can I deal with the question of weight and temporality?

PN257

MR HOOKER: Yes.

PN258

THE VICE PRESIDENT: It seems to me that at some point that must go to admissibility rather than weight?

PN259

MR HOOKER: At some point.

PN260

THE VICE PRESIDENT: For example, I find it difficult to accept that it is all of Mr McDonald's alleged past conduct or misconduct that has brought him to this inquiry.

PN261

MR HOOKER: Yes.

PN262

THE VICE PRESIDENT: For all I know Mr McDonald clobbered someone at Primary School - - -

PN263

MR HOOKER: Yes.

PN264

THE VICE PRESIDENT: - - - that is not really - so it seems to me that you can have something that is so temporarily distance that it is not going to be of any assistance, yet the - and it then becomes a policy balance between the time and resources taken to dealing with evidence of that character versus is prerogative value.

PN265

MR HOOKER: Look I don't argue against the force of that as a matter of logic at all your Honour. Can I illustrate the point we would make in a couple of ways. If for example there was conduct of the kind with which we deal in the witness statements that was said to have occurred 20 years ago. Then might be a tenable argument that there was such a temporal remoteness or a lack of cogency in that material that your Honour, should draw the line and say it is not even capable of being prerogative so we don't even get to the weight point. It still might be argued to the contrary, but there would be a tenable argument if the gap in time was so extreme.

PN266

THE VICE PRESIDENT: Okay, well look me put another illustration to you?

PN267

MR HOOKER: Yes.

PN268

THE VICE PRESIDENT: And I'm not suggesting that the evidence in this case is of this character, because I haven't examined it to that level of detail. But if we were dealing with evidence that was of the type - or that directly related to the agreed facts in the earlier revocation - - -

PN269

MR HOOKER: Yes.

PN270

THE VICE PRESIDENT: - - - then isn't there also a sense that those particular facts were relied on and led to the revocation of Mr McDonald's permit?

PN271

MR HOOKER: Yes.

PN272

THE VICE PRESIDENT: If you were coming along and arguing that you were seeking to rely on those facts, doesn't it create a sense of unfairness that they have been relied on to revoke and they are also relied on to stop a new permit application?

PN273

MR HOOKER: I wouldn't concede there is any unfairness in that your Honour. Can I say that I don't concede that any of the evidence we have put on here is quite in that category, but I appreciate the point your Honour is putting to me, with respect. Lets say for example there was, with respect to some of the agreed facts before the Full Bench in 2001. There was some conduct that occurred on site X in January 2001.

PN274

THE VICE PRESIDENT: What the Laminaria project for example?

PN275

MR HOOKER: Yes. And lets say either my client or Mr Dixon's client sought to put that before your Honour and the question was asked: well why wasn't that put before the Full Bench before. Lets say for arguments sake - - -

PN276

THE VICE PRESIDENT: Oh no, no I'm sorry, my example is it was put - - -

PN277

MR HOOKER: Oh I understand.

PN278

THE VICE PRESIDENT: I'm looking at evidence that was directly put to the Full Bench. The Full Bench makes a decision and revokes Mr McDonald's permit. Is that material admissible in subsequent proceedings. There would be perhaps an issue estoppel point that might arise on whether you are going to challenge the findings made, but - - -

PN279

MR HOOKER: Yes, it is in my submission because my learned friend talks about viewing all of the material in a proper context. To appreciate the nature and depth of Mr McDonald's conduct and his persistent breach of the regime under the Workplace Relations Act, is a necessary first step in my submission, for your Honour, to understand the significance of the more recent conduct. If for example prior to the revocation there were two or three incidents of culpable conduct - culpable in an industrial sense, but that rise to a revocation. There would then be a world of difference between that context, as it was pre-revocation and the variation and depth of material that there was before the Full Bench in 2001.

PN280

So, your Honour's task in assessing the extent to which this man observes the industrial relations rules is going to be vastly different one way or the other. If there had only been those two or three occurrences for arguments sake before the revocation, there would have been in a practical sense a lesser onus to be overcome. And I use onus not in a strict legal sense, because we have dealt with that point in our outline of submission. But in a practical sense it would have been a more realistic exercise for Mr McDonald to persuade you in my submission that he should now be granted a permit.

PN281

But where the breadth and depth of the conduct was so significant, it necessarily follows in my submission as a matter of sound exercise of administrative discretion that there has got to be a compelling case put on by Mr McDonald to demonstrate that things have changed. That he is now - he can now satisfy a member of this Commission that he is an appropriate person to be entrusted with the significant entitlement of a right of entry permit. So, it is for those reasons in my submission that to understand the factual detail of what happened prior to the revocation, not merely the fact per se of the revocation. It is a matter of sound, administrative exercise of discretion, a cause for that material to be before your Honour.

PN282

Could I make one observation on the so called propensity evidence point, and we will obviously address it in more detail pursuant to the leave that your Honour is giving us. It is simply an inaccurate characterisation of the reason why we are putting the pre 20 July 2001, material on. First and foremost we say it is directly relevant. It prima facie shows what we compendiously call industrially culpable conduct in a variety of way.

PN283

THE VICE PRESIDENT: And you deal with that I think - at paragraph 4 of your submission you set out the range of - and you say - as I understand the essence of your argument - it is well these are the considerations that I can have regard to - - -

PN284

MR HOOKER: Yes.

PN285

THE VICE PRESIDENT: - - - having regard to the contextual way in which the 285A(1) discretion is to be exercised. And the evidence that you are seeking to bring relates to those matters.

PN286

MR HOOKER: Yes.

PN287

THE VICE PRESIDENT: Is it propensity evidence in the sense that underlying the argument is that well Mr McDonald shouldn't get a permit because he has behaved in this way over a period of time and so it is likely he will continue to behave in that way?

PN288

MR HOOKER: That is one way of looking at it. That characterisation and that inference that would be open to your Honour to draw, doesn't make the purpose of putting the evidence on in the first place a propensity related purpose. We submit first and foremost it is directly relevant. We put that material on, we say to your Honour in due course: consider this evidence in context and make factual findings accordingly. It may well be that we put to your Honour, in due course, that it should be inferred that this gentleman is likely to continue to behave in this way. And that, among other reasons, means he shouldn't be granted a permit.

PN289

But we don't put the evidence on for the purpose of rendering more probable the other post 20 July 2001 evidence - - -

PN290

THE VICE PRESIDENT: Oh I see, yes.

PN291

MR HOOKER: If it has got that purpose you are in true similar fact - - -

PN292

THE VICE PRESIDENT: Indeed, yes.

PN293

MR HOOKER: - - - or propensity evidence territory. The only conceivable qualification to that is that we do say that the evidence that is the subject of the statements by Mr Power and Mr McGiven, do show something in the nature of a pattern of conduct. Sometimes that is a stream of admissibility under the broad similar fact evidence doctorate and sometimes it is said: well if there is something in the nature of a striking similarity or system or pattern, you get in through the similar fact door. But the mere fact that it does show a pattern of conduct, doesn't alter the fact that the primary purpose of putting the evidence on is because it is directly relevant, not simply to invite your Honour to engage in some sort of reasoning process with respect to the post 20 July evidence.

PN294

THE VICE PRESIDENT: Okay.

PN295

MR HOOKER: Can I finally make this point your Honour, and it is about the notion that is put from time to time in my learned friend's submission of fairness and perhaps the related proposition of procedural advantages and time saving advantages when your Honour hears this application in due course. First and foremost we say there is nothing unfair to McDonald in putting the pre 20 July 2001, evidence on. It has already been filed. We may, subject to your Honour's ruling and any granting of leave, seek to put some more evidence on.

PN296

Mr McDonald can consider that, take advice, determine whether he wants to answer it himself, seek leave to cross examine and make submissions in due course. There is nothing unfair in relying on pre 20 July evidence when (a) it is capable of being relevant and (b) the process in his Commission can ensure that there is a proper and legitimate opportunity to answer that evidence.

PN297

THE VICE PRESIDENT: I don't think that is the unfairness that is alleged, it is the burden of having to respond to it - it seems to be the manner in which it is point.

PN298

MR HOOKER: Well, one has to ask in my submission: what is the content of this supposed burden. Is it difficult because - - -

PN299

THE VICE PRESIDENT: I imagine it is paying for Mr Kucera to put the cross examination and to mount the evidentiary case.

PN300

MR HOOKER: Well, if that be the nature of the burden, we are departing from some sort of supposedly conceptual reason why it is unfair, just before it is before 20 July 2001. If it simply adds to the aggregate of work that Mr McDonald and his legal advisers have to undertake - that same submission could be put if we attempted to put on another three or four statements that were post 20 July 2001. It becomes a submission, in my submission, that seeks to have any connection with the significance of the material being pre-revocation.

PN301

THE VICE PRESIDENT: Well, I think it is put on two bases, and it goes to the fair and practical conduct of the proceedings.

PN302

MR HOOKER: Yes.

PN303

THE VICE PRESIDENT: It is argued - the primary proposition is that it is only remotely connected to the central issue that needs to be determined. So, it is peripherally relevant and therefore it should be excluded on policy grounds because to admit it would extend the scope of the proceedings. That seems to be the - so there is the conceptual link - - -

PN304

MR HOOKER: Yes.

PN305

THE VICE PRESIDENT: - - - with the pre-revocation argument.

PN306

MR HOOKER: So put, if that be the submission, it really slides away, in my submission, from any kind of procedural unfairness per se to Mr McDonald, or this notion of a burden in responding to the body of evidence. It really brings us back into this distinct field, in my submission, of whether there is some sort of disadvantage in the time this Commission has got to devote to hearing the application. We answer that in a couple of ways. Firstly, and in an obvious practical sense, this material is part and parcel of a body of evidence that is put on by Mr Power and Mr McGiven, as far as my clients are concerned. Which as I have put before, shows a narrative, if you like a pattern of events.

PN307

The advantage in simply dividing the line at the point where the previous revocation occurred, would have a minimal tangible advantage, in my submission, as far as the time of the Commission in undertaking the hearing is concerned. But perhaps more fundamentally, the question for your Honour must be, in my respectful submission: is this material capable of being relevant? If the answer to that is yes, and we say it must be for the reasons that we have put on, then simply because it is going to take a little more time for the fact finding process to be engaged in concerning that evidence is a consideration of the most limited importance.

PN308

This Commission can, and does, undertake hearings of considerable length if there is material put on which is on the face of it probative. Can I just return to one point that I was making before I think your Honour and I went down a slightly different path. I was making the point in terms of the probative value of the evidence that there might be some situations where the line could more clearly be drawn, like the example I put of conduct that occurred more than 20 years ago. Particularly where the rest of the evidence was much more connected in a temporal sense.

PN309

Another example might be that if relatively recently Mr McDonald had engaged in other sort of, on the face of it, objectionable conduct, it might have been unconscionable in a civil sense, or it might have on the face of it engaged in a breach of the criminal law. If there was no apparent connection with his conduct as an industrial organiser, the argument may be open that there the line could be drawn. But we are not in any of that territory in terms of what my client is putting on, nor on my understanding what Woodside wishes to put on. So, we get back to the fact that the material put on pre-revocation has a nature and logical tendency to be probative of any or all of the matters that we refer to in paragraph 4 of the outline.

PN310

Once your Honour is satisfied of that, in my submission, the rest of the propositions fall away. The characterisation of the material or similar fact or otherwise becomes misconceived. Notions of fairness or procedural advantage for this Commission are of no substance. The issue at the end of the day in my submission is a relatively simple one for your Honour. Taking into account the nature of the exercise of administrative discretion might this material assist the Commission in its task - - -

PN311

THE VICE PRESIDENT: I always get nervous Mr Hooker, when counsel tell me it is a relative simple proposition for the Commission.

PN312

MR HOOKER: Having spent the last 20 minutes on my feet. But at the end of the day it is your Honour. The starting point and the end point is the nature of the Commission's task and a natural common sense assessment of the material we have put on. Those are my submissions.

PN313

THE VICE PRESIDENT: Okay. Thank you Mr Hooker. You rely on Minister for Aboriginal Affairs v Peko Wallsend.

PN314

MR HOOKER: Yes.

PN315

THE VICE PRESIDENT: Is there anything you want to - what do you want me to draw from that authority?

PN316

MR HOOKER: Simply the general proposition that when one construes any statute for the purpose for exercising it and administrative discretion, that is perhaps the classic authority in administrative law and I think in particular Mason J judgement for the fact of - often there is not going to be an express textual indication of the range of matters that may be taken into account. Once considers the broad subject matter, scope and purpose of the legislation. We say, having regard to those objects of the legislation generally, and the nature of a regime for entry under Division 11A - those range of factors that we then come to in paragraph 4 may be inferred to be relevant.

PN317

THE VICE PRESIDENT: But was Peko Wallsend dealing with the sort of statutory circumstance I have here where there is - mention is made of a particular matter which I must have regard to. And the argument that is put is that well the inference you draw from that is that is the only matter. I think Peko is more talking about a statute that provides a general discretion without any reference to anything - - -

PN318

MR HOOKER: Yes, yes.

PN319

THE VICE PRESIDENT: - - - either - it is obligatory to take into account, or that is discretionary. Can you take me to any authorities where a matter or the body making the decision is directed to take into account a matter or matters and it has been held that it is not limited to those matters. I mean absent words such as, for example, in the certified agreement where it talks of "if and only if"?

PN320

MR HOOKER: I don't have an authority to cite your Honour. The issue is always going to be one of statutory construction. The fact that in section 285A, within the subsections there is use of the language "may" on the one hand and "must" on the other. One is reluctant now to use this characterisation of mandatory and discretionary. The High Court said something about that in Project Blue Sky in the Australian Broadcasting Authority. The question is rather, and is perhaps akin to the principles coming from Peko Wallsend when other considers the purpose and object of the legislation, how would one view the nature of the task to be undertaken.

PN321

The fact that the language "must" is used in subsection (6) in specifying what is necessarily an obligatory factor, at least invites, if not compels the conclusion that one must inquire what other factors are potentially relevant. The legislature hasn't spoken on that issue. It is within that same section in other subsections used language of a directory kind. It is only on that one factor that any compulsory essence is given to the role for the Commission. So, your Honour, must necessarily undertake this mental exercise of saying: well I'm obliged to take this into account. What else might I take into account. There must be some factors as a matter of administrative common sense and industrial relations wisdom.

PN322

In my submission, one ought direct one's mind to whether the applicant is a person who has pure and simple obeyed industrial rules in the past. That then gives rise to that range of more specific factors to which we refer in paragraph 4. That is perhaps a roundabout way of saying: no your Honour, I don't have authority - a particular authority. But if one reads 285A in context, having regard to the different types of language used, that mental process necessarily follows. May it please the Commission.

PN323

THE VICE PRESIDENT: Thank you Mr Hooker. Mr Dixon?

PN324

MR DIXON: Thank you your Honour. Your Honour, I think given what has fallen from your Honour, particularly in the exchanges with counsel for the CFMEU, I will seek to deal with some of the matters fairly briefly. And I have some authorities which I will hand to your Honour, which may assist your Honour on some of those issues. May we just briefly outline in point form the basis on which Woodside seeks to lead the evidence. And first may I just broadly describe the nature of the evidence. The nature of the evidence objected to concerns serious misconduct by Mr McDonald, on or in relation to Woodside's business over a period prior to the revocation of Mr McDonald's permit by the Commission in July 2001.

PN325

The evidence is essentially confined - the pre-revocation evidence is essentially to Laminaria, where there was a - there were modules being constructed by United Constructions and Mr McDonald, as our outline of submission points out, repeatedly entered upon that site in a manner that involved unacceptable and unlawful conduct. The evidence is sought to be led on these grounds. Firstly, it goes to support Woodside's interests as an intervener, on the basis that whenever Woodside has had a projection, given that we have got Laminaria, the present phase 4 project, plus the Trunkline project. Mr McDonald has shown an interest and has misbehaved in respect of each of the projects.

PN326

Secondly, the evidence we say will demonstrate through a number of actual incidents, ranging from Laminaria to date, that on each occasion described Mr McDonald has either misbehaved and/or failed to satisfy statutory pre-requisites for entry onto the relevant sites. So, in that sense it is not tendency evidence and it picks up the point that our learned friend was making your Honour, it is evidence of actual conduct. But thirdly it can also be evidence of a course of conduct, or pattern of conduct that on each occasion when the - mentioned, the conduct has had a flavour of illegality or misbehaviour. And it is conduct from which inferences can be drawn as to whether the discretion available to the Commission to grant a permit should be exercised in Mr McDonald's favour.

PN327

Fourthly, it shows that viz a viz Woodside, the type of conduct engaged in - at Laminaria before the revocation of the permit has not altered. After the revocation of his permit in July 2001, so we will seek to argue that Mr McDonald has not altered his behaviour viz a viz Woodside, even after the clear input of a revocation decision of disapproval by the Commission. And I plan to deal in a moment with a matter that your Honour raised, we say with respect, correctly about the nature of the conduct post termination.

PN328

And then we put that it is also - fifthly, it shows that given the earlier conduct Mr McDonald, if a permit were to be granted to him, is likely to behave in that way in the future. And that shows - and it is in that context that it is a tendency and predisposition to abuse the statutory rights under which he seeks to operate, be they Federal or since revocation of the permit, conduct at large or the extent that that conduct is sought to be relied upon pursuant to the State Act. We will say that the evidence shows that the preconditions in the State Act have not been satisfied.

PN329

We will seek to rely on the evidence to convince the Commission that it cannot be confident that the granting of a new permit will result in the Federal powers being exercised in accordance with their terms. And the evidence goes to the impossibility of Mr McDonald showing that he will show the public duty, as it is described in the Commission in some of the cases, bestowed by the sections in an acceptable manner. I don't take your Honour to our written submissions. We would rely on our general submissions because your Honour will see how we have developed it there.

PN330

May I just say this. We are obliged to tell your Honour, the fact - the extent to which the evidence goes. As I understood the submissions filed, they principally concentrated on Mr Stavick's evidence. But there is other evidence as was mentioned this morning. Ms Harrison's affidavit will contain transcript evidence and also your Honour has granted directions and leave for a statement to be put on by Mr Ware. Mr Ware's evidence, which is due next week, will also go the Laminaria situation. So, I just didn't want us to - - -

PN331

THE VICE PRESIDENT: No, I will probably deal with it by way of decision in a global sense, rather than going to the specifics.

PN332

MR DIXON: But I thought I should at least tell your Honour, that Mr Ware's evidence is going to deal with that.

PN333

THE VICE PRESIDENT: No, no, I appreciate that.

PN334

MR DIXON: Your Honour, the next question of course results from the clear, as we now understand it, concession by the CFMEU that the Commission is to decide whether Mr McDonald has continued to engage, and I'm using their language now:

PN335

..in the same or similar conduct that warranted his last permit being revoked.

PN336

That is paragraph 9 of the submissions of 2 May. And then in the submissions of 28 May, paragraph 11:

PN337

At issue in these proceedings is Mr McDonald's conduct since that time.

PN338

It is of course - it can't be conduct, a point that your Honour correctly made. It can't be conduct in pursuance of a federal permit. It has to be corrected conceded by implication in all of that that it is conduct of a general kind, or put differently, conduct at large in respect of industrial sites in respect of which Mr McDonald, for whatever purpose seeks to enter. Now, the difficulty which arises of course is whether when making those assessments as to whether the conduct has changed, whether similar conduct has been engaged in. The Commission must confine itself to conduct which - sorry, confine itself to a comparison with conduct which was specific to the revocation, which is conduct in pursuant of the permit. Or whether the Commission can look at large.

PN339

Now, it is illogical in our respectful submission, to suggest that the comparison should be between conduct, which cannot be in pursuance of the permit and conduct that was only in pursuance of the conduct. There is no reason to read the statute down in that fashion, particularly if the Commission accepts the submission that - of for example, accept our submission that the public interest is a relevant consideration. And one accepts the duty imposed on the holder of a permit as described by Munro J in - - -

PN340

THE VICE PRESIDENT: No, it is referred to in your written submissions.

PN341

MR DIXON: Yes, thank you. So, when the evidence about Laminaria is considered we will argue, your Honour, it will be shown that the unacceptable conduct by Mr McDonald, in a broad sense has not altered and the Commission should not confine Woodside from leading that evidence to show all the bases upon which we relied earlier. Now, may I then come briefly to the question of the Commission's powers. I think your Honour, has with respect, correctly indicated that the parties accept that there is a discretion, but the extent of which that discretion seems to shift a little bit when the CFMEU tries to answer the difficulties that its submissions create.

PN342

We say firstly, if one looks at section 110: Looking at substantial merit, that favours the admission of this evidence. Section 90: Public interest, the evidence will go in part to that issue. We say thirdly that the discretion available in section 285A(1), that the use of the word "may" is a wide discretion. It is not confined by the use of the words in section 285A(6). And your Honour, inquired about a case that might be of assistance to your Honour. The Act's Interpretation Act was amended in 1987 and I will hand to your Honour in a moment the amendment and it effectively dealt with the question of whether "may" will import discretionary judgement as your Honour knows, for any legislation that came afterwards - this legislation comes afterwards. In Gribbles Pathology Victoria Pty Ltd and the Minister for Health, similar issue arose as to whether something must be looked at and a discretion and I have a copy.

PN343

Your Honour, I will deal with this briefly, in paragraph - it is a decision of Finn J, in the Federal Court on 9 November 2000 and the reference is (2000) FCA 1596. In paragraph 17 there is a reference to the particular legislation, section 23DNB:

PN344

..of the principles that the Minister is to determine must include various matters.

PN345

And then in paragraph 19, the relevant section which - to which attention is given later says:

PN346

That the second stage of the licensing process is the application for the grant of a licence.

PN347

Section 23DND provides, and they apply to the Minister:

PN348

..must give certain information...,

PN349

And then in subclause (4)"

PN350

The Minister may approve the grant of the licence, only if certain conditions are met.

PN351

His Honour, at paragraph 23 and following dealt with the - your Honour, will see there he refers to section 23DND, subsection (4). He makes reference to the relevant Acts Interpretation Act Legislation and then in the passages that continue, your Honour, will see the competing arguments that were put before his Honour, by the parties and in paragraph 26 his Honour dealt with Gribbles' contention that the words may approve and those which follow in section 23DND are used in a particular context and for a particular purpose to define the limits of the Minister's authority or power to approve the grants of a licence and therefore that the general discretion does not apply.

PN352

And in the following paragraphs his Honour, deals with the competing arguments and I wont read it now, but at paragraphs 33 to 35, his Honour, rejects the argument and talks about that it would - in 35:

PN353

Is in my view reasonable to conclude that Parliament would not have intended to limit the Minister to consideration of the five conditions specified.

PN354

That is particularly significant in the present case because section 285(6) imposes:

PN355

A particular obligation must have regard for...

PN356

It is not, in our respectful submission, part of the ordinary statutory construction where such an obligation is imposed, to thereby read "the general discretion down", if a discretion is accepted and exists. And by use of the word "may" in section 285A(1), there is no reason to believe there isn't a general discretion and I think that that is accepted. We have for your Honour, a copy of the: Statute Law and Miscellaneous Provisions Act 1997, which amended the Acts Interpretation Act. We have provided it principally to indicate to your Honour, the relevant date so when one looks at the Workplace Relations Act, it will be seen that it will apply. Thank you.

PN357

On the question of relevance which is raised, your Honour, there is of course a definition of what is relevant in section 55 of the Evidence Act, to the extent that your Honour has regard for - or needs to have regard for that. We are indebted your Honour, in relation to the Full Bench decision which we were not aware of, but we do have two other cases which we wish to draw to your Honour's attention. They may have been referred to by the Full Bench and if that is so I apologise. One of them is the decision of the Full Federal Court in J-a-c-a-r-a Pty Ltd and Perpetual Trustees WA Limited, who reported in [2000] FCA 1886; (2000) 106 FCR 51, and I have a copy of that your Honour.

PN358

The relevant passages are to be found at paragraph 68 and following about the tendency rule. I don't intend to read it. It appeared to me from what your Honour said to be entirely consistent with what the Full Bench held and the Full Bench may have referred to this decision. So, I make that submission with some reticence. And it emphasised the departure in civil proceedings from the influence of caution which arose in the criminal law. Illustrations of tendency or similar fact in civil proceedings can be found, for example, in the decision of Mr F-i-g-g-i-n-s Pty Ltd v Centrepoint freeholds Pty Ltd, reported in [1981] FCA 15; 36 ALR 23, again we have a copy for your Honour.

PN359

The - again I don't want to take up your Honour's time unnecessarily, but the passage in the judgement of Northrop J, at page 28, 29 and then through to 31, illustrates the point. The was evidence led in the context of trade practices litigation as to whether prior representations, or misrepresentations about other lessees could be taken into account and it was held that that could be the case. So, the provisions that are - or the cases that our learned friend relies upon do not support the restrictions which I urge upon your Honour.

PN360

May I say something briefly about the suggestion that Woodside is precluded from seeking to lead the evidence because of the election made by others. Your Honour, the idea that the conduct that laminaria, or evidence of such conduct ceases to exist or cannot be relied upon because of the permit revocation has a number of flaws, because that is the importer of the argument. Firstly, the fact that the matter was not relied upon by others cannot preclude Woodside in seeking to protect its interests from relying on and having its case heard on how its rights have been affected.

PN361

Secondly, we say, Woodside was not a party to any of the proceedings. It cannot be suggested that the employment advocate, by making a selection as to the evidence that would go forward in a different matter, thereby precluded Woodside of bringing before the Commission conduct. No estoppel arises because it is not a party. We say in that regard that Woodside cannot have its rights in respect of this conduct removed by the decision of others. Fourthly we say that no Court or Tribunal has made findings about this conduct as between Woodside and the CFMEU and/or Mr McDonald, and/or findings which precludes the Commission from later dealing with the matter.

PN362

There is reliance in the materials filed from the CFMEU, on the decision of his Honour, Gummow J, in the E-f-f-e-m Foods pty Ltd and T-r-a-w-l Industries. Your Honour, that case went on appeal. We have the appeal judgement for your Honour. I again don't intend to spend too much time on it. The head note will answer the questions. It is reported in [1993] FCA 342; 43 FCR 510. And it is quite a useful case when one looks at the way in which it was developed there, because it demonstrates just how far removed the CFMEUs arguments are from what the law really is. May I just very briefly ask your Honour, at page 511, just to see what - in the head note what his Honour, Burchett J, said about a case where someone is not a litigant and it says:

PN363

In a case where a litigant is found to have so thrust himself into the prosecution of another's claim, as to make it unjust for him to be permitted to litigate etc...

PN364

Now, that was a case where other parties were litigating. A later litigant - or a party who became a later litigant had thrust himself into the prosecution of another's claim and in those circumstances no estoppel arose, potentially an abuse of process. But of course there is no suggestion that we even come anywhere near that. May I also make very brief reference to the decision of Anshun, that is relief upon. Your Honour, will see from that decision that it was particularly - well it was concerned with parties and whether it was reasonable for parties to bring a matter forward. An important consideration in the High Court was whether there would be a risk of inconsistency from findings made in the later hearing. None of those risks, in our respectful submission arise here.

PN365

Your Honour, lastly may I simply say this, it is clear that section 285A(6) mandates consideration of the fact of revocation. It would be highly artificial to ignore the circumstances giving rise to the decision to revoke. And where the legislature has in fact mandated attention to the conduct, or circumstances giving rise to the revocation, and other evidence of a probative value of similar conduct is brought forward, even if it pre-dates the conduct, nothing in section 285A(6) limits the Commission's discretion - broad discretion in considering whether it would give rights to parties which renders conduct which is otherwise unlawful lawful out of the question. So, that we would urge your Honour, not to rule out the evidence. Thank you.

PN366

THE VICE PRESIDENT: Thank you Mr Dixon. Can I just raise one issue with you. When you were dealing with the estoppel argument, you put that Woodside cannot have its rights removed by the actions of others. To be fair to Mr Kucera's argument, I'm not sure that - I can appreciate that is how you might characterise it, but he's also putting that it is Woodside's inaction which has affected its rights. In that it is argued that Woodside ought to have brought the material into the other proceedings. That seems to be the nature of the argument that is advanced.

PN367

MR DIXON: Yes. That is part of the answer, yes. Your Honour, in proceedings which are conducted by other parties, the question of whether someone intervenes in those questions - in those proceedings. And/or whether they are joined as to whether they are proper parties are always dependant on the issues that are being pursued. Where the employment advocate has made a - brought proceedings, it would be unfair to Woodside, who doesn't have the conduct of those proceedings to have to have intervened and put the material when there was already sufficient material before the Commission on that occasion to justify the outcome.

PN368

And we adopt, with respect, your Honour's reasoning as well, that if Woodside was precluded and didn't take action, then everyone else whose rights may have been effected are forever stopped. Even though they may not have known of the proceedings. Even though they may not have had the resources to participate in the proceedings. Even though, at that stage, their interests may not have been directly affected. So, in our submission it would require the CFMEUs contentions in that regards elevates non participation or non intervention into other proceedings to the level of an estoppel, which the law does not justify in our respectful submission. Thank you.

PN369

THE VICE PRESIDENT: Thank you Mr Dixon. Mr Kucera, anything in reply?

PN370

MR KUCERA: Except sir, in relation to the final point of Mr Dixon's submission, the companies had benefited Mr McDonald being without a right of entry permit for the time since 2001. And that is what we say, as a matter of public interest, if employers have had the opportunity to, in a sense exclude Mr McDonald from their workplaces because he hasn't had a right of entry permit, then, as I said, in the - as a matter of public interest it should not be right that those companies who have had the benefit should now seek to bring evidence that they didn't bring before the Commission previously.

PN371

THE VICE PRESIDENT: Does it follow from that that I'm entitled to have regards to the public interests?

PN372

MR KUCERA: Definitely sir, because ultimately see, in relation to the submissions about cause of action estoppel, and the argument appears to have been put by Mr Hooker in his submission is that in this matter there is no - it is not a cause of action as such. Take for instance the analogy with an unfair dismissal case that you referred to. The cause of action there would be an employees dismissed, he then has an actionable case against the company to try and seek a remedy. In this instance we would a liken 285, or the provisions under 285 to in a sense be just like that. A union official is issued with a permit.

PN373

The company's cause of action is that if - or the office of the Employment Advocates argument in this case - their cause of action is to bring an application to revoke the permit. The remedy that they would seek is a revocation of the permit and I suppose the penalty or the loss to Mr McDonald, is the loss of his permit. So, in the same sense a company that unfair dismisses an employee suffers a potential order for compensation to be made against them. The order that is made against Mr McDonald is the loss of his permit.

PN374

THE VICE PRESIDENT: Yes but there is no - an unfair dismissal - the outcome of an unfair dismissal proceeding may be that a benefit accrues to the applicant. That is the applicant is paid by the respondent an amount of money or they are reinstated. There is not that character here, it is an application for a permit which allows for the exercise of a public right.

PN375

MR KUCERA: Well, in as much as sir, that they - the refusal to grant Mr McDonald a permit - - -

PN376

THE VICE PRESIDENT: I appreciate - - -

PN377

MR KUCERA: - - - accrues a benefit to - - -

PN378

THE VICE PRESIDENT: Oh I see.

PN379

MR KUCERA: - - - to the respondent. Effectively what I'm saying is, this - and Mr Hooker, in his submission, suggested that this isn't an adversarial process and so - it is rather a more inquisitorial one and therefore the rules of cause of action estoppel don't apply because it is a different form of proceeding. At the end of the day when we go away from this Commission, we go away with the decision where there is a benefit for one party or the other. And that in a sense is what we would say characterise this proceeding as a normal cause of action to which those rules of estoppel would readily apply.

PN380

But certainly, as a matter of public interest, the events of 1998, as we have seen before - and there should be at least some reason why Woodside should show cause why it didn't attempt to - there should be some argument at least put on by them why they didn't seek to agitate those issues before the Commission previously. And as I outlined to you before sir, possibly one of the major reasons why they didn't was because there was a settlement of the issues. Now if there is a settlement of the issues then obviously issues of estoppel arise there, albeit in a different form.

PN381

THE VICE PRESIDENT: It may depend on the nature of the settlement. I don't think it is being put that you can't seek to adduce evidence which places the evidence that Woodside seeks to rely in context and that you couldn't put evidence as to subject to the terms of a settlement and whatever it may say about the use of the settlement, that you can't seek to put that. But that might be a matter that goes to weight.

PN382

MR KUCERA: Yes, obviously. I mean the difficulty with the suggestion that all of the evidence as to what happened to the cancellation of the permit is that it is relevant to the inquiry that the Commission has to take is simply this. As you would be aware sir, industrial relations is a moving feast, there are disputes, parties settle disputes and you move on. It would be fundamentally wrong for issues that have been the subject of disputes that have long since past and conduct that occurred in the context of those disputes, to be re-agitated in the context of an application that is dealing with future right.

PN383

I mean effectively what we say is, as I submitted before, there was a statement of agreed facts that was submitted in the previous application to this Commission that cause Mr McDonald to lose his permit. It can be assessed whether or not Mr McDonald has continued to engage in the same or similar conduct in respect of which he lost his permit previously. And all that needs to have is - is the conduct that has happened since Mr McDonald's permit was cancelled, needs to be assessed against the statements of agreed facts that was in the subject of that decision. And for that reason sir, we submit that the matters that happened before are simply not relevant and ought not be taken into consideration. I do wish to deal sir, with that issue of tendency evidence - - -

PN384

THE VICE PRESIDENT: No, that is fine, I thought - - -

PN385

MR KUCERA: - - - and I will avail you of that opportunity to - - -

PN386

THE VICE PRESIDENT: There might be in fact three issues that you might want to - or that we could usefully deal with in that way. There is a propensity evidence and in particular, as far as your position is concerned Mr Kucera, the decision in King v Freshmore. There is the issue of extrinsic material, whether on inquiry there is anything there that you wish to draw my attention to. The third issue is that it may be convenient to deal with - you put submissions in regarding Woodside's intervention application. It may be convenient to deal with that matter now as well. But I appreciate there was no notice given that I deal with it this morning.

PN387

So, perhaps the fairest way is - Mr Kucera, I will give you a period and I will talk to you about the time period in a moment in which to put submissions in relation to those three issues. You don't need to report what you have already put about Woodside's application. I then provide a period of time for the OEA and Woodside to reply to those and then for you to put a reply in Mr Kucera. Because in relation to the intervention point, Woodside's argument hasn't really been developed because it hasn't been asked to develop it at this stage, but you can do that in writing and you can reply to anything that arises from that.

PN388

As to the period - so firstly, is there any objection to those three issues being dealt with in that way? If not then it is a question of the period of time that is required. Mr Kucera, how long do you require to prepare and submit your submissions on those points?

PN389

MR KUCERA: The difficulty I have sir, is next week I'm tied up in a five day matter in the Industrial Magistrates Court so - - -

PN390

THE VICE PRESIDENT: Well, I don't think - it is not necessarily of an urgent nature given - - -

PN391

MR KUCERA: Also given that the Federal Court proceedings have - are still on foot and this particular matter substantially is adjourned off until the outcome of those proceedings - - -

PN392

THE VICE PRESIDENT: No, that is right, I mean I would like to deal it with in some sort of - - -

PN393

MR KUCERA: I agree sir.

PN394

THE VICE PRESIDENT: - - - reasonable time frame. Well do you see - would two weeks be sufficient?

PN395

MR KUCERA: I would agree with that sir, yes.

PN396

THE VICE PRESIDENT: All right. Well, perhaps if you can file what you wish to say about those matters by 4 pm on Friday the 20th and then two weeks after for the OEA and Woodside?

PN397

MR KUCERA: Yes indeed.

PN398

THE VICE PRESIDENT: Is that fine with you Mr Dixon?

PN399

MR DIXON: Yes thank your Honour.

PN400

THE VICE PRESIDENT: So, that will be 4 July. Mr Kucera, anything in reply by 4pm on the 11th - I will make it 4pm Western standard time because I always seem to get into difficulty when I try and put the Eastern standard time on it. Okay and I will deal with the intervention application and also the issues that have agitated this morning regarding admissibility and necessarily - or the 285A construction argument because that forms part of the admissibility contest.

PN401

MR DIXON: Your Honour?

PN402

THE VICE PRESIDENT: Yes Mr Dixon?

PN403

MR DIXON: There were other - on the last occasion as I understand it, your Honour, indicated that Mr Kucera should consult with us about proposed directions.

PN404

THE VICE PRESIDENT: Yes.

PN405

MR DIXON: That didn't go very far, except that we have prepared a minute and sent it through to him and - because it sets the timetable for the rest. I wonder if we could ask your Honour to deal with it. We have got a minute which you received Mr Kucera?

PN406

MR KUCERA: Yes I've got it. I might just comment on that sir. Perhaps you could hand it up first and then I'm happy to comment on it. Sir, the reason why I suppose that we haven't had those discussions is because we are awaiting the outcome of the question of this particular matter - - -

PN407

THE VICE PRESIDENT: Yes I think, Mr Dixon, it will necessarily depend on the outcome wont it, but perhaps if we deal with it this way. I wouldn't imagine it would take me, once the written material is in, much more than a week to reach a decision and hand it down. Very shortly after the handing down I will list the matter for directions and programming. Because if - for example if one looks at the dates requires the CFMEU to file and serve by the 26th - - -

PN408

MR DIXON: They have been - they are overtaken by the delay, I accept that your Honour.

PN409

THE VICE PRESIDENT: Yes, so perhaps if we deal with it on that basis. But I would encourage counsel to have discussions after the decision comes down dealing with the issues that have been agitated today and, as I say, I will list the matter for mention at further program shortly after I hand down the decision.

PN410

MR DIXON: If your Honour pleases.

PN411

THE VICE PRESIDENT: Nothing further at this stage?

PN412

MR KUCERA: No your Honour.

PN413

THE VICE PRESIDENT: Thank you, I will adjourn.

ADJOURNED INDEFINITELY [11.43am]