C2003/1209, Transcript of Proceedings [2003] AIRCTrans 840 (13 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2003/1209-1213

RESTRICTIONS IN TORT

Application under section 166A of the Act
by Tyco Electronics Networks Pty Ltd re
intention to bring action in tort at Brisbane,
Gold Coast, Banyo and Coolangatta sites

Application under section 166A of the Act
by Tyco Asia Pacific Pty Ltd trading as O'Donnell Griffin
re intention to bring action in tort at Brisbane, Gold
coast, Mt Isa, Gladstone, Mackay and Townsville sites

Application under section 166A of the Act
by Multi Services Group Pty Ltd re intention to bring
action in tort at Brisbane, Gold Coast, Sunshine Coast,
Canungra Army barracks and other sites.

Application under section 166A of the Act
by ABB Industry Pty Ltd re intention to bring action in tort
at NRG power station Boyne Smelters, Qld Alumina and TICOR Chemical
Plant

Application under section 166A of the Act
by John Goss Projects Pty Ltd re intention to bring
action in tort at Brisbane, Gold Coast, Sunshine Coast, Emerald,
Mackay, Cairns, Rockhampton and other sites

BRISBANE

10.59 AM, WEDNESDAY, 26 FEBRUARY 2003

PN1

THE COMMISSIONER: Yes, could we have the appearances, thank you.

PN2

MR N. LEMARE: Yes, if it pleases the Commission, Lemare, initial N, of Blake Dawson Waldron. We have our counsel still in an appeal in the next room, Commissioner. I would be seeking for the matter to be adjourned until they can join us.

PN3

THE COMMISSIONER: Yes, thank you.

PN4

MR CRAWSHAW: If the Commission pleases, my name is Crawshaw, and I seek leave to appear for the CEPU. Richard Williams, Keith McKenzie, Alan Hicks, and Peter Ong, all of whom are named in the written notice of intention to bring action in tort.

PN5

THE COMMISSIONER: Yes, thank you. Yes, do you have any view, Mr Crawshaw, of the request for an adjournment?

PN6

MR CRAWSHAW: Well, one of the reasons I am here is because this other matter is going concerning an appeal. So what we would say is in normal circumstances that is no excuse, but I am not quite sure what the problem is. My friend hasn't outlined any prejudice, or intention as far as today; there is a fairly full program going.

PN7

THE COMMISSIONER: You could say that.

PN8

MR CRAWSHAW: I, myself, would be grateful for any time to try and catch up with reading material, in any event, but what is the intention with this particular case? We could at least hear that.

PN9

THE COMMISSIONER: Yes, thank you. Yes, Mr Lemare?

PN10

MR LEMARE: Thank you, Commissioner. The intention certainly is to press for the issuing of the certificates today. I am certainly ..... on a position to be able to do that. The information I have been given is the hearing next door should be wrapped up in 10- or 15 minutes or so, and I would be seeking an adjournment so the parties can properly proceed at that time.

PN11

THE COMMISSIONER: Can I say normally I wouldn't in that situation, because clearly, the parties have been aware for at least a day, I would have thought, that the 166A matters were going to be listed this time. Equally, everyone involved in this matter is aware of what went on last Wednesday, last Friday, and the last couple of days in the Commission's absence, and so ordinarily I would expect the parties to be prepared to proceed on that basis. Equally, I expect them to be prepared to proceed at 11.30. As far as I am concerned, MW applications are still listed. Unless something occurs which means that it is not appropriate for those matters to proceed, they will go on as well. On the basis that Mr Crawshaw wouldn't mind a small amount of time to read some of the documentation, the Commission will adjourn until quarter past 11.

SHORT ADJOURNMENT [11.03am]

RESUMED [11.38am]

PN12

THE COMMISSIONER: Yes.

PN13

MR MURDOCH: Yes, Commissioner, Murdoch, I seek leave to appear as counsel for the applicants in these matters. I apologise to the Commission for the delay, because of the matter before the President going longer than anticipated. Commissioner, regrettably we now have the situation where you have these matters listed before you, and additionally to commence about now, the resumption of the hearing under section 170MW. In the circumstances, since you haven't commenced hearing the applications under 166A, it is my view that it would be appropriate for you not to start hearing these and finish up with two matters part-heard.

PN14

Could I suggest that you proceed with the part-heard application under section 170MW, and that assistance be sought from the appropriate presidential member to have the applications under section 166A relisted before another member of the Commission to enable both lots of matters, which are important, to proceed without delay.

PN15

THE COMMISSIONER: Yes, thank you. Yes, Mr Crawshaw.

PN16

MR CRAWSHAW: It is not as simple as that. We certainly would agree with the proposition that you shouldn't hear - I don't want to call it arbitral, because I think some people say the issuing of a certificate is not arbitral - but the question of the issuing of the certificate, we agree that you shouldn't do that now. And might I say in that regard, without canvassing the issues that have already been the subject of an application to you, and a just-heard application for stay in an appeal in relation to your hearing the section 170MW, we would be raising the same objection on the same basis in relation to your hearing the issuing of the certificate.

PN17

So in that sense, we would probably at ad idem with what my learned friend is putting; namely, that someone else should hear the question of the issuing of the certificate. The difficulty that arises, though, for you, Mr Commissioner, is that once you receive - or:

PN18

Once the Commission receives such a notice, the Commission must -

PN19

this is under subsection (5) of 166A -

PN20

must take immediate steps to try or to continue to try by the exercise of its powers under this Act to stop the conduct.

PN21

Now, that doesn't mean, I suppose, that you have got to do it, but someone in the Commission has to carry out that duty.

PN22

THE COMMISSIONER: I don't think you need to tell me what obligations the Commission has, Mr Crawshaw, under 166A. The Commission is more than aware of them.

PN23

MR CRAWSHAW: Well, I - - -

PN24

THE COMMISSIONER: And in light of what has been said, clearly the matter being put to the Commission is that some other member can do that. Now, that is a matter for the presidential member, in this case, Vice President Ross, and that matter will clearly be referred to him very soon.

PN25

MR CRAWSHAW: Well, that is your decision, Mr Commissioner, I wasn't seeking to impugn your knowledge of section 166A. Us people at the bar table tell the Commission things that they already know all the time. I was just drawing attention to that particular problem, in that - - -

PN26

THE COMMISSIONER: Well, there might also be the problem of the clock ticking, as well, Mr Crawshaw, mightn't there, in terms of 166A?

PN27

MR CRAWSHAW: Yes. Well, that is why - that is one of the reasons why the Commission, as soon as it gets an application, has to exercise those powers.

PN28

THE COMMISSIONER: And that is why it listed the matters for this morning.

PN29

MR CRAWSHAW: The problem arises; if you don't exercise those powers, who does?

PN30

THE COMMISSIONER: That is a matter, as I say, for Vice President Ross, not me. Yes. Anything further, Mr Murdoch, at this stage?

PN31

MR MURDOCH: No, Commissioner.

PN32

THE COMMISSIONER: Yes. The Commission stands adjourned. The Commission will seek to confer with Vice President Ross over the 166A matters in light of the parties' submissions.

ADJOURNED INDEFINITELY [11.43am]