D2003/39, Transcript of Proceedings [2004] AIRCTrans 3902 (6 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8583
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

D2003/39

APPLICATION UNDER SECTION 18(1)(b)
OF THE ACT FILED BY THE AUSTRALIAN
PRINCIPALS FEDERATION FOR REGISTRATION
AS AN ASSOCIATION OF EMPLOYEES

MELBOURNE

3.03 PM, MONDAY, 27 SEPTEMBER 2004

Continued from 20.5.04 before Senior Deputy President Williams

PN543

THE VICE PRESIDENT: Could I have the appearances please.

PN544

MR E. WHITE: Yes. Could I announce a change of appearance for the Australian Principals Federation, your Honour.

PN545

THE VICE PRESIDENT: Thank you, Mr White.

PN546

MR M. BROMBERG: Your Honour, I continue to appear on behalf of the AEU.

PN547

THE VICE PRESIDENT: Thank you, Mr Bromberg. I don't know whether the parties have been informed, but no doubt you are curious as to why I am sitting here and not Senior Deputy President Williams. His Honour returned the file to me due to circumstances arising out of an illness. He felt he wouldn't be able to sit for what looked like being a protracted period to deal with this matter, or indeed a number of other matters, and hence the change. As I understand it directions were issued for the filing of materials. I think you have got a copy of a document which my associate has prepared which sets out the witness statements that have been filed by both parties.

PN548

MR WHITE: Yes, your Honour.

PN549

THE VICE PRESIDENT: And some dates were listed and the purpose of today is really to deal with the next phase in the hearing. Those dates will need to be altered just because of availability problems that I have. I sighted the exchange of correspondence between the parties, in essence complaining about late service or something of that nature, and indicating that that might require a change in the dates as well. But, in any event, we don't need to turn to that. Can I establish first that is this an accurate list of the witness statements that have been filed?

PN550

MR WHITE: We - when I did my sums, in Chambers, I got to 41 as well.

PN551

THE VICE PRESIDENT: Okay.

PN552

MR BROMBERG: It is accurate, I am instructed, insofar as the AEU witnesses are concerned. I don't know that we have had a chance to look a the APF list.

PN553

THE VICE PRESIDENT: Okay. Well, I think we can rely on Mr White to have checked his.

PN554

MR BROMBERG: Yes.

PN555

THE VICE PRESIDENT: Was it intended or have the parties had any discussion about the manner in which the case would proceed - I had worked on the assumption that we would deal with the witness evidence in total and then provide you with an opportunity to put submissions as to what you say flows from that evidence and then once those submissions are in, an oral hearing, is that - - -

PN556

MR WHITE: Your Honour, you might have raised the first matter that we can agree on first and I think that is almost at this stage the only matter we agree on and that is that the witness evidence be dealt with first and there be a gap with probably submissions in writing, with a short time available to speak to those submissions.

PN557

THE VICE PRESIDENT: Okay. Well, we can perhaps deal with the issue of the gap, submissions and then an oral hearing once we are into the evidence.

PN558

MR WHITE: Yes.

PN559

THE VICE PRESIDENT: We will have a better idea at that stage. You will see that the distribution of the evidence is - well, one in the ACT; one in New South wales; 25 in Victoria and 14 in Western Australia. Is it intended, on your part Mr White, firstly, do you wish to cross-examine each of the AEU witnesses?

PN560

MR WHITE: Your Honour, I haven't determined that yet.

PN561

THE VICE PRESIDENT: When will you be in a position to answer that question?

PN562

MR WHITE: Well, hopefully, fairly shortly but - but I may not be able to finally determine a position on that until the material in reply is filed.

PN563

THE VICE PRESIDENT: When is that due?

PN564

MR WHITE: The material in reply is due - it was due last Friday but everyone has been operating a week behind and so - - -

PN565

THE VICE PRESIDENT: Sure. Next Friday - this Friday?

PN566

MR WHITE: This Friday. If that week gap is maintained.

PN567

THE VICE PRESIDENT: Okay. At this stage do you have any feeling at all - I am not - - -

PN568

MR WHITE: No, your Honour, I am sorry, I don't.

PN569

THE VICE PRESIDENT: Okay. All right. What about you, Mr Bromberg - this may be a very short mention in programming the way it's going but - - -

PN570

MR BROMBERG: Well, this really throws up the issue that should be dealt with today, your Honour. It's not so much about what should be done in terms of the running of the hearing. There are a number of preliminary matters that really need to be attended before that happens, your Honour. I understand that your Honour has come into it at a stage where, looking at the directions that were made last time, one might come to the view that this was about ready to start as a hearing. It's not in our respectful submission. There are a number of things that need to be dealt with beforehand.

PN571

THE VICE PRESIDENT: And what are they?

PN572

MR BROMBERG: They are that the matter really does need to be listed for probably a day, your Honour, in order to have a number of matters determined at the outset. There are - there is a huge bundle of correspondence that has been exchanged between the parties about differences between them and I think most of those letters envisage that those difference might well be ironed out in the directions hearing that was scheduled before his Honour, Senior Deputy President Williams, I think for Thursday of last week or - I think that's right. Now that date, having been cancelled, your Honour, there remains a day that we think is essential in which a number of matters need to be canvassed.

PN573

THE VICE PRESIDENT: What are they?

PN574

MR BROMBERG: They are these, your Honour. There is an issue as to the APFs access to material it has sought from the AEU. There are issues in relation to the AEUs access to material it has sought from the APF.

PN575

THE VICE PRESIDENT: Have you each applied for a summons to produce?

PN576

MR BROMBERG: No, your Honour, because - - -

PN577

THE VICE PRESIDENT: But isn't that the way to deal with that point?

PN578

MR BROMBERG: Well, except that your Honour, there were directions made about a specific request for discovery.

PN579

THE VICE PRESIDENT: Yes, and - - -

PN580

MR BROMBERG: Arising out of that certain documents - well, numerous documents in fact have been provided - exchanged between the parties but there still remains issues to be determined as to whether objections taken by both parties to each other's requests are appropriate and those issues for - to being determined, it seems to us, your Honour, and I think without wanting to put my learned friend's position to you it certainly seemed to us from the correspondence that was sent our way that it was his client's view that our objections to the - some of the matters that were sought of the AEU were intended also to be determined by Senior Deputy President Williams. So there are issues between us, your Honour, as to discovery - - -

PN581

THE VICE PRESIDENT: So - well, let us not use the expression, "discovery", for the moment but - so there are matters that the applicant - or documents the applicant has that you want access to is that the essence of it?

PN582

MR BROMBERG: There are, and there are likely to be - there is likely to be a need for us to file and serve upon the applicant a further request for documents.

PN583

THE VICE PRESIDENT: Well, just seek a summons and I will give you a return date and you can argue the point then.

PN584

MR BROMBERG: Well, that's - that's really - - -

PN585

THE VICE PRESIDENT: That's the normal - that would be the normal course.

PN586

MR BROMBERG: Yes. Yes, that's not far, your Honour, from what I had in mind.

PN587

THE VICE PRESIDENT: Okay. All right.

PN588

MR BROMBERG: There are additional parties, strangers to litigation, in whom we would also want to summons for documents and what I had in mind, your Honour, on the issue of documents - if I can label it in that broad way - is that your Honour set a date by which any summons sought by anybody be filed and served - - -

PN589

THE VICE PRESIDENT: Well I am not going to set a date now until I have seen the request for the summons. You haven't filed an application for a summons at this stage. When you file the application I will list the return date.

PN590

MR BROMBERG: No, that's fine, your Honour. I had in mind your Honour, that we simply - that your Honour, if your Honour was minded to, that your Honour simply set a date by which any application for the issue of a summons be presented to your Honour - - -

PN591

THE VICE PRESIDENT: Sure.

PN592

MR BROMBERG: - - - so that by some day next week, your Honour, will have before you all the summonses that anybody in the proceeding wants to have issued.

PN593

THE VICE PRESIDENT: Yes.

PN594

MR BROMBERG: That your Honour set a return date for those - sorry, that your Honour set a date at which any argument in relation to those summonses can be heard and determined. And that, on that day, your Honour, your Honour determine the issue in relation to documents and that your Honour also determine a number of other issues that are really raised by these proceedings. And there is an issue that is raised, your Honour, of some importance. It goes to the scope of the evidence that should be put before the Commission in circumstances where the AEU says that there is an issue estoppel in relation to - - -

PN595

THE VICE PRESIDENT: In the Commission?

PN596

MR BROMBERG: Yes.

PN597

THE VICE PRESIDENT: Isn't there a Full Court authority to the contrary - that issue estoppel doesn't arise in the Commission? I am thinking of Miller v New South Wales University.

PN598

MR BROMBERG: Yes. yes, I am aware of Miller, your Honour, and with respect, your Honour, it doesn't quite stand for that proposition.

PN599

THE VICE PRESIDENT: All right.

PN600

MR BROMBERG: It - I think the correct way to express it, your Honour, is that some matters before the Commission are susceptible to issue estoppel, others may - others - perhaps most matters would not be.

PN601

THE VICE PRESIDENT: All right.

PN602

MR BROMBERG: I think, your Honour, on a Full - who has also been on a Full Bench, has also looked at this issue in Pacific Coal.

PN603

THE VICE PRESIDENT: Yes, the difference is that Pacific Coal, that was handed down after the first instance decision in Miller but before the Full Court decision and in Pacific Coal - - -

PN604

MR BROMBERG: Yes.

PN605

THE VICE PRESIDENT: - - - we adopted - - -

PN606

MR BROMBERG: Branson J.

PN607

THE VICE PRESIDENT: - - - with the benefit of hind sight the wise course of not relying entirely on issue estoppel.

PN608

MR BROMBERG: Yes.

PN609

THE VICE PRESIDENT: But also on our powers under 110.

PN610

MR BROMBERG: Well, that may well arise here, your Honour. Can I put to your Honour the circumstances. Your Honour, there was a prior application by the APF - - -

PN611

THE VICE PRESIDENT: Yes.

PN612

MR BROMBERG: - - - made in about 1998. It was determined finally in 2001 when a Full Bench of this Commission determined to dismiss the application for registration. It made a number of findings, your Honour, including in relation to whether or not the association was a genuine association and it found that it wasn't. It made a finding also that it was not satisfied that the association was free of the improper influences of the employer. It would seem, from the contentions which my learned friend's client has filed, that the APF seeks to re-canvass those issues and seeks to have you here in this proceeding find differently.

PN613

THE VICE PRESIDENT: Well, no doubt because if I found the same registration wouldn't be granted.

PN614

MR BROMBERG: Well, not necessarily, your Honour. What we say is that either by way of issue estoppel or by reference to your Honour's discretion the Commission should not go behind the findings made that, as at I think the date is sometime in March 2001, the association was not a genuine association; it was an association not free of improper influence from the employer. Our learned friend's position, and his evidence, seeks to go behind those findings. So - - -

PN615

THE VICE PRESIDENT: Well, isn't the question whether, at this time, the association is a genuine association?

PN616

MR BROMBERG: It is. It is, but - but on the path to that finding we say that the Commission; - that we are entitled to rely on the fact that the association was found not to be of that colour at an earlier - - -

PN617

THE VICE PRESIDENT: Well, that was the outcome of the Full Bench decision, but - - -

PN618

MR BROMBERG: Yes. My learned friend's case - - -

PN619

THE VICE PRESIDENT: But that was a decision taken at that time based on the evidence before the Commission at that time.

PN620

MR BROMBERG: Yes. But that is a starting point, your Honour, from which we want to proceed. My learned friend says the Commission here should not follow or adopt those findings but start again and determine whether the association is genuine, etcetera. Now, not by reference to that history, a history which it wants to have re-agitated and re-decided. Now - - -

PN621

THE VICE PRESIDENT: Well, is that what the association is seeking. Are they seeking, in effect, to overturn findings made by the Full Bench at that point in time or are they saying that now the position is that it is a genuine association - whatever might have been the position in the past.

PN622

MR BROMBERG: Well, they are clearly saying that it's now a genuine association but they are saying that it always was and one can see that, from my learned friend's contentions.

PN623

THE VICE PRESIDENT: Well, which part of their evidence deals with that, that it always was?

PN624

MR BROMBERG: There are quite a number of witnesses, your Honour. In fact witness statements that were before the Commission in the prior proceeding are here being relied upon. You will see that some of the witness statements - a lot of the witness statements - a lot of the witnesses, if not all of them, I think, gave evidence in the prior proceedings for the APF - - -

PN625

THE VICE PRESIDENT: Yes.

PN626

MR BROMBERG: - - - and many of them simply exhibit their prior witness statement and seek to rely upon it. At paragraph 19 of the contentions they - I think it begins actually at paragraph 14 where they refer to the point we made about the application is estopped from asserting anything contrary to what the Full Bench decided. They deny in paragraphs 15 and following that estoppel applies and they say at paragraph 19:

PN627

Evidence will be led in these proceedings concerning the matters considered by the earlier Full Bench. The Commission should hear the evidence and determine the matter afresh.

PN628

And, throughout the contentions, it appears to us that what is sought by the applicant in this proceeding is to re-agitate all of the facts and matters that were before the Commission on the last occasion which led to the Commission's findings which, we say, were entirely to rely upon and which this Commission has - as currently constituted should not look behind. Now, your Honour, I don't want to put the argument now. I'm not in a position to put the argument fully now. It does raise some interesting issues I know. But what I am saying, your Honour - - -

PN629

THE VICE PRESIDENT: Well I think the first step is just to clarify what it is that the applicant is saying so we might do that in a moment but are those the two issues - there is the question of estoppel and there are the summonses, is that right?

PN630

MR BROMBERG: Yes, they are the two broad issues. The question of summonses and any further material that might be sought. The question of issue estoppel and/or discretion. And then I have got on my list a number of other matters that might be - might be dealt with but they could be - some of these could be determined today; for instance the order of batting - - -

PN631

THE VICE PRESIDENT: Well, I don't think that really matters with the - I will deal with the witness evidence probably by State by the looks of it. If you are going to each cross-examine a significant number then I propose dealing with the witnesses from both sides in that one location rather than - - -

PN632

MR BROMBERG: Yes.

PN633

THE VICE PRESIDENT: - - - come - deal completely with the applicant's case and then come back and deal completely with your case.

PN634

MR BROMBERG: We would concur with that view, your Honour, but we don't have - we don't have a joint position on that.

PN635

THE VICE PRESIDENT: Well - - -

PN636

MR BROMBERG: So, I raise that as a possible issue that might need determination.

PN637

THE VICE PRESIDENT: It doesn't deal at all with any issues of onus, it's just a question of practicality.

PN638

MR BROMBERG: Well, it's a very difficult matter in these proceedings. I know the Commission has the traditional - has applied the traditional course of requiring the objector to go first and we did argue with the Senior Deputy President about that and we lost that argument and we have always been most concerned, your Honour, about the way in which these proceedings are conducted, but we are not the applicant. At the end of the day, your Honour, I think it's fair to say that as long as the matter is dealt with fairly and efficiently one can find a way of ensuring that everybody gets heard and heard properly. I don't doubt that, your Honour.

PN639

As a matter of efficiency we would be vehemently against having to go to Western Australia twice, for instance. So, if that has to be determined, your Honour, that's our position on that but I think I have outlined now to your Honour the matters at issue. What we had in mind was that a date be set, perhaps for late next week - perhaps the week, early in the week thereafter - at which these various matters can be canvassed. I should say, your Honour, that on the issue of documents and any conflict between the AEU and the APF counsel for the APF has only recently become known to us and there is an opportunity, although there hasn't been for reasons that I won't go to, up until today - there is now opportunity for perhaps Mr White and I to sit down and see if we can sort out some of the document issues.

PN640

We would certainly be willing to participate in that. It may be that, by the time we come back, if your Honour is minded to bring us back, much of that can be settled and resolved but what we have in mind is that your Honour list it for a day - it may only need half a day, but perhaps to be sure, list it for a day. The preliminary matters that I have mentioned can be dealt with. We don't mind, your Honour, if there is some pencilling in process today in relation to hearing dates but that may need, your Honour, to at least to some extent take account of the scope of the proceeding. You know, we haven't put in evidence, on the basis - - -

PN641

THE VICE PRESIDENT: Yes, I don't think I will be pencilling in any dates today.

PN642

MR BROMBERG: If your Honour pleases.

PN643

THE VICE PRESIDENT: Mr White, what do you say about, firstly, the summons issue and it seems there are matters that each of you are seeking from the other - or documents.

PN644

MR WHITE: Yes.

PN645

THE VICE PRESIDENT: And the proposition that should you wish to do so you should file an application for a summons to produce by say no later than 4 pm on Friday, 8 October, and I would hear any arguments in respect of the summonses probably the Wednesday, 13th of the following week?

PN646

MR WHITE: Your Honour, can I side-step that a bit and put our position of the ideal world, as we see it?

PN647

THE VICE PRESIDENT: Sure.

PN648

MR WHITE: And that is, your Honour, that we had dates. The client is keen to get this application on and heard and we had dates and for some unfortunate circumstances object to those dates being - if not vacated, certainly not available in the immediate future.

PN649

PN650

THE VICE PRESIDENT: No. All of them aren't available. Yes.

PN651

MR WHITE: Yes. But nonetheless, my client is concerned to get this matter on and heard with as little delay as possible. our preferred course, and I say this hesitantly, your Honour, because I heard you express a view of not pencilling dates in is that there be allocated a period of time or times, and there is agreement between Mr Bromberg and myself I think as to the likely length of hearing on the material, as it is, before the Commission and then we can work towards meeting those deadlines. Once those dates - if those dates - if I can convince your Honour to pencil in those, then you can work backwards to facilitate the hearing.

PN652

THE VICE PRESIDENT: My only hesitation in pencilling in dates, Mr White, is that at the moment - leave aside the estoppel point that Mr Bromberg says he wants to pursue but we don't know how many of the witnesses you want to cross-examine and I know you might want to proceed on the basis of an abundance of caution and block off four weeks. I don't have four weeks.

PN653

MR WHITE: Four weeks is preferable but - - -

PN654

THE VICE PRESIDENT: The difficulty is that blocking them off I have just got a very busy list between now and the end of the year and I can allocate some dates but I can't hold dates in definitely waiting to find out how many witnesses you have got, how long you think it might take, and whether they are going to be cross-examined. What I was going to propose is that we rather than perhaps bringing you back in we have a telephone mention of direction early next week once you have each had an opportunity to more the consider the material that has been filed and assess which of the witnesses you are going to want to cross-examine; had some discussions about scheduling; how many it might - how long it might take, etcetera, and assuming that we are sitting in Victoria and WA then how long you think it might be require in each.

PN655

MR WHITE: Wel,l that raises another question, which I wanted to address you on, your Honour.

PN656

THE VICE PRESIDENT: Yes.

PN657

MR WHITE: And that is, we would expect the objector to run its case first, to finality. And in effect thereafter close its case and we would run our case. There has already been debate before Senior Deputy President Williams about the order of proceedings; the objector has been ordered to put its material on first and historically it runs its case first.

PN658

THE VICE PRESIDENT: But wasn't the - was that the way it was in the previous application?

PN659

MR WHITE: Yes, your Honour.

PN660

THE VICE PRESIDENT: Right. The evidentiary case was put by the objector and the - - -

PN661

MR WHITE: Yes.

PN662

THE VICE PRESIDENT: - - - objector then put written submissions.

PN663

MR WHITE: No. As I understand I, the objector led its case, the applicant led its evidence and then there was submissions.

PN664

THE VICE PRESIDENT: That's going to - you want the matter to proceed with as little delay as possible. If I have to go to Perth twice to deal with evidence I can tell you it's going to add to the time frame it will take to determine the matter. Is there some reason why - - -

PN665

MR WHITE: We want to know what is put against us before we run our case.

PN666

THE VICE PRESIDENT: You have got their witness statements. presumably they stand for the evidence-in-chief of those witnesses.

PN667

MR WHITE: Presumably, yes.

PN668

THE VICE PRESIDENT: Well, I should make it very clear that I don't anticipate any questions going to witnesses by the party who has called them. They will be put in the box, sworn as to their statement and then subjected to cross-examination. The only exception to that would be where a statement contradicting or impinging on their evidence, in some way, has been filed after their evidence and gone in. So I don't anticipate it is an opportunity to ask the witness to expand on what is in the statement.

PN669

MR WHITE: Certainly, we would be - we would expect that to be the process, your Honour, but nonetheless the case put they should finish and then they move on to ours. That way everybody is fully aware, acutely aware, of what is put against each of them.

PN670

THE VICE PRESIDENT: I am having a bit of trouble understanding why you would not be acutely aware of what is put against you if I am limiting the objector, in terms of evidence-in-chief, to what has been filed - absent some consideration that something that has arisen after the material has been filed.

PN671

MR WHITE: Including by way of cross-examination?

PN672

THE VICE PRESIDENT: What do you mean by that?

PN673

MR WHITE: Their witnesses are cross-examined.

PN674

THE VICE PRESIDENT: By you.

PN675

MR WHITE: Yes.

PN676

THE VICE PRESIDENT: Yes.

PN677

MR WHITE: And that may raise a whole range of matters which they might well - if they are allowed to, lead viva voce evidence.

PN678

THE VICE PRESIDENT: Well, they will deal with it in re-examination.

PN679

MR WHITE: Well, other witnesses may also deal with the issue. That is your Honour's limitation on - - -

PN680

THE VICE PRESIDENT: Well, they may, Mr White but that would happen in any event, how are you disadvantaged by that.

PN681

MR WHITE: Because we need to know what their case is and then we proceed with ours.

PN682

THE VICE PRESIDENT: But if something arises from one of their witnesses in cross-examination you are free to put it to your witness.

[3.30pm]

PN683

MR WHITE: So we are not limited to - limited by the written statements and then we can - - -

PN684

THE VICE PRESIDENT: In relation to - sorry, in relation to issues that have arisen up to the point at which the statement has been filed, if some - if a statement is filed subsequently or there is subsequent evidence that calls into question the evidence of the witness then that can be put to the witness. Or if the witness has a different view to something that has been put, then that can be put to them. That is - I am talking here about events, if you like - - -

PN685

MR WHITE: Yes.

PN686

THE VICE PRESIDENT: - - - that took place after the evidence has been filed.

PN687

MR WHITE: But, your Honour, what you are left with then is a jumble of - say, for example, objector's evidence and cross-examination and some of the applicant's evidence and cross-examination. The objector's evidence, again, in a different state and cross-examination. But witnesses made - - -

PN688

THE VICE PRESIDENT: All right. Well, Mr White, why couldn't we - - -

PN689

MR WHITE: Now, unfortunately, your Honour - - -

PN690

THE VICE PRESIDENT: But just in terms of the WA trip issue.

PN691

MR WHITE: Yes.

PN692

THE VICE PRESIDENT: Why couldn't we hear the objector's Victorian evidence then go - and NSW and the ACT in Victoria.

PN693

MR WHITE: Yes.

PN694

THE VICE PRESIDENT: Then go to WA, hear the objector's evidence and go straight on to hear your evidence.

PN695

MR WHITE: Perfectly happy with that, your Honour.

PN696

THE VICE PRESIDENT: That - it only involves one trip to WA.

PN697

MR WHITE: Perfectly happy with that.

PN698

THE VICE PRESIDENT: All right. Well, why don't we do that, Mr Bromberg?

PN699

MR BROMBERG: Well, your Honour, I am not sure that I am against doing that but can I make some brief observations about what has just fallen from my learned friend. First of all, your Honour, there have been no directions made as to the order of witnesses.

PN700

THE VICE PRESIDENT: No, that is fine. I am not - I don't want to enter into the debate about whether you run your case - evidentiary case completely or not. Why can't, as a matter of practicality, you put your Victorian witnesses in.

PN701

MR BROMBERG: Yes.

PN702

THE VICE PRESIDENT: We deal with their evidence. We go to WA. We deal with your witnesses first and then immediately we go to Mr White's witnesses.

PN703

MR BROMBERG: I - - -

PN704

THE VICE PRESIDENT: Then we return to Victoria and deal with the balance of the Victorian witnesses. Look, as a matter of - - -

PN705

MR BROMBERG: I don't have a problem with that, your Honour.

PN706

THE VICE PRESIDENT: Okay. Well, we will deal with that.

PN707

MR BROMBERG: As a matter of practicality, I don't have a problem with that, your Honour.

PN708

THE VICE PRESIDENT: Good.

PN709

MR BROMBERG: I do have a problem, your Honour, with the notion of the Commission requiring the respondent to put its case and close its case, as my learned friend wants us to do, before the applicant has put its case at all. Now, your Honour, I know the approach of the Commission - that the Commission has taken. But as I understand the approach - and it - this fell from his Honour on the last occasion we had a debate about it. The Commission has the flexibility to ensure that everybody gets a fair hearing.

PN710

The order of batting is not determinative in that respect. All we say, your Honour, is that if we are forced to go first in the manner in which my learned friend demands, then there will need to be some flexibility given should the issue arise, for instance, if we need to recall a witness or if it turns out that we haven't - - -

PN711

THE VICE PRESIDENT: In what circumstances would you need to recall a witness?

PN712

MR BROMBERG: Well, your Honour, I am acting for a respondent who is opposing an applicant who has to put before the Commission material sufficient to satisfy the Commission in relation to a fairly detailed and comprehensive criteria. Less than a week ago, for the first time in these proceedings, I got my learned friend's contentions, relatively brief as they are. Prior to that I have had to put on - my clients had to put on the entirety of the evidence it seeks to lead in chief. We protested about that but we lost that fight. But we have done it.

PN713

Now, your Honour, I - as someone representing my client and seeking a fair process, I do have some concerns about the order of events and I suppose what I am saying, your Honour, is that at the end of the day the Commission has a very wide discretion and can ensure that everybody gets their fair hearing. And I am sure, your Honour, that the matter will be dealt with in that way, irrespective of who goes first and who goes second. I am just a bit concerned, your Honour, that my learned friend seems to be wanting to close it down - close our case down to a particular period, to a particular time frame before he can, as it were, open the batting and try and get some runs on the board.

PN714

Now, your Honour, there may be circumstances - I can't think of any at the moment, but there may be circumstances in which there we are taken totally by surprise. We have put in all of our material, your Honour, without having seen my learned friend's contentions. That is a good example of what I am saying.

PN715

THE VICE PRESIDENT: Yes. Look, if an issue arises in respect of either party then we will deal with it when it comes up. But it would arise if something arises out of cross-examination. Your cross-examination of the applicant's witnesses. Because you have got the applicant's statements - - -

PN716

MR BROMBERG: Yes.

PN717

THE VICE PRESIDENT: - - - so anything you want to rebut in relation to them, you put to your witnesses when you are dealing with your witnesses.

PN718

MR BROMBERG: I think - generally speaking, your Honour, I don't think it will be a problem. If your Honour intends to adopt what his Honour - Senior Deputy President Williams has called a traditional approach, I don't think at the end of the day there will be a problem as long as we are all flexible and understand that if issues arise which require some further agitation then the Commission will hear from the parties as to whether that is appropriate and will rule upon it. We are confident, your Honour, that the Commission will not shut anyone out when - if and when the Commission needs to hear some further material.

PN719

So I am not going to be a stick in the mud about who goes first and whether it is here or WA. I think we are concerned about efficiency and fairness. Efficiency demands that we only go to Western Australia once. I am quite happy to go there once and come back to Victoria. It seems to us that is a less efficient way in terms of getting the matter on quickly because we may waste a portion of a week by having to go off to Victoria whilst Victorian witnesses could be called by my learned friend.

PN720

But, be that as it may, if my learned friend's proposition is that we start in Victoria, deal with our - the cross-examination of our AEU witnesses and then move to the cross-examination of AEU WA witnesses then come back to Victoria, I don't have a problem.

PN721

MR WHITE: I am happy with that, your Honour. Now the second issue that my learned friend raised was this estoppel issue.

PN722

THE VICE PRESIDENT: Yes.

PN723

MR BROMBERG: Yes, your Honour, I might also say this. That the strictures that my learned friend imposes may create availability problems and - - -

PN724

THE VICE PRESIDENT: Well, the availability issues will be - won't they depend on the dates that are set?

PN725

MR BROMBERG: Availability of witnesses, your Honour.

PN726

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

PN727

MR BROMBERG: Yes. Yes.

PN728

THE VICE PRESIDENT: But that will depend on which dates are set.

PN729

MR BROMBERG: It will but what happens in these cases, in my experience and no doubt yours, your Honour, is that estimates of how long it will take to cross-examine tend to go out and then witnesses - - -

PN730

THE VICE PRESIDENT: Look, I will have something to say when we come to that.

PN731

MR BROMBERG: Yes.

PN732

THE VICE PRESIDENT: But if I can alert both parties to it that I would encourage you to come up with a schedule for witnesses but I would also encourage you to make sure that at least one of the witnesses for the following day is available to come in early at short notice.

PN733

MR BROMBERG: Yes.

PN734

THE VICE PRESIDENT: Because what I want to avoid is finishing a day at 3 o'clock when we could have brought in another witnesses and completed it. And when I saw there was four weeks listed for the cross-examination, I am assuming that is an overestimate because it is highly unlikely that I will be sitting for four weeks listening to cross-examination. If it means we sit longer, we will be sitting longer.

PN735

MR BROMBERG: Yes, I understand that, your Honour. Most of the witnesses, your Honour, are principals and my - certainly my experience of having been involved in the prior proceeding is that they are probably some of the most difficult witnesses to try and tie down because of their commitments. They have enormous commitments at their school and they have a fair degree of responsibility which makes it difficult. Now of course, your Honour, if they are required to be here, they will be here.

PN736

THE VICE PRESIDENT: I am - when I said - meant by we would need to sit longer, I had in mind adjusting the sitting times. I don't mind if we start at 8 and finish at 6 to accommodate the needs of the witnesses. That is fine with me.

PN737

MR BROMBERG: Well, I don't know whether my friend and I can agree on some other aspect here, your Honour, but we would be opposed to that, your Honour. That - it does impose a burden on counsel which, in our respectful submission, ought not be imposed. Counsel's day in these circumstances, your Honour, doesn't start at 10.15. If counsel has six or seven witnesses to cross-examine on that day, counsel's day tends to start about 5 and, your Honour, that - a day - a week of 8 to 6 sittings, your Honour, would not be something we would support.

PN738

THE VICE PRESIDENT: It is unlikely you are going to get a solid week in any event.

PN739

MR BROMBERG: In any event, your Honour, I only rose to say that the greater stricture one puts on the order of witnesses, the less flexible the period in question becomes in terms of allocating witnesses in particular slots. I just say that, your Honour, because we don't want to be criticised should unavailability of witnesses become an issue.

PN740

MR WHITE: The second matter my learned friend dealt with was the question of estoppel, your Honour.

PN741

THE VICE PRESIDENT: Just before we develop any argument in responsive to what has been put, can you clarify what the applicant is saying or what you it is you are asking me to do in relation to the findings of the previous Full Bench?

PN742

MR WHITE: The applicant - - -

PN743

THE VICE PRESIDENT: Because the objector characterised it in a particular way.

PN744

MR WHITE: Yes. Yes. The applicant says two things. One, it is entitled to rely on its history and the history of its predecessors as it chooses to lead with evidence before the Commission to establish, as part of its story, that it is an association capable of being registered. The second thing is if we are wrong in relation to that then as from 8 June 2001, in any event, we have demonstrated that we are an association capable of being registered. But, your Honour, can I just say this. The findings of the Full Bench were made, your Honour, by an interesting application of the rule in Browne v Dunn.

PN745

THE VICE PRESIDENT: Wasn't it Jones v Dunkel?

PN746

MR WHITE: Jones v Dunkel.

PN747

MR BROMBERG: Very different.

PN748

MR WHITE: Yes. But it was at pains throughout its decision to say that the inferences it accepted were accepted only on the - only in the absence of material being placed by the APF. Now I don't say their conditional findings but that was the basis of the findings. Now there is material before the Commission now in the statements filed by the applicant which go to those matters which - the absence of which led the Full Bench to accept the inferences. So, your Honour, the Full - the Commission has to find at the end of the day - whenever the decision is made, whether or not we are an applicant that should be registered and entitled, we say, to take into account the history of it.

PN749

You are not bound by findings made by earlier Full Benches on material different from what is before you. In any event, we say that the issue estoppel is not a matter properly binding the Commission - - -

PN750

THE VICE PRESIDENT: When do you think we should have that argument because it is put that - by Mr Bromberg that he is not in a position to run that argument today.

PN751

MR WHITE: Well, your Honour, as I understand Mr Bromberg's argument - position is that he wants to put two argument and that is, one, whether or not it is an issue estoppel is applicable in these proceedings and secondly - although he hasn't actually raised it today, when - - -

PN752

THE VICE PRESIDENT: No, I think he mentioned the question of discretion. Whether I should not allow you to do what you want to do.

PN753

MR WHITE: Yes. Now once you raise that question of discretion then it raises the second issue attached to issue estoppel and that is whether that should be heard as a so called preliminary point. Now it shouldn't be because it would only serve to frustrate and delay the proceedings. If it was put as a preliminary point, it would be only for the purposes of efficiency and, in our respectful submission, that just wouldn't work, in that each of the parties would reserve, no doubt, their rights to scrutinise any ruling and, if so advised to, bring an appeal against them.

PN754

For example, your Honour, if you were to find against the AEU, that is, that there was no issue estoppel, they may appeal that decision to a Full Bench. Whether or not you continue to hear the matter pending the appeal is a matter completely in your discretion but there is certainly a risk, your Honour, that you wouldn't. That risk is probably bigger if you made a finding that issue estoppel was available and the APF, having taken advice, chose to appeal. Now in that situation, your Honour, the position would be almost forced on you not to continue hearing the matter because we would be not able to lead evidence that we would otherwise have led.

PN755

Interesting questions about issue estoppel arise, of course, and that is if they apply in relation to those findings that my learned friend has annunciated, do they apply to others? Because, as at 8 June 2001, there were findings as to conveniently belong and effectively represent in the Full Bench decision. As a matter of law, however, your Honour, we say it doesn't apply. Now we say those questions should be submitted - sorry, should be discussed, argued and ruled on in the final submissions of the case. That is the most efficient and practical way, in our submission, to run the case. At the most - - -

PN756

THE VICE PRESIDENT: But it would - I would apprehend it would that that would mean that the objector wouldn't know what evidence to challenge or they would be obliged to challenge all the evidence.

PN757

MR WHITE: That is right and it may lengthen the hearing by a number of days. A few days. A few days at the most. But, your Honour, as against that you are looking at a potential six, nine month delay in the proceedings if it is heard as a preliminary point and decided either way. Now - so then we - that is not, we say, a matter that is properly characterised as a preliminary issue. The objector has chosen, at this stage, what material be put on. In accordance with the directions, it was obliged to put on the material that be relied upon.

PN758

And so it has chosen, fully aware of what material was available, not to put that material on. Now the third point, I think, raised was the question of documents and that flowed into the question of summonses. Now, your Honour, can I say in respect of documents this. There is debate about - between the parties now as to what needs to be produced from the list each of us has provided to the other. We are prepared to deal with that today. It will take some time.

PN759

THE VICE PRESIDENT: Well, then we won't be dealing with it today.

PN760

MR WHITE: Yes, well, I understand the practicalities of that situation but, your Honour, bearing that in mind, we would be - we would urge upon your Honour not to - once again going back to my first point, this issue of an ideal world - delay pencilling in dates. That is, a substantive matter of the case shouldn't be delayed by preliminary interlocutory matters, if you like. Now, your Honour, there is correspondence between the party - between the parties to which you are not privy which isolate the debate between them as to the documents. Mr Bromberg and I can discuss the matters. We can do fairly promptly.

PN761

No doubt there will be areas - well, hopefully there will be some areas we can avoid but no doubt there will be areas that we can't agree upon. Now, your Honour, whether or not that is best left - best dealt with by way of summons or just on the objections to the material conveyed in correspondence is a matter for your Honour. Either way, the objections that is stated in the correspondence no doubt would be the objections raised to producing the documents on summons. We are in your Honour's hands as to the best way of dealing with that.

PN762

There are a number of other summonses which we contemplate seeking to have issued and, your Honour, unless you wish to hear from me about what those are now, I want go into it then.

PN763

THE VICE PRESIDENT: Thank you, Mr White. Mr Bromberg, firstly what do you say about the issue estoppel point not being a preliminary point and it can be determined in the submissions?

PN764

MR BROMBERG: Well, the problem with that, your Honour, is that we need to know the scope of the proceedings and we need to know that, obviously your Honour, before the proceedings begin. If the proceeding were to be run on the basis that our learned friend's were entitled to challenge the findings made by the Full Bench then we would need to put before the Commission a great deal more material, a great deal more evidence than we have to date. What we have done to date, your Honour, is put our case on the basis that we are entitled to rely on the Full Bench's findings.

PN765

We haven't sought to put material before the Commission to prove the matters that ultimately led the Full Bench to the finding that it came to. We then get contentions from our learned friend saying - we only got this last week, your Honour, saying that you are not entitled to rely on the Full Bench findings and we, the applicant, want to agitate that we have always been a genuine association etcetera and they present evidence, including evidence that was in the prior proceedings, seeking to make that case good.

PN766

Now, your Honour, the prior proceedings did take more than four weeks of hearing and a substantial amount of hearing days, substantial, went to the very issue that was ultimately determined by the Full Bench. Now our position is this, your Honour. Your Honour needs to be properly appraised of what it was that the Full Bench dealt with. What it is that might need to now be brought into the material. What are the consequences of not determining this issue in a preliminary way. What are the consequences - possible consequences of determining the issue one way or the other.

PN767

THE VICE PRESIDENT: Leaving aside for a moment the issue of estoppel, my recollection was the Full Bench referred to the antiquity of some of the issues that were relied upon to establish that there was a relationship between the then applicant - I think the Victorian department, but it determined that it would have regard to it because the applicant had, in fact, relied on some significant history as well. Well, doesn't that issue arise with more force now. Why am I going to be focussing on matters that arose in the early '90s when the issue for determination before me is whether or not the applicant is a genuine association?

PN768

MR BROMBERG: We understand that, your Honour, but that is the applicant's choice. The applicant wants to rely on the conduct of predecessor - what it refers to as its predecessors.

PN769

THE VICE PRESIDENT: But why is the Full Bench decision relevant?

PN770

MR BROMBERG: Because the Full Bench decision, your Honour, was a decision which dismissed the application of this applicant, not of its predecessor. Of this applicant. What - - -

PN771

THE VICE PRESIDENT: But my point is - I mean, so what? The Full Bench made a finding that the applicant before it was not a genuine association.

PN772

MR BROMBERG: Yes.

PN773

THE VICE PRESIDENT: The issue for me is whether, on the material before me, the applicant is a genuine association. Why would I trawl back through what was before the Full Bench or material predating the Full Bench's decision?

PN774

MR BROMBERG: Well, we - - -

PN775

THE VICE PRESIDENT: Given now it is almost - that information - that material is nearly a decade old.

PN776

MR BROMBERG: Yes. Well, your Honour, our starting point was exactly that. Our starting point was this applicant was found not to be a genuine association as of 2001. It has done nothing since that time to entitle it to say it should be regarded differently. That is really our position. What the applicant says is, no we have been a genuine association for - we and our predecessors have been genuine associations for the past 25 years and we want to rely upon all of that history in order to convince you now, the Commission, that we are a genuine association.

PN777

Now these are questions - perhaps, these are questions, with respect your Honour, are better directed to my learned friend. We are here as a respondent, it is not our application. We are seeking to respond to what we foreshadowed would be said and what has been said in our learned friend's case. And we begin, your Honour, as we are entitled to begin with the fact that as at 2001 the association was found not to be genuine and not to be free of improper influence. Now if it can, on material which postdates that finding, convince your Honour to the contrary we are not saying that it is impossible to the Commission to come to the view that it is now a genuine association. We are not saying that and we haven't said that.

PN778

THE VICE PRESIDENT: So is it correct that today the association has filed its material - its witness statements saying what they say. You have had an opportunity to file your statements responsive to that.

PN779

MR BROMBERG: No, your Honour.

PN780

THE VICE PRESIDENT: Right. So you haven't done that yet.

PN781

MR BROMBERG: We had to go first.

PN782

THE VICE PRESIDENT: Yes.

PN783

MR BROMBERG: We had to go first and as of - - -

PN784

THE VICE PRESIDENT: No, but I am looking at point 8 of the directions that were issued. "Any further statements or document upon which you intend to rely".

PN785

MR WHITE: Your Honour, that is fine.

PN786

THE VICE PRESIDENT: No, no, that is fine. I am just - - -

PN787

MR BROMBERG: Para - direction 8?

PN788

THE VICE PRESIDENT: It says, "any further witness statements that are responsive to the material - - -

PN789

MR BROMBERG: Yes.

PN790

THE VICE PRESIDENT: - - - filed". Yes. So you haven't done that yet?

PN791

MR BROMBERG: We haven't done that yet, your Honour. That was under the directions that should have been have done as of last Friday.

PN792

THE VICE PRESIDENT: No, I am not concerned about the date issue.

PN793

MR BROMBERG: Yes, but we - - -

PN794

THE VICE PRESIDENT: Yes, all right.

PN795

MR BROMBERG: My learned friend's material was a week late. I should also say, your Honour, that my learned friend has given us notice that they may seek to file some further material and there is one other aspect of that that I want to go to. So we don't understand that my learned friend has closed off the material they want to put in response at this stage.

PN796

THE VICE PRESIDENT: Well, I think it is desirable that I determine whether or not this is a preliminary point as quickly as possible.

PN797

MR BROMBERG: Well, that is - - -

PN798

THE VICE PRESIDENT: What else do you want to say about that?

PN799

MR BROMBERG: Nothing, your Honour. We think that that should be set down for a hour or two and at the same time - - -

PN800

THE VICE PRESIDENT: No, no. Why can't I decide that question now, whether it is a preliminary point or not? Is there anything you want to say about that?

PN801

MR BROMBERG: Well, your Honour, I wouldn't - - -

PN802

THE VICE PRESIDENT: It is certainly desirable that I determine that issue, I would think, before - because if I am against you then you will know when you file your material. And if I am for you then, desirably, we should determine the estoppel point before you file your material.

PN803

MR BROMBERG: Yes. I am happy for that matter to be determined as quickly as possible, your Honour, but I don't regard myself as having put submissions to that today, your Honour. I would rather - my submission was that the matter should be adjourned to a day, perhaps next week, where both the - - -

PN804

THE VICE PRESIDENT: But that would be after you will have filed your materials.

PN805

MR BROMBERG: Well, your Honour, the issue that is raised by what we say is a preliminary point goes to the scope of the material that we will need to file. If we fail on that point, then we will need to file substantially than what we would otherwise file. We hope to be ready to file material in response by the end of this week but not material that would be responsive to my learned friend's client's attempt to unravel the Full Bench's findings. If we had to go to that material, we would need some more time. Significantly more time.

PN806

THE VICE PRESIDENT: Well, what I propose to do is to hear the question of whether or not this - the issue estoppel point is appropriately dealt with as a preliminary matter at 4 o'clock this Wednesday and we will determine that issue at that point and, depending on the outcome of that, we will see where we go from there.

PN807

MR BROMBERG: Thank you, your Honour.

PN808

THE VICE PRESIDENT: In relation to the material that you each seek, I would encourage you to have discussions about it but I want to bring to some sort of finality that process. So I would propose that you file summonses to produce by 4 pm on Friday, 8 October and I will provide an opportunity for a hearing commencing at 2 pm on 13 October - Wednesday, the 13th. You indicated that those summonses might be directed to third parties.

PN809

MR BROMBERG: Yes.

PN810

THE VICE PRESIDENT: If they are, you should advise the third party that they will have an opportunity to object to the summons if they wish to do so - - -

PN811

MR BROMBERG: Yes.

PN812

THE VICE PRESIDENT: - - - at 2 pm on the 13th.

PN813

MR BROMBERG: Yes. Your Honour, on the question of the summonses to produce, the question that will be - the unresolved question in our mind, unless it is resolved earlier, will be whether those summonses should go to our learned friend's attempt to reopen the Full Bench's findings or not.

PN814

THE VICE PRESIDENT: Well, you will know that, depending on the outcome of the preliminary point. If it goes in your favour then you can deal with that at that stage. That is probably the most appropriate way of dealing with it.

PN815

MR BROMBERG: Yes.

PN816

THE VICE PRESIDENT: If we need more time then - but I would certainly envisage dealing with the preliminary point issue and the issue estoppel matter before 8 October.

PN817

MR BROMBERG: Yes.

PN818

THE VICE PRESIDENT: So if, for example, you persuade me that it is appropriate to be dealt with as a preliminary point, then I would look to hearing and determining that preliminary point early the following week.

PN819

MR BROMBERG: Before the 13th. Yes, I understand that.

PN820

THE VICE PRESIDENT: Yes, indeed.

PN821

MR BROMBERG: I understand that, your Honour. Thank you.

PN822

THE VICE PRESIDENT: Yes. Well, that deals with those issues.

PN823

MR WHITE: Sorry, your Honour.

PN824

THE VICE PRESIDENT: Yes.

PN825

MR WHITE: 4 pm this Wednesday you propose to deal with - - -

PN826

THE VICE PRESIDENT: Is only the narrow point about whether the issue estoppel matter is appropriate to be dealt with as a preliminary point or, as you contend, you should run your case as you see fit, the objector can deal with and it will be dealt with in submissions.

PN827

MR WHITE: Yes, that carries with it - - -

PN828

THE VICE PRESIDENT: It is just that Mr Bromberg is not ready to address that issue now so - - -

PN829

MR WHITE: Yes. Yes. Does that carry with it an argument and a finding proposed as to whether or not it applies in the Commission at all?

PN830

THE VICE PRESIDENT: No.

PN831

MR WHITE: No.

PN832

THE VICE PRESIDENT: No.

PN833

MR WHITE: It is just whether or not - assuming - - -

PN834

THE VICE PRESIDENT: Whether it is appropriate to be dealt with as a preliminary point, yes.

PN835

MR WHITE: Yes.

PN836

THE VICE PRESIDENT: If it is appropriate - if I conclude after hearing you it is appropriate - I know this is a bit disjunctive but it is the only time I have got and I think dealing with that issue might - will at least, clarify that matter because if I find in your favour on that, I won't need to hear - do anything further at this stage about whether issue estoppel arises in the Commission or not or the range of arguments. If I find against your argument then I will list that proposition - the substance, if you like, of the preliminary point early the following week.

PN837

MR WHITE: Yes. Very well, your Honour.

PN838

THE VICE PRESIDENT: Now - - -

PN839

MR WHITE: Can I go - - -

PN840

THE VICE PRESIDENT: Yes. Can I go to the pencilling in of dates? Is that what you were going to go to?

PN841

MR WHITE: Yes, I was, your Honour.

[4.00pm]

PN842

THE VICE PRESIDENT: That is fine. Well, there is the week commencing 25 October, the week commencing 1 November.

PN843

MR WHITE: Yes, your Honour, they are convenient.

PN844

THE VICE PRESIDENT: And the 10th, 11th and 12 November.

PN845

MR WHITE: 10th, 11th and 12 November, yes, your Honour, they are all convenient.

PN846

THE VICE PRESIDENT: That is all I propose listing at this stage.

PN847

MR WHITE: Sorry, your Honour, could you repeat those please?

PN848

THE VICE PRESIDENT: The week commencing 25 October, the week commencing 1 November and the 10th, 11th and 12 November.

PN849

MR WHITE: Could you just bear with me a moment, your Honour, I think - - -

PN850

MR BROMBERG: Yes, I need some time, your Honour to work that out.

PN851

MR WHITE: Melbourne Cup Day, you are from Sydney, your Honour.

PN852

THE VICE PRESIDENT: Yes, well - - -

PN853

MR WHITE: But All Souls Day as well - maybe it is.

PN854

THE VICE PRESIDENT: You think that might be a more persuasive argument. Look, I am just giving an indication of dates and we will sort out the - - -

PN855

MR WHITE: Well, your Honour, if we have that week absent the Melbourne Cup.

PN856

THE VICE PRESIDENT: Sure.

PN857

MR BROMBERG: Could we sort this out on Wednesday, your Honour, with these dates in mind, could we come back to you more finally on this on Wednesday?

PN858

THE VICE PRESIDENT: Well, it is - - -

PN859

MR BROMBERG: I can say now that the 10th and 11 November is a real problem for us but the others may be okay because it is the national executive meeting of my client, your Honour and my instructor won't be available.

PN860

THE VICE PRESIDENT: Well, you mean, there is no-one available to instruct you on those dates?

PN861

MR BROMBERG: Well - - -

PN862

THE VICE PRESIDENT: You should make enquiries about that.

PN863

MR BROMBERG: Well, the difficulty - we can make enquiries and I can come back to you formally on Wednesday but the difficulty is, your Honour, that anybody likely to be able to instruct me is going to be in the same position as my current instructor, but I will come back on that, your Honour.

PN864

THE VICE PRESIDENT: Yes.

PN865

MR BROMBERG: Can I assume, from what your Honour said, because I do need for my own personal convenience to know something about whether I can now take out of my diary the dates that were listed by - - -

PN866

THE VICE PRESIDENT: You can.

PN867

MR BROMBERG: Thank you, your Honour. There is one other matter I need to raise with your Honour and it is an entirely different matter, if I can move to that. I know your Honour has another matter coming. Your Honour, it is rather an unusual matter but we received a - - -

PN868

THE VICE PRESIDENT: As opposed to the rest of the issues.

PN869

MR BROMBERG: Yes, yes, it is all very unusual when it comes to this proceeding, your Honour. We received a letter on 17 September, your Honour, in which the applicant stated that it may need to call me as a witness in this proceeding. Your Honour, the matter arises in this way and I just want to give your Honour a summary of it and tell your Honour why I need to tell you about it. There is a witness statement relied upon by the AEU that has been filed and it is a witness statement of Ms Kath Fawcett who is a solicitor from Slater and Gordon.

PN870

She says, your Honour, in that statement that whilst she was on a video link in Perth in proceedings before Senior Deputy President Duncan, I was in a hearing room in Melbourne as was an officer of the APF. She says in her witness statement that the matter was adjourned at one particular point and I left the room. She makes the allegation, your Honour, that the officer of the APF then walked across to where I had left papers on the bar table and began reading them. We have been informed, your Honour, by our learned friend's client that they may seek to summons me to give evidence in relation to that issue.

PN871

THE VICE PRESIDENT: Well, if they do then they will do it by - they will seek the summons by the date that I have indicated and we can deal with it then, can't we?

PN872

MR BROMBERG: Yes, save for this, your Honour. There is a matter of concern to me about the notification, so much so, your Honour, that I have approached the Ethics Committee of the Victorian Bar because it is not usual for a barrister to both appear and be a witness in the one proceeding. I have been granted dispensation by the Ethics Committee from any obligation to return my brief on the basis, your Honour, that - on the basis, in part, that I inform your Honour of what has occurred and continue to act in the matter with your Honour's concurrence.

PN873

And also on the basis, as in fact was proposed to the Ethics Committee by my client, that in relation to the issue raised by the allegation I - the AEU will brief another barrister to attend whilst I am being examined, if I am examined, and will also have that barrister deal with any other evidence from any other witness in relation to that issue. Now, I need - my client needs to know obviously who can represent in the matter and if your Honour is - has no difficulty with that approach then we would ask your Honour to so indicate and we will make arrangements.

PN874

THE VICE PRESIDENT: Anything you want to say about this, Mr White?

PN875

MR WHITE: No, your Honour, it is not a matter for us and I make no submissions in relation to that.

PN876

THE VICE PRESIDENT: Right, thanks. Well, the approach you have outlined seems a sensible course to me, Mr Bromberg - - -

PN877

MR BROMBERG: Thank you, your Honour.

PN878

THE VICE PRESIDENT: - - - and I am content with it, so - - -

PN879

MR BROMBERG: Thank you, your Honour.

PN880

THE VICE PRESIDENT: All right, nothing further, then I will see you at 4 o'clock this Wednesday to deal only with the narrow question of whether or not the estoppel point, for want of a better description is - appropriately raises preliminary point or whether it ought to be dealt with in submissions and the parties be free to run the case - the applicant be free to run the case that is indicated with an opportunity for the objector to respond. Okay, nothing further, we will adjourn.

ADJOURNED UNTIL WEDNESDAY, 29 SEPTEMBER 2004 [4.08pm]