C2005/1138, Transcript of Proceedings [2005] AIRCTrans 2253 (28 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13221-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER GAY

C2005/1138 C2005/1182

APPEAL BY KERSHAW, DAVID
s.45 - Appeal to Full Bench
(C2005/1138)

APPEAL BY KERSHAW, DAVID
s.45 - Appeal to Full Bench
(C2005/1182)

PERTH

10.09AM, TUESDAY, 18 OCTOBER 2005

Reserved for Decision

PN1

MR D KERSHAW: I'm appearing for myself, your Honour, at the Commission.

PN2

JUSTICE GIUDICE: Yes, Mr Kershaw.

PN3

MR M MURPHY: May it please the Commission, I seek leave to appear on behalf of the respondent.

PN4

JUSTICE GIUDICE: Yes. Thanks, Mr Murphy. Do you have any objection to Mr Murphy's application for leave to appear, Mr Kershaw?

PN5

MR KERSHAW: No, your Honour.

PN6

JUSTICE GIUDICE: Leave is granted, Mr Murphy.

PN7

MR MURPHY: Thank you.

PN8

JUSTICE GIUDICE: Yes. Very well, Mr Kershaw. There are two appeals which you have lodged. You've set out the grounds for each of those, and it's now up to you to make what submissions you think appropriate in support of the appeals.

PN9

MR KERSHAW: Your Honour, first of all, I'd just like to be sure that you received a copy of the affidavit that I lodged this morning?

PN10

JUSTICE GIUDICE: No. We haven't seen that. We wouldn't accept fresh evidence on an appeal unless there was a good reason to do so. Have you discussed it with Mr Murphy?

PN11

MR KERSHAW: No, I haven't, your Honour.

PN12

JUSTICE GIUDICE: Yes. What's the affidavit about?

PN13

MR KERSHAW: It's largely about the first appeal that was lodged, your Honour, regarding a failure to issue summonses.

PN14

JUSTICE GIUDICE: Yes.

PN15

MR KERSHAW: As you may recall, that appeal was set in abeyance for some time pending some conciliation by McCarthy DP. As a consequence of that, there was never any meaningful submissions made in relation to that aspect, or relation to that appeal, and so I would seek leave of the Bench to submit this affidavit in support of that appeal. It sets out in detail the failures of the parties involved to supply information to myself that would have been critical, should I have ever had a substantive hearing on the matters in dispute. I was denied those summonses, denied access to that information, and the affidavit sets out the full circumstances supporting that.

PN16

I don't believe, without that information, there could ever have been a hearing on either the substantive matters or a determination made.

PN17

JUSTICE GIUDICE: The matter was reallocated to McCarthy DP, wasn't it?

PN18

MR KERSHAW: It was, your Honour.

PN19

JUSTICE GIUDICE: I'm just having a bit of difficulty at the moment; what's the utility of looking at whether or not Blain DP made an error in dealing with the matter?

PN20

MR KERSHAW: Well, there are two aspects to this; the main one is that it would - the affidavit, in addition to supporting the broad claim that I was denied access to information, in relation to McCarthy DP and that appeal, is critical. He was aware of my desire to have summonses issued. He refused to issue those summons and so it's relevant from that point of view, but also if I am successful in the second appeal about McCarthy DP's determination, then I would certainly be arguing strongly to the Full Bench today that consideration be given to the issuing of those summonses as a matter of urgency prior to a full hearing of the substantive matters in this case, which has never been done.

PN21

JUSTICE GIUDICE: Yes. Very well. Mr Murphy, you haven't seen this material?

PN22

MR MURPHY: No, and I must raise perhaps a larger issue. I don't have before me these papers in relation to this first appeal, as it was termed. I do not understand whether this matter was actually served on our office, I don't have instructions one way or the other, but I'm not in a position to proceed with that appeal today. The other point is - - -

PN23

JUSTICE GIUDICE: Which appeal is that? The first one?

PN24

MR MURPHY: The summons appeal.

PN25

JUSTICE GIUDICE: That's the appeal against Blain DP's decision?

PN26

MR MURPHY: That's correct.

PN27

JUSTICE GIUDICE: How long have you been aware of these proceedings?

PN28

MR MURPHY: I've been aware of these proceedings for some time. I have not ever been made aware of this appeal to the decision of Blain DP.

PN29

JUSTICE GIUDICE: So you're not instructed in this matter?

PN30

MR MURPHY: No, I'm not.

PN31

JUSTICE GIUDICE: Well, how long would it take you to get some instructions about that matter? Is a representative of the university here?

PN32

MR MURPHY: Yes, a representative of Challenger TAFE is here.

PN33

JUSTICE GIUDICE: Yes. Well, could you speak to that person and find out why you weren't given any instructions in relation to the first appeal?

PN34

MR MURPHY: The solicitor instructing me in this matter, who was counsel at the first hearing, forwarded the brief, as it were, to me. He's otherwise disposed of in the Federal Court and that's why I've had to handle this matter. I've discussed this matter at length with that solicitor and at no point has this matter arisen.

PN35

JUSTICE GIUDICE: Yes. Well, that may be the case, but your client knew of the first appeal and I want you to get some instructions as to why you haven't been briefed in relation to the first appeal.

PN36

MR MURPHY: Yes.

PN37

JUSTICE GIUDICE: Could you do that for me now?

PN38

MR MURPHY: My client is unable to assist in that regard. He is unaware of this appeal, unaware that it was listed today and is not able to instruct me - - -

PN39

JUSTICE GIUDICE: A notice of listing was sent to Mr Andretich on 16 August.

PN40

MR MURPHY: And the notice of listing is a one-page document?

PN41

JUSTICE GIUDICE: Yes.

PN42

MR MURPHY: As I saw it - yes, I do see there that the statement is that the appeal is against the failure or refusal by the Deputy President to exercise jurisdiction in relation to witness statements. That's the only document I do have today in relation to that appeal.

PN43

JUSTICE GIUDICE: I thought you said you'd been aware of the appeal for some time?

PN44

MR MURPHY: The second appeal; certainly I have been aware of it for some time. The first time I've heard of the appeal against refusal to issue summonses is today.

PN45

JUSTICE GIUDICE: Yes.

PN46

MR MURPHY: Perhaps the Commission might be minded to deal with the substantive appeal first, which is the matter I'm prepared to deal with - - -

PN47

JUSTICE GIUDICE: Well, Mr Murphy, the only problem with that is, is that
Mr Kershaw has made an application to admit some fresh evidence in relation to the first appeal and that's what we're dealing with. Now, the question is, how long is it going to take you to get some instructions in relation to the first appeal?

PN48

MR MURPHY: It's not a matter that really I could attend to in the next few hours. I need documentation. If that documentation is in my office, it will be with my instructing solicitor who is elsewhere at the moment. I could return to the office and see if I could find the papers, and return.

PN49

JUSTICE GIUDICE: Well, Mr Murphy, I understand your position, but on the other hand, the cost to the public purse in assembling a Full Bench in Perth is not inconsiderable and as I understand it from these documents on the Commission's file, your client was served with notice of the hearing in relation to the first appeal some months ago. Now, I want to have an explanation from your client as to why you haven't been properly briefed in the matter and why we should, in the circumstances, grant an adjournment of the first appeal.

PN50

MR MURPHY: Assuming that the documents were served at our office, which perhaps we should assume at this point, the answer to the question of why I wasn't briefed lies with my instructing solicitor - - -

PN51

JUSTICE GIUDICE: Well, what about your client?

PN52

MR MURPHY: The documents were served on this office - it would have been served on my office. Perhaps Mr Kershaw can inform me if that otherwise was the case.

PN53

JUSTICE GIUDICE: But are you saying that your client doesn't know of the first appeal?

PN54

MR MURPHY: His instructing officer is stating that he's unaware of it.

PN55

JUSTICE GIUDICE: He's simply unaware of the first appeal at all?

PN56

MR MURPHY: Yes.

PN57

JUSTICE GIUDICE: I see. All right. Well, is there anything else you want to say at this stage?

PN58

MR MURPHY: For what it's worth, I would - after the hearing of this matter - would say that matters were overtaken when they were referred, then, to McCarthy DP and that the real appeal should be from McCarthy DP's determination on 25 July, as is the second appeal in these proceedings. So really, the question of whether to issue subpoenas was overtaken by subsequent matters and the issues which will arise in the second appeal against McCarthy DP include whether the Deputy President was correct in proceeding on concession as to the facts, and in doing so, then deciding whether orders were to be made.

PN59

That's really, as in my submission at least, how the Commission should deal with it. McCarthy DP would have been of the same view. He accepted a concession as to the facts and so the subpoena issue fell aside. If the Deputy President was wrong, then we move back to the question of determining facts at first instance.

PN60

JUSTICE GIUDICE: Yes. Thanks, Mr Murphy.

PN61

MR MURPHY: Thank you.

PN62

JUSTICE GIUDICE: Well, Mr Kershaw, in light of all of that, what are your submissions now as to the material that you want to tender?

PN63

MR KERSHAW: Well, on the general matter of the failure to be prepared, I haven't commented on this at any other hearing or at the conference before the Commission to date, but Mr Murphy is, I think, the fourth representative from the State Solicitor's Office to deal with this matter, and prior to him, there were four different industrial advocates from the Department of Education dealing with the matter. It has simply served to frustrate proceedings the whole way through. So I am really reluctant, from my own part, of course it's the Bench's discretion, to feel any sympathy for the State Solicitor's representative's position.

PN64

As far as the hearing before Murphy[sic] DP was concerned, it's in the appeal documents that the entire hearing there was largely based on a proposal by McCarthy DP, that should the college accept the facts, the minimal facts stated before him, then should that be the case, would the college be prepared to issue orders, or accept orders, that I put before McCarthy DP, and would the college be prepared to sign letters that I put before McCarthy DP, and really, it was a procedural hearing about whether that was an acceptable proposal that both parties would consent to and move on. It was never - - -

PN65

JUSTICE GIUDICE: I think you're now going to the substance of the appeal really, aren't you?

PN66

MR KERSHAW: Well, I guess so.

PN67

JUSTICE GIUDICE: Yes. Look, it's just a question at the moment of what we do with the affidavit. Speaking for myself, if - for whatever reason - Mr Murphy doesn't have any instructions in relation to the first appeal, I'm inclined at this stage to leave the affidavit in abeyance, or not rule on it, and deal with the appeal against McCarthy DP's decision.

PN68

MR KERSHAW: With respect, your Honour, I have listed both matters on the affidavit because I think the facts in the affidavit are as critical to what occurred before McCarthy DP as they are to the appeal against Blain DP. If the argument could be made that I was denied access to relevant facts and information, then surely that impacts upon McCarthy DP's ability to make a decision?

PN69

JUSTICE GIUDICE: Yes, well - yes, just a moment. Yes. What we intend to do, Mr Kershaw, is to attempt to make the best of a bad situation, perhaps, and we'll ask you to make your submissions in relation to the appeal against McCarthy DP's decision. We'll be adjourning at 11.00, and we'll need in any event to adjourn for 20 minutes or so. We might make that adjournment a bit longer. If you can furnish Mr Murphy with a copy of the affidavit and he can use that time to get some further instructions about it, and then we'll hear later on in the morning when we resume as to what we should do with the affidavit.

PN70

I might observe, and I could be wrong about this, that it may be that the affidavit material is not critical to your case, if you're simply trying to demonstrate the sort of materia that you might have adduced under different circumstances. But in any event, I think we can consider that matter further when we've got a better idea of exactly how you put your appeal and how you support your appeal against the Deputy President's decision. So are you able to go ahead at this stage with your submissions in relation to the Deputy President's submission?

PN71

MR KERSHAW: Well, I didn't intend to say a lot, other than to put into evidence the documents tendered to the Commission already. I'm not a lawyer, you understand, no formal legal training, so - - -

PN72

JUSTICE GIUDICE: Some people would think that was to your eternal credit.

PN73

MR KERSHAW: I have been tempted to make a sarcastic comment, in my recent experiences, but I will refrain. Perhaps I shouldn't have said that. Yes, I don't, but I put a great deal of work into the submissions attached to my appeal application. They do outline in great detail the basis of the appeal. I don't want to distract from that in any way, so perhaps the Bench could direct me as to how that will become formal evidence before the Full Bench.

PN74

JUSTICE GIUDICE: It's quite in order for that to be part of the material before the Full Bench, and it's quite common for submissions to be in writing, so there's no difficulty with that at all, Mr Kershaw.

PN75

MR KERSHAW: Well, if that could occur?

PN76

JUSTICE GIUDICE: It might be useful, however, if you could simply indicate if there's anything that you want to add to those submissions?

PN77

MR KERSHAW: There are a few things.

PN78

JUSTICE GIUDICE: Yes. We're not inviting you to repeat what you've already said, as you'd be aware, but by all means, go ahead.

PN79

MR KERSHAW: Okay. I don't know whether the Bench would have patience with me to just - for me to talk about some things about my history that might - I know they're not directly relevant to the outcome, but they might help you to understand what I say shortly thereafter, so just a couple of minutes of your time to - for me to review where I'm coming from. I commenced work in 1976 and went to the Police Department. I worked there for several years, directly with police officers. I studied part-time for my degree and desperately wanted to get out of there.

PN80

The only way I got out of there was when I refused to sign a document I was not legally authorised to sign. I was asked to do this by police officers. The next day, I was removed from that position. I found myself in another clerical position where I saw people ignoring the rules, the procedures, the policies laid down for them, in the Police Department. I eventually moved to the Treasury; I spent several years in the Treasury. I ended up drafting legislation, including the Financial Administration and Audit Act, which those Members familiar with Western Australia would probably be aware of.

PN81

I was not leading a team, but I was heavily involved in drafting many of the regulations at the Treasurer's instructions. One day I came in, two days before it was going to go to parliament and found my boss sweating over it. He had, that evening, changed everything I'd worked on for the previous two years, without explanation. I left the Treasury. I could not work in that environment. I had some community associations, with the Youth Hostels Association. I ended up going in as their chief financial officer. Within a short period of time, I found activities going on within the organisation that I was displeased with.

PN82

I went to the chairman of the board, explained to him my concerns; the next day I was faced with him and the chief executive officer of YHA, and I was sacked. I went to the Commission, sued for unfair dismissal and I was successful. I went away and started lecturing. However, I'd had good relationships with my staff at YHA. Some year and a half, two years later, I got a call from those staff members telling me what was actually going on. I spent the next two years removing the entire council and the chief executive officer. It took me two years to go through that whole process, to get rid of them.

PN83

I walked back into the YHA offices in Frances Street, and as the secretary of the YHA, and found empty offices, empty filing cabinets, a lot of debt and basically the place had been robbed blind. I then come into TAFE, into Challenger TAFE. I have made major successes of my first 10 years at Challenger TAFE. My students appreciate me, I get good results, everything was wonderful, but then things do start to fall apart, for various reasons which I'm not going to go into. But basically, I make a fuss. I'm not happy, the policies are not being followed. If I'm not happy that students are being treated correctly, I'm the sort of person that does stand up and say something.

PN84

In, I think it was, 2003 my director, who is a principal identity in the current issues before the Commission, unilaterally started to cut teaching hours for various subjects in order to balance his budget. I issued a formal grievance against him, the union took it up and that really brings us to 2004, where the issues immediately before you come up, because on 5 May 2004, I had a conversation, a conference, at the casino. I had it - there were about eight people around a table, my director, Evan Parker, was one of them, and I raised the cut hours and the grievance process that was going on and I advised him the department was instigating an investigation and basically gave him a very, very hard time in front of people he didn't want to be embarrassed in front of.

PN85

I believe, and I believe with appropriate witness statements and evidence, that from that point on, he deliberately set out to drive me from the college. Prior to that date, in 13 years, I had one student complaint. In the next three months, I had eight, and I think there is plenty of evidence, when it's seriously looked at, to trace that directly back to Mr Evan Parker. I have had, I think, five conferences, three hearings here in the Commission. Every single one of them has been about procedure. I have never had an opportunity to put the substantive matters of my complaint before the Commission. Never. Issues of substance have come up, only in the context of Commissioners, of Deputy Presidents of the Commission, seeking evidence in support of procedural aspects that we were dealing with on a particular day.

PN86

I have had no hearing on the substantive matters, and primarily, that I was driven from the college by Evan Parker, and this is not something recent. My original letter to Malcolm Gough, the managing director of the college on 19 November, which doesn't appear anywhere other than I have actually read, that is my prime focus. I give lots of examples of breaches of policy, abuses in relation to the creation of complaints against me and all this, but Evan Parker and the conspiracy that went on inside the college has always been the prime focus of this hearing. This was made clear to Blain DP. It was made clear to McCarthy DP.

PN87

I had a clear understanding when I came to the hearing before McCarthy DP on
19 July that it was to determine how the matters would proceed from there. I had no idea that he would be prepared, without having heard the substance of my argument, to make a determination, and even more importantly, in making that determination, having suffered the extreme behaviours that I had, was not prepared to forward me any remedy to prevent similar action in the future. It is now - it's almost a year since I came to the Commission. These events started happening in June of 2004.

PN88

I would like the opportunity to make submissions to the Commission on the substantive matters of my grievance, my application. I don't think I have anything else to say except, as I say, I want the full submissions that I've already tendered to the Bench to be placed in as formal evidence.

PN89

JUSTICE GIUDICE: Yes. And they cover what kind of material? Can you give us a bit more idea of what - - -

PN90

MR KERSHAW: Well, they give you a good idea of the sorts of substantive matters that were not available to McCarthy DP.

PN91

JUSTICE GIUDICE: Yes.

PN92

MR KERSHAW: I at times attempted to - - -

PN93

JUSTICE GIUDICE: But the material itself is what? Letters?

PN94

MR KERSHAW: There's extensive legal argument in there about his - my assertion is that he failed to take into account relevant considerations, that he took into account irrelevant considerations. He erred in interpreting aspects of the certified agreement. There's a lot there, your Honour.

PN95

JUSTICE GIUDICE: I'm sorry, this is in the affidavit, is it?

PN96

MR KERSHAW: No, sorry, I'm talking about the original submissions that I - - -

PN97

JUSTICE GIUDICE: We're at cross-purposes, yes. I'm sorry. Yes.

PN98

MR KERSHAW: Okay. The affidavit - - -

PN99

JUSTICE GIUDICE: Can you tell me - yes.

PN100

MR KERSHAW: - - - sets out my attempts to obtain information.

PN101

JUSTICE GIUDICE: I see.

PN102

MR KERSHAW: They started on 30 August 2004. I tried both formal and informal channels through the college to get access to the complaints that had been made against me. I only got copies of the complaints from the college once they knew I already had copies through other sources, and that was some six or seven months after they had been submitted to the college. They just refused to - that continued in the Commission. They submitted documents to the Commission, they said they were entire. I then read from documents that I had that were not in the submissions made by the college. I have many.

PN103

I have had to put it in a database. I'm not a computer person, I'm struggling with it, but I have something like 380 key dates, all supported with written evidence of things that have happened. There is a lot of evidence and I firmly it is available to the college, but it has not been provided to the Commission. They have instituted their own investigation, but that package of information they gave to the Commission, they didn't just give it to the investigator, they took pieces out. They added new bits that they hadn't given to the Commission or myself. It discusses all of this.

PN104

JUSTICE GIUDICE: Yes. Can I ask you something else, Mr Kershaw. What precisely is the remedy you're seeking?

PN105

MR KERSHAW: I want letters to go to staff and students explaining that I was denied natural justice. That the decisions made in relation to reassessments of my work that were done were incorrect and invalid. And I want an order from the Commission that the college shall follow its own procedures, something I wouldn't have thought was a big ask, but if college procedures had been followed in relation to these matters, I would not be standing before you today. They used the procedures to intimidate staff and ignore them, for their own purposes. They want to be seen as having the paperwork, they've got the marketing going big time, "We do this, we do that", but the reality on the ground is different.

PN106

If they want to pass a policy that says, "We can nail David Kershaw any time we like, any way we like", then that's fine. It's out in the public domain. No worries. But if they're going to have policies and talk about procedural fairness, talk about my rights to due process, but then ignore it whenever it suits them, and I must say the events of 2004 are not the first time, then you know, what's the point of having them? So I'm looking for an order from the Commission that the college must comply with its own policies. It will not stop them changing those policies, just if you've got them, comply with them.

PN107

JUSTICE GIUDICE: Just on that point, are you talking about the policies that are referred to in the agreement?

PN108

MR KERSHAW: The certified agreement, do you mean?

PN109

JUSTICE GIUDICE: Yes?

PN110

MR KERSHAW: No.

PN111

JUSTICE GIUDICE: Which policies are you - - -

PN112

MR KERSHAW: College policies themselves, their - - -

PN113

JUSTICE GIUDICE: Well, what jurisdiction do we have in relation to policies? Challenger's policies?

PN114

MR KERSHAW: Well, then we take the - the detour which we've taken that a few times in the Commission. I mean, there are clauses within the certified agreement that make provision for consultation and these sorts of things.

PN115

JUSTICE GIUDICE: Yes, but they're already there - - -

PN116

MR KERSHAW: Well - - -

PN117

JUSTICE GIUDICE: They're already there. If there's breach of them, there are courses you can take in relation to the breach, but you can't take those courses here.

PN118

MR KERSHAW: I'm sorry? If it's a breach of the certified agreement, it's - - -

PN119

JUSTICE GIUDICE: Yes. Actions for breach need to go elsewhere. We don't make declarations or injunctions about breaches of certified agreements. They have to go to a court.

PN120

MR KERSHAW: You cannot direct someone to comply with a certified agreement approved by the Commission?

PN121

JUSTICE GIUDICE: Not in those terms, no.

PN122

COMMISSIONER GAY: Mr Kershaw, you need to - - -

PN123

MR KERSHAW: Do you - do - - -

PN124

COMMISSIONER GAY: Mr Kershaw, you'll need to focus on the question that his Honour, the President put to you, and that dialogue has been about your assertion in relation to breach and remedies for breach. Now, at the same time, if it's your view that the agreement - a dispute arises or an individual grievance arises consistent with the dispute settlement procedure and grievance opportunities that are available to you under the agreement, you'll know that that is quite a separate sphere of activity from remedies for breach that might be available to you.

PN125

MR KERSHAW: My understanding is that we have a dispute settlement clause in the agreement, clause 14, which has been approved of by the Commission that states that if a dispute cannot be resolved at the college level, then it will be referred to the Commission to be resolved, and my understanding, from High Court decisions and others, is that the Commission then acts as a private arbitrator with the full powers available to it under whatever statute and general law would be available. Statute, for example, the Commercial Arbitration Act or - I do have it in files in there somewhere.

PN126

And certainly that legislation, if we talk about the Commercial Arbitration Act just for a moment, gives the power to summons, to give all remedies available to the Supreme Court, and I believe the Commission does have the power to make any - in the context as a private arbitrator, it has the power to make any direction that the Supreme Court of Western Australia would have the power to do. In terms of other things I'm looking for, I am here now because of the failure of the college to cooperate in these proceedings. It's drawn out almost 12 months in the Commission, 15 months from the college, and quite frankly, I would seek some remedy in terms of costs from the Commission, under that same authority I've just referred to, for the time and trouble I've been put to.

PN127

Not to mention the health effects and the costs to my health, not in terms of just physical impact, but monetary costs. I'm going to get personal here for a moment and I want to show anybody, but I don't think many people fundamentally understand depression. It's a colloquial phrase thrown around, but until you sat, physically and mentally incapacitated, you do not know what depression is. In order to stand before you today, I have had to take four times the recommended dose of my antidepressants. They effectively make me impotent. If I can't resolve these matters, that is the way I will stay.

PN128

And I'm in this situation because of the respondent's behaviours in the college and I come to this Commission in good faith looking for a hearing. I haven't got one. But if I get a hearing, if I seek remedy - if I'm able to obtain remedies, I would certainly be looking to recover the monetary costs to me, and being put through the last 15 months of hell.

PN129

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Kershaw, can I take you to McCarthy DP's decision for a moment, and I'm doing so because I'm wanting to understand your views on that decision, in terms of where you say it is in error or where you accept that it's accurate. Do you have that decision there in front of you? You have a lot of material there, so just take your time. Take your time and see if you can find that decision of 25 July.

PN130

MR KERSHAW: It was wrong in so many ways.

PN131

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: No, what I'll do is I'll get you to find it first of all, and then I just want to raise a couple of issues.

PN132

MR KERSHAW: The decision or the - decision?

PN133

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: The decision of 25 July. Do you have that one?

PN134

MR KERSHAW: Yes.

PN135

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Now, in that decision, in paragraph 7, the Deputy President identified three particular aspects of the issues about which you were in dispute. Do you say that he got those right? Are they the three key issues?

PN136

MR KERSHAW: Those were the items listed on my original application to the Commission. In attempting to relate my grievance to aspects of the certified agreement, I used those headings.

PN137

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Okay, so he got those right, on the basis of your - - -

PN138

MR KERSHAW: Yes. But they tell you very little about the substance of - - -

PN139

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I understand that. I'm not going into the substance at this point, I'm just understanding your appeal.

PN140

MR KERSHAW: Yes, that's correct.

PN141

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: He identified a matter of the payment for leave in paragraph 8.

PN142

MR KERSHAW: Yes.

PN143

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Am I correct in understanding that matter wasn't the subject of consideration before McCarthy DP and has been subsequently sorted out between you and the college? Is that right?

PN144

MR KERSHAW: That's correct, your Honour.

PN145

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: If I then take you further into the Deputy President's decision, at around paragraph 17 he talks of the submissions on the part of the college that the application should be dismissed pursuant to section 111(1)(g)(i) to (iii). You recall those aspects of the discussion on 19 July?

PN146

MR KERSHAW: In the broad, yes, your Honour.

PN147

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes. Now, at paragraph 21 through to 24, he summaries your submissions, and are you saying that he got that summary fairly right?

PN148

MR KERSHAW: That was the situation on the day. I presented a three-page list of outcomes to McCarthy DP, but if we could have settled on the day, and that's primarily what the discussion was about on the day, if the college accepted responsibility and accepted that those remedies listed there would be available to me, then I would settle for those. I made it clear to McCarthy DP, if I could not get those - whatever you want to call them, remedies or whatever, on that day, then I intended to pursue the full range of remedies that I had sought and would expect to make full submissions in relation to them.

PN149

So it was a sort of hearing conciliation. There was only discussion from the Bench, there was no evidence formally taken, where we were trying to arrive at a compromise, whereby I would be satisfied and the college would go away. And the college would go away happy also. That didn't happen. The college just wanted things to go away without any - they would not send letters to the students to say I was denied due process, and that representations made about me had no basis in fact. I drafted letters, McCarthy DP had seen those letters, Blain DP had seen those letters, so it was in that context that paragraph 21 should be read. It was about doing a deal on that day so that we could end matters.

PN150

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: I see. Yes. Thank you.

PN151

JUSTICE GIUDICE: Mr Kershaw, could I ask you about paragraphs 10 to 14 of the decision?

PN152

MR KERSHAW: Yes.

PN153

JUSTICE GIUDICE: That was essentially your case, about those matters? Changed results, difficulty of assignments and the alteration of student marks?

PN154

MR KERSHAW: Those were the issues that we discussed at the previous conference, when McCarthy DP - I'd mentioned that I felt that, being a conspiracy and so forth at the college, I told him that I thought I had been, in effect, set up, but he wanted me to point to individual things about which I had a grievance, and certainly I gave him this list. There are many, many other things that were discussed before Blain DP. There was a lesser list discussed in front of McCarthy DP, but if he had read, or if he had taken onboard what I had said about the role of Mr Parker, and if he had read my letter of 18 November 2004 to the managing director, he would be well-aware that my worry wasn't that sort of students had passed that shouldn't, or on a once-off occasion, somebody had overruled me.

PN155

The issue for me was that this person was trying to take advantage of my known ill-health to remove me from the college, but these are things - I - I've - each conference, each hearing I've been to, and it's not dissimilar to today, I suppose, and it's understandable, I suppose, but I've been driven by the person in attendance, whether it's a Deputy President or whoever it might be, to discuss matters in a particular way dealing with procedure - this is simply another example of it. I mean - - -

PN156

JUSTICE GIUDICE: If you were to put your case on the merits, as you term it, how long would it take to put that case?

PN157

MR KERSHAW: If we can get written statements that I've been seeking, I would have thought the actual hearing of witnesses would be quite short. My guess would be that most of the people I would seek evidence from would speak honestly in a written statement and there would be little or no need for cross-examination, so - - -

PN158

JUSTICE GIUDICE: But you don't have that evidence at the moment?

PN159

MR KERSHAW: No.

PN160

JUSTICE GIUDICE: And how many witnesses would you be intending to call? Or statements, perhaps?

PN161

MR KERSHAW: The summonses I've prepared are attached to my application for this appeal. I think there are four summonses in total, but with multiple persons on them. But the summonses deal with different subject matter, so there's a lot of overlap between them.

PN162

JUSTICE GIUDICE: All right. Well, you're unable to give an estimate of how long your case would take?

PN163

MR KERSHAW: Not really, your Honour, because it would depend. It would depend on what I got out of the witness statements. I really would be surprised if it took longer than a day because I believe that most people are honest, they do not want to find themselves in strife with the college, they do not want to find themselves in my position, but if they are driven to legal compunction to give evidence, then I believe they would give it honestly, and if that's the case, then there may be only two or three witnesses that actually need to appear before the Commission.

PN164

I think it's significant that my immediate superior, in the - the investigator that the college appointed took evidence from an immediate superior, and I think there are five sentences, record of interview. My guess is he didn't want to lie and he didn't want to upset the college, so he said nothing. I believe if I get the summonses issued, those people will speak frankly and it's probably only the senior members of the college that may need to be interviewed on the stand.

PN165

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Kershaw - look, I'll take up the issue I was going to raise with you at some later time.

PN166

JUSTICE GIUDICE: Yes. I'm sorry to interrupt, we'll need to adjourn for a little while. Could you make sure that Mr Murphy has a copy of that material, and
Mr Murphy, we'll be looking to you to get some instructions in relation to the first appeal as well, insofar as you're able to.

PN167

MR MURPHY: Yes, sir.

PN168

JUSTICE GIUDICE: How long do you think you'll need, Mr Murphy?

PN169

MR MURPHY: I'll be able to obtain the papers, I expect, a copy of the papers, from Mr Kershaw. To determine whether I can actually speak to someone with authority, aside from my instructing solicitor, I could do that relatively quickly, within half an hour, perhaps. We'd know one way or the other.

PN170

JUSTICE GIUDICE: Well, I understand that Mr Kershaw's almost finished his submissions anyway in relation to the second appeal. But there still remains the question of the other material to be dealt with. In the circumstances, we might adjourn until 11.40. We'll resume then and hear how we're going. All right. Thank you.

<SHORT ADJOURNMENT [10.58AM]
<RESUMED [11.41AM]

PN171

JUSTICE GIUDICE: Yes, Mr Murphy?

PN172

MR MURPHY: I do have instructions to proceed with the summons appeal.

PN173

JUSTICE GIUDICE: Okay. Thank you. Yes. What's the position in relation to the application to amend the affidavit?

PN174

MR MURPHY: We do object to that application. As you've heard, we have only seen it today, although in the end, I don't know that that objection needs to be taken too far. I don't know that the affidavit will affect the submissions we will be making. We'd simply say it wouldn't take matters further, and as we haven't had notice of this until today, it shouldn't be admitted into evidence.

PN175

JUSTICE GIUDICE: Yes. So your objection is essentially on the basis that you've not had the opportunity to consider it?

PN176

MR MURPHY: That's correct. Perhaps, given that opportunity, the submission would be that the material is largely irrelevant, but I haven't had that opportunity.

PN177

JUSTICE GIUDICE: Yes.

PN178

MR MURPHY: Thank you.

PN179

JUSTICE GIUDICE: Yes. Anything else you want to say about the material, Mr Kershaw?

PN180

MR KERSHAW: In relation to the summons, your Honour, I just make a few brief points.

PN181

JUSTICE GIUDICE: The summons? Do you mean the affidavit?

PN182

MR KERSHAW: Sorry.

PN183

JUSTICE GIUDICE: Yes.

PN184

MR KERSHAW: Yes. Affidavit. There was never any submissions made at any of the hearings or conferences regarding the issuing of summonses. I, on a couple of occasions made requests for them to be issued, but there was never any argument put as to why they should or should not be issued. When I - I submitted the appeal regarding the summonses on 29 June, I think. Your Honour might recall I had some communications whereby I placed that appeal on hold and was distracted to a large extent by the referral of the substantive matters to McCarthy DP. In addition to that distraction, the Commission never requested submissions in relation to my appeal on the summonses.

PN185

For a variety of those reasons, really, the Commission has heard no evidence in relation to the issuing of the summons on which today is a judgment, and this would be, you know, the first evidence that the Commission would see. The other thing I would plea for is a little leeway for a person who is extremely - well, I have never been to the Commission previously. I had a one-hour session at the State Commission with YHA some time ago, but otherwise never been before a legal Tribunal. Yes, I was certainly unaware that I would be prevented from submitting evidence in relation to my request for summonses today.

PN186

I can't argue the legal rights or wrongs of it because I haven't done the research and I don't have the experience, but - - -

PN187

JUSTICE GIUDICE: Well, I think the objection that's taken at the moment is a very limited one, and that is, that Mr Murphy was not given notice of the material, hasn't had a chance to read it and hasn't had a chance to get instructions on it. What do you say about that objection?

PN188

MR KERSHAW: Well, I'm presuming if leave was granted to appeal, that I would find myself in the box giving similar evidence in any event, your Honour. Would there be something to prevent me verbally putting the same evidence on the record? And Mr Murphy would have no more notice of that than he would of the affidavit.

PN189

JUSTICE GIUDICE: Yes. Just a moment. What we intend, gentlemen, is to hear the remainder of the submissions. So in your case, Mr Kershaw, that would be your submissions on the first appeal, Mr Murphy's submissions in response on both appeals, and any reply you then have, Mr Kershaw. We'll defer ruling on the affidavit material for the moment. When we've heard all those submissions, we'll adjourn and we'll consider where we go from there. It may not be necessary in the end result to rule on the affidavit issue at all, but we'll see where we get to.

PN190

So perhaps, Mr Kershaw, is there anything that you wish to say in support of the first appeal, the appeal against Blain DP's decision? We have the notice of appeal. Were there some submissions that went with that?

PN191

MR KERSHAW: No, your Honour, simply the two-page document.

PN192

JUSTICE GIUDICE: Yes. Yes.

PN193

MR KERSHAW: Yes, there's just the two-page document. Begging your Honour's patience for just a second, prior to the adjournment, I had been talking about the second appeal and I realised during the break that there was one point I wanted to make about it so - - -

PN194

JUSTICE GIUDICE: Yes, I'm sorry. By all means, yes.

PN195

MR KERSHAW: Yes. One of the significant things about the hearing before McCarthy DP, even if he felt he had evidence before him from - well, from various correspondence supporting particular events that had occurred and found the college at fault, which he seems to suggest in his reasons, I think it's important to note that the remedies I was seeking are significant remedies and they were not classified by mere advertence on the part of the college or mistakes or accidents. In order to justify the remedies I am seeking, I needed to prove deliberate wilful conduct on the part of the college.

PN196

In order to do that, I required full evidence that I wanted to gain through these summonses and I needed an opportunity to interview witnesses as appropriate.

PN197

JUSTICE GIUDICE: Yes. I understood that to be your submission. Looking at the Deputy President's decision, he does make findings in your favour, I think, in paragraph 30.

PN198

MR KERSHAW: Yes, your Honour. He accepts what he had seen, what had been laid before him, to be correct, but that was a very small portion of the overall evidence that would otherwise have been available to him, and as my submission on appeal will indicate to you, at one point I requested I be allowed to make further submissions, and he simply cuts me off to say that, "Well, given that I accept everything you are saying, I don't think there's any need to look further at those issues". Bearing in mind the context we were discussing these things, we were looking at this deal we were going to do whereby they would send out letters and consent to an order in exchange for terminating the action.

PN199

So the substantive matters were never before him. There were a few matters, and on those matters he accepted that I'd said was correct, but if I was going to get these orders that I wanted, and in numerous places I've - in the transcript I refer to when we get to final hearings, or formal hearings, when I get a chance to present my evidence, et cetera, et cetera, and that was a necessary part to support the remedies I was claiming, and it never happened.

PN200

JUSTICE GIUDICE: But you see, if you look at, as I'm sure you have, paragraphs 38 to 41, the Deputy President talks about the things that you sought from the Commission.

PN201

MR KERSHAW: Yes, your Honour.

PN202

JUSTICE GIUDICE: And they seem to be in general terms what you're putting to us now, like, they're not specified in detail, and then he says in paragraph 40 that Challenger should follow its own procedures and it's reaffirmed that it will follow any procedures established regarding any complaints about marks, assessments, complaints about the degree of difficulty of assignments. And then he goes on to say:

PN203

If the procedure is inadequate or flawed, the provisions and procedures in clauses 13 and 17 provide an appropriate framework for a review of procedures.

PN204

It seems that the Deputy President had reached the conclusion that in all the circumstances it wasn't appropriate to make any orders.

PN205

MR KERSHAW: I deal with that in the appeal documentation I have submitted to the Bench, your Honour. I assert he was totally in error there. Clause 13 is about the development of policy and it gives no appeal mechanisms, no - there's nothing there for me or anyone else for that matter. It's totally in error and inappropriate. And it was never put to either of the parties at the hearing. We never discussed clause 13 in any way, shape or form. And yet it does seem he places weight on that in justifying why he hasn't given me the remedies that I seek, or the declarations that I seek.

PN206

JUSTICE GIUDICE: Yes. Thanks, Mr Kershaw.

PN207

MR KERSHAW: I just, finally on that point, I did want to say I've already mentioned how long I've been in the Commission. I've had six conferences, four hearings. I've a Full Bench two-day hearing. There's been three sets of reasons published. There's 23 submissions on procedural matters been made. 20 letters to the Commission. The Commission has issued 36 faxes. I submitted six unanswered requests for advice on the formulation of summonses, both at the Commission itself and individual Commissioners.

PN208

I made five requests for signing summonses. I had four legal consultations and there were 25 requests for documentation from the college without a response. Despite all that, if I can get these summonses issued, I take onboard the value of the Full Bench's time. I am more than happy to consent to these matters going back down provided I can get access to the information I seek and an appropriate hearing. I don't believe I've got that, either on 19 July or any time after, so I'll leave that - that second appeal and move onto the summonses, unless you have some - - -

PN209

JUSTICE GIUDICE: Yes. Do I take it that you've taken legal advice about these proceedings?

PN210

MR KERSHAW: I consulted with industrial advocates and lawyers on various occasions, but if I had engaged them to come here, I would be bankrupt. I do teach law, I think I have a fairly adapt mind. I've done forensic research ever since I was at Treasury, so it's largely my own effort.

PN211

JUSTICE GIUDICE: Yes. Thank you.

PN212

MR KERSHAW: On the summons, as I said previously, there was no hearing, there was no evidence. Blain DP issued a fax which - - -

PN213

JUSTICE GIUDICE: Mr Kershaw, I don't want to interrupt you, but the matter is no longer before Blain DP. What relief would you seek? The proceedings have, in a real sense I think, moved on haven't they, to the proceedings before McCarthy DP? I'm just wondering what utility there is in the first appeal. I understand your point, that you want the summonses issued, but isn't that really a matter that would be - - -

PN214

MR KERSHAW: Well, I get the - - -

PN215

JUSTICE GIUDICE: - - - pursued in conjunction with your attempts to have the matter heard, in the full sense, before McCarthy DP or this Bench?

PN216

MR KERSHAW: Yes, I take your point, your Honour. I think you're largely correct in that and I guess in preparing this, it's always been in the back of my mind that should the second appeal be successful, then this will form the basis of the submission to the Bench to have those summonses issued.

PN217

JUSTICE GIUDICE: Yes.

PN218

MR KERSHAW: I take that point onboard.

PN219

JUSTICE GIUDICE: Yes, I don't want to put words into your mouth, but the appeal about the summonses is really about your attempt to have all of the relevant material before the Commission for the purpose of a hearing on the issues you wish to - - -

PN220

MR KERSHAW: Then it is perhaps more relevant to the McCarthy DP's actions. If you like, your Honour, I can - I'll allow that matter to be set aside. We can deal with the - - -

PN221

JUSTICE GIUDICE: Yes. Well, we certainly understand your submission about it; it's a submission which I take it you repeat anyway in relation to the second appeal?

PN222

MR KERSHAW: That's correct.

PN223

JUSTICE GIUDICE: Yes. Thank you. Mr Murphy?

PN224

MR MURPHY: Perhaps I can quite briefly dispose of that appeal, if anything further need be said. You will notice that the summonses were to be issued in respect of a hearing concerning jurisdiction, as to whether the Commission had jurisdiction. That hearing fell away for various reasons, and I assume that was because there was an appeal against Blain DP that went to the Full Bench, but in any event, that hearing did fall away. The need for subpoenas then fell away, and as has been said, we moved on. The matter as referred to McCarthy DP did not have any matters resolved at that stage. Everything was live at that stage.

PN225

So if subpoenas were required for the issue of jurisdiction to be determined, that could have been made to McCarthy DP without application. But as I've said earlier, really perhaps the more substantial appeal goes really to the procedure adopted by McCarthy DP in deciding that it wasn't necessary to conduct a substantive hearing given the concessions made by the respondent. So really, we say that the summons appeal - leave should not be granted in respect of the summons appeal. There's simply no public interest in the Commission further considering those matters, and I wouldn't take it any further.

PN226

I would simply note that the subpoenas themselves are totally irregular. They require the provision of witness statements which is not permissible. The subpoenas themselves really could only go towards compelling the attendance of a person at the Commission hearing and answering questions under oath and the production of documents, but not to prepare and provide a written statement that Mr Kershaw has set out in those subpoenas. So really, they're totally irregular and would not have been issued in any event.

PN227

Turning now to the more substantial appeal against the decision of McCarthy DP, the primary submission we make is that leave ought not be granted in respect of that decision, that is, leave to appeal, in view of my submission that it's simply not in the public interest to proceed any further with this matter. Now, I would raise that we're dealing here with a single employer at largely a single location. It's a matter of a personal grievance, not in my submission, giving rise to any new principles and the appeal grounds as set out simply do not demonstrate an arguable case of appealable error.

PN228

In so far as the public interest is concerned, I would ask that the Commission consider the remedies that might well be available if this matter were to proceed below to a final substantive hearing, and then to a decision as to what remedies should flow from that. Really, to state that the grievance here, as we see Mr Kershaw putting it, is with his grievance as to the educational standards of the respondent and the dropping of those standards in respect of students paying fees; really, the primacy, as Mr Kershaw would have it, of accepting fees over educational standards. That's really the grievance we say Mr Kershaw has.

PN229

It's not properly the concern of the Commission, and any remedies that would flow from that grievance, as it's variously described, would not realistically achieve an outcome suitable for Mr Kershaw. Perhaps it's illustrated by the appeal grounds that Mr Kershaw has set out and submissions. I perhaps turn to those. Mr Kershaw addresses, in his notice of appeal, which includes both grounds and submissions, at paragraph 46 under the heading of "Public Interest, Substantial Injustice", there Mr Kershaw discusses the dispute:

PN230

Having a real potential to facilitate the maintenance of academic integrity at TAFE WA, free from unjustified interference from the administrative staff acting on management prerogative. The adverse influence of such interference was recently depicted in a Four Corners program.

PN231

So really, we say that this is not a grievance that is properly the concern of the Commission and that his grievance really is with the educational standards of the respondent. That's the essence of my submission as to whether leave ought be granted to appeal in relation to this matter.

PN232

JUSTICE GIUDICE: Mr Murphy, if there's a denial of procedural fairness, doesn't that affect the Commission's jurisdiction?

PN233

MR MURPHY: It certainly does, and - - -

PN234

JUSTICE GIUDICE: So if that ground were made out, that would - - -

PN235

MR MURPHY: If the merits of the argument on procedural fairness are found by the Commission to be strong, then leave ought be granted, but we say they should not be found to be strong. We say the procedural fairness point which is raised initially and throughout the grounds and submissions of Mr Kershaw properly would fall within section 45(1)(g) of the Act. That is, a failure of a member of the Commission to exercise jurisdiction in a matter arising under the Act. Because a matter that involved jurisdictional error constituted by a denial of procedural fairness really doesn't give rise to a decision.

PN236

There's no legal effect to that decision, we would say, and so there's a failure to exercise jurisdiction at all, so we would concede if that point gets up, it's validly brought under section 45(1)(g) of the Act. Now, that takes me then to the cases that we would say are relevant to this point. I've handed to the Commission bundles of authorities. Are they before the Commission?

PN237

JUSTICE GIUDICE: Thank you.

PN238

MR MURPHY: The first decision which I'll take the Commission to is number 7 on the list, the final decision in that bundle. This decision is Re: Coldham Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208. The quote which I've briefly referred to appears at page 220. It's by Gaudron J, and it is this:

PN239

As was pointed out by Dean J in Sullivan v Department of Transport, procedural fairness requires only the party be given a reasonable opportunity to present its case and not that the Tribunal ensure that a party takes the best advantage of the opportunity that he is entitled, and it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue.

PN240

So I say that that's the test really that the Commission should be applying, looking at the transcripts, should Mr Kershaw reasonably have apprehended that the issue was or might become a live issue, the issue is that McCarthy DP was proposing to deal with the matter on the day, to deal with the matter pursuant to a concession obviating the need for a final hearing and to leave the Tribunal at that point with the submissions that had been made and to finally resolve the matter. So if Mr Kershaw should reasonably have apprehended that the issue was or might become a live issue, then we say that procedural fairness was afforded to Mr Kershaw.

PN241

I note that that test is an objective one, so there is a reasonableness element to that, whether the opportunity reasonably was there for Mr Kershaw to appreciate that as being a live issue or might be becoming a live issue. The second case which I would say further illustrates the point is number 6 on my list, and is Re: Australian Railways Union and Ors and Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17. I won't quote from that decision, but the relevant portion is at pages 23 and 24. In this matter, the relief that was granted was not sought by either of the parties. The union there applied for an interim award to preserve the status quo generally and that the employer oppose that application.

PN242

So the employer did not appreciate that the Commission was contemplating the course it ultimately took and submissions were not directed to that issue. As the parties simply could not or could not reasonably have apprehended the issue that ultimately decided the matter, the writ of certiorari was issued and the decision quashed. So there's a case where we say if we fall within that sort of a case, the appeal should be allowed, the matter perhaps remitted back to a single Member of the Commission.

PN243

JUSTICE GIUDICE: What tab is that, Mr Murphy?

PN244

MR MURPHY: Sorry, that is number 6. At pages 23 and 24 of that decision are the relevant pages.

PN245

JUSTICE GIUDICE: Yes, thanks.

PN246

MR MURPHY: Turning now to the specific particulars of this case, in my submission the Commission has a broad discretion as to the procedure it was to adopt in resolving the dispute, and that arises by virtue of sections 110, 98A, 98. I won't take the Commission through those sections, but just simply to say that there was a broad discretion in the way in which the Commission was to deal with the issue, and that certainly the course that was taken by McCarthy DP was certainly open to him; the question really being whether the fact that he might take that course was reasonably apprehended by Mr Kershaw.

PN247

That's the real question. And so one then needs to refer to the transcript to determine whether sufficient notice was given that that course might be taken. Just while I recall, there were matters raised in Mr Kershaw's submission about invitations to respond to perhaps the matter of clause 13 in the certified agreement. The question isn't whether the Commissioner or the Deputy President, for that matter, invited parties to respond to a particular issue, it's really whether the parties reasonably should have apprehended that that issue was live or might become live.

PN248

Perhaps it's a matter of good practice to invite the parties to make submissions on particular points, but it's not necessary, in my submission. Turning, now, to the transcript, or firstly, to the decision below. This matter is referred to at paragraphs 28 to 29 of the decision below. The first point I would start with is in
Mr Kershaw's submissions themselves. At paragraph 1, we have Mr Kershaw accepting that this type of resolution was raised with him prior. He wasn't happy for it to proceed in that way, but this sort of disposition of the matter was raised with him and we say that certainly is a matter that this Commission can take into account when deciding whether it should reasonably have been apprehended.

PN249

It's not really whether he agreed to that process or not, it's whether he apprehended the issue and had the opportunity to then turn his mind to it and make submissions on it. In the transcript, McCarthy DP initially seeks a concession of the respondent and that occurs at paragraphs 46 to 47 of the transcript, paragraphs 54 through 68. The concession was finally made at paragraph 288 and also referred to in paragraph 310.

PN250

JUSTICE GIUDICE: Yes. Well, let's have a look at those paragraphs.

PN251

MR MURPHY: If we start perhaps from the beginning, paragraphs 46 through 47 I say is when the issue of a concession was first raised.

PN252

MR KERSHAW: I'm sorry, your Honour, could you just give me a moment to get a copy of the transcript?

PN253

MR MURPHY: Sorry, paragraph 46. There you see the Deputy President raising the matter and midway through the paragraph 46, perhaps four lines up:

PN254

Again, purely for the purpose of resolution of the issues, to accept the factual basis of Mr Kershaw's assertions with respect to marking and the like. In other words, in order for the Commission to make a determination, accept for that purpose the factual basis of his assertions.

PN255

So as early as paragraph 46, we have the Commissioner raising as a possible resolution of this matter a concession being made to the factual issues.

PN256

JUSTICE GIUDICE: But if you go back to paragraph 18, the Commission there identifies two questions. The first is whether as a matter of discretion the Commission should make findings or recommendations or orders in relation to the issues that had been identified. And secondly, what procedure the Commission should adopt in relation to the matters it intended to make determinations about. Then he outlines those with some more particularity.

PN257

MR MURPHY: As we - - -

PN258

JUSTICE GIUDICE: Where does the Deputy President indicate for the first time that the outcome of that hearing on that day might be the end of the proceedings? In other words, what started out as a hearing on procedure and process to be followed, where does it become a final hearing, as it were?

PN259

MR MURPHY: Perhaps at paragraph 229. I'll preface that firstly by saying - - -

PN260

JUSTICE GIUDICE: Mr Murphy, I don't want to take you too much out of the order you've adopted, but if you'd prefer to go through the passages that you'd intended to take us to, that's fine, but just bear my question in mind in due course.

PN261

MR MURPHY: Certainly, and I would preface my answer to that question with the submission I'd made earlier, that there's a broad discretion as to the procedure to adopt and that so long as that course could reasonably have been apprehended by the parties, or should reasonably have been apprehended by the parties, then procedural fairness was not denied. So it did perhaps start out as more in the nature of procedure, and then once the concession was obtained, took on a different character.

PN262

But then turning perhaps to paragraph 229, and looking at paragraph 228 before that, Mr Kershaw refers to the formal hearing. He says:

PN263

In the formal hearing, and I don't want to make that distinction, but when we get around to providing detailed argument, yes there are - - -

PN264

And then the Deputy President states:

PN265

Well, if there is a need for detailed argument. You see, you might recall the question I proposed to Mr Andretich of, if they accept for the purpose of me determining the issues, if they accept for that purpose what you're asserting to be a fact, then that really only leads to, well, what is the nature of any determination to be made. There's no necessity.

PN266

And what we say he's saying there is simply there's no necessity for a final hearing as to - or a substantive hearing as to the facts because they're simply conceded. And then we have, at paragraph 230, Mr Kershaw stating that he appreciates that.

PN267

JUSTICE GIUDICE: Yes, but - - -

PN268

MR MURPHY: So the next question - - -

PN269

JUSTICE GIUDICE: - - - it was the proximity of the decision that concerns me. You see, if this is all taking place in a context where this is a hearing about procedure, then questions about concessions on the facts seem to be matters for some later hearing. So I'm really looking for where it is that this is all crystallised, that this is the hearing, or potentially the end of the hearing.

PN270

MR MURPHY: Well really, that's the highest I can put it, that there was reference made throughout the transcript to concessions and a final
determination - - -

PN271

JUSTICE GIUDICE: Yes.

PN272

MR MURPHY: - - - based on those concessions. It wasn't expressly put that this would be the final hearing, but it became clear, I would rely on paragraph 229, as best stating it, that then once you have these concessions, the question is, what's the nature of the determination to be made?

PN273

JUSTICE GIUDICE: Yes.

PN274

MR MURPHY: So we say from there, we have matters raised as to the orders that were sought and that's where McCarthy DP states that he has heard submissions as to the orders that were sought, he has the draft orders before him, and that was the question that was live to him once that concession had been made.

PN275

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Murphy, do you say to us that the observation of the Deputy President at that paragraph that you've just referred us to is referring back to the earlier exchange that the Deputy President had with Mr Kershaw at paragraph 117 and following?

PN276

MR MURPHY: Yes, I would say that that really makes the point that I'm seeking to make, that there was a broad discretion and the process that was to be adopted was a live issue and that in obtaining that concession, the appropriate process as it appeared to the Deputy President was to resolve the matter on the day, or on the basis of the submissions made on the day, and raising that point as to the concession with Mr Kershaw, the response was that Mr Kershaw appreciated that there would be no need for a detailed argument if the concession as to
Mr Kershaw's assertions was made.

PN277

Also appreciating that the next question that was live in the proceedings was what is the nature of any determination to be made. That's the question really that was addressed in submissions by Mr Kershaw from that point onwards, or after that point.

PN278

JUSTICE GIUDICE: You see, Mr Murphy, the thing that I'm having difficulty with in all of this is that - perhaps it's a consequence of - it may be that because of the history of the matter, things became confused; I really don't know. But the difficulty I have is this; Mr Kershaw is saying, "Well, I didn't ever realise that I wouldn't get the chance to put everything I wanted to put because I thought it was a hearing about procedure". That's what he's saying. I guess what I'm looking for is something which unambiguously indicates to him that, "No, this might be your last chance, so anything you want to raise, you have to raise now".

PN279

MR MURPHY: Well, we don't actually have that. We don't have the Deputy President saying, "I'm looking to resolve this matter on the basis of what I'm hearing today, so anything you may have to say about taking that course, and also if I take that course, how I should determine the matter, please provide your submissions on that point now", we don't have that. The test, as I've stated,
really - - -

PN280

JUSTICE GIUDICE: Yes, I understand.

PN281

MR MURPHY: Whether it really should be - should reasonably have been apprehended that it was a live issue, that he might deal with it on the day.

PN282

JUSTICE GIUDICE: Yes.

PN283

MR MURPHY: And that's as far as we can put it.

PN284

JUSTICE GIUDICE: Yes. I'm not suggesting the absence of such an indication is fatal, obviously it is a question of all the circumstances and what was said. I understand the submission about whether it should have been reasonably apparent.

PN285

MR MURPHY: Yes.

PN286

COMMISSIONER GAY: Mr Murphy, can I take you back to paragraph 18 again. You rely on Re: Coldham. You say that an issue might be becoming a live issue. I think that's how you had developed that point, that Mr Kershaw should have seen that in this proceeding the potential for a final determination - or Mr Kershaw should have realised that it might be becoming a live issue. Is that right? Do you remember using that term earlier?

PN287

MR MURPHY: That's the way I put it. That's taking the test as best as put for us, yes.

PN288

COMMISSIONER GAY: Well, that's right, so this proceeding before McCarthy DP, it struck me that the initial statement that McCarthy DP made which has all the hallmarks of a prepared statement, it's likely to have been something which was put in a threshold way to assist the parties, it strikes me, and it's at paragraph 18, and then onto paragraph 19, that it's the Deputy President who reaffirms for those involved in the proceeding that it was for programming and procedures, and it strikes me that that's something that one has to be mindful of, as true it is that the conference then winds its way around the subject matter that the parties discussed.

PN289

MR MURPHY: Certainly that point was made and we would accept that at that point it did appear it was simply a matter as to the procedure to take. The hearing took a different turn when the concession was made available and it appeared appropriate to the Deputy President to then seize on that concession and make use of it to facilitate the shortening of - or the narrowing of the issues, really, to the question of what determination should be made. Once you have the factual matters conceded, then what shall we do? And the best we can put it is simply that there's a broad discretion as to the procedure to be adopted.

PN290

COMMISSIONER GAY: Yes, there's no doubt about that. Yes, one understands that.

PN291

MR MURPHY: Yes, and that prior to the hearing itself, as noted at paragraph 1 of Mr Kershaw's submissions, that the issue of having an on the record hearing and deal with it - and perhaps if I can paraphrase. Mr Kershaw's submissions state on 12 July 2005:

PN292

I attended a conciliation conference convened by McCarthy DP. As part of that process, his Honour held private conferences with each of the parties. During his Honour's time with myself, it was suggested that an on the record conference could be held, at the conclusion of which he would make a final determination. I rejected such a proposition and indicated my desire that the matters proceed to arbitration. His Honour understood and accepted my position, but indicated that he would wish to place that view on the record.

PN293

So we say - - -

PN294

COMMISSIONER GAY: Well, he would wish Mr Kershaw to place that view on record. It's what Mr Kershaw says.

PN295

MR MURPHY: Yes, but what I take from that paragraph is that the issue was raised at that point and so a live issue - ought to have been a live issue in the mind of Mr Kershaw, that this hearing itself may well, if proper or if the necessary concessions are made, and submissions are made, could turn into final determination of the matter. And that's really as far as I can take it, that we do concede there were points at which we'd suggest that this was to be a procedural hearing, but it's really for the Commission simply to determine whether there should have been a reasonable apprehension of that issue becoming live.

PN296

Unless there's anything further, I'd move on with that issue, onto the next issue.

PN297

JUSTICE GIUDICE: Yes, please.

PN298

MR MURPHY: That issue of procedural fairness arises in the grounds and submissions of Mr Kershaw really up to paragraph 8. There are other issues that arise as to procedural fairness, those including whether McCarthy DP should have invited submissions on certain matters. Again, we say that detracts the Commission from its real task here in determining whether there was a real and reasonable apprehension of the issues becoming live. If we just perhaps turn to - paragraph 30 falls under the heading, "Errors of Law" and this is paragraph 30 of Mr Kershaw's submissions.

PN299

The first Mr Kershaw raises is simply that jurisdiction had yet to be decided. It's on the basis of that this appeal should be allowed and perhaps remitted back. The issue of jurisdiction wasn't taken by my client, though we reserve the right to take that point. McCarthy DP actually assumed jurisdiction in favour of Mr Kershaw, and we say that's simply not a ground for appeal here. If the Full Bench were to contemplate considering or entertaining this appeal ground, it would have to make the decision as to whether jurisdiction existed and if it did, then that's no complaint against McCarthy DP's decision, and if jurisdiction didn't exist, then it would simply be before the Full Bench to allow the appeal and dismiss the applications, insofar as they have no jurisdiction to be heard by the Commission.

PN300

So it's really a red herring, we say, that jurisdiction was assumed in this case by the Deputy President and the basis for doing so was that we didn't take that issue and it was assumed in favour of Mr Kershaw, so it's not a matter really properly the subject of this appeal. The next error of law alleged by Mr Kershaw is in relation to the matter of costs. Now, the way McCarthy DP dealt with it was to say that his power to award costs was contained within section 347 of the Act, and the way that Mr Kershaw attacks that, as I see it, is that he states that section 347 didn't apply to matters under section 170LW in that they are private arbitrations and powers open to the Commission are those within the certified agreement.

PN301

However, my primary submission is that the Deputy President was correct and that under section 347 the proceedings were a matter arising under this Act, which is the part of that section which Mr Kershaw attaches importance to. He says that private arbitration proceedings are not matters brought or arising under this Act, and so section 347 has no application. The broader submission really is that costs in arbitration proceedings are in any event, in this state, limited to legal costs and disbursements and allowable out of pocket expenses. We don't have legal representation before the applicant, or the appellant, so there are no legal costs that are recoverable.

PN302

But before we get to that point, I would like to refer the Commission to decision number 5 on my list of authorities. This is the decision of the Full Bench of the Commission entitled Qantas Flight Catering Limited v Australian Municipal Administrative Clerical and Service Union (2003) 128 IR 72. This was a decision pertaining to powers open to the Commission under private arbitrations under section 170LW. Really, the point I'd seek to be making is that in conducting a private arbitration under that section and under the certified agreement, the parties take the Commission as they find it, with its particulars under the Act.

PN303

That decision related to whether the powers under section 111 were available to the Commission for matters arising under section 170LW of the Act, and it was held that section 111 did apply. We say, by analogy, that would then extend to section 347 of the Act, applying that section as to costs. And the relevant parts of that decision, I would say - - -

PN304

JUSTICE GIUDICE: Mr Murphy, doesn't the High Court tell us in a private arbitration case that proceeding under section - that exercising powers enabled by section 170LW is a statutory function of the Commission pursuant to section 89B?

PN305

MR MURPHY: Yes, that's correct. That's another point that I was going to add, to state that this matter arises under the Act and so - - -

PN306

JUSTICE GIUDICE: It's a bit hard to jump over that one, I would have thought?

PN307

MR MURPHY: Yes. If I can just briefly refer to that Qantas decision and also decision number 1 in my list? I won't take the Commission to those, but simply stating that the powers available to the Commission are those under section 111, and we say by analogy section 347 of the Act. In the Qantas decision, which was number 5, there is express reference at paragraph 83 to a contention that the Commission's powers in an arbitration pursuant to a dispute settlement procedure in a certified agreement are co-extensive with the powers which may be exercised by a private arbitrator.

PN308

We say that they are not, and that's really what was suggested in that decision. You don't have powers as a private arbitrator and powers as the Commission. You may have powers under the certified agreement that would alter in some way, where permissible, the powers available under the Act, but you certainly don't have regard to the Commercial Arbitration Act of this State and certainly the costs section of that Act in particular, as I've said previously, only allow for legal costs and disbursements and out of pocket expenses. Just to refer to the authorities for that proposition, those are at cases 1 and 2 of my bundle. That is, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation (2003) - sorry, actually that's not the case I seek to refer to.

PN309

The case in support of that proposition is at number 4 of my bundle, and that is James Arris and Associates v The Minister for Works (1994) 11 WAR 390. I won't take you to that decision, but simply that that is - and confirms that costs allowable under the Western Australian Commercial Arbitration Act are only those legal costs and disbursements and proper out of pocket expenses such as photocopying. We're not talking here in terms of damages or costs that Mr Kershaw seeks to apply for in these proceedings.

PN310

There's nothing in the certified agreement that would suggest damages being available for breaches of the clause of the sort we have here, which is really consultation clauses. It's not an entitlement clause either. There's simply no basis for any power to award costs in this situation, so we say McCarthy DP was correct in that regard.

PN311

JUSTICE GIUDICE: Mr Murphy, what did your client ask McCarthy DP to do in the hearing on 19 July?

PN312

MR MURPHY: I must accept that the hearing was driven to some extent by the Deputy President. He requested this concession, it was made, and we were happy to provide that concession and we certainly didn't ask for the matter to be determined on the basis of those submissions, but we don't take objection, of course, to the course that it did take.

PN313

JUSTICE GIUDICE: Well, it's quite a rational position for you to adopt, but - - -

PN314

MR MURPHY: Certainly, but - - -

PN315

JUSTICE GIUDICE: - - - did you make any substantive submissions as to the procedure, as to what should occur?

PN316

MR MURPHY: Well, firstly there was a submission made under section 111, which was - - -

PN317

JUSTICE GIUDICE: Yes, yes.

PN318

MR MURPHY: - - - misconceived, we would accept, given it's not applicable to those sorts of proceedings. Those public interest submissions, though stand still, we say, in terms of whether relief should be granted today, and also as to what sorts of remedies are available in any event, given the real grievance that is before the Commission.

PN319

JUSTICE GIUDICE: Well, was the only substantive submission your client made as to how the mater should be dealt with, the application for dismissal pursuant to section 111? Or were there other substantive submissions?

PN320

MR MURPHY: Just one moment.

PN321

JUSTICE GIUDICE: Well, perhaps you can come back to that. There's no need to interrupt your submissions.

PN322

MR MURPHY: The next point raised by Mr Kershaw in his submissions really goes to the decision not to make any orders consequent upon the decision that facts had been conceded, and the way that Mr Kershaw puts it is that no reasonable decision-maker would have made the decision made. We would accept that that sort of a test falls within the principles of House v The King, and is one of the reasons why this court could set aside this decision. But that really it's a tough test to get over, given the discretion that was involved and the remedies that were indeed sought.

PN323

The real question before McCarthy DP, once we look past the concessions having been made, we look at the character of the primary dispute, and we say the character insofar as it relates to the certified agreement is whether the consultative provisions of that certified agreement had been breached, and if so, what relief was warranted. Having regard to the relief that was actually sought, and there's a three-page document in the materials provided by Mr Kershaw, setting out the remedies that were actually sought to go beyond those actually referred to today, including directions, declarations, injunctions and the like.

PN324

These appear, sorry, at attachment Q to the appeal grounds and submissions made by Mr Kershaw. There's that three-page document that was before McCarthy DP in considering what remedy or relief should be granted. The relief sought really went a lot further than the dispute itself. The dispute was whether, as I see it, or in my submission, the consultative provisions of the Act applied, how they applied, whether they were breached, that sort of thing. Going further to suggest that the reassessment of marks was actually improperly done or incorrect goes a lot further than to say that procedural fairness was not accorded.

PN325

It's one thing to say we didn't consult with Mr Kershaw, it's another to say that the ultimate decision we made, leaving aside the failure to consult, was the incorrect decision. You'll see in those declarations that Mr Kershaw is seeking marks being set aside, that sort of thing. Really, that relief wasn't open to the Commission. It went far beyond what was called for in the dispute. What we had here was a finding that the duty to consult had not been complied with and there was appropriate denunciation of that misconduct and so the matter really didn't need to go any further, and that was McCarthy DP's decision.

PN326

We say that was entirely appropriate in the circumstances and should not be set aside by this Full Bench. The remedies are inappropriate for a number of reasons, and just to quickly highlight those, the assessments affected these individuals, who had moved on with their lives - these assessments were in 2004 - and would have an impact on those individuals, and these individuals are entitled perhaps to some certainty as to their assessment, and shouldn't have to be involved with a reassessment more than a year down the track. Again, it really takes us to Mr Kershaw's real grievance that we say is here, is that the educational standards of the respondent were lacking.

PN327

Again, that matter as I've put it is simply not a matter for this Commission's concern, and certainly shouldn't warrant the orders and relief that was sought by Mr Kershaw. Now, there was the final matter that I wanted to raise in response, was the question from the President. Perhaps I'd like to briefly refer to the transcript?

PN328

JUSTICE GIUDICE: Yes, by all means. Were you about to finish your submissions? Yes.

PN329

MR MURPHY: Once I've had the opportunity to review the transcript.

PN330

JUSTICE GIUDICE: Yes. Yes, very well. Do you have anything in reply, Mr Kershaw?

PN331

MR KERSHAW: I do, your Honour.

PN332

JUSTICE GIUDICE: Yes. How long do you think you'll be?

PN333

MR KERSHAW: Possibly half an hour.

PN334

JUSTICE GIUDICE: Yes. All right. I think it would be preferable if you'd heard everything Mr Murphy has to say before you respond, so Mr Murphy, we might adjourn now we'll hear you after lunch on that and any other matters, then we'll hear Mr Kershaw's response, and as I say, we'll adjourn to consider where we go from there. So we'll adjourn now until 2 o'clock.

<LUNCHEON ADJOURNMENT [12.45PM]
<RESUMED [2.01PM]

PN335

JUSTICE GIUDICE: Yes, Mr Murphy?

PN336

MR MURPHY: Just to respond to the question posed as to whether the respondent in the proceedings below made any substantive submissions beyond those under the application of section 111(1)(g) to the discretion of the exercise, my answer to that is no. I have reviewed the transcript and there weren't any substantive submissions beyond that. The way it proceeded simply was that there was a suggestion that a concession could be made leading to a final determination and that suggestion was taken up by the respondent. The matter was proceeded with on that basis.

PN337

JUSTICE GIUDICE: But where was that suggestion made?

PN338

MR MURPHY: The suggestion was made at - paragraph 62 may be of assistance, just to go back to that point in the transcript.

PN339

JUSTICE GIUDICE: I see, yes.

PN340

MR MURPHY: Sir, paragraph 62, firstly that paragraph is that what is stated is really that you get the facts out of the way and then the only issue left is what determination should be made. At that very stage, Mr Andretich, counsel for the respondent, responded ultimately at paragraph 71, saying that he really needed to take instructions on that point, but if we look at paragraphs 67 and 68,
Mr Andretich states:

PN341

So then the proceedings would be at an end, effectively, on the basis of that concession for the purpose of determination.

PN342

The Deputy President responds:

PN343

Well, that's as I'd see it. There'd be no purpose other than for what the nature of any determination would be. And the remedy that's sought out of the nature of that determination was that that I outlined earlier arising from the conference on 5 July. That is, those issues that Mr Kershaw said was what he wanted.

PN344

So really at that point it's clear to Mr Andretich that the proceedings would be brought to an end with the concession and with a determination as to what should happen next. So we say from that point onwards, it was readily apparent that that was a live issue, and so procedural fairness there was not denied. But the point that that was taken up, just for reference, is paragraph 288 - - -

PN345

COMMISSIONER GAY: Mr Murphy, before you go off that paragraph 68, it might be more convenient if I ask you this question before I go on. Isn't it right, though, that the earlier proceedings to which reference is made there at paragraph 68 is the conciliation where Mr Kershaw, as I understand it, had in the context of conciliation, confined his position, he'd narrowed his position. The impression that I'm forming is that Mr Kershaw had a confined position in conciliation and in the event that the matters were to go to argument he consistently maintained that there was a large scope of material and matters of issue that he wanted to agitate.

PN346

MR MURPHY: Well, that's the - the point that I see it as, the remedies were perhaps discussed at the former hearing and that's why, at that point what was being raised is "These are the remedies that would be available, that would be considered by me were this factual concession to be made." But I'm not really - I don't know that I can really assist further with the question of whether it was always clear that Mr Kershaw intended there to be full argument if those remedies - or if the matter is not resolved on a conciliated basis, perhaps. That's a real live issue. I don't know that - - -

PN347

COMMISSIONER GAY: The parties make concessions in conciliation, don't they, with a view to narrowing the issues between the parties and in a conciliatory way.

PN348

MR MURPHY: Certainly.

PN349

COMMISSIONER GAY: It's a very regular event and do you think that that is what is being referred to there at paragraph 68?

PN350

MR MURPHY: It's not entirely clear - - -

PN351

COMMISSIONER GAY: I see.

PN352

MR MURPHY: - - - that the concession was for that very purpose only. The concession was made and it was simply the only other issue would be the determination that would be made in respect or flowing on from that concession.

PN353

COMMISSIONER GAY: Yes, because if you look down at paragraph 77 at the bottom of that page that you've taken us to, you'll see that Mr Kershaw - it seems to be live in his mind, the dichotomy, the existence on the one hand of a confined or a narrower list of issues in the event that there is an agreement capable of being hammered out and if it can't be forged, then there's the full list of remedies that seems to be what is portended for arbitration.

PN354

MR MURPHY: Yes, and I do note that it does appear at that stage, that that was what Mr Kershaw intended, and I don't know that I can take it much further than that.

PN355

COMMISSIONER GAY: Yes. Thanks, Mr Murphy.

PN356

MR MURPHY: That's really the point, as I've said, that it was a live issue at least at that point. Whether it was apprehended or reasonably apprehended is another question.

PN357

COMMISSIONER GAY: Yes. You say it should have been?

PN358

MR MURPHY: It should have been apprehended. That's our case. And unless there was anything further, those are my submissions.

PN359

JUSTICE GIUDICE: Well, there was something else I wanted to ask you about. Yes. Paragraph 306 of the transcript, Mr Kershaw there seems to be talking about an agreement, doesn't he? "If we can get a decent letter sent out"? Was that something that was being discussed, as something that Challenger might do?

PN360

MR MURPHY: Perhaps I can just take instructions?

PN361

JUSTICE GIUDICE: Yes.

PN362

MR MURPHY: I'm instructed that the respondent was never actually open to that course taking place, at least by agreement, that it was discussed, but our position always remained that we were not prepared to provide letters in the terms sought. The way I would read Mr Kershaw's statements at paragraph 306, really that if he was able to obtain that remedy, then he would be satisfied with that remedy in and of itself, perhaps the letters and a declaration, those two points.

PN363

JUSTICE GIUDICE: Well, except that the Deputy President then goes on to say that a concession's only made for the purpose of him making a determination. It seems to indicate that he and Mr Kershaw are looking at it through different ends of the telescope.

PN364

MR MURPHY: I accept that it does appear to be a - - -

PN365

JUSTICE GIUDICE: I suppose we'll never know. It's a bit difficult to try and work out and analyse every word after the event, when you're not there.
Anyway - - -

PN366

MR MURPHY: Yes. Perhaps one further thing I might add is that the concession perhaps was for the purposes of resolving the factual issues, but a separate issue and a live issue was the determination that flowed from that concession, so look, you have this concession but that doesn't automatically flow that letters would follow from that. It's still something to be considered by the Commission, whether it's appropriate to make orders or declarations or letters as sought, that really they're two separate things, not that they were together and that, as Mr Kershaw seems to state, that when you've made this concession, then how can it not flow that letters would be issued?

PN367

I mean, you've agreed to fault, perhaps, and it simply flows from that, that letters should be issued. But really they were two separate issues, as far as the Commission was concerned. But I can't take it any further than that.

PN368

JUSTICE GIUDICE: Yes. All right. Thanks, Mr Murphy.

PN369

COMMISSIONER GAY: Mr Murphy, I wonder if I might just trouble you further, though? It's interesting there, at paragraph 306, that Mr Kershaw speaks of a decent letter going out. Is there a - but it seems to suggest that the letter that might be capable of being crafted was in the alternative to the remedies or claims, because he says in that same sentence, "They go out the window if we can get a decent letter", so, of course I suppose, everyone wants a decent letter about themselves, but it strikes me, without putting too much spin on that, that it might be it reflects some flexibility or some preparedness to attempt to come up with a draft which is - this is in the conciliation mode, which might suit the purpose.

PN370

And of course, Mr Kershaw this morning has referred again to the letter, hasn't he?

PN371

MR MURPHY: Yes.

PN372

COMMISSIONER GAY: Has there - and I don't know - been any thought given by the college to what form a letter might take which could meet some of those needs that were amplified this morning in Mr Kershaw's opening?

PN373

MR MURPHY: One moment. I'm instructed that it was considered at length and that simply the parties couldn't come to an agreement, nothing acceptable to either party could be resolved at that point. And again, to make the submission that paragraph 306 could be seen to be directed at, really, "What orders are you proposing to make, Deputy President?" and "I would be happy with these letters, or an order that these letters issue. That would satisfy me and I would be happy with that, and everything else would fall away if you're prepared to make those orders". That's really our case.

PN374

JUSTICE GIUDICE: Well, just to come back to that, that doesn't appear to be how the Deputy President construed the comment.

PN375

MR MURPHY: Well, I don't know how much further I can take it - - -

PN376

JUSTICE GIUDICE: No.

PN377

MR MURPHY: - - - but my submission really is that it appears Mr Kershaw considered that if you're going to concede that you've been at fault here, then it should flow from that that you write a letter conceding that fault and making that apparent to everyone. Our position was, we may make our concessions, but we don't concede that it should flow from that, that the letter should issue, and that's perhaps what the Deputy President was referring to and "That, look, this concession doesn't go both to the facts and to what relief should be provided once those facts are established".

PN378

JUSTICE GIUDICE: But what does paragraph 309 mean? In your submission, what was really being said there?

PN379

- there's no actual concession there's been any fault on the part or flaw in the procedure by the college, but is a concession for the purpose of a determination being able to be made.

PN380

Well, surely if the determination is made on the basis of a concession, then it - I can't see what the distinction is that's being made there.

PN381

MR MURPHY: Yes. I'm perhaps at a loss as well, but the way I put it is simply that it's not a concession at large, but merely for this - if we can get this issue dealt with, this issue of the facts and those are established, then everything else is opened up. The issue of relief is then a live issue and not constrained in any way by - well, not constrained necessarily by the concession made as to the facts, but really, I'm at a loss also.

PN382

JUSTICE GIUDICE: Yes. Thanks very much, Mr Murphy.

PN383

MR MURPHY: Thank you.

PN384

JUSTICE GIUDICE: Yes, Mr Kershaw?

PN385

MR KERSHAW: Perhaps while it's fresh in the Bench's mind, I may address the latest issues that you've been listening to first. My view on the proceedings, and it's quite firm, is that very early on McCarthy DP made the proposal that this matter may be settled through the issuing of letters and declaration that the college would follow its procedures in the future. It was not a new proposition. I had put it to Blain DP, I'd offered letters to the college with Blain DP and they had rejected them outright. I had mentioned it at the first conference with McCarthy DP and I presume that's why he brought it up in a subsequent hearing on 19 July.

PN386

Everything discussed at that hearing, once the preliminaries were out of the way, was whether that sort of arrangement would be accommodated by the college. There was resistance right from the very beginning of that hearing from the college who had refused, as I say, previously to issue letters and accept responsibility for what had occurred, but McCarthy DP pushed and pushed that issue, trying to find some way in which the college would accept responsibility in a way that would satisfy myself. It was always more of a conciliation, because at conciliation I had offered up what I thought was a reasonable compromise to dispose of these matters and it was consequently rejected by the college.

PN387

I have covered it in my applicant's submission, but you have had the transcripts a short while ago, and in my submission, I refer to paragraphs 319 and 320 of the transcript. This is when I had my awakening, where I say:

PN388

Sorry, your Honour, are you proposing to -

PN389

It's actually not very good English. I must say, the transcript of this proceeding, I had a lot of problems with not just what I said, but what other people said. It doesn't seem to make sense, this bit:

PN390

Sorry, your Honour, you are proposing to suggest determination before making it and allow submissions on it, are you?

PN391

And then the final paragraph:

PN392

No. What I've indicated is that from what's been put to me and what's been considered for the purpose of making determination, I should decide as a matter of discretion to make determinations. I also consider whether I am in a position to make the determinations and I may. That's what I'm saying, Mr Kershaw. Thank you. The matter is adjourned.

PN393

You can see there that I was cut off in my statement and interrupted by Blain DP with any further opportunity follow up on what I'd been trying to say. Both Blain DP and Mr Ray Andretich had one eye on the clock - - -

PN394

COMMISSIONER GAY: You meant McCarthy DP? I know you - - -

PN395

MR KERSHAW: Sorry. Sorry, yes. But I took particular note of the number of times that the clock was consulted. Proceedings were ran up in haste and I was given no opportunity to deal with the matters that had come to light. That paragraph 19 is when I first became aware that this was going to be it. If I can go back, then, and just - - -

PN396

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Kershaw, just before you leave that issue, can I take you to paragraph 81 of the transcript? That paragraph occurs shortly after you stand up to respond to the college's submissions and shortly after the college has conceded that it did not comply with its policies. The Deputy President referred you to the three-page document, outlining the sort of orders that you were seeking, and he said in paragraph 80 that he hadn't had time to read that particular document, but you continued to talk about the possibility of "solving the matter today or in the next couple of days". So what do you say to me about the extent to which you understood that the matter could be brought to a resolution on 19 July?

PN397

MR KERSHAW: I really had very little confidence, but at that stage of the proceedings, I was aware that McCarthy DP was pursuing that course, of encouraging the college to issue letters and accept an order perhaps binding the college to its own policies. Perhaps I'll refer to my actual submission regarding this appeal, and paragraph 1, notice of listing.

PN398

JUSTICE GIUDICE: Mr Kershaw, what we might do, just to keep these documents in order, is mark that submission of yours, I think, as an exhibit. It's not strictly necessary but it might be useful to do that. It's the submission dated 11 August 2005, together with the attachments A to Q.

EXHIBIT #K1 SUBMISSION WITH ATTACHMENTS A-Q DATED 11/08/2005

PN399

JUSTICE GIUDICE: Yes.

PN400

MR KERSHAW: Yes. Mr Murphy referred to paragraph 1 of this notice. I'd just like to point out that there's no inaccuracy in that paragraph, it's written with due regard to the message and that is that during the conciliation conference on 12 July I indicated that I wanted the matter to be arbitrated. McCarthy DP told me then that he would like me to place that request on the public record. If not about anything else, I understood that I was to be called back the following week to put my request to move to arbitration on the public record. Mr Murphy didn't read paragraph 2, but I think it reinforces that view and the parties - because McCarthy DP had said that to me in private conference.

PN401

Paragraph 2 goes on:

PN402

Then when the parties came together again, it was clear that the matters in dispute could not be resolved through conciliation. As a consequence, his Honour indicated his intention to hold a further conference to accept submissions as to how the matters were to proceed from that point. He indicated that written submissions should not be made as it was a matter of getting the issues discussed at the conference on the record and plotting a way forward.

PN403

That was subsequently confirmed by the listing and the heading that we've all seen, for a procedures hearing. Mr Murphy did talk for a little while about the nature of the dispute and perhaps it's appropriate in the Commission context. I'd like to point out that this dispute has never been about students or assessments or anything of that nature. It's been about a senior officer deciding to take retribution against another junior officer with whom he had a problem. The issue of assessments and failure to consult and those issues come to the Commission because those are the issues that relate to the certified agreement.

PN404

Those issues involve breaches of the certified agreement and the dispute under that certified agreement, but to trivialise this matter by suggesting it's something to do with reassessment of student marks, I don't believe is acceptable. It's certainly not my view of why I am here today. So they represent, as I say, specific aspects of abuse that bring it within the scope of the certified agreement. At this and other hearings, the respondent has always sort of tried to muddy the waters between the substance of the dispute and the public interest questions in an appeal.

PN405

I'm not here appealing on public interest grounds. I'm here appealing because I've had no hearing about the substance about it, but the points I make about public interest in here are for the benefit of the Commission in deciding whether it's worth your time and effort to actually deal with this matter. I have been in touch with the premier formally, I've spoken to the Auditor General's Department and I've spoken to the minister's office of the Department of Education and Training. They all tell me that I must get the personal issues dealt with by the Commission before the broader public interest factors are actually dealt with.

PN406

Because they are so intertwined at the moment it makes it very difficult for someone else to deal with the public interest issues separate from the personal ones. So I'm here about the personal aspect of the events that have occurred. So I'd hope the Board would be cognisant of putting aside these distractions about the issues are bigger than the Commission and they belong somewhere else. They're very personal to me. It's a question of whether I have a job, whether I can go back to work, whether I can be healthy, it's not about the public interest.

PN407

Just a last point on that, I have mentioned in my correspondence, and it was brought up by Mr Murphy earlier, of the Four Corners program about standards in universities. If anybody watched that Four Corners program, you would notice that not a senior lecturer stood up to say anything against the administrators of the universities involved, despite the abundant evidence of abuses. So when somebody does stand before you like this, a person on the ground with solid evidence of massive abuse, the public interest surely is present and would demand a fair hearing on the matters.

PN408

I've really addressed the question of whether - I believe I've addressed the question of whether I should have reasonably apprehended the possibility of a final determination on 19 July. I've referred to various things, but one other point I would make in relation to that matter is I approached the 19 July with a notice of listing for a procedural hearing. I have this massive amount of information that I can put to witnesses. There was no possibility, the mindset just wasn't right for me, as an inexperienced person, to even think about the possibility of a final determination on 19 July. It was never in my mind.

PN409

But perhaps I should have picked it up a little bit sooner. I don't think so. As I say, was it paragraph 319, it certainly hit me in the head. Mr Murphy addressed the question of damages and errors of law. I'd like to refer back to K1, my submission, and paragraph 38. There we will find some quotes by Lawler VP. He is sitting alone, or his reasons were issued individually, but they coalesce the authorities above that, in my submission, from higher authorities and I think, rather than going through a long list of authorities, I just have a look at these quotes from Lawler VP. He says:

PN410

What lies behind that principle is that arbitrators must determine disputes according to the law of the land. A claimant should be able to obtain from arbitrators just such rights and remedies as will have been available to him were he to sue in a court of law of appropriate jurisdiction.

PN411

This is in relation to the case where - it was a section 170LW case:

PN412

It is to the submission that one looks to find the powers of the arbitrator, or the powers thereby conferred or supplemented by the Arbitration Act -

PN413

Presumably referring to the Commercial Arbitration Acts that are standardised nationally:

PN414

- and by other relevant statutory provisions. To the extent that an agreement containing an arbitration clause was silent on the powers of the arbitrator, the law will imply ..... that is between the parties the arbitrator can exercise all such powers as are necessary to fairly and effectively determine the dispute and to provide a claimant just such rights and remedies as would have been available to him were he to sue in a court of law of appropriate jurisdiction.

PN415

That reflects a line of authorities, as I say, perhaps I've covered some above there in my submissions, I can certainly make more thorough submissions if the Bench would require it, but I think that's unambiguously recognising that an arbitrator does have access to the powers of the Supreme Court in issuing remedies. So even if Mr Murphy's assertion about section 111 and the awarding of damages not being available to me, that does not necessarily discount me having access to remedies through other sources of power, at the common law, general law, or under the Commercial Arbitration Act. They are quite separate things.

PN416

What Lawler VP is clearly indicating here is that the arbitrator draws his power from many sources and that these are in the contemplation of the parties and in the absence of any indication in the agreement to the contrary, that the arbitrator, the Commissioner, is free to exercise those powers. On that basis I would argue that McCarthy DP was in error in his doubts about the power to issue injunctions, in his doubts about the power to award damages and similar, that are discussed in his reasons. I would move on to paragraph 40 of K1. Mr Murphy made very brief reference to this; he suggested I had a very, very high fence to jump in establishing that McCarthy DP's decision was unreasonable and that no reasonable person could have made it.

PN417

But I think, given the evidence before McCarthy DP, including the points made in this submission, it was beyond belief that I should be expected, after the abuses I had suffered, that a document going back to 1998 in front of McCarthy DP, that he should expect me to go back to the college without any protection whatsoever just beggars belief. I think I jump the hurdle.

PN418

JUSTICE GIUDICE: The evidence that you refer to in paragraph 40 in those dots points, when was that presented?

PN419

MR KERSHAW: At the hearing on 19 July. You have attached to K1 a graphic - I went through this with McCarthy DP on 19 July because of assertions by the respondent that I had not really suffered at the college, had not really adversely affected me in any meaningful way, and what it shows is a moving averages my hours worked, from when I started work at the college to where I am now.

PN420

JUSTICE GIUDICE: Well, the question I asked was about those dot points in paragraph 40.

PN421

MR KERSHAW: Well, we went through this diagram and each of the balloons refers to my history of difficulties with the college. So a systematic failure of the college to comply with its own policies over a six-year period; for example, on here, we had some - I mean, obviously much - I suppose it would be better to find it in the transcript, but - - -

PN422

JUSTICE GIUDICE: What number is that? That's attachment E? Yes, I see.

PN423

MR KERSHAW: Yes. Basically I went through all of those dot points you'll see in the transcript, explaining what had occurred to me, particularly the white balloons, all right? But the fact that I'd been black-banned for three years, the orange part of the line, where the yellow line turns to orange, I was prevented from teaching then at Peel. We went through an extensive history and it's there in the transcript. Given that history and the events of 2004, it was beyond comprehension that I would not be given some sort of protection to come back.

PN424

The college has not once defended anything.

PN425

JUSTICE GIUDICE: Well, McCarthy DP seems to have reached the conclusion the college had conceded that all this was correct.

PN426

MR KERSHAW: On a very qualified basis, your Honour, simply to get it out of the Commission, and they didn't accept it on the basis that McCarthy DP proposed it. He started off in a hearing proposing that we determine the matter, the college sends out letters acceptable to me and there's an order binding the college to follow its own policies.

PN427

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Mr Kershaw, I'm struggling a little with this reference to a broader scope of issues. This morning I asked you to confirm to me that the three issues that were identified in the Deputy President's decision in paragraph 7 were the three issues that constituted the matters about which you were in dispute.

PN428

MR KERSHAW: I think - I think I said at that time, your Honour, that those were highlighted to connect the other events to the certified agreement.

PN429

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Whereabouts in the transcript of the proceedings before McCarthy DP was it made clear to him that there are a suite of other issues, apart from those three issues that are identified in paragraph 7?

PN430

MR KERSHAW: Well, all of these types of issues, all under one or other of those headings that I went through, I started my examination of them - - -

PN431

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Do you see paragraph 17 of the transcript, the Deputy President talks about four broad issues. Now, the fourth is obviously the issue of leave which has been put to one side. So that at the outset, it appears to me that the Deputy President was proceeding on the basis of those remaining three issues that are set out in paragraph 7. Now, is there anything to the contrary that you put to him in that regard?

PN432

MR KERSHAW: I - at the hearing - - -

PN433

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes.

PN434

MR KERSHAW: - - - I did not discuss the broader problem. At the conference prior to that I did. But McCarthy DP adopted the same approach as Blain DP had done. He wanted me to link things to the certified agreement. And so it just evolved that those shorthand points that I put on my original application became the focus for discussion, but it was always in the context of there were a lot bigger problems here than somebody had duped me on a reassessment of my materials or something.

PN435

SENIOR DEPUTY PRESIDENT O'CALLAGHAN: Yes, thank you.

PN436

JUSTICE GIUDICE: Well, if you look at paragraph 156, Mr Kershaw, I think the Deputy President there asked you for an outline of the underlying issues and then that attachment E you've just referred to, it's effectively you went through that - - -

PN437

MR KERSHAW: On that point on - - -

PN438

JUSTICE GIUDICE: Yes. So all of the matters that - now, do those matters extend beyond the four issues that had been identified earlier? I guess the four issues were general in character, weren't they, really? It might be a bit hard to say whether they - - -

PN439

MR KERSHAW: Yes, there were - there are so many. This is the thing. So, as a matter of convenience, in my original application, I had to summarise them in some way. They ascend over such a long period of time, for such a pattern of abuse that has brought me here. This is my last resort here. I've tried all the internal processes within the college. We've had an external mediator and changes to policies. That included managers acknowledging they were wrong in writing. It's writing up new procedures that they agreed they would follow in the future. It's made no difference.

PN440

So there's so much material, but what's really brought it to a head in 2004, as I say, I believe - and I believe I can prove it if I can get the opportunity - that Mr Evan Parker took positive direct steps to try and remove me from the college, and that's what has really brought me into the Commission, because of his extreme actions on that - during that period. I have no doubt what happened, but I cannot prove that aspect of my claim without witnesses and evidence. I have circumstantial evidence that suggests things of that nature were going on, but I certainly can't prove it in black and white, but I'm absolutely confident I could if I could get witnesses on the stand or in deposition or however; it would come out.

PN441

Because I can prove wrongdoing by all the people under him. Every single person, serious breaches of good faith in relation to their employee, breaches of policy. In one case I suspect a criminal act, but I cannot link them back to Evan Parker with sufficient certainty to prove what I believed happened. But certainly McCarthy DP had a good understanding of the history and where I was coming from, the problems I had encountered. The only things he was not aware of in the broad sense were things that had happened in 2005, because as the transcript will show, he stopped me going through those.

PN442

It's at the end of that section. I - I - it's in the transcript. So, the remedies I sought, it's a question of their appropriateness, but without an employer who is accountable for ensuring basic employee rights are maintained - I've lost my train of thought. You have to excuse me, I - - -

PN443

COMMISSIONER GAY: Mr Kershaw, take a moment to compose yourself.

PN444

MR KERSHAW: I just - I've got an employer who's accountable to nobody.

PN445

COMMISSIONER GAY: I didn't hear you, I'm sorry?

PN446

MR KERSHAW: I've got an employer who's accountable to nobody. That's - that's what they think, and my experience of the past 18 months says they're right. The minister's office doesn't want to deal with it, the auditor general doesn't want to deal with it, the premier's office doesn't want to deal with it. And I haven't got a hearing here in the Commission in all that time. What that means is if I cannot get remedies here, I lose my job. They have created my illness, I cannot go back into that environment without some assurance that my rights will be protected. I realise that the remedies I am seeking are unusual, but they are not extreme, given the circumstances I am faced.

PN447

The powers are with the Commission and its role as the private arbitrator to give me those remedies if it deems it appropriate. Without remedies, you take my job away from me. The final matter, it was brought up about the summonses. I had - they are irregular and I realise that now, I didn't at the time I drafted them. But I requested advice from Blain DP on six occasions as to the form of procedures of summonses from him. He refused and told me to go and get my own legal advice and I made five separate requests for the signing of summonses, both to Blain DP and McCarthy DP.

PN448

They are irregular, at least in the sense as I understand it, any information gathered should be directed to the Commission before I see it, so that the Commission has the opportunity to see the relevance of the information. I have my own address for the delivery of that information there. It's irregular in that respect. Mr Murphy also talked about the irregularity of written statements - I took my leave from Blain DP on that. He had issued directions requiring me to obtain written statements from witnesses. As it is, the summonses that I put forward have nothing to do with his directions because his directions were about a jurisdictional question, but nonetheless, I took that as guidance, as normal practice in the Commission, that witness statements be gathered, and that's what I've been seeking.

PN449

If that's not the case, then by all means, I'm happy to see those witnesses give evidence here in the Commission.

PN450

JUSTICE GIUDICE: You understand that if you - this is just a general observation - summons a witness, generally speaking you can't cross-examine that witness. In other words, the witness simply gives their evidence and you are not in a position, as the person who called that witness, to challenge the truth of their evidence.

PN451

MR KERSHAW: I didn't realise that.

PN452

JUSTICE GIUDICE: Yes.

PN453

MR KERSHAW: But as I've - as I've said to you previously, I don't believe the majority of people that I would wish to speak to would lie in front of the Commission.

PN454

JUSTICE GIUDICE: Yes. I'm not doing anything other than make an observation, that you might - it might be worth you being aware of.

PN455

MR KERSHAW: And certainly I have so much information that the college claims not to have, that if anybody should lie to me on the stand, I'm quite confident that I would trip them up on the moment.

PN456

JUSTICE GIUDICE: Well, the point I just made to you is that it can be difficult for you to cross-examine your own witness.

PN457

MR KERSHAW: The other aspects of the summonses is of course the discovery of documents. I have not a huge number of documents, but probably a couple of dozen documents that relate to these matters that have come from the college, that the college claims to be unaware of. I do believe there are a lot more documents out there and certainly I would, if I cannot obtain witness statements, if that is irregular or improper, then I would seek the Commission's authority to discovery of what information may be available.

PN458

I think that's about all I have to say.

PN459

JUSTICE GIUDICE: Yes. Thank you. The exhibit K1, to avoid confusion with the exhibit before the Deputy President, I think should be marked KA1. I will amend the title of that exhibit.

EXHIBIT #KA1 FORMERLY EXHIBIT K1

PN460

JUSTICE GIUDICE: Gentlemen, what we intend to do, as we indicated earlier, we'll adjourn for a short time. We'd ask you to wait, or to return. We'll adjourn until 3.15 and we hope to make an announcement at that time about the rest of the case.

<SHORT ADJOURNMENT [2.52PM]
<RESUMED [3.27PM]

PN461

JUSTICE GIUDICE: Thank you for waiting, gentlemen. We've decided not to admit the affidavit. We don't intend to give reasons for that decision at this time. We'll do so in conjunction with our decision in the matter overall. It will be necessary to reserve our decision to consider what's been put. To some extent, that's unfortunate, but there are some matters that will need careful consideration. We propose, however, subject to the parties' agreement, to make a further attempt to see if the matter can be resolved between the parties. For that purpose, it would be necessary that the college would have proper instructions and representation of a person of sufficient authority to discuss the matters.

PN462

We propose that a Member of the Bench would be available immediately after we adjourn for a brief period, but also tomorrow morning, to see whether anything can be achieved through discussions. Because we are reserved on the decision, we would need the concurrence of the parties to this procedure and we would not expect there to be any further submissions to the Full Bench so far as that phase of the proceedings goes. The proceedings have concluded. So if either the college or you, Mr Kershaw, objected to this approach, then of course we would uphold that objection immediately because we would not wish to prejudice the Bench's ability to hand down its decision in due course, if that's necessary.

PN463

So if you wish to take a minute to consider that, we can adjourn, otherwise I'd like to hear the position of the parties on that proposal.

PN464

MR MURPHY: We'd like a minute just to confirm.

PN465

JUSTICE GIUDICE: Yes. Well look, we won't leave the Bench, but by all means please feel free to confer outside, if that's more convenient. Yes. Yes, Mr Murphy?

PN466

MR MURPHY: At this stage, we wouldn't object to proceeding. I do have an instructing officer here who does have authority, so we're happy to proceed at this stage at least.

PN467

JUSTICE GIUDICE: Yes. Thank you. Well, that might be a matter for discussion in the conference.

PN468

MR MURPHY: Yes.

PN469

JUSTICE GIUDICE: Yes. Yes, Mr Kershaw, do you have any view about that?

PN470

MR KERSHAW: I certainly have no objection, your Honour. I just have my doubts as to its usefulness. The college has been absolute in its intransigence throughout this whole process.

PN471

JUSTICE GIUDICE: Well - - -

PN472

MR KERSHAW: But I'm happy to participate and - - -

PN473

JUSTICE GIUDICE: Happy doesn't seem to sum up your demeanour at the moment, Mr Kershaw, but - - -

PN474

MR KERSHAW: Well, as indicated in the discussions today, I've made my compromises. I've - at one stage I offered to settle with Blain DP simply for some letters going to out to students to explain - - -

PN475

JUSTICE GIUDICE: Yes, well, I don't think we really want to hear about that, Mr Kershaw.

PN476

MR KERSHAW: No, I just - - -

PN477

JUSTICE GIUDICE: Yes.

PN478

MR KERSHAW: I'm happy to participate, if the college has something to say.

PN479

JUSTICE GIUDICE: Very well. We shall adjourn now and if you can wait, the conference will, at least in a preliminary fashion, start in a few moments' time and we wish you well in your discussions. We shall now adjourn and reserve our decision.

<ADJOURNED INDEFINITELY [3.34PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 SUBMISSION WITH ATTACHMENTS A-Q DATED 11/08/2005 PN398
EXHIBIT #KA1 FORMERLY EXHIBIT K1 PN459