C2004/5787, Transcript of Proceedings [2005] AIRCTrans 240 (3 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10153

JUSTICE GIUDICE, PRESIDENT

C2004/5787

s.45 appeal to full bench

Australian Nursing Federation
and
Liquor, Hospitality and Miscellaneous Union South Australian Chamber of Commerce and Industry
(C2004/5787)

MELBOURNE

10.01AM, FRIDAY, 21 JANUARY 2005

PN1

MR GARDNER: I seek to leave to appear for the Appellant Australian Nursing Federation with my learned friend MR WHITE of counsel.

PN2

MR J NOLAN: I seek leave to appear for the LHMU in this matter.

PN3

MR B AUSTIN: I seek leave to appear in this matter on behalf of the respondent, Business SA, together with MR T EVANS of Business SA.

PN4

JUSTICE GIUDICE: Yes, thanks Mr Austin. There have been some discussions I gather about directions, who would like to tell me about that?

PN5

MR GARDNER: I think your honour your associate has an email from Mr Nolan which refects the position I think we have reached if all of that was the background to it as set out in correspondence.

PN6

JUSTICE GIUDICE: Yes I have that, yes.

PN7

MR GARDNER: If that were acceptable paragraphs 1 and 2 were acceptable to the Commission then really it would be a matter of paragraph 3 finding a day which suits not only your Honour's convenience but obviously the other members of the full bench.

PN8

JUSTICE GIUDICE: Yes, could I just ask about the volume of material, a lot of material has been filed, is it all relevant to the appeal?

PN9

MR GARDNER: That's our material your Honour. The answer is yes. It is not comprehensive of all the material that was before the Commission so some of it has been omitted.

PN10

JUSTICE GIUDICE: I see, yes.

PN11

MR GARDNER: One of the difficulties with it frankly is this that numerous to the witness statements deal with a whole range of matters and then you finish up with just bits and pieces. I can say that we will not be troubling the full bench with all the material but for that purpose that Mr Nolan quite sensibly has made a suggestion that there be references be in there and outlines to the material.

PN12

JUSTICE GIUDICE: Yes. I follow. Does anyone else want to make submissions about the directions, I assume they are supported by everybody?

PN13

MR NOLAN: They are your Honour can I just say this that I thought that the agreement really struck a balance between a totally scant and uninformative outline and something that was more the nature of comprehensive written submissions and so we have endeavoured to reach that point by the qualifications set out in the directions namely that there be reference to the passages in the appeal books which are relied upon. The only other thing that I would say is that I have put in a provision for liberty to reply only as an insurance in this regard that in particular that is having seen the applicant's outline or the appellant's outline it may well be that we might need to refer to something that is not contained within the appeal books, there was no consultation of course on the preparation of the appeal books and the editing of the material. So I simply put in the liberty to apply as a precaution but I would state very earnestly that it would be my intention to minimize the amount of material before the full bench rather than reverse but as Mr Gardner observed really the directions are otherwise acceptable to the Commission but it all turns up whether or not people can be, the hearing can be accommodated that week commencing the 26th April.

PN14

JUSTICE GIUDICE: Yes.

PN15

MR AUSTIN: Your Honour we support the directions and endorse what
Mr Nolan had to say about the issue of liberty to reply in view of the fact that the appeal books had not been prepared yet with consultation with the parties.

PN16

JUSTICE GIUDICE: Yes. Thanks Mr Austin. I should indicate to everybody that there is some doubt whether the 26th April is a week in which the bench which is currently constituted could sit. Indeed in order to have the matter dealt with in a reasonably timely way it might be that a new bench will have to be constituted but even on that basis the 26th April, may be difficult as probably most of you realize the appeal work of the Commission is now allocated on a predetermined sitting basis and if the available days are full then it is necessary to constitute a special bench or to find some other available time. It is a rather long winded way of saying I do not think it is going to be the week commencing the 26th April but we will endeavour to make sure that is set on a day which is as soon as practicable after that and in which the parties are available. It is obviously desirable in an appeal of this kind that there is some consistency of representation.

PN17

MR NOLAN: Yes, can I just indicate your Honour that my personal concern was that if it went into May there is every chance I will be overseas. I suppose lucky me in May so that is why I was anxious if it could be called over in that last week of April then it would be so accommodating.

PN18

JUSTICE GIUDICE: Yes I follow. Well we shall bear that in mind Mr Nolan and see what can be done. It may be that it will have to wait until June on that basis.

PN19

MR NOLAN: Right.

PN20

MR GARDNER: Your Honour if that were the case then I do not think that anyone would have any objection to the directions simply being moved out so that we are not so far away from the preparation of the material to the appeal date. It is just that thing of generating, getting something up again if Mr Nolan is away.

PN21

JUSTICE GIUDICE: Yes I do not know that that can be dealt with. In any event I will have to do some more investigation to see whether we can meet that April date so it would probably better to make the directions I think. Look what I shall do is make the directions in paragraphs 1, 2 and 4 of the proposed draft and the parties will be notified in due course of the arrangements for the hearing of the appeal. Thank you gentleman I appreciate your assistance perhaps this matter should have been listed for directions earlier given the volume of material but in the event I appreciate the co-operation between the parties.
MR GARDNER: Thank you your Honour.

PN22

JUSTICE GIUDICE: Yes, we currently have the matter listed for the 9th February, obviously that date will be cancelled.

PN23

MR NOLAN: Thank you.

PN24

JUSTICE GIUDICE: Alright is there anything else before I adjourn.

PN25

MR NOLAN: Happy new year.

PN26

JUSTICE GIUDICE: I am sorry happy new year, and the same to you Mr Nolan. It is always nice to have you appearing before me. Alright there is no need to stand. I will adjourn now.

<ADJOURNED ACCORDINGLY [10.10AM]