C2005/4784, Transcript of Proceedings [2005] AIRCTrans 2521 (15 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13588-1

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER RICHARDS

C2005/4784

APPEAL BY POULTON, ANTHONY
s.45 - Appeal to Full Bench
(C2005/4784)

SYDNEY

10.04AM, TUESDAY, 29 NOVEMBER 2005

Hearing continuing

PN1

MR T SAUNDERS: I seek leave to appear as counsel for the appellant in this matter.

PN2

MR R CROW: I seek leave to appear for the respondent, Rail Infrastructure Pty Ltd.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Thank you. There is no issue as to leave, leave is granted in both instances. We have received subject to directions which were in fact vacated, but we have received them nonetheless. There were submissions on behalf of the appellant which we will mark exhibit A1.

EXHIBIT #A1 SUBMISSIONS ON BEHALF OF THE APPELLANT
EXHIBIT #R1 SUBMISSIONS ON BEHALF OF THE RESPONDENT

PN4

SENIOR DEPUTY PRESIDENT WATSON: There was also filed a witness statement which we will need to deal with. In terms of the hearing of the appeal we intend to proceed on the basis of allowing parties an opportunity for brief submissions in support of their written material. Two preliminary issues arise as we understand it. One is the application to amend the appeal grounds to add new grounds 5(a) to (d). On our understanding there is no objection to an amendment in respect to grounds (c) and (d) but there is in respect to (a) and (b) which are the representative error issues and there is also an application to admit new evidence which goes to the representation error issue. Do you wish to address us on those issues first, Mr Saunders?

PN5

MR SAUNDERS: Yes thank you, your Honour. Dealing firstly with the application for leave to amend the notice of appeal there are four reasons in my submission why leave ought to be granted to amend the notice of appeal. The first relates to the timing of the appellant receiving new legal representation. I received the brief in this matter last Wednesday 16 November 2005. I received it at that late stage because the previous barrister for the appellant had moved interstate to Queensland and could no longer run an appeal. On the following day, the Thursday, I reviewed the brief for the first time.

PN6

That afternoon I formed the view that there had been some representative error. I sought to speak to my instructing solicitor that evening, was unable to do so but spoke to him the following morning. I explained my position and suggested that the appellant obtain new legal representation. On the Monday, that is 21 November I had a conference with the appellant, prepared the affidavit which was sworn by him and that affidavit was filed on 24 November together with the amended notice of appeal and the written submissions which were filed the day prior, 23 November.

PN7

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN8

MR SAUNDERS: And it can be seen from this timetable that as soon as the issue of representative error arose, immediate steps were undertaken to bring that issue before the Commission and also before the respondent's legal advisors. In those circumstances it would be unjust in my submission to deny the applicant, the appellant, the opportunity to amend the notice of appeal in the way foreshadowed.

PN9

SENIOR DEPUTY PRESIDENT WATSON: Wouldn't that suggest, Mr Saunders, if there were a change of representation that would raise the possibility of new representatives putting argument not raised below on appeal?

PN10

MR SAUNDERS: That is of course one of the issues raised by the respondent. The respondent says that the issue of representative error was not raised below. In my submission it clearly wasn't raised by the appellant's legal advisors below and that is perhaps because they were partly responsible for that error but representative error certainly was identified by the Commissioner and so for that reason I say it is not a new issue. It was identified by the Commissioner. It is a matter of what the Commissioner did once he identified that error and whether there was any appealable error.

PN11

In that regard might I just briefly take your Honours to the relevant parts of the Commissioner's decision. Firstly may I invite your Honours attention to paragraph 18 of the Commissioner's decision which is behind tab 3 in the appeal book. The first sentence of paragraph 18 the Commissioner said this:

PN12

The applicant appears to have been in receipt of legal advice and assistance since he first brought an application before the New South Wales Industrial Relations Commission.

PN13

It was allegedly Mr Poulton's view or that of those acting on his behalf at relevant times that he had a right to bring his action in either the Federal or State jurisdictions. Having found that the appellant was in receipt of legal advice the Commissioner then identified representative error. He did so in two parts of the decision. It was first identified in paragraph 20:

PN14

It is clear to me that the appellant, the applicant, contested his termination of employment, obtained legal representation ...(reads)... nonetheless satisfies me that his termination was vigorously contested and I so find.

PN15

In my submission that is a clear finding by the Commissioner of representative error and the second place in which the Commissioner identified representative error was in paragraph 24 of his decision:

PN16

The applicant was sufficiently aware of his general rights to challenge the termination of his employment ...(reads)... Industrial Relations Commission. How any legal advisor could have advised him otherwise is beyond me.

PN17

Again in my submission that is a clear instance where the Commissioner has identified representative error. So for those two reasons I say that representative error is not a new issue identified on appeal but rather one identified by the Commissioner at first instance himself. The third submission I wish to make in relation to the amendment of the notice to appeal is that in my submission the new grounds of appeal are meritorious. As a result, if the new grounds of appeal were not allowed there would be injustice to the appellant who is a person who has actively contested the termination of his employment since he received notice of his dismissal and who sought and followed legal advice at all times and fourth and finally the amended notice of appeal does not in my submission cause the respondent any prejudice.

PN18

Particularly in circumstances where the respondent's legal advisors have had notice of the proposed amendments for all of six days prior to the hearing of this appeal and had the opportunity to consider those amended provisions of the notice of appeal and put on written submissions in response to it. Unless I can assist the Commission further those are my submissions on that point.

PN19

SENIOR DEPUTY PRESIDENT WATSON: Yes and the admission of new evidence arises out of those arguments in respect to jurisdictional, sorry representational error.

PN20

MR SAUNDERS: Well it does. The new evidence goes to representative error but it also goes to a broader question and that is whether or not the appellant was to blame for the delay in filing his application.

PN21

SENIOR DEPUTY PRESIDENT WATSON: Which is an issue which arises in Clark and Ringwood Hospital.

PN22

MR SAUNDERS: That is right. Yes it does your Honour. Would it be appropriate, your Honour, for me to make my submissions in relation to leave to admit further evidence at this stage?

PN23

SENIOR DEPUTY PRESIDENT WATSON: I think so.

PN24

MR SAUNDERS: All right. Well I would formally seek leave pursuant to section 45 VIA of the Workplace Relations Act to admit further evidence on the appeal in the form of the affidavit sworn by Mr Poulton on 22 November 2005 and I rely upon two Full Bench decisions of the Commission in support of my argument for leave to admit further evidence. Might I hand up those two decisions?

PN25

SENIOR DEPUTY PRESIDENT WATSON: Certainly.

PN26

MR SAUNDERS: Your Honour, both decisions involve Qantas Airways Ltd. The first decision which I would like to take your Honours is the decision of Iverson, I-v-e-r-s-o-n and Qantas Airways Ltd. It is a decision of Justice Boulton, Senior Deputy President Drake and Commissioner Deegan. This was a case in which a section 170CE application was filed seven months late. When the matter was heard at first instance the applicant sought to explain the delay by reference to severe emotional and physical trauma experienced by the appellant on the termination of his employment. The Commissioner decided that it was not an acceptable reason for the delay. May I invite your Honours' attention to paragraph 4 of that decision where their Honours held this:

PN27

Before the appeal came on for hearing the Commission was advised that the applicant had changed his legal ...(reads)... and that the unreasonable delay in lodgement of the application was attributable to his legal representatives.

PN28

Qantas opposed the admission of fresh evidence and argued that even if there was representative error, this did not provide any right for the matter to be reopened. Hearing the submissions of the parties the following ruling was given:

PN29

We believe the circumstances of this case make it appropriate to admit further evidence. The Commissioner did not ...(reads)... be taken into account so as to ensure that there is not a miscarriage of justice in these proceedings.

PN30

The second decision which I have handed to your Honours also involves Qantas. It is a decision of Mangos & Others against Qantas Airways Ltd and this case is slightly different to the first case to which I have taken your Honours in the sense that the Commissioner at first instance found that part of the reason for the delay was representative error but part of it was due to the applicant's error himself. The additional evidence sought to be adduced on that appeal showed that the applicant had been in regular contact with his legal advisors and was not the blame for the delay.

PN31

At paragraph 13 of that judgment the Full Bench allowed the additional evidence and concluded that the additional evidence demonstrated error in the Commissioner's decision and so upheld the appeal. In the present case it is my submission that Mr Poulton's affidavit clearly demonstrates that since he first received notification of his termination of employment he has been in continuous and dependent contact with his legal advisors and he has been trying to get his case heard in the appropriate forum. It also shows that the delay in making application before this Commission has been attributable to his legal advisors and not to himself.

PN32

Given that the information contained in his affidavit raises the issue of representative error it might be understandable why that evidence was not put by the appellant's previous legal advisors when the matter was heard at first instance and in my submission as in the two Qantas cases, it is appropriate that Mr Poulton's evidence be taken into account so as to ensure there is no miscarriage of justice in this case. Those are my submissions.

PN33

SENIOR DEPUTY PRESIDENT WATSON: Yes thank you, Mr Saunders. Mr Crow?

PN34

MR CROW: Your Honour, Commissioner, we oppose the grounds of leave to file the further evidence and the amendments in relation to representative error on two grounds. The first of those is that they have no utility and the reason we say that is because the submissions of the appellant point to two representative errors and if I could take the members of the Commission to those submissions, exhibit A1, at paragraph 15 they are identified. The first of them you will see in sub paragraph(a) is said to have occurred when the appellant's legal advisors commenced section 170CE proceedings on his behalf in the Commission on 5 May 2004 without discontinuing its unfair dismissal proceedings in the New South Wales Industrial Relations Commission.

PN35

Now the application to the New South Wales Industrial Relations Commission is also in the appeal book and if I could take the Commission to that, it is annexed to an affidavit of a Mr Scatella which is in tab B4 of the appeal book. The affidavit itself is about halfway through the material in that tab and that affidavit is paginated in the bottom right hand corners and if the members of the Commission go to page 43 of the affidavit you will see the application to the Commission. Now that is noted as having been filed on 8 September 2003 and it notes in it that the termination or the date of dismissal was on 18 August 2003 and that is at page 45 but what I wish to take the Commission to immediately is the note to applicants on the first page of the application which is at page 43 and it says in the first dot point:

PN36

Not all employees who believe they have been unfairly dismissed can make an application under this Act. Check that you are eligible before you file this application. For example you would not be eligible to bring a claim if -

PN37

And then in the fifth subsidiary dot point it says:

PN38

You were an employee under a Federal award entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable.

PN39

Now it is apparent from that application that it was completed by the appellant himself. That appears on page 48 and he writes on page 49 a description of the reasons in the first person and indeed if your Honours' had read the affidavit for which leave to file has been sought you will see that he says he composed it with the assistance of his mother. Now in response to that the respondent filed the documents which are in annexure BS15 to Mr Scatella's affidavit which commences at page 53 and the Commission will note at page 55 in answer to question 5 at the top of the page, the respondent identified a Commonwealth Agreement, Enterprise Agreement as applying to the employment and also at page 58 in the handwriting on that page, near the bottom identified by an asterisk it says:

PN40

Mr Poulton is not eligible to bring this claim as he was employed under a Federal award and entitled to make application to the AIRC.

PN41

Now for reasons we have explained in our written submissions the reason why the Commissioner refused to extend time was due to there being no acceptable explanation for the delay. It is evident that the appellant was not relying upon advice from representatives when he filled out this application in the wrong jurisdiction and submitted his claim to the New South Wales Commission. He didn't do that until May 2004 which is more than eight months after the expiry of the time for bringing an application into place. Representational error doesn't explain the delay or at least the first eight months of the delay which caused him to need to make an application under section 170CE(7) and the Commissioner said there was no acceptable reason for the delay based upon that material that I have taken and other things, to that material that I have taken you to.

PN42

The respondent informed the applicant at the time that he should be in the Federal Commission and at that time he had no representation at all. He was acting for himself. Now there are means by which applicants without representation ascertain for themselves what is the proper award for agreement coverage of their employment. It is a fundamental thing. The very form that he filled out directed his attention to that.

PN43

SENIOR DEPUTY PRESIDENT HAMBERGER: While we are on this issue, my understanding is that Commissioner Murphy found that in fact the applicant was under a State award. He was under a Federal – it was an unusual situation but not unprecedented and unique. He was under a State award but under a Federal CA and that is – I mean that is a bit by the by in terms of representational error but you are sort of glossing over that.

PN44

MR CROW: Well I - - -

PN45

SENIOR DEPUTY PRESIDENT HAMBERGER: And that is a pretty critical issue.

PN46

MR CROW: Well I don't intend to gloss over it, your Honour. In my submission it is plain that the agreement does displace the State award. It is a Federal agreement and it provides in its terms that it does so and indeed in the affidavit for which leave is sought he notes that the agreement displaces or refers to that - sorry he notes that the agreement refers to that State award but if you look at the reference that he is talking about in clause 2.4 of the agreement, the reference is this agreement displaces that award. Now this is a situation that is not uncommon, your Honour. It is not uncommon at all.

PN47

That was the error he made and he made it himself. The error that he now seeks to introduce late in the piece in this appeal for the first time is an error but on his own submissions didn't occur until at the earliest May 2004. Eight months later. So our first reason for opposing it is that it has no utility. There would be no utility in allowing the amendment and of allowing the extra evidence and the second reason that we would oppose it is the lateness. As my friend has said it wasn't served on us and filed until 24 November. That was last Thursday. Now we have only had Friday and Monday to consider it.

PN48

There are matters in that affidavit - this is going to the admission of the evidence only - there are matters in that that we would wish to check. We would wish to test. We just haven't had the opportunity to do so. Now there are other reasons which are in my submissions which we rely upon in relation to the argument of representative error but those are particular reasons why we oppose leave to amend the grounds of appeal under the admission of further evidence.

PN49

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Saunders?

PN50

MR SAUNDERS: Thank you, your Honour. Just a couple of issues in response. The first is the point that was raised by Mr Crow concerning the ..... on the application for relief in relation to unfair dismissal and the stated jurisdiction does refer an employee to ask themselves the question of whether or not they were employed under a Federal award and as Commissioner Murphy found this employee was employed under a State award but under a Federal certified agreement. Mr Crow was mistaken, at least in the version of the certified agreement that I have, in saying that the certified agreement displaces the award.

PN51

In fact, clause 2.4.1 of the relevant certified agreement provides that for the duration of this agreement or until replaced by another award this agreement will be read and interpreted wholly in conjunction with a number of awards including the State award which covered the appellant. So in my submission somebody who is not represented and is filling in this form is required to ask themselves the question whether they are covered by a Federal award or not. This employee knew he was not covered by a Federal award.

PN52

He knew he was a State public sector employee and he had been covered by a State award for most of his employment with the respondent. It was only in the last few years of his employment when State Rail moved across to the Federal system that he became covered by a Federal certified agreement and in my submission it is certainly understandable for a layperson to make the mistake that he did and in any event that is not a representative error. He wasn't being advised at that time.

PN53

The advice came later in the piece and the affidavit of Mr Poulton which is sought to be admitted into evidence on his appeal explains that he received advice, legal advice from a fairly early time and that advice was in error and he followed that advice at all times. So in my submission it would be unjust not to allow the evidence on appeal at this stage.

PN54

MR CROW: Could I just defend ….. by saying that the passage in 2.4 that I was particularly addressing was ….. that my friend did not read which is at – after the bit he read and it provides:

PN55

Provided that where there is any inconsistency this agreement will prevail to the extent of the inconsistency.

PN56

SENIOR DEPUTY PRESIDENT WATSON: Yes fair enough. We will adjourn briefly.

<SHORT ADJOURNMENT [10.29AM]
<RESUMED [10.36AM]

PN57

SENIOR DEPUTY PRESIDENT WATSON: We’ve considered the submissions of the party and we’ve decided to grant leave to amend the grounds of appeal in all respects. We have decided that we will admit the new evidence sought to introduce by the appellant in the form of the affidavit of Mr Poulton of
22 November 2005. That then raises a question of the hearing of that evidence. What’s your position in respect to that Mr Saunders?

PN58

MR SAUNDERS: Your Honour my position is that I would wish to formally read that affidavit and if Mr Crow would like to cross-examine the opponent he could do so today is my position.

PN59

SENIOR DEPUTY PRESIDENT WATSON: Yes. Mr Crow what’s your position?

PN60

MR CROW: Your Honour that wouldn’t be possible for the reasons I explained in opposing the grant of leave. There are a number of enquiries that we need to make in order to be in the position to cross-examine the appellant and also we would want to consider preparing evidence in regard to it. We’re not in a position to do either of those things today. The appropriate course we would say is to grant an adjournment in light of that decision so that we can do those things.

PN61

SENIOR DEPUTY PRESIDENT WATSON: In what respects would you be able to bring other evidence. Most of the affidavit as we understand it is about what’s in Mr Poulton’s knowledge and to some extent his mind.

PN62

MR CROW: If I could take your Honours to paragraph 3, the second sentence is a matter that we would wish to check and perhaps take issue with the suggestion that the time available to him to lodge applications anyway was cut down by a 10 day delay in receiving the letter. The next paragraph we would want to check - - -

PN63

SENIOR DEPUTY PRESIDENT WATSON: How would you be able to check the date upon which Mr Poulton received the - - -

PN64

MR CROW: Well we want to check when it was sent, that would help. It may be that we didn’t send it for 10 days. I’ve got no idea what other enquiries we should make your Honour but that’s something that I advised my client to look into. We may even be able to get some further evidence from the applicant about it. Paragraph - - -

PN65

SENIOR DEPUTY PRESIDENT WATSON: Well you’ll be able to cross-examine the applicant.

PN66

MR CROW: Yes but we’d like to have some - we’d like to have some information of our own before we start asking the applicant about these matters your Honour, if there is any available to us. Paragraph 4 is an allegation of a conversation with - or at least an attempt to converse, with Mr Paul Broomfield who’s an employee of ours. We’d like to see whether - what he knows about the events described in paragraph 4. Now there’s also people referred to, Mr Tyler of the CEPU, Mr O’Sullivan of Turner Freeman, there’s some other people in paragraph 16, Ms Walmsley of Maurice Blackburn Cashman. Then there is also a description in paragraph - as to those people those are people we would wish to talk to to test or see what their version is of the things that they’ve - that Mr - the appellant has said about them.

PN67

In paragraph 11 and this is important, we would wish to speak to whoever it was that represented our client in the proceedings on the 3rd and 20 October to see what was, if anything, was said in those proceedings about the award coverage of the appellants’ employment. Nothing is disclosed there about what was said on this topic.

PN68

SENIOR DEPUTY PRESIDENT WATSON: Is it proper that evidence be admitted at all in relation to the conciliation conference?

PN69

MR CROW: Is it possible something was admitted - I’m sorry I didn’t hear you.

PN70

SENIOR DEPUTY PRESIDENT WATSON: Sorry is it appropriate at all to admit the content of discussions which occurred within a conciliation conference of the New South Wales Commission? Including within Mr Poulton’s statement?

PN71

MR CROW: Well if there is any - I can’t recall what the Act says about that off the top of my head your Honour, but to the extent that a privilege might be said to arise its been waived by what Mr - by what the appellant’s said.

PN72

SENIOR DEPUTY PRESIDENT WATSON: Well I’m really talking more of a convention within this Commission at least that matters which are dealt within conciliation conference remain within the conference and there’s some Full Bench authority for that proposition in order to maintain the purpose and effect of conciliation conferencing.

PN73

MR CROW: Your Honour my submission would be that the purpose of that convention is so that parties are not prejudiced in any subsequent arbitration that the Commission is not influenced perhaps by knowing what parties have conceded for the purpose of reaching a conciliated settlement, it might be held against them in any arbitration that may subsequently occur. But that is not this situation, this is a question of whether the appellant was on notice and if so when, of the proper award coverage of his employment. Now that is not a matter that is going to prejudice any - disclosure here of that matter is not going to prejudice any arbitrated outcome of proceedings in this New South Wales Commission because there aren’t any, its been discontinued.

PN74

So we would - if there is material that we could provide on evidence in relation to those - what was said at that conciliation conference we’d seek to have it admitted on that ground. So your Honour those are some matters which in my submission are of significance which we would wish to investigate.

PN75

SENIOR DEPUTY PRESIDENT WATSON: Yes. And how long would you require for example to speak to Mr Broomfield to ascertain the accuracy of the posting date of the letter?

PN76

MR CROW: Two weeks is what I’m asked to request.

PN77

SENIOR DEPUTY PRESIDENT WATSON: Why would you possibly require two weeks to do that Mr Crow? Do the trains run on time in New South Wales?

PN78

MR CROW: I’m not a train commuter. Your Honour we just want to have enough time to be able to track down and speak to people who are not within our control. I mean there are a number of people who I’ve mentioned in that survey of the appellants affidavit who are not employees of ours. We just wish to have enough time to be able to talk to them.

PN79

SENIOR DEPUTY PRESIDENT WATSON: What steps have been taken since last Thursday to do that?

PN80

MR CROW: To speak to those people?

PN81

SENIOR DEPUTY PRESIDENT WATSON: To do anything in relation to the possibility of needing to deal with the affidavit?

PN82

MR CROW: None that I’m aware of your Honour. We’ve only had two working days to do it.

PN83

SENIOR DEPUTY PRESIDENT WATSON: And nothing has occurred within those two working days?

PN84

MR CROW: Nothings done within those two days no.

PN85

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN86

MR CROW: We do have other things to do your Honour.

PN87

SENIOR DEPUTY PRESIDENT WATSON: Yes very well. Anything further? Mr Saunders.

PN88

MR SAUNDERS: Your Honour I oppose the application for an adjournment on a number of bases. Firstly, the comments by Mr Crow in relation to the affidavit of Mr Poulton, the first part of those comments go to what occurred immediately after Mr Poulton received notification of the termination of his employment. Whether he received the letter on 18 August or 28 August is effectively irrelevant because he did file his first application in the New South Wales Commission within the 21 day period. So it’s my submission that’s not a basis on which these proceedings should be adjourned. In addition, it’s not relevant what the respondent might have said either at the conciliation conference or at any other time to the applicant about whether or not he should have been in the state Commission or the Federal Commission.

PN89

The point is and this is made clear by his affidavit that at all times he was following advice. He’s entitled to follow that legal advice and that is a reasonable explanation for the delay provided that he did not on his own, attribute to that delay in any way. Thirdly I would submit that any adjournment of these proceedings would be prohibitive in terms of the costs to the appellant. The appellant is a man of limited means and if this matter is adjourned there’ll be extra cost incurred by him and subsequent ..… So for those reasons my submission is this matter should not be adjourned and the appeal should proceed today.

PN90

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Crow I think you have a right of reply in relation to that. Mr Crow did you wish to - - -

PN91

MR CROW: Yes sorry.

PN92

SENIOR DEPUTY PRESIDENT WATSON: Sorry it is your application.

PN93

MR CROW: Just getting some instructions.

PN94

SENIOR DEPUTY PRESIDENT WATSON: Sorry.

PN95

MR CROW: Your Honour just as to the point my friend makes, the affidavit which has been - for which leave have been granted, does not disclose that at all times the appellant was following advice. As I tried to explain earlier he was acting on his own behalf when he commenced proceedings in the New South Wales Commission. As to costs, well that is simply a consequence of this course the applicant has taken and a consequence of the advice he’s given. If he has any - and he may rights against his past legal advisors in respect of that but it’s not something that ought to be relied upon to prejudice my client.

PN96

SENIOR DEPUTY PRESIDENT WATSON: Very well. We will adjourn briefly.

<SHORT ADJOURNMENT [10.48AM]
<RESUMED [10.58AM]

PN97

SENIOR DEPUTY PRESIDENT WATSON: We’ve decided that we will grant an adjournment in this matter to allow the respondent to prepare for cross-examination and production of its own materials. We think the period of two weeks sought is excessive. Regrettably the diaries of the Bench collectively drive us to that conclusion anyway, we will adjourn the matter until 10.30 am on Wednesday 14 December. We now direct the respondent to file in the Commission and serve on the applicant’s representatives any material’s arising from the affidavit of Mr Poulton by noon on Friday 9 December. We will now adjourn these proceedings.

PN98

MR CROW: Your Honour before you do that unfortunately I have a longstanding commitment in a part heard matter elsewhere on that day. Is there any possibility at all of that day being changed 14 December?

PN99

SENIOR DEPUTY PRESIDENT WATSON: Well we’ve the Bench as I’ve indicated has explored its diaries and it is difficult to obtain another date frankly Mr Crow.

PN100

MR CROW: Well if that’s the case there may have to be someone else takes my place.

PN101

SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you
Mr Crow, we will now adjourn.

<ADJOURNED UNTIL WEDNESDAY 14 DECEMBER 2005 [11.00AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SUBMISSIONS ON BEHALF OF THE APPELLANT PN3
EXHIBIT #R1 SUBMISSIONS ON BEHALF OF THE RESPONDENT PN3