D2004/30, Transcript of Proceedings [2005] AIRCTrans 673 (16 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10774

VICE PRESIDENT ROSS

D2004/30

s.273(1) rao schedule - application for order for inspection of fin. records

APPLICATION/NOTIFICATION BY JONES, PETER
(D2004/30)

SYDNEY

9.03AM, MONDAY, 7 MARCH 2005

Continued from 26/11/2004

PN1735

THE VICE PRESIDENT: Any changes to the appearances?

PN1736

MR S PENNING: I now appear for the New South Wales Postal and Telecommunications Branch of the CEPU, a solicitor with leave.

PN1737

MR JONES: No changes, your Honour.

PN1738

THE VICE PRESIDENT: Thank you. Mr Penning, we have received correspondence, I think Mr Jones has a copy, in which your client objects to what you say is an attempt by Mr Jones to introduce very substantial new and extensive evidence. This is the material which is set out in Mr Jones' reply submissions filed on 7 February 2004 in which on the way through he makes a number of statements and towards the end, I think it's attachment G, there is a statutory declaration which sets out Mr Jones' belief that the contents of his submission are true and correct and I don't think you need to go through the factual statements made in the submission. Was there anything else you wanted to say in support of your application, or do you want to hear from Mr Jones first as to why he wants to seek to admit the new material?

PN1739

MR PENNING: Your Honour, the approach that I would like to take would to indicate formally on the record that we do object to the admission of new evidence, or what we say is new evidence through Mr Jones final submission. Your Honour, we have prepared a short document which I would seek to hand up.

PN1740

THE VICE PRESIDENT: Does that identify the matters that you object to?

PN1741

MR PENNING: Yes, it does. It does, your Honour, yes..

PN1742

THE VICE PRESIDENT: That will be helpful, thank you. Do you have a copy of that, Mr Jones?

PN1743

MR JONES: I do.

EXHIBIT #R10 DOCUMENT IN REPLY TO MR JONES' SUBMISSION

PN1744

MR PENNING: Your Honour, I certainly wouldn't propose to read that document, but in short, paragraph 1 of that document sets out the paragraphs of Mr Jones final submission and the annexures and attachments to that final submission which we would submit constitute new evidence, or an attempt to introduce new evidence, and then, your Honour, essentially at paragraphs 2 through 17 of that document R10, we have set out what we say are the grounds as to why the Commission would not admit that further evidence.

PN1745

THE VICE PRESIDENT: Yes. Can you expand on what you say at paragraph 13? It may be that you set it out earlier. But he fails each of the three requisite tests, what do you mean by that?

PN1746

MR PENNING: We say the tests, your Honour, are those as set out in the authorities that are referred to.

PN1747

THE VICE PRESIDENT: Yes, but what are they? What are the three tests that you are referring to?

PN1748

MR PENNING: Your Honour, when I refer to three tests I am referring to the three concepts which are referred to in the case of Watson and Metropolitan Earth Transport, firstly, a dearth of authority as to circumstances, secondly, the court should be cautious in re-opening and admitting further evidence.

PN1749

THE VICE PRESIDENT: Yes, I see.

PN1750

MR PENNING: And then thirdly - - -

PN1751

THE VICE PRESIDENT: The interests of justice require it.

PN1752

MR PENNING: That's right, yes.

PN1753

THE VICE PRESIDENT: Or if it would affect the result.

PN1754

MR PENNING: That's right, your Honour.

PN1755

THE VICE PRESIDENT: Could not by reasonable diligence have been discovered before, so you say it fails each of those tests?

PN1756

MR PENNING: Yes.

PN1757

THE VICE PRESIDENT: I see. Yes.

PN1758

MR PENNING: Your Honour, at this stage I didn't propose to say anything further.

PN1759

THE VICE PRESIDENT: That's fine. All right. Mr Jones, I have read your reply submission and what you say. You set out there at paragraphs 63 through to 73, I think that's where you deal with why you say you should be allowed to put in the material. Is that the essence of your case? That's why you say you should be allowed to put in the statutory declaration?

PN1760

MR JONES: There is one other matter that I don't think was thoroughly canvassed in my submission, your Honour.

PN1761

THE VICE PRESIDENT: Certainly. What is that?

PN1762

MR JONES: Could I just make a couple of introductory remarks. The first is
Mr Penning has provided me with a copy of the document that was handed up this morning about five minutes ago and I have not had an opportunity to go through it in any - - -

PN1763

THE VICE PRESIDENT: Well, do you want an opportunity to do that?

PN1764

MR JONES: Perhaps after I - I mean there is a few points that I can make without - - -

PN1765

THE VICE PRESIDENT: Well, it might be more convenient. I don't want to interrupt the flow of your submission. It might be more convenient to take some time now, read through it and you can deal completely with what you want to say about it.

PN1766

MR JONES: That would be helpful, your Honour.

PN1767

THE VICE PRESIDENT: All right. How much time would you like to do that?

PN1768

MR JONES: Twenty minutes to half an hour, your Honour.

PN1769

THE VICE PRESIDENT: Sure. All right. Well, we will adjourn, certainly until 9.30. If you need more time my associate will come back at that point and you can let her know.

PN1770

MR JONES: Thank you, your Honour.

PN1771

THE VICE PRESIDENT: Do you have a copy of the transcript when the matter was before me on 26 November?

PN1772

MR JONES: I do, your Honour.

PN1773

THE VICE PRESIDENT: Because there are some parts of that I want to take you to, so if you have got a copy of that, that would be helpful. I will adjourn.

<SHORT ADJOURNMENT [9.10AM]
<RESUMED [9.34AM]

PN1774

THE VICE PRESIDENT: Yes, Mr Jones.

PN1775

MR JONES: Thank you, your Honour, for that short break to give me an opportunity to read Mr Penning's submission. I have two main points about - or two main reasons why I believe the additional factual material contained in my submission should be considered by the Commission. The first is that putting aside Mr Penning's application today, there are two distinct applications before the Commission. The first is my 273 application and the second is the branch's 274 application. I have had no practical application whatsoever to respond to the 274 application. I had the branch's material only four days before the last hearing and I expressed my concern at length to your Honour about the difficulty I face responding to that material, having had it for such a short period of time.

PN1776

274 applications aren't incidental. They are not trivial matters, your Honour. They are very important, particularly to 273 applicants. 274 applications invite the Commission to make findings against the character of 273 applicants. They seek to have 273 applications thrown out for frivolous or vexatious and in my case it would have very dire consequences if your Honour was to grant the organisation or the branch's 274 application. It would be, you know, the fact that my 273 application was thrown out because it was frivolous and vexatious would damage my reputation and my character, and as I said, it would have very dire consequences for me as an officer of the union.

PN1777

If my 273 application was thrown out because the branch's 274 application was granted, that would have implications for the whole RAO schedule. Quite frankly nobody in their right mind would ever make a 273 application if it was possible for a 274 application to be granted without giving the 273 applicant a full, a really full and, you know, a full opportunity to respond to material raised as part of the 274 application. I would say on my reading of Mr Docking's submission, he has intermingled with his submissions and his analysis of what he is required to establish in the 274 matter with what I am required to establish as the good faith parts of my 273 application.

PN1778

In Mr Docking's submission those two issues are sort of intermingled in his discussion and it's certainly difficult for me to respond to the frivolous and vexatious issues contained in the 274 application. It's difficult for me to discuss those issues entirely separately from my obligation to prove to them and to establish that I am acting in good faith. It's not only a difficulty that I am having. I think, you know, it's a difficulty that's present in Mr Docking's submissions. I have had an opportunity to look at Mr Penning's written submission this morning. The overwhelming majority of the material in my application that's objected to is new factual material that I am bringing in opposition to the 274 application.

PN1779

There are some matters that aren't and I will go to those a bit later. But it seems to me in the interests of, you know, basic fairness I should be able to and given the consequences, I should be given an opportunity to respond separately to the 274 application. The other issue that is touched on in my written submission, your Honour, is the issue of re-examination and in paragraph 4 of Mr Penning's submission today he says:

PN1780

Fourthly, Mr Jones sought to have his wife assist him and it was discussed in his presence without him objecting that she would undertake any
re-examination.

PN1781

Well, the first part of that is right, I did seek permission for my wife to assist me. But the arrangements that my wife would re-examine me were made in my absence, I was on a toilet break, those arrangements were made in my absence. With no disrespect intended to your Honour, those arrangements were half baked. Neither I nor my wife had any idea of the importance of re-examination or the role of re-examination. With respect, your Honour didn't provide any guidelines to my wife about what took - - -

PN1782

THE VICE PRESIDENT: Just a minute, that's not right. You were affirmed at paragraph 320 - let me just take you through the transcript before you start on this, Mr Jones. Have you got paragraph 320 of the transcript? Do you see that?

PN1783

MR JONES: Yes.

PN1784

THE VICE PRESIDENT: Well, you are there during this bit, right? You are in the witness box?

PN1785

MR JONES: Yes.

PN1786

THE VICE PRESIDENT: And paragraph 325 I explain to you what the process is, that:

PN1787

Once cross-examination is finished your partner will be entitled to ask questions to clear up any issues. That is called re-examination.

PN1788

I then explained further at 326:

PN1789

Any questions about the process before we get underway?

PN1790

Ms O'Toole asked some questions about grounds for objection. There were no questions asked by yourself. No objection taken by yourself to the process.

PN1791

MR JONES: Your Honour, my recollection is for at least part of that on a toilet break. When I returned I was presented with a fait accompli that they were the arrangements that were in place.

PN1792

THE VICE PRESIDENT: Well, you were asked again. Re-examination takes place at 1578 and continues and at 1669 I ask you a question about whether you are constrained because it is put by Ms O'Toole that you were limited to yes/no answers. I ask you whether you were given an opportunity to answer the questions put to you by Mr Docking. You say you were. Then over the page, starting at 1675, Mr Docking makes the point that, well, you are not under any apprehension that you are going to be able to put on new evidence. You can make submissions about what the evidence and what it all means but you can't put on new evidence and you agree with that.

PN1793

I asked you if there is anything further you want to say by way of evidence and there is an issue between Ms O'Toole taking a different position than yourself and I point out that Mr Jones is the applicant and I want to know whether you are going to put on any material or not and you say not.

PN1794

MR JONES: My answer to the matters that your Honour raised, when
Mr Docking asked me - well, the answer I gave to Mr Docking's question I was wrong. I mean I made a mistake. Also I mean I was certainly focusing on the 273 application and the 274 application but I don't know that the distinction was necessarily present in my mind at the time. When your Honour asked me if I had been given an opportunity to answer Mr Docking's questions, I think I had been given an opportunity to specifically answer his questions, but at least as my understanding is at the moment, re-examination is a bit broader than simply strictly answering - - -

PN1795

THE VICE PRESIDENT: Well, I explained to you on the last occasion what the purpose of re-examination is and that's set out in the transcript. As for the time that you were absent, that appears at paragraph 306. There I raised re-examination at 307 with Ms O'Toole, but I explained that to you once you were sworn and in the witness box at paragraph 325.

PN1796

MR JONES: Your Honour, it's still the case that we were simply ill prepared, not prepared for that. We had no advance knowledge that re-examination was possible or that that was what happened or what clearly was - - -

PN1797

THE VICE PRESIDENT: Mr Jones, I understand what you say about that but how do I balance that against the statement you make under oath that you are a competent industrial officer?

PN1798

MR JONES: For 10 or 11 years I have been an industrial officer with the CEPU New South Wales P & T branch. Almost all the matters I dealt with were with Australia Post. Australia Post have - I mean in that time, I mean I have been to the Commission, I haven't - you know, if I have appeared at the Commission it's only been on very small procedural matters and not on very many occasions. In Australia Post disputes are handled internal. There's an internal grievance handling process and Australia Post board of reference that deals with discipline matters and grievance matters. The board of reference process at Australia Post is a lot more informal than the Commission and there is no cross-examination or re-examination in a formal sense. It's much more free flowing.

PN1799

That's the process with which I have experience. I don't have experience, any meaningful in this forum and I am having great difficulty coming to grips with that, your Honour.

PN1800

THE VICE PRESIDENT: You indicated that some of the material that is objected to in paragraph 1 of exhibit R10 relates to your 273 application and you were going to go to that. Which is that?

PN1801

MR JONES: As best I can - I mean I went through in some detail paragraph by paragraph through Mr Penning's submission. It's possible this may not be 100 per cent accurate, but it seems to me the things that don't go directly to
Mr Penning's 274 application - excuse me, your Honour - I can complain or I point out that the landmark right Commonwealth Bank valuation of 81 George Street has never been presented to the branch committee management of the divisional executive and Mr Penning objects to that and I accept that that doesn't go to the substance of the 274 issues.

PN1802

In my statutory declaration - or in my evidence I made a number of honest mistakes and the one that springs to mind is I said that Mr Cooper gave me documents when in fact Mr Baulk gave me documents and that was simply an honest mistaken and I clear that up. And I talk a little bit in my statutory declaration about the person who supplied the computer equipment, being a sole trader and that that issue, or the issues related to that don't go to the 274 application. There's a long list of things that are objected that are solely a rebuttal submission for application.

PN1803

THE VICE PRESIDENT: Yes. So which paragraphs are related to your 273 application?

PN1804

MR JONES: Your Honour, I didn't make a note of the numbers of the paragraphs, just the issues.

PN1805

THE VICE PRESIDENT: What are the issues again?

PN1806

MR JONES: There are three issues that I have identified and Mr Penning might be able to ponit out a fourth or a fifth, but there are three that I am aware of. Firstly, that the landmark right Commonwealth Bank valuation of 81 George Street was not ever presented to the branch committee management or the divisional executive. The second matter is I clear up some mistakes that are made in my evidence and in particular about when I said Mr Cooper gave some documents when in fact it was Mr Baulk. And the third matter is I make some observations about Mr Eddy Joweiwan and about his status as a sole trader.

PN1807

THE VICE PRESIDENT: How to you pronounce his surname?

PN1808

MR JONES: Eddie Joweiwan. I could be wrong, I think it's spelt,
J-o-w-e-i-w-a-n, but I am not 100 per cent clear on that. I don't have the spelling in front of me, your Honour.

PN1809

THE VICE PRESIDENT: Yes, okay. So those are the section 273 issues?

PN1810

MR JONES: Yes, but, you know, if Mr Penning can point to something else I would be happy for that assistance. As I was saying, I mean it was clear to me that the rights I would ordinarily have under re-examination if I was legally represented, I wasn't experiencing or enjoying those rights. It's true, I mean this is the first time my wife has stepped foot into a forum like this. I accept what your Honour said this morning, drawing my attention to paragraphs where you gave some direction, but at least as far as my wife was concerned, those directions obviously weren't sufficient because she had such trouble with the re-examination process.

PN1811

Your Honour raised the issue about - I think your Honour raised the issue about the branch's rights in these proceedings and certainly Mr Penning has raised the issue about any further delay or any further costs.

PN1812

THE VICE PRESIDENT: Well, would you accept that if I accept your statutory declaration the branch would be entitled to cross-examine you in relation to that?

PN1813

MR JONES: Yes, your Honour. Yes.

PN1814

THE VICE PRESIDENT: And where do you see the proceedings finishing? Well, do you say then once you have been cross-examined that you haven't been given an opportunity to be re-examined properly and you want to do it again?

PN1815

MR JONES: No, your Honour. Your Honour on the last occasion said that this is not a never ending process and I accept that, but I don't think by allowing me to admit this new factual material that that would constitute a never ending process. I think, as I said, I think I have a right to respond to the 274 application. I would also point out that I first made my application in August and I think another delay, a month or six weeks, would not be unreasonable.

PN1816

THE VICE PRESIDENT: What about the cost to the other side? Are you proposing to meet those costs?

PN1817

MR JONES: No, I am not, your Honour. The other side, Mr Penning's client have rights in these proceedings and I have rights in these proceedings, but those rights, both sets of those rights must surely be subordinate to the rights of members to know that their organisation is being properly supervised. The RAO schedule is there to protect the interests of members and make sure that organisations are properly accountable to their members. It's much more important, I submit, your Honour, that the outcome of these proceedings is a correct one and not - you know, with benefit of all of the facts.

PN1818

It's much more important that your Honour has all the facts than it is that there is a delay or a slight increase in costs. Excuse me, your Honour. If I can draw
your Honour's attention to section 98A, which I am sure your Honour is familiar with, it says:

PN1819

The Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings Act, or the registration accountability of organisations schedules.

PN1820

And I submit that in order that section 98A - well, my request for me to have this new factual material entered is compatible with section 98A and Mr Penning's application for it not to be admitted is inconsistent with section 98A.
Your Honour, I would like to make just a couple of very brief general comments about my application and about the way in which it is being resisted. There really should be some alarm bells ringing for the Commission about this matter,
your Honour. I mean the question has to be asked, I am the vice president of the branch, why is it that I don't have an automatic right to these documents? Why is it that I have to go to the trouble of making a 273 application? Why is my application being so vigorously opposed by the branch?

PN1821

Mr Docking says that I can't be trusted with confidential branch documents but he is prepared to give me confidential branch documents such as the landmark right valuation, provided that the documents of his selection. So I can be trusted with some things but not with others. Also another alarm bell, your Honour, is that no evidence has been put on by the branch secretary. A lot of my allegations would be cleared up by a simple statement from the branch secretary that this is not true. That I didn't have this conversation or that I didn't do this. That would be a very simple and efficient use of everybody's time, but for whatever reason Mr Metcher has not done that. Throughout these proceedings Mr Docking has been playing the man not the ball. He has been attempting to assassinate my character but has had very little to say about the substance of my 273 application. I draw your Honour's attention to what I have said about Victoria Road, Rydalmere. Excuse me, your Honour. I say that the branch owes moneys to Australia Post for rent that was not paid.

PN1822

Now, my evidence to that is the warrant to pay documents where the debt to Australia Post month after month is recorded and growing and the next month it just disappears and it is not recorded in the accounts. Mr Docking had nothing to say about that. Now, that is extremely alarming. I don't believe that these proceedings ought to turn on some sort of legal technicality. Mr Docking, if I can summarise his submission, is that all my allegations are a figment of my imagination and my application is rubbish and should be thrown out. Well if that is so, one of the allegations that I make is that the branch has not made adequate provision for staff entitlements.

PN1823

Your Honour, at paragraph 16 I say, furthermore, if the New South Wales P & T branch becomes insolvent as a result of these issues raised in my submission and I was not granted an inspection order then it is likely the public confidence, and I add now the confidence of trade union members in particular, in both the Commission and the provision of the IRS, it will be severely undermined, and your Honour, I can confirm that the New South Wales P & T branch has not become insolvent in the last week but I can also confirm that in relation to staff entitlements, which is one of the matters that I complained about, that a member, one of the officials is leaving the organisation and the branch has had to borrow $40,000 from the - - -

PN1824

MR PENNING: Objection. Your Honour, I have not sought to rise at any stage so far in terms of Mr Jones submission but that clearly is an entirely new assertion, there is no factual basis for that, and it is a submission which is seeking to deal with issue of the introduction of new evidence which is the form of a written final submission. We now have further assertions which are quite substantial to being made from the bar table.

PN1825

THE VICE PRESIDENT: Yes.

PN1826

MR JONES: Your Honour, I think the interest of a fair and just outcome would mean that the Commission should have all the fact before it. There should not be some sort of legal obstacle course. There shouldn't be unnecessary delay. I mean, this is a very simple matter, even the branch sought the loan from the divisional executive to meet the staff entitlement debts or it didn't and
Mr Penning should be able to clear that up here and now. It should not be a matter of me having to prove that the sky is blue. It is a very simple matter. The branch does not have the money to pay the staff entitlements, that is why it had to borrow the money, and that is why there needs to be some examination of the branch's financial records and some investigation carried out by the Registrar.

PN1827

Your Honour, I find it very odd, certainly in the forums that I am used to, as I explained to your Honour, are a lot more informal and have a lot less emphasis on legal technicalities than this forum. I would have thought - I am surprised that
Mr Docking does not want your Honour to hear that, that the branch cannot pay its staff entitlements and it has to borrow money. Not from a reputable financial organisation that would check its credit rating but get soft credit from the divisional executive in order to meet its basic staff entitlements which is something that I have complained about, something that I have foreshadowed. That is a fifth alarm bell, your Honour, or a sixth alarm bell, that Mr Penning would seek to object to me raising that matter.

PN1828

Your Honour, there are a couple of minor matters that need correction in
Mr Penning's statement today. At paragraph 9, he said that I elected not to tender the document by Mr Westwood, that to my recollection is not correct. It was that we did not have it available on the day but we said that it would be available at another stage and in any event the Westwood point really goes to those frivolous and vexatious issues were rebuttal those issues. The other point that probably needs clarification is that in paragraph 3 Mr Penning says secondly a reasonable inference that Mr Jones has elected not to be legally represented in making this application. In contrast he has elected to be legally represented in his section 106 claim under the Investigations Act 1996 New South Wales.

PN1829

I cannot afford to be legally represented and the fact that I cannot afford to be legally represented and the fact that I cannot afford to be legally represented is all the more present given that I have to pay for legal representation in another forum. If Mr Penning is suggesting that, you know, I can afford, I can chose to be legally represented and I chose not to, then that is simply wrong and the ARI schedule is designed for members, not for barristers or for solicitors, it is designed for members to bring their grievances and their complaints to this Commission and to the Registrar. No member should be required to jump through all these hoops in order to get a simple application to inspect the records of their organisation. It is simply unreasonable and I submit it is not what parliament envisaged when they introduced the ARI schedule. Your Honour, I might leave my comments there for the moment, if you please.

PN1830

THE VICE PRESIDENT: Do you have anything further Mr Penning?

PN1831

MR PENNING: Your Honour, there is probably little that I would seek to add to what was already recorded but to say as a general point we would ask the Commission to consider that Mr Jones would be in a position to adequately respond to the 274 application without the introduction of the substantial new evidence he seeks to include in the final submission. On our submission further the substantial new documentation which is contained in the private written submission of Mr Jones would not have been allowed to be introduced as evidence in reply in any event even if it had been sought to be raised at that time.

PN1832

THE VICE PRESIDENT: Why is that?

PN1833

MR PENNING: Your right. That is a very general submission but they are matters that we would not have prior notice of. It would have required, I am speculating, the opportunity for quite extensive re-examination by way of example.

PN1834

THE VICE PRESIDENT: Cross-examination you mean?

PN1835

MR PENNING: Yes, a further opportunity to re-examine by way of cross-examination Mr Jones. By way of simple example Mr Jones now refers to a report of a Mr Westwood. If that document, for example, again I am speculating your Honour, had been sought to be introduced in re-examination by Ms O'Toole to Mr Jones I would anticipate we would have strongly objected to that. It would have been necessary to very extensively cross-examine Mr Jones about that but of course it would have been necessary to seek to cross-examine Mr Westwood about that. There would have been very substantial additional documents that would have been required for that re-examination. That process in itself, your Honour, I cannot see that of lasting - of being completed in less than a day and there would be very substantial preparation that we would need for re-examination of that type.

PN1836

Your Honour, Mr Jones has raised certain issues which he says relate to his section 273 application. I am not entirely clear of the point that he is making in respect of the three issues but the second is quite a major assertion of a very general nature and that is that Mr Jones is saying that a variety of documents that he gave evidence about in re-examination as being given to him by Mr Cooper, he now says were given to him in fact by Mr Baulk. Your Honour, I have not gone through the transcript for the purpose of this exercise today to see how many times Mr Jones has made references to documents being given to him by
Mr Cooper but it is from my recollection really quite substantial.

PN1837

Again, if a matter like that where in cross-examination Mr Jones had given quite clear and unequivocal answers as to documents being given to him by Mr Cooper he now says on reflection, I was wrong, and they were given to him by Mr Baulk, that in itself would have given rise to considerable objection, I would anticipate because the question had been asked and answered. And in any event, it would have been necessary to seek to agree - reopened the cross-examination of
Mr Jones on those questions if he was seeking in re-examination to say I made a mistake. Your Honour, we certainly say it would be in no-one's interests for the matter to be re-opened.

PN1838

There would be enormous cost and organisational resources that would be necessary for that to occur. I would anticipate that it would require a whole new set of programming to occur including provision for further evidence to be called, further cross-examination of Mr Jones and then one would presume a further round of final written submissions. That is not in anyone's interests.
Your Honour, those are the further points I wish to make.

PN1839

THE VICE PRESIDENT: Thank you Mr Penning. Anything further?

PN1840

MR JONES: Just briefly, your Honour. Just, this might be clear to everyone already but just in case it isn't, as far as Mr Westwood's report is concerned and the matters raised in my charges are concerned, and I do say in paragraph 303 of my submission that I want to stress that I am not asking the Commission to make any adverse findings against Mr Metcher in relation to any of the charges themselves or the divisional executive's handling of the charges or Mr Metcher's defence of the charges, that also goes to the Westwood report, your Honour, which is a hand writing report about submissions.

PN1841

The only reason I seek to introduce this and I did not introduce it previously it has got nothing to do with my 273 application, one of the points that Mr Docking made was that I am to believe because I left it for some period of time before I made my allegations public. And my answer to that I feared reprisals from
Mr Metcher and what the Westwood report and my disciplinary charges and some other material do is shed light on that issue so it really is defined to those 274 type issues. The point that Mr Penning made about my evidence when I incorrectly said I was given by Mr Cooper and instead I should have said Mr Baulk, when I got home I checked and I saw I had received this material with covering letters from Mr Baulk, I was totally wrong, it was an honest mistake and I don't know if Mr Penning was suggesting that it was anything other than an honest mistake.

PN1842

As is his job I was being hectored by Mr Docking and perhaps I did not give as careful consideration of the answer and I mean I was wrong. I mean if
Mr Docking asked me what the capital of Arkansas and I got it wrong, I don't think there should be any great black mark against my name for that. The final thing I would like to say is Mr Penning talks about enormous costs and preparation for the branch, well that really goes to what I said before, why is this being so vigorously opposed. I mean, why is it involving such enormous costs on behalf of the branch, why isn't Mr Metcher here, why don't we just talk about the issues, why does it need a firm of solicitors and a barrister? I know it is their right to do it but it seems very odd and it doesn't seem consistent with an organisation that wants to be accountable to its members. Thank you, your Honour.

PN1843

THE VICE PRESIDENT: Before I rule on the objection I will mark your reply submissions as exhibit A4.

EXHIBIT #A4 REPLY SUBMISSIONS

PN1844

I have considered the material that has been advanced in relation to the objection taken and I have decided to uphold the objection and I will not have regard to the further evidence that Mr Jones seeks to introduce in his reply submissions. The reasons for that decision will be contained in my reasons in relation to the substantive application. There being nothing further, I will adjourn.

<ADJOURNED INDEFINITELY [10.09AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R10 DOCUMENT IN REPLY TO MR JONES' SUBMISSION PN1743
EXHIBIT #A4 REPLY SUBMISSIONS PN1843