C2006/2527, Transcript of Proceedings [2006] AIRCTrans 1004 (25 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15533-1

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER GAY

C2006/2527

APPEAL BY FOX, GREG
s.120 - Appeal to Full Bench
(C2006/2527)

SYDNEY

9.59AM, TUESDAY, 08 AUGUST 2006

Continued from 29/5/2006

PN874

SENIOR DEPUTY PRESIDENT MARSH: Good morning, I don't think there's any changes in appearances?

PN875

MS LEGG: No, your Honour.

PN876

SENIOR DEPUTY PRESIDENT MARSH: So I think it's over to you, Mr Fernon.

PN877

MR FERNON: Thank you, your Honour. If the Commission pleases, we have filed a respondent's outline of submissions on the last occasion and it's dated 26 May 2006.

PN878

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you.

PN879

MR FERNON: Thank you. In our submission this appeal is an appeal of a discretionary appeal of the Commission and accordingly the well know principles in relation to appeal from discretionary decisions apply as affirmed in a recent case which is referred to in our submissions of Thomas Brian Potter and that's a decision with a print number of PR948009, decision of a Full Bench of the Commission of 15 June 2004, and in that judgment of the Full Bench at paragraph 33 they refer to the nature of an appeal under section 45 of the Workplace Relations Act being considered by the High Court in the Coal & Allied Operations Pty Ltd judgment, that's Coal & Allied Operations v the Australian Industrial Relations Commission, and they refer to the joint judgment of the Chief Justice and Haine and Gaudron JJs where it said:

PN880

Because a Full Bench has power under section 45(6) of the Act to receive further evidence on an appeal, ...(reads)... And that is so regardless of the different decisions that may be the subject of an appeal under section 45.

PN881

And then they continue:

PN882

In relation to appeal against orders made under subdivision B of division 3 of part 6A of the Act, the requirement for error is a precondition to the exercise of the powers to quash or vary the decision under appeal ...(reads)... that the Commission was in error in deciding to make the order.

PN883

In our written submissions we refer to the judgment of Potter - and this is in paragraph 3 - the reference to the Coal & Allied decision where it's said that:

PN884

Because a decision maker is charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the ...(reads)... in the decision making process.

PN885

And that, in our submission, is the burden that the appellant has in this appeal. The appellant must show some error in the decision making process. Reference is made to House v The King where it's said:

PN886

If a Judge acts on a wrong principle, if it allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration ...(reads)... if he has materials for doing so.

PN887

We refer to the Assacci Diamond judgment of the Full Bench where it reaffirms the principles in House v The King and the nature of the discretionary decision referred to in the judgment of Mason and Dean JJs in Mordis where:

PN888

Assessments which call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order ...(reads)... of a judicial discretion.

PN889

Ultimately, in our submission, that's the nature of the order that's made by the Commission here in the trial, Commissioner Roberts' judgment was a judgment that called for an assessment, called for value judgments in respect of which there was room for reasonable differences of opinion, no particular opinion being uniquely right.

PN890

In this appeal the appellant relies upon the CCTV footage which the Commission was shown on the last occasion and invites the Commission to overturn the Commissioner's findings and in particular the Commissioner's finding in preferring the evidence of Ms Lyon. In our submission there's no basis upon which that should be done, nor indeed, could be done. Showing the video in our submission can only be for the purpose of demonstrating error by the Commissioner, not, in our respectful submission, for the Commission now to substitute its own view of the facts.

PN891

But in any event the Commissioner's judgment which the Commission was taken to in some detail on the last occasion, is a comprehensive judgment where the evidence is set out in some very considerable detail. Some criticism is made of the judgment but I did wish to take the Commission shortly to a judgment of the New South Wales Court of Appeal in Soulemezis v Dudley Holdings Pty Ltd. It's reported in 1987, 10 NSW LR at page 247. This is a judgment of the Court of Appeal where the requirement for the giving of reasons is discussed. At page 259 - does the Commission has a copy of the - - -

PN892

SENIOR DEPUTY PRESIDENT MARSH: Yes, we do.

PN893

MR FERNON: We can provide a copy if you do not.

PN894

SENIOR DEPUTY PRESIDENT MARSH: That might help me.

PN895

MR FERNON: Whilst we're there we could hand up a judgment that I earlier referred to as Potter.

PN896

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN897

MR FERNON: A portion of the judgment to which I did want to make some brief reference is firstly in the judgment of Kirby J. Kirby J was in dissent in the result but, as I read the judgment, there's no particular difference in the principle as far as the giving of reasons is concerned. This section of the judgment is at page 259 commencing at (c) on page - he's referring to earlier authorities - he says:

PN898

This decision does not require of trial Judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to a Judge's conclusion, but the judicial obligation ...(reads)... and to list the findings on the principal contested issues.

PN899

I refer to that judgment because his Honour is there setting out his opinion as to the requirement. What Commissioner Roberts has done in this, what we say is comprehensive judgment, is set out in some very considerable detail the evidence of very much more - and in so doing satisfying to a very considerable degree and extent, the requirement that might otherwise be considered for the giving of reasons in a judgment.

PN900

The next portion of this judgment to which I wish to make some brief reference, if the Commission pleases, at page 270 in the judgment of his Honour, Mahoney J, and at line (f) on the page he says:

PN901

Nor is it necessary for a Judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant or to itemise for example in the assessment of damages for tort each of the factual matters to which he has had regard.

PN902

Then on page 271, between (c) and (d) he continues:

PN903

In my opinion the law does not require that a Judge make an express finding in respect of every fact leading to or relevant to his final conclusion of fact, nor is it necessary that he reason ...(reads)... the chain of reasoning to that conclusion.

PN904

Then he continues, "The matter is not free from authority." He refers to a decision of the Privy Council and I think we can pick up the quote, he says:

PN905

Counsel for the defendant at the conclusion of the evidence conceded negligence. Thereafter the issue on liability was as to contributory negligence on the part of the plaintiff. ...(reads)... Nevertheless he stated in his conclusion, peculiarly enough -

PN906

and there is the conclusion set out -

PN907

This was a finding of fact which in the opinion of their Lordships was upon the evidence open to the trial Judge to make. The Court of Appeal, however, after directing themselves correctly as to the role ...(reads)... would not render the plaintiff contributively negligent -

PN908

et cetera. Then his Honour continues between (c) and (d):

PN909

Their Lordships did not, I think, suggest as a model of a judgment one in which having the evidence in mind the Judge does no more than state his final conclusions of fact. ...(reads)... where reasons are given to detail their reasoning processes in the manner suggested in the present case -

PN910

et cetera. Now, what is clear in our submission from that judgment is that where a Judge has set out the evidence, it becomes clear that the Judge had the evidence very much in mind when making his conclusion. Commissioner Roberts, in making his conclusion, had set out in some very considerable detail the evidence and the critical evidence and we will go shortly to how the Commissioner addressed the CCTV footage to which so much reliance is made by the appellant in this appeal. Perhaps it's fair to say that the principal limb of the appellant's appeal in this case is to attack the finding made by the Commissioner with regard to the evidence of Ms Lyon.

PN911

The Commissioner, in his judgment, preferred the evidence of Ms Lyon and accepted that the appellant's conduct was, as the Commissioner finds, "aggressive and insulting" and that's in the judgment at paragraph 70. If I may go briefly to the judgment with which the Commission is familiar, without wishing to labour unnecessarily the point, he says in paragraph 70, bearing in mind that he has set out in considerable detail the evidence:

PN912

On the balance of probabilities -

PN913

so in our submission addressing himself to the correct test -

PN914

I prefer the evidence of Ms Lyon to that of Mr Fox. In my view Mr Fox behaved in an aggressive and insulting manner towards Ms Lyon and subsequently decided that his best defence was to maintain that he could remember nothing about it. ...(reads)... launched an unprovoked verbal assault on Ms Lyon telling her words to the effect -

PN915

et cetera. And thereby the Commissioner states his preference for the evidence of Ms Lyon. The CCTV footage, which is relied upon by the appellant and which was shown to the Commission more than once on the last occasion, in our submission, is in no way inconsistent with the version of events given by Ms Lyon in her evidence and which was accepted by the Commissioner.

PN916

Particular attention to particular matters was made by the appellant on the last occasion, but when one considers the Commissioner's judgment at paragraph 71, in our submission it's clear that the Commissioner not only had in mind the evidence when he came to his conclusion to prefer Ms Lyon, not only did he have in mind the demeanour of Ms Lyon, but he had in mind the CCTV footage and the points that the appellant wishes to derive from that CCTV footage. He says at paragraph 71, "Ms Lyon's evidence was consistent and largely credible, though I believe she understated the level of her alcohol consumption during the evening."

PN917

Now, that in a sense is an important sentence because the Commissioner demonstrates that he is not, as it were, accepting, if I may say so, hook, line and sinker, the version of Ms Lyon. Rather he's demonstrating a careful, analytical, judgmental assessment of her evidence to come to his conclusion. He continues, "I have no reason to disbelieve Ms Lyon's version of the conversation between her and Mr Fox." In other words, the Commissioner has considered the evidence, and in particular the thorough examination of Ms Lyon that took place in the trial before him. He continues:

PN918

I do not believe there was any prospect of Mr Fox carrying out any threats. I believe that Ms Lyon was extremely angry with Mr Fox and was determined to pursue the matter.

PN919

Importantly the surveillance footage shows her conversing with Mr Fox in an animated manner for some 82 seconds.

PN920

And the Commission might recall that there was some solace sought to be drawn by the appellant from the manner in which the conversation took place, namely animated, and from the length of time that the conversation took place, namely 82 seconds on the CCTV footage as opposed to the length of time that it might be considered that the conversation occurred as per the evidence of Ms Lyon. But the Commissioner plainly has this all in mind. So he says, the surveillance footage shows her conversing with Mr Fox in an animated manner for some 82 seconds during which she remains in close proximity to the appellant and appears from her body language to have done a lot of the talking herself, again a matter to which some solace is sought to be made by the appellant, but again a matter to which the Commissioner has specifically directed himself in making his assessment. He continues:

PN921

More may well have occurred during the exchange than Ms Lyon has recounted in her evidence but this is impossible to ascertain given Mr Fox's claim to have absolutely no memory of the incident.

PN922

So taking into account that it's possible as the appellant wishes to suggest that more may have occurred, but it's impossible to ascertain that. But certainly he's got well in mind the 82, 32 second conundrum to which the appellant wishes to bring attention, but we would suggest respectfully that it's almost certain to be the case that a witness' recollection will be not work perfect or unlikely to be to the second in respect of a video footage of the very same conversation.

PN923

What was the fundamental question and the question that the Commissioner addressed was, was the conduct of which complaint was made conduct which was established in the proceedings before him. That was the fundamental question and that was the question upon which Ms Lyon was thoroughly cross-examined upon and which the Commissioner accepted was established. The words in respect of which complaint was made were the words upon which Ms Lyon remained unshaken. The Commissioner continues:

PN924

Ms Lyon's behaviour deserves some comment also.

PN925

this is in paragraph 72:

PN926

Why she did not terminate the conversation after being told 'Everyone fucking hates you, Kathy', is curious. If Mr Fox then told her that he wished to punch her in the face, her subsequent comments on at least two occasions of, 'Go on then', were most inappropriate for a person holding a senior position"

PN927

et cetera. So again what the Commissioner is clearly exposing is his careful assessment of Ms Lyon. It is not a "hook, line and sinker" reliance on Ms Lyon as the witness, but rather the careful assessment, and ultimately focusing upon the important point, namely, the conduct of which complaint was made and which was established to be the reason for the termination of employment which the Commissioner found was a valid reason, a finding that we respectfully submit was not only open, but correct.

PN928

The Commission has seen the CCTV footage. The Commission knows that the appellant places enormous store in that footage to, as it were, demonstrate that Ms Lyon was lying. The proposition was put to Ms Lyon during her cross-examination that she was lying. As we understand it reliance is placed upon the CCTV footage in order to make out or to support that proposition, Mr Fox, the appellant, stating that he had no recollection of the events. The Commission has seen the CCTV footage and in our submission the Commission would be thoroughly unconvinced that the CCTV footage does anything other than corroborate Ms Lyon's evidence, or alternatively does nothing to bring into question discredit or otherwise contradict her evidence, which brings us to the judgment of the High Court to which my learned friend correctly acknowledged was her hurdle on the last occasion.

PN929

That judgment of Fox v Percy is recorded in 214 CLR at page 118 and we can provide a copy for the Commission.

PN930

SENIOR DEPUTY PRESIDENT MARSH: I think we have copies of that, thank you.

PN931

MR FERNON: The passage which again I don't wish to labour because my recollection is my learned friend did go to it on the last occasions, but the particular passage is from the judgment of McHugh J on pages 138 and 139 where he says in paragraph 65:

PN932

Whether an appellant court should intervene in a decision of a trial Judge who has made findings based on the credibility or demeanour of a witness is governed by the principle stated in Abalos where in that case ...(reads)... on his or her determination cannot be overlooked.

PN933

And his Honour then refers to the judgment of the majority in De Vries v The Australian National Railways Commission where Brennan, McHugh and Gaudron JJs said, "More than once in recent years this course has pointed" - I'm sorry, I said that incorrectly. What his Honour did was observer that the Chief Justice, Mason CJ, Dean, Dawson and Gaudron JJs had agreed with his earlier judgment in Abalos and his Honour continued, referring to his joint judgment with Brennan and Gaudron JJs in De Vries that:

PN934

More than once in recent years this court has pointed out that a finding of fact by a trial Judge based on the credibility of a witness is not to be set aside because an appellant court thinks that the probabilities of the case ...(reads)... or has palpably misused his advantage -

PN935

that, if I may interpose, is an important passage, he continues with another important passage, "or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was" - and this also is important in our submission - "glaringly improbable."

PN936

The evidence in this case in our respectful submission in no way suggests the probabilities of the case are against or even strongly against the findings of fact made by Commissioner Roberts. Rather, when one turns one's mind to the evidence including the CCTV footage, the probabilities of the case are with, and indeed, strongly with, the findings of fact made by the Commissioner, but most assuredly in our submission, does not constitute evidence which can be said to be inconsistent with facts incontrovertibly established, nor can it be said to be glaringly improbable, nor can it be said, in our submission, that the Commissioner failed to use or palpably misused his advantage.

PN937

Rather, what we find is that the evidence is consistent, not inconsistent, that the Commissioner fairly and openly exposed his assessment of the witnesses thereby using his advantage and exposing the manner in which he used his advantage in his reasons, all of which leads, in our respectful, to the conclusion that the bar set by the High Court in Fox v Percy for appeals of this kind has not been cleared. So there's nothing in, in our submission, what we understand to be the big point of the appeal, namely the credibility of Ms Lyon, the Commissioner accepted her evidence and nothing has been put that would cause the Commission to interfere with that finding.

PN938

The next point was that of the credibility of Mr Fox, the appellant. This, in our submission, is something of a non-issue and acknowledged to be so by the Commissioner where, in paragraph 70 in a passage to which I've already referred the Commission this morning, he says, "This leaves me" - he refers to, rather, the appellant's evidence that he could remember nothing about the incident and he said, "This leaves me in a situation where I must rely almost totally on the credibility or otherwise of Ms Lyon's evidence." So that accepting for the purposes of the argument Mr Fox's evidence the issue of the appellant's credibility becomes something of a non-issue, and indeed, that must be the case.

PN939

The question for the Commissioner was whether the conduct of which complaint was made was established. Whether the appellant remembered it or not, does not bear upon whether it occurred. That, of course, is self evident. That self-evident fact leads to the conclusion that the credibility issue of the appellant that's raised on the appeal is, we submit, a non-issue. So that once it's found that the appellant conducted himself as alleged, the Commissioner's conclusion was clearly open and is not a conclusion that may be interfered with on the appeal.

PN940

The Commissioner's conclusion is referred to in paragraph 69 where he refers to Mr Fox's selective memory of events of the evening of 3 September and he continues:

PN941

It does not strike me as truthful or credible, nor does his claim that his memory loss resulted from his excessive consumption of alcohol during the night.

PN942

He said:

PN943

Mr Fox's general demeanour in the witness box impressed me as being evasive. The surveillance footage clearly shows Mr Fox walking away from the table where he was seated ...(reads)... conversing with other people after Ms Lyon had departed.

PN944

So he's referring there to the CCTV footage in respect of which so much reliance is made by the appellant. He then continues, referring to the evidence:

PN945

He then took public transport to go home. He subsequently left a coherent voicemail message for Mr Morrissey complaining about the behaviour of two other Alliance employees.

PN946

And he said:

PN947

In summary I do not believe Mr Fox's evidence as to his inability to recall events which Alliance relied upon to terminate his employment."

PN948

Now, this was a matter that was addressed in evidence by way of cross examination to which I could take the Commission to just briefly. At paragraph 432 of the cross-examination some questions are addressed to this question as to the appellant's state of recollection. Paragraph 432, the question is:

PN949

But you then went on further down in the statement to recollect how long you were talking to her for, when it occurred and that she'd walked up to you, didn't you?---Yes.

PN950

So whilst on the one hand you were saying you had no recollection, you now had an amazing memory for what had actually occurred on the evening, hadn't you?---Yes."

PN951

So the point is that the question of his memory is raised in the question and he responds, "Yes, but that's because I had seen the CCTV footage and I had
taken - extracted that information." So the point of the question is, the state of the recollection. The response is to rely or refer to the CCTV footage to explain the extent of the recollection referred to in the correspondence that took place between the employer and the employee prior to termination, and indeed, the evidence of the appellant.

PN952

A point in the submissions by the appellant was that this matter wasn't raised in the cross-examination, but in our respectful submission the state of the memory is raised and it's raised as a point, at page 76 of the Appeal Book. Then if one goes to paragraph 451 at page 78 the question referring to his, being Mr Fisher, referred to in the previous question, PN450, his difficulty is the question:

PN953

Was the fact that on the one hand you had an acute recollection of the events but you fail to say what you had said in response to the allegations put by Kathy. I'm not sure whether he actually said that. He didn't use words to 'in that effect'?---He didn't.

PN954

And then the question:

PN955

He asked you what you had said to Kathy, didn't he?---I'm not sure whether he used those words or not.

PN956

You said to him, 'I'm not going to respond. Everything's in the letters.---I did say that. I said that I had put it all down in my letter of the 22nd which I was asked to do as an official response and that's what I did, and I did say that, yes.

PN957

But you never responded to their specific questions asking you to say what it was that you had said to Kathy if you were saying what she'd said was not true?---I couldn't do that because I don't recall the event, so I couldn't."

PN958

So again this question of recollection of the event is raised in the cross-examination and indeed, the employee position is put:

PN959

So what I did was I put certain things in my letter which would cover, in my official letter on the 22nd which would cover those things.

PN960

But in your letter of the 22nd, that was the first time your employer became aware that there was CCTV footage?---I believe so.

PN961

You didn't inform them that you obtained the CCTV footage?---I'm not sure if I did.

PN962

And then at paragraph 460 it continues:

PN963

You also recalled in detail events that occurred on the night at approximately 11.45?---Yes.

PN964

That was only 15 minutes after the alleged discussion took place?---It is, yes.

PN965

You have informed the court that the majority of the CCTV footage in the period between 11 and 11.30 shows that you didn't actually drink any alcohol?---No, that's correct.

PN966

In addition, you say in your statement that you're not saying that Kathy's lying and you said that in the meeting on the 22nd?---Sorry, could you ask that again?

PN967

I take you to the right part of the statement -

PN968

et cetera.

PN969

Now you allege that Kathy Lyon - that Greg Fisher asked you if Kathy would have been lying?---He did, yes. I'm not saying that she was lying.

PN970

And then he says at paragraph 468:

PN971

Because I had no idea.

PN972

Then if one goes back then to paragraph 440 which precedes that passage to which I've just taken the Commission, at page 77, at paragraph 439:

PN973

And you didn't inform your employer of why you had this inconsistent recollection? Because again, Kathy Lyon's recollection of the events is correct, isn't it?" "You're trying to distract your employer from the main allegations.

PN974

That's put plainly enough. He says, "No."

PN975

The reason why was because you remembered that you had said the things that she alleges you had said to her?---No.

PN976

Is the response. So the question of recollection of events is clearly put. The surrounding events of the time were raised in the cross-examination and addressed by the witness. So it was a question for the witness to deal with, as he did, and a question for the Commissioner to assess the way in which the witness dealt with those matters, which the Commissioner did in our submission. But in any event, even if it was that these matters are not specifically raised in cross-examination, we submit that the Commissioner was nevertheless entitled to assess the evidence of the witness.

PN977

A Commissioner of a Judge or any tribunal member is not, as it were, fettered by the evidence that a witness gives. Rather the presiding person has the obligation to assess that evidence to determine whether the evidence is accepted or not. There is a judgment of the New South Wales Court of Appeal to which we refer in our submissions and to which I'd wish to take the Commission briefly in support of that submission, if I may. It's a judgment, Farage v Buttiegieg, a judgment of the court of 28 May 1998, the court consisting of Priestley, Sheller and Powell JJs and the judgment is unreported.

PN978

We refer to this judgment in our written submission at paragraph 27 where a short passage of Powell J is set out. At page 10 of the judgment reference is made
to - it actually commences at the bottom of page 9, the relevant passage from Powell Js judgment where he refers to De Vries, et cetera, and as a fourth proposition he says:

PN979

Nor did the fact that none of the authors of the reports on which the appellant relied at trial was cross-examined require that their evidence be accepted by Sidders J in the District Court.

PN980

Although some of the older cases proceed upon the basis that as a general rule where a witness is unimpeached in his general character and his evidence is probable and uncontradicted by evidence on the other side, that evidence should be accepted, but more recent authority makes it clear that there is no rule of law that a court or judge must accept evidence, I think it must be:

PN981

If it is all one way -

PN982

And that was the absence of cross-examination -

PN983

- enables a tribunal of fact to regard the relevant evidence with a greater degree of assurance that might otherwise have been the case. It does not require acceptance of that evidence.

PN984

Reference is made to a number of judgments, and it continues:

PN985

Although where such evidence is rejected, the reasons for it being rejected should be stated in default of which it might be held that there has been a mistrial.

PN986

Well, in the Commissioner's judgment he does precisely that. He sets out why the evidence is rejected and he does so in paragraph 69 to which I've referred already. So that in our submission the question of recollection of the events was squarely raised during the cross-examination to, even if it wasn't, but it was, but even if it wasn't, that would not fetter the Commissioner to accept, if I may quite, "hook, line and sinker", the evidence of that particular witness and what the Commissioner does is set out in paragraph 69 why it is that he viewed the evidence in relation to that matter of recollection in the way that he did.

PN987

Further, there was a deal of evidence before the Commissioner of the correspondence that took place between the employer and employee and that evidence is to be found commencing at page 337 of Volume 2 of the Appeal Book and the evidence to which I refer goes from page 337 to page 360 of the second volume, and I don't intend to take the Commission in detail to all parts of that correspondence because the correspondence speaks for itself regarding the way in which the employer, as the respondent in this appeal, sought to understand the events of the night of 3 September 2004.

PN988

But importantly at page 337, the first letter, the respondent sets out the specifics of the allegation. At about point 3 on the page it's said to the appellants specifically, "Kathy has alleged that", and then there's the four dot points which the Commission will see were the allegations, the particulars are set out in clear and unambiguous terms. It's said that other staff members witnessed the event. It's said in the last paragraph that it's an extremely serious matter and there's a breach of the code of conduct et cetera. So that is set out in the first letter which in our submission formulate for the then employee, the respondent, what are the allegations, and invites a written response.

PN989

The written response is at page 339 where there's an acknowledgment that the allegations are extremely serious and could result in "serious consequences" and is a request for time. Then at page 342 the allegation is that there's an extremely large number of inconsistencies. Then there's the assertion that the investigation has been so poorly undertaken that "you could have been in a position to make subject allegations against me." It's said:

PN990

I have no confidence in your ability to prevent the leaking of this information. As such I must point out if a satisfactory level of proof to support your accusations is not provided to me, I will have no option but to commence legal proceedings against Alliance for defamation.

PN991

Now, if it was that it was to be said, well, there's no recollection of these allegations, the allegations having been particularised, one might have well expected that to be the response in the correspondence. But rather there is this response which suggests that the obligation is on the employer to, as it were, prove to a "satisfactory level" to the employer the particulars alleged. The question was whether the conduct had taken place or not. On page 343 it's said:

PN992

What you're asking me to answer in the letter dated 13 September is considered to be unanswerable. Your letter does not contain sufficient specific information for me to consider. For example, a general statement regarding speaking to other staff members who witnesses this event is not supported by any details. Natural justice requires that you should have provided me with full details of the allegations.

PN993

Which, if I may interrupt myself, is precisely what was provided. The allegation was that there was the conduct complained of particularised at page 337. In any event, at page 346 the issues that are raised are all dealt with. Page 346 of volume 2 is the letter of the respondent to the appellant of 17 September 2004. All of those matters in my submission were, strictly speaking, unnecessary because the particular conduct of which complaint was made had already been specified in the letter of 13 September, but nevertheless that additional information was provided.

PN994

For example, in the fifth dot point it's said, this is commencing in the second sentence:

PN995

I can confirm that in addition to obtaining a statement from Kathy we have obtained statements from two other staff members -

PN996

et cetera, all of which is ultimately unnecessary when seeking a response to the specific allegation, and to make it clear, if it wasn't already clear, at page 347 the allegation is repeated at about three-quarters of the way down the page, that's page 347.

PN997

Page 348 is a response. In paragraph 3, for example, it's said:

PN998

In respect of your most recent letter you have not provided details of where the alleged witnesses were located when the alleged incident took place.

PN999

One might well ask why that question would be asked, the question being that - a question requiring an answer being, whether or not the conduct took place or not, whether there are witnesses is ultimately a matter for perhaps proving in a court that in correspondence between employer and employee, the question is whether the conduct occurred and why the conduct occurred perhaps, not whether there were witnesses or where they were standing, whether they could, as it were, come up to proof.

PN1000

And so the questions are asked with exact location, whether there's more than two witnesses et cetera, et cetera, perhaps foreshadowing the way in which the Commissioner ultimately assessed the appellant in what he described as the Bart Simpson defence. Then again at page 350 there is again a comprehensive response to the correspondence from the appellant, but at three-quarters of the way down the page the point that what has not yet occurred is that the employer has not yet received from you a response on "the central issue". That's at three-quarters of the way down of that page 350, which was true enough.

PN1001

Then the next correspondence from the appellant, the letter of 22 September 2004 at page 352 of volume 2 in the fourth paragraph it said on the second line:

PN1002

I do not believe that there is sufficient evidence to support Kathy Lyon's allegation.

PN1003

Well, again, that was not the point. The point was whether there was substance in the allegation or whether there was not, and this is where the CCTV footage is introduced for the first time and reliance is sought to be made of the CCTV footage. On page 353 of that footage it's said, "The evidence does not indicate that on the night in question Kathy Lyon did approach me as she was leaving the club and spoke to me," et cetera. The next paragraph:

PN1004

There is no evidence to prove that I said anything to Kathy Lyon when she was standing in front of me.

PN1005

And it continues:

PN1006

After considering both the CCTV footage and the evidence that you've provided, there are a number of inconsistencies which I believe that you should consider, if you have not already considered them as part of your thorough investigation. I'm not suggesting that the two witnesses are not telling the truth. I'm just at a loss as to the inconsistencies.

PN1007

But when one looks at the inconsistencies, in our respectful submission, they don't amount to any inconsistency or any inconsistency of substance that would call into question the particular allegation of conduct that's made. The points are there set out in paragraphs 1 to 10 that the appellant then sought to rely upon as being the inconsistencies. But in my submission they speak for themselves and they don't speak of any inconsistency. Then one goes to the letter of
29 September 2004, page 359 which is the letter from Mr Morrissey to the appellant in which the appellant is informed of the company's decision to proceed with termination of employment. All of that was before the Commissioner and all of it is consistent with the manner in which the Commissioner approached his task and ultimately came to his conclusion.

PN1008

The next issue that is raised is what we call the nexus issue and upon which submissions are made in our written submission. It is incorrect in our submission to describe the issues as a "threshold" issue. Our submissions, our written submissions address this question at paragraphs 11 to 18 and we also refer to, without going to, the earlier submissions that were made to Commissioner Roberts in volume 2 commencing at page 283, paragraphs 14 and 15 which address this question. The question, the essential question was whether there was a valid reason. That's a mandatory consideration for the Commission and he considered that at paragraphs 81 and 88 and 89 of his judgment.

PN1009

It's argued by the appellant that there was not a sufficient connection between the conduct of which complaint is made and the work place. But that is not the question. There's no such requirement under the Act that there be such a sufficient connection, only that there be a reason and that the reason be a valid reason. This was a work function. Ms Lyon was the most senior employee at the work function. Both Ms Lyon and the appellant were employees of the employer. In the judgment the Commissioner, Commissioner Roberts, dealt with this particular question that was raised for his consideration commencing at paragraph 58 of his judgment on page 25 of the appeal book.

PN1010

He refers to my learned friend's argument that there could be no valid reason because the incident did not have a sufficient nexus with the work place. He says that he will not repeat the details of the circumstances and refers to a judgment of Vice President Ross, as he then was, in Rowes v Telstra Corporation Limited, where he said:

PN1011

It is clear that in certain circumstances an employee's involvement may be validly terminated because of out of hours conduct. But such circumstances are limited.

PN1012

One of the propositions of his Honour, the Vice President, was that the conduct:

PN1013

Must be such that viewed objectively it is likely to cause serious damage to the relationship between the employer and employee. The conduct damages the employee's interests, the conduct is incompatible with the employee's duty as an employee," et cetera.

PN1014

It could not be said that what his Honour was there seeking to do was to exhaustively set out the criteria that might be expected where out of hours or out of hours conduct is the subject of consideration by the Commission, but they're indicative and important and informative matters that should be taken into consideration. His Honour then referred to the Vice President's reasoning, referred to in paragraph 61 the applicant's argument relying upon the judgment of Commissioner Simmonds in Tichy.

PN1015

He acknowledged that Tichy bore some similarity to these proceedings, but then referred to the respondent's reliance upon a Full Bench judgment in the Grain Corp Operations Limited v Markham proceedings and concluded that decision has much stronger parallels in this case and in the light of Grain Corp and Rowes, in the particular circumstances of this case, he agreed with the respondent's submissions which had earlier summarised at paragraph 52 where he observed that the sole reason why the employees were at the club was because of the trivia night arranged by the employer.

PN1016

The movement of the employees between the different parts of the club did not mean it was no longer a workplace function. Employees only socialised as a group and did not socialise with members of the general public, thereby again identifying this particular function and the incident that occurred as an incident between employees rather than out of the workplace, and he also referred to the applicant's own conduct as implicitly accepting the entire evening as being a workplace. So they were factors that the Commissioner was entitled to take into consideration in his conclusion. He was not wrong in doing so, no error has been demonstrated that he was not thereby entitled to conclude that the reason was a valid reason.

PN1017

Lastly complaint is made by what is said to be delay. We do not concede that there was any relevant delay in the delivery by the Commission of its judgment in these proceedings, but we will proceed with our submissions on this aspect as if there was a delay. The point that is sought to be made, as we appreciate it, is that delay, or the delay gives rise to a lack of procedural fairness. But this case is different to the case on which reliance is made, that of NAIS v The Minister for Immigration and Multicultural and Indigenous Affairs. That case is now reported, that's in 2005, 80 ALR at page 367 and at 223 ALR at page 171.

PN1018

In paragraph 2 of the judgment, that's the judgment of his Honour, the Chief Justice, he observes that the unfairness in that case:

PN1019

The unfairness is said to have resulted from what was described by Healy J at first instance as extraordinary delay. The application to the tribunal to review the delegate's decision was made on 5 June 1997. ...(reads)... that bare recital of events involved some over-simplification because there were communications between the tribunal -

PN1020

et cetera. But it does in our respectful submission put that case in a somewhat different category of delay to this case.

PN1021

That was a case where the credibility, the believability or the acceptance of the evidence of the applicants was critical to the determination of the tribunal. To some extent this case is the same because critical to the determination of the Commissioner was his finding accepting the evidence of Ms Lyon, preferring the evidence of Ms Lyon. Essentially, however, accepting the evidence of Ms Lyon because there was no contradictory evidence to that which she gave. But there was additional evidence to that of Ms Lyon.

PN1022

There was the evidence of witnesses which were consistent with, although not directly corroborative of the version that she gave. There is the CCTV footage which is consistent with, although not directly corroborative of the version that she gave, and there is also the fact, we submit, that it was clear in the mind of the Commissioner that he had well in mind not only the evidence in its form, that is, the words that were said, the transcript and the documents that were before him, but he had clearly before him the witnesses that gave the evidence.

PN1023

We know that the judgment was a comprehensive judgment where the evidence was clearly set out - I withdraw that. A summary of the evidence of each of the witnesses was clearly set out. There was the video and ultimately the question for the Commissioner was whether to accept the Lyon version. He had a comprehensive and thorough cross-examination of Ms Lyon and the judgment shows that the evidence was thoroughly considered. What is clear from the NAIS judgment is that delay of itself does not equal procedural irregularity, denial of natural justice or the like.

PN1024

When one considers the judgment of the Commissioner it's clear in our respectful submission that the Commissioner lost no advantage if it is to be accepted that there was delay in the judgment. He says in paragraph 69 of Mr Fox. "Mr Fox's general demeanour in the witness box impressed me as being evasive." What the Commissioner was there saying and exposing was his assessment of Mr Fox in the witness box. He had, it must be inferred, the general demeanour of the witness in mind at the time of making his judgment.

PN1025

He had in mind the evidence of, and the demeanour of Ms Lyon. He says of Ms Lyon at paragraph 73:

PN1026

I strongly suspect that Ms Lyon, a woman whose demeanour in the witness box impressed me as being quite capable of standing up for herself, initially thought she could deal with Mr Fox.

PN1027

So again the Commissioner is exposing his judgment and assessment of Ms Fox, Ms Fox's demeanour in the witness box, that of being a person quite capable of standing up for herself.

PN1028

So that whilst, if one accepts that there is delay, that of itself does not equate to procedural fairness. Rather it would be necessary for an appellate court to identify the manner in which there was an injustice or a substantial injustice in the proceedings. That, in our submission, can't be done in this case and it can't be done in this case because the evidence is consistent. It can't be done in this case because the Commissioner had clearly had in mind a recollection of the evidence of Mr Fox and the Commissioner clearly had in mind his recollection of the evidence of Ms Lyon.

PN1029

In NAIS, the Chief Justice, Gleeson J, in paragraph 5 observed:

PN1030

Undue delay in decision making, whether by courts of administrative bodies is always deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. ...(reads)... or the infirmity of the decision, not the delay itself.

PN1031

Well, here, when one looks at the evidence, when one looks at that evidence including the video footage, when one bears in mind the references to demeanour and the way in which the Commissioner has approached his judgment, one could be far from concluding in our submission that there was infirmity of the decision, that there was error by reason of any such delay. In paragraph 9, he continues:

PN1032

Because the tribunal's reasons ignored the questions of time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was ...(reads)... a real and substantial risk of the tribunal's capacity to make an assessment is impaired.

PN1033

Well, in this case, in our submission, there is no such real and substantial risk of incapacity in the assessment of the evidence for the case brought by the appellant. And lastly, may I refer the Commission to paragraph 161 of the judgment, this being part of the judgment of Callinan and Hayden JJs, where they say halfway through that paragraph 161:

PN1034

Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to t eh matter. Did the maker of the decision truly apply his or his mind to it? Did he or she find it too hard? Was the decision maker distracted? Was the decision in the end ...(reads)... of credit and impressions based on demeanour.

PN1035

If one considers the judgment of Commissioner Roberts and one addresses the questions raised by their Honours, in our respectful submissions those questions may be satisfactorily answered because of the thorough and comprehensive way in which he has addressed the evidence, including his assessment of the demeanour of the witnesses that gave evidence before him. At paragraph 168 they say, Callinan and Hayden JJs:

PN1036

In our opinion it's not possible to say that the tribunal's decision depending so much as it did on the credibility of appellants who gave oral evidence was made fairly. Their application for review was lodged on 5 June 1997. ...(reads)... That is not an exercise that can be satisfactorily and fairly be carried out over widely separated serial proceedings.

PN1037

A different case in our respectful submission to the one that is currently before the Commission.

PN1038

At paragraph 172 they continue:

PN1039

The answer to these arguments is that unfairness can spring not only from a denial of an opportunity to present a case but from denial of an opportunity to consider it. ...(reads)... had deprived itself of its capacity to do so and there is no contrary evidence.

PN1040

But in our submission this case is different. Firstly, the delay is not the sort of delay that was considered by the court in NAIS, but secondly, the manner in which the evidence was considered speaks loudly of a fair and transparent consideration of the evidence. There was, as I submitted earlier, no "hook, line and sinker" acceptance of any witness. It's clear that the judgment wasn't made out of desperation, but rather time was taken by the Commissioner to thoroughly and comprehensively set out the evidence, to assess it fairly and ultimately to come to a decision in an important case.

PN1041

Doing that can take time. Different people may approach the task differently but what's clear here in our submission is that there was a thorough and fair consideration of the case before the Commissioner. One of the matters, of course, which the Commission must consider is leave to appeal in this case. We have made some submissions regarding that matter in our written submissions. There is nothing in our submission that arises that would excite the Commission to grant leave in this case in our submission for the reasons that we've set out in our written submissions. If the court please.

PN1042

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Fernon. Ms Legg?

PN1043

MS LEGG: I wonder if I can, by way of a little housekeeping, hand up a decision that I think I referred to on the last occasion but didn't hand up and it's written submissions in reply. If the Commission pleases, in the bundle there, the Commission will find some written submissions in reply by the applicant to the written submissions of the respondent and there is the case of Palmer v The Queen which I referred to earlier but I think I failed to hand up simply because I had five copies of it on my file when I went to look.

PN1044

There is also an exhibit which was referred to in the affidavit of Mr Fox and that may or may not become important and it may or may not be marked depending on whether the Commission decides at the conclusion of this appeal to admit that additional evidence that was sought to be admitted by the appellant on the last occasion. I presume that the Commission intends to deal with that at the conclusion.

PN1045

SENIOR DEPUTY PRESIDENT MARSH: Yes, we do.

PN1046

MS LEGG: And there is an additional case there, a case of Formiston v The Commissioner of Police, a decision of the New South Wales Industrial Relations Commission, a decision of Staunton, J which I will take the Commission to. It does legitimately arise in reply and it concerns the issue of burden in civil cases where there are threats about serious conduct and it has a remarkable factual similarity to this particular case, but I'll take your Honours to that in the course of my submissions.

PN1047

If the Commission pleases, I apologise in advance for my continual nose blowing and sniffing, I'm battling - - -

PN1048

SENIOR DEPUTY PRESIDENT MARSH: You're not alone, Ms Legg.

PN1049

MS LEGG: I'm battling with a rather serious head cold. What I propose to do in short is take the Commission through the written submissions in reply. Happily the reply submissions in writing more or less address the submissions made by Mr Fernon because his submissions in effect reflect the written submissions of the respondent. They're not in quite the same order as the oral address, but I think to make things simple I will deal with them in the way that they are contained in the reply.

PN1050

Mr Fernon made something of the fact that this is an appeal of a discretionary decision. The appellant does not quibble with the authorities that Mr Fernon took your Honours to. There's no doubt that there are certain decisions, or certain aspects of the decision of the Commission in an unfair dismissal case which are discretionary. For instance, the nature of the relief to be provided is one of those discretionary decisions, but as Mr Fernon acknowledged or as the authorities suggest, more is required when challenging a decision of this Commission.

PN1051

Now, none of the points of appeal in this case challenge a discretionary decision. This appeal goes much deeper. Each of the nine - I think there are nine points of appeal in the notice of appeal and with the exception of the amended ground of appeal which relates to the finding that the dismissal was not harsh, unjust and unreasonable for fairness considerations, with the exception of that issue, the remaining named errors of fact and law that are pleaded in the notice of appeal go to precisely what is required in an appeal of this nature and that is an error of law or of fact. So the simple response from the respondent that this is just simply a discretionary decision misses the point in my respectful submission because there are findings, there are errors of law and a litany of errors of law, in fact, that the appellant has referred the bench to on the last occasion and it's those errors of law in fact that are challenged in this appeal.

PN1052

The respondent makes something in its written submissions of a summary by the appellant's written submissions which suggest that the facts, as set out by the Commission in his judgment, are correct, just so to avoid doubt, I've dealt with that in the written submissions. It's evident that the appellant does not accept the findings of fact, nor the summary of facts set out by the Commissioner in this case. There were a number of glaring omissions and a number of inaccuracies which I took the bench on the last occasion to that I would seek to highlight again just by way of reminder, is the fact that, for instance, the Commissioner failed to mention Mr Dawson's concession in cross-examination, that Mr Dawson was the head human resources professional at Alliance and indeed, supervising the investigation. Mr Dawson conceded in cross-examination that there was something - having viewed the CCTV footage, that there was something from Ms Lyon to account for.

PN1053

Yet the Commissioner's assessment of Mr Dawson's cross-examination did not include that concession, a very important concession in my submission and in fact stated precisely the opposite and stated that Mr Dawson stated in cross-examination that Ms Lyon's allegation was consistent with the evidence. Now, of course Mr Dawson had said that earlier in the cross-examination but later conceded that there was something for her to account for. That is a glaring inaccuracy. There were others, including the complete failure in my submission of the Commission to refer to any of Mr Fox's evidence concerning his ability not to - or his inability to remember the Lyon incident.

PN1054

I can deal firstly with the threshold issue. The respondent's submissions go to some length to dispute the fact that this is a threshold issue and make the point that it's not a jurisdictional issue. That is not the point that I sought to make in submissions below, nor on the last occasion. The fact whether or not the nexus issue is described as a threshold issue or a nexus issue is an unimportant matter of semantics. The appellant acknowledged in its submissions below that this was part of the broader question of whether there was a valid reason, but as the well known authority of this Commission confirms, the nexus issue is a separate issue which must be addressed and it should properly be addressed in cases such as this where there is a function outside the work place. It has arisen on a number of occasions.

PN1055

Now, Mr Fernon took the Commission to the fact that the decision of the Commissioner did in fact contain some reasoning about his conclusions on the nexus issue and that is true. The Commissioner did say, look, I prefer the respondent's submissions over the applicant's submissions and in my view Grain Corp has more similarity than Tichy in this case. Now, for the reasons that the respondent gives. Now, by itself that is not enough to sustain an error of law regarding an absence of reasons or a failure to provide reasons. But that is not the point that the appellant makes about the nexus issue in this case.

PN1056

The appellant does complain about the absence of reasoning in light of the very real matters and issues that this particular question threw up in these circumstances. In light of the delay and the additional burden that is placed upon a decision maker when delay has occurred and the Full Federal Court has made it clear that an additional burden is imposed to give thorough reasons. Now, in my submissions, the reasoning of his Honour was not entirely clear, but ultimately that is not the appeal point. The appeal point here - and before I go further - I withdraw that. It is not the point and therefore the decision that Mr Fernon took you to, the Court of Appeal decision in Soulemezis, a 1987 decision about the principles to apply on failing to give reasons, really has no application here in my submission.

PN1057

This is not a case where the appeal is premised on an absence of reasons. We complain about the inadequate reasons in light of the delay and we say that that goes towards demonstrating error. But we say on this nexus point, and on many other points, that the Commissioner has simply got it wrong. The nexus issue is, in my submission, a mixed question of law and fact. There is no real dispute about the facts of this matter in relation to the nexus issue and the respondent relies on the submissions that it made below, and I won't go in great detail to those submissions, or I won't even take the Commission to them, but essentially the difference between Grain Corp and Tichy and the reason why those authorities and their results favour the applicant in this case, is that in Grain Corp the finding that there was a sufficient nexus was ultimately in my submission heavily weighed - or heavily influenced by the fact that the employee in question had no choice but to be where she was in the hotel room where she was staying and that she was stuck in this room and she had to endure this verbal abuse from this man. Had it not been for the fact that she was stuck there, but for the employment situation, she would not have been there and not been exposed to it.

PN1058

In this case there is far more resemblance to Tichy where the Commission found ultimately that there was not a sufficient nexus and one of the important factors in that case was that where the impugned conduct took place was somewhere where the parties were there at their own volition. So in this case we have a case of a workplace function having occurred earlier in the night, on the evening in question, but with half of the contestants, or people who were at the function, disappearing at the end of that function, and then a core of people remaining at the conclusion and drinking in the bar on a Friday night after work.

PN1059

In my submission, and I made the submission below, there's really no difference as to whether those people remained at the Drake Bar at the Bowlers' Club or at another bar, and in fact the evidence revealed that in fact a group did later go on to another bar. In my submission there's no logical distinction between whether it happened at the Pier 21 or in the Drake Bar. Ultimately those people were there, yes, at the conclusion of a workplace function, but after the compulsory events were there, and the respondent's approach in submissions below and in submissions here were, well, but for the fact that there was this workplace function, it wouldn't have happened, and that is a misconceived approach with the nexus question in my submission, because if one applied that "but for" test to every case in this Commission where that was challenged, the respondent would win every time, because ultimately these cases have a link to the workplace and but for the workplace there would be no connection at all.

PN1060

But in my submission the relevant connection is simply not there, and that is heightened by the fact that the Commissioner found that Ms Lyon was not scared and that he thought, Mr Fox, had no intention of carrying it through. Now, that is something that could be properly considered as part of the nexus question because, as was submitted below, all of the facts and circumstances surrounding the event, not just a physical proximity test, but all of the facts and circumstances, weigh into the ultimate question of whether there is a nexus with employment.

PN1061

Now, on the Commission's own findings below, those factors, his own findings should have weighed into that assessment. If she wasn't scared and if he had no intention of carrying it through, then how does that result in a situation where it's at odds with the continuation of the relationship. It might be a regrettable circumstance if something deeply annoyed Ms Lyon - this is assuming that it's true, and of course we challenge that - but even assuming that it's true, that the allegations were true, there's just not a sufficient connection in light of the Commission's findings that she wasn't scared. In my submission that supports the submission of the appellant, that there is no nexus.

PN1062

Finally, Mr Fernon didn't address it in oral submissions, but there is a reference to the fact of Mr Fox complaining to Mr Morrissey at 1.30 in the morning after these events took place about an altercation between Josh and Mick that he was involved in. The respondent says in its written submissions that that is effectively an admission by Mr Fox that there is a sufficient connection to the workplace, but as I point out in written submissions, that submission fails to recognise the fact that when Mr Morrissey rang Mr Fox the next day, Mr Fox in fact said, and I've said in written submissions that he said that was "the drink in me" but in fact I've looked at this statement this morning and what Mr Fox said, "Look, that was really the alcohol talking and I want to drop it."

PN1063

So the point that the respondent makes in written submissions about that somehow amounting to an admission on the nexus question in fact supports ultimately, when one follows that scenario through, the appellant's contention that this was a drinking session on a Friday afternoon where people were drunk and Mr Fox himself says he was drunk, and replied, "I don't want to follow that complaint through", supports the suggestion that this was really not something connected with the workplace in the final analysis, once people were sober and making a proper and sober assessment of what had happened.

PN1064

Now, the next issue is the issue of Ms Lyon's credibility. The credibility finding by Ms Lyon, as the appellant submitted below, is comprehensively challenged, or the credibility finding by this Commission about Ms Lyon is comprehensively challenged. The respondent says effectively that she must be right, and in fact the respondent says in its written submissions at paragraph 44, I think, because there's no contrary version put forward by Mr Fox, then this must be right. Mr Fernon also said that it was clear that the Commissioner had in mind the respondent's submissions, or the appellant's submissions below when he considered this question of Ms Lyon's credibility.

PN1065

Now, I have extracted at paragraph 11 the submissions that were made below by the appellant about the incident and about Ms Lyon's credibility, really just for the Commission's convenience so that it's right there. The Commission will see that those submissions were comprehensive and the appellant acknowledges that there is no requirement for a judicial officer to go through every item and give evidence on every submission and refute what or deal with and address the submissions that were made. But in my submission the comprehensive nature of the submissions, in light of the delay and the additional burden that was imposed upon the Commissioner had to be addressed more thoroughly than the Commissioner did.

PN1066

Your Honours will see that what was posed was a couple of scenarios. One, that it didn’t happen at all, or two, that parts of it happened and parts didn't. Now, even though Mr Fox couldn't explain what happened, the appellant had a case theory, if you like, because in effect one was required to have one, and the appellant proposed that what happened was Mr Fox probably did say something that annoyed her and made her very angry. That was consistent with not only her evidence, but also the evidence of Ms Hancock who was standing nearby but who did not hear a thing. Ms Hancock, as I said in my submissions below, said that she was largely - and who said it looked like an ordinary
conversation - Ms Hancock though said that her predominant emotion was anger.

PN1067

Now, there are comprehensive matters raised there about the inconsistencies in the CCTV footage and, not only her recollection that was revealed in the statement to her employer and then the statement to the Commission are then in her own cross-examination. Now, the respondent says, look, there's nothing here that's inconsistent with what she said. There's nothing in the CCTV footage that's inconsistent with what she said. Now, in my submission that is simply not a sustainable submission. It does not withstand scrutiny. Something else happened in that conversation to - as compared to the version of Ms Lyon, including her version in cross-examination where she stuck essentially to the script.

PN1068

Now, Mr Fernon deals with that in written submissions by saying at some point in cross-examination she did say on one occasion, well, look, I can't remember what else happened. There were other things that could have been said, but I only remember the important things. Now, that is not a satisfactory answer in the circumstances in my submission, not in these circumstances where it is her allegation, no one else saw it. The valid reason for dismissal is dependent entirely on her say-so, and if she is missing something or not recording something or hiding something, then this Full Bench and the Commissioner should not have been satisfied that she was telling the truth.

PN1069

She was not telling the truth in my submission. It is glaringly improbable in my submission that she was telling the truth, or at least the whole truth and nothing but the truth, and if she wasn't telling the truth, then the requirement upon this Commissioner in this case is to deal with this in the way that logic dictates, and in fact legal principle dictates, and that is to give Mr Fox the benefit of the doubt because if she is not telling the truth, there can be no discharge of the burden.

PN1070

I have referred the Commission there to the case of Palmer again which impacts upon this case in some way for its general principle, that it is not enough to say, well, we can't find a motive, so therefore it must be true. Now, although the Commissioner in this case said something more than that, the Commissioner did rely in one sense on an absence of motive and that, in my submission, is an error that the respondent committed when it undertook the investigation and it's a fiction that was perpetrated by the respondent in the proceedings below and it's a fiction that really the respondent continues to perpetrate in this appeal in my respectful submission, because where there are compelling inferences as we say there are in this case, that something else happened or that Ms Lyon is not telling the truth, on the basis of indisputable evidence, that is in this case, the CCTV footage, then in my submission the respondent cannot discharge its burden and meet the requirement that it demonstrate a valid reason for dismissal.

PN1071

Now, that approach has been followed in cases where there are allegations of assault or serious misconduct in cases in this Commission and in the New South Wales State Commission and I refer the Full Bench to the decision of Staunton J in Formiston v New South Wales Police. That decision by her Honour bears some uncanny similarities to this case. It was a case in which it was an appeal under certain provisions of State legislation and the New South Wales Industrial Relations Act to a decision by the Commissioner of Police to remove a police officer and the reason for the removal revolved around the fact that there had been an altercation after an office Christmas party at a 7-Eleven premises where Officer Formiston had allegedly assaulted a stranger four times, physically assaulted him, and the Commissioner of Police removed him from office, finding that the evidence of the complainant, a Mr Huang, should be believed and on the reasoning that he had no reason to disbelieve the complainant, effectively because the complainant had said these things.

PN1072

Now in this case the officer was charged with common assault and in fact pleaded guilty to one count of assault and in this case also there was CCTV footage of the event in effect. Now, there was a possibility that the CCTV footage didn't look at all of the circumstances of this case, but ultimately the approach taken by her Honour was to decide that the respondent employer could only rely on what the CCTV footage established. It was improper reasoning for the Commissioner to say, well, I just will take what the complainant says as accepted because there's no contrary version.

PN1073

Now, in this case again there was no contrary or competing version that the police officer could provide because he had been drunk and he had said that he could not recollect what happened, and what her Honour did in that decision was take a very common sense and very thorough approach to this issue and it's an approach that the Commissioner in this case, in my submission, did not take, but she analysed the CCTV footage really almost to the second. She stated that she accepted that without questioning really the police officer's assertion that he could not recollect the matter, she said that the extent of the intoxication does not explain the behaviour but it does explain some aspects of his failure to recollect and found that he was not being untruthful when he said that he couldn't recollect.

PN1074

But ultimately, and the reason I really draw this to the Commission's attention, is that her Honour said at paragraph 98:

PN1075

Whilst it is understandable the Commissioner may prima facie be inclined to accept the statement of any alleged victim, it should not be accepted unequivocally in light of other material that suggests somewhat to the contrary.

PN1076

Now, what her Honour did in that case was examine the CCTV footage and say, well, look, this doesn't quite stack up. She effectively said, well, some things might have happened but I'm not prepared in this case on the balance of probabilities and applying the additional burden, given the gravity of the allegations and the consequences for this man's life and career, I am not prepared to find that it happened on the say so of the complainant who merely says it happened.

PN1077

Her Honour in that case referred to a number of authorities in the State Commission about the manner in which accusations of this type should be dealt with, allegations of serious misconduct, and one of those authorities I referred the Commissioner to below. Now, that approach was not taken by the Commissioner in this case and importantly what the Commissioner does in this case is in fact mix up, if you like, or put in the same pot his assessment of Ms Lyon's credibility with Mr Fox's credibility.

PN1078

Mr Fernon took you to paragraph 71 of the decision and where the Commissioner said, "Something else may have happened." Well, that is true and that is what we say happened in this decision. Something else happened in that dialogue. Then he goes on to say, "But I'm unable to determine that given Mr Fox's inability to recall these claimed assertions to not recall." So that is deficient reasoning in my submission and only supports the appellant's case because it's not as if the Commissioner said, well, putting aside Mr Fox's credibility and leaving it to one side - and I'll just deal simply with the credibility of Ms Lyon, and this is the way I deal with it - the Commissioner said I believe Ms Lyon effectively because I disbelieve Mr Fox, and that, in my submission, is one of the fatal errors committed in this decision.

PN1079

Earlier in paragraph 70 the Commissioner said, "I prefer the evidence of Ms Lyon to Mr Fox." Now, that is in the context and under the heading of and dealing with his reasoning on the Lyon incident. Now, if Mr Fox is to be believed by this Commission, one cannot - that he could not remember and in my submission the Commission below should have accepted that the could not remember, and I'll come to that in a minute, but if Mr Fox is to be believed on that, then what the Commissioner has done here is mix up and put in the same pot his assessment of credibility by comparing the two witnesses. So it is not possible in my submission for the respondent to duck the question of the importance of Mr Fox's credibility in this case.

PN1080

By itself it's an important finding because in my submission it was an outrageous finding in light of what transpired at the trial, and it should be corrected on appeal just so that justice be done, but the difficulty for the respondent in this matter, is ultimately that the Commissioner made a comparison between the two in the context of dealing with the Lyon incident and if the Commissioner made an error in relation to his findings on Mr Fox's credibility, that it follows that an error was made in relation to Ms Lyon's credibility, his finding of Ms Lyon's credibility, because it is fatally affected with reasoning about Mr Fox's absence of an explanation.

PN1081

So those passages that Mr Fernon took the Commission to in some detail, paragraphs 70 and 71, to say, look, in effect the Commission knew what he was doing, he balanced it all up, he weighed it, he looked at it, it's quite clear what his reasoning is. In my submission in light of the submissions that were made below by the appellant and in light of the findings of Mr Fox's credibility, they cannot withstand scrutiny, but ultimately, as we say, the appellant does put this matter as highly as a Fox v Percy error. In my submission the account given by Ms Lyon in cross-examination was not sufficient to persuade any viewer of that CCTV footage that she was telling the whole truth.

PN1082

In my submission the CCTV footage, not by itself, but in combination with her responses and her dogged insistence that those were the first words she said and that that was the last words that were said and really in between she was just simply saying at all times, "go on then, go on then, hit me", just does not withstand any scrutiny. I have extracted there the pertinent extracts from Fox v Percy at paragraph 17 of the written submissions. In my submission the comments, whilst I rely on the entirety of the decision, that extract from Fox v Percy is an extract to which the Commission would pay real attention in my submission and if one accepts those principles in this case, then ultimately in my submission the finding that the Lyon incident did occur by the Commissioner below must be overturned in my respectful submission.

PN1083

I've already dealt in part with the challenge to the adverse credibility finding against Mr Fox. As I said earlier, Mr Fernon submitted that this issue of Mr Fox's credibility was really a non-issue and for the reasons I have already stated it was not a non-issue in this case. There is no doubt that the Commissioner could have taken an approach whereby he put to one side the question of Mr Fox's credibility and said, look, I'm unable to determine whether that's true or not. He ultimately doesn't have a version and I make no comment about it. So I'll just rely entirely on Ms Lyon's credibility.

PN1084

Now, if he had done that we say that there still would have been a Fox v Percy error committed in light of Ms Lyon's responses to the CCTV footage but it at least would have put to one side the important question, or what has become the important question of Mr Fox's credibility in these proceedings. Now, in my submission the response by the respondent in this case is simply inadequate to deal with, in my submission, the litany of errors that occurred in relation to the Commission's reasoning in relation to Mr Fox.

PN1085

There was not one reference by the Commissioner in his decision to the evidence that supported Mr Fox's inability to remember. I have set out for the Commission's convenience at paragraph 21 the submissions that were made below about Mr Fox's inability to remember. I'll take the Commission to it in a second by way of summary, but there is not one reference in the decision of the Commissioner to these items of evidence, nor to the submissions of the appellant below about this issue.

PN1086

Now the first submission was that he was intoxicated, that he'd consumed a large amount of alcohol before even arriving at the evening and continued to drink whilst he was there. I think he did give some evidence that he thought he'd stopped drinking for a period towards the end of the evening, but at the end of the day, he was drunk. Now, on the last occasion I drew the Commission's attention to the fact that the respondent submissions in this appeal, and in fact below, said, well, he wasn't drunk because the witnesses said he wasn't drunk or didn't concede that and I've dealt with in my written submissions at the outset in appeal and referred in the footnote to the fact that the evidence of those particular witnesses that the respondent relied on were only part of the story and that each of those witnesses that the respondent maintained supported the proposition that he wasn't necessarily drunk, in fact later conceded that he was drunk.

PN1087

So that at footnote 3 of the appellant's appeal submissions, whilst Ms Lyon at first said that he wasn't drunk, she then conceded that he might not have remembered the incident and that she would probably assume he was pretty drunk. Ms Hancock conceded, and this is at odds with the respondent's submissions, that Mr Fox's behaviour was consistent with him being fairly drunk, although she couldn't say he was drunk. Mr Walter also said that she had assumed Mr Fox was drunk.

PN1088

Now, of course there was no challenge to Mr Fox's assertion in his statement that he had been drinking since before the event and was highly intoxicated. So the respondent put that submission below, that he was heavily intoxicated, and it was a submission which could properly be put and which was available absolutely and unequivocally on the evidence, yet the respondent still comes to this appeal saying, well, no, he wasn't necessarily. But in my submission he was. The case below revealed that he was and he was in fact therefore a person who might not have remembered the incident.

PN1089

The second reason that he could not remember that supported his claim not to remember was the CCTV footage which in fact, and I didn't take the Commission to this footage but there are references in the submissions to the fact that he was on a couple of occasions swaying on his feet and lifting his drink to his mouth but not even taking a sip.

PN1090

SENIOR DEPUTY PRESIDENT MARSH: I think you did.

PN1091

MS LEGG: I think I mentioned it but I don't know that I took the Commission to the footage itself, but it is there and it can be located by reference to the CCTV footage. Mr Fox suggested in fact that when he was sitting on the bar stool himself, by himself with other Alliance people congregated nearby, that he might have been asleep. That was just something that he suggested might have occurred. That was not challenged. I put the proposition that it's common for people to have intermittent alcohol induced memory loss. The Commission has accepted that on a number of occasions in Tichy, as did her Honour, Staunton J in the case that I've just referred the bench to, and then, importantly in my submission what I've submitted at (e), what I submitted below at (e) was the fact that Mr Fox's conduct from beginning to end was consistent with an inability to remember the incident.

PN1092

When first presented with the allegation he says, "I might have done it." Now, he says that's because they told him that there were witnesses to the event. Now, that was a misleading statement. Ms Hancock might have seen it. There was no one that overheard this, and Mr Fox understood that to mean that people effectively heard this. So no wonder he said, god, I might have done it, and that is what an honest person who would not remember would say. And then he gave evidence about going off to the Bowler's Club to look at it, to look at the CCTV footage. It was then that he began to smell a rat.

PN1093

Now, the respondent below and again in Mr Fernon's submissions just now, made much of the fact that the subsequent correspondence between Mr Fox and his employer revealed that there were inconsistencies in his ability to remember. Now, ultimately Mr Fox's conduct and the way he wrote to his employer is excusable and understandable in light of what had happened. He had been told and given a letter at page 337 of the court book that Mr Fernon took you to, that this event had been witnessed. He had also been told about secondary allegations, a minor dispute that he'd had with a personal assistant about which document he had to lodge in support of a study application, and astoundingly another interaction between him and a personal friend of his where he said "boo" to her in the corridor and she was upset with him for a little while until he went and apologised and it all smoothed over.

PN1094

Now, in light of - Mr Fernon says, well, look at what the respondent did. They put it all here. It was all there. I mean, in my submission that letter in itself was false in some respects. There were no witnesses to the event and petty in the extreme in the fact that it referred to these other events which suggested that they had a reason, a valid reason to terminate his employment, it is little wonder that Mr Fox took the approach that he did. Now, in hindsight one might say, well, it would have been better had he taken the CCTV footage immediately to the employer and said, look at this. That would have avoided all of that correspondence, that is true, and it would have avoided the unfortunate circumstance that the respondent, by reason of the inconsistencies, assumed that he was lying.

PN1095

But ultimately it doesn't matter because when the CCTV footage was discovered, Mr Fox was right to say he could smell a rat. Now, in my submission his instincts were good. He should have smelt a rat. The footage was inconsistent with Ms Lyon's allegation, and not only that, the respondent's own witness, Mr Dawson, conceded himself in this case that there was something to account for. Now, there are inconsistencies. Mr Fox was right to point out the inconsistencies. They were ignored by the respondent and his explanation for those inconsistencies were plausible and believable when one considers what has transpired since.

PN1096

Now, another factor to support Mr Fox's inability to remember is that Ms Lyon herself conceded that he might not remember. Mr Morrissey conceded that Mr Fox appeared shocked when confronted with the allegations. Mr Dawson, who was also there at the first meeting on 13 September conceded he appeared shocked, and that he was taken aback. And then the submission was made below that cross-examination of Mr Fox, the surrounding event, proceeded on the assumption that he could remember the alleged incidents.

PN1097

Now, Mr Fernon took the Commission in a small amount of detail to that cross-examination. Now, that detailed cross-examination to which the Commission was just taken by Mr Fernon was in fact placed before the Commission by the appellant on the prior occasion in this appeal. Those matters were in fact set out in an annexure to the written submissions. So as to be clear precisely what was said in cross-examination. That cross-examination, whilst mentioning the issue of his ability to recall, did not, except for that one item where Ms Rapor said, but that's because you could remember, did not put, did not in any way challenge that inability to recall.

PN1098

Those questions were put in the context of Mr Fox being cross-examined about the inconsistencies in that correspondence to which Mr Fernon took the bench to, and in my submission, that cross-examination is not sufficient for the respondent to come here and say that his ability to not remember or his claimed inability to remember was tested. What the respondent needed to do in this case was start at the beginning and challenge his response at the first meeting which was entirely consistent with his inability to remember, and challenge everything, not just the inconsistencies in the correspondence between the respondent and the applicant which has now been completely explained, but challenge everything else and challenge what took place on the night so that it was squarely put to him that he could not remember.

PN1099

Now, Mr Fernon drew the attention of the bench to the comments of Pound J in the court of appeal in the Ferage case, it is true, and the respondent accepts, the appellant accepts that not every single point which is ultimately sought to be made in a case must be put by way of the Brown v Dunne rule. It is true that that rule has dissipated to some extent, that it's no longer a strict or that every proposition that counsel wishes to make at the close of a case must be put to a person in the witness box.

PN1100

And in fact that was conceded by the appellant in written submissions below. Once again the appellant said that submissions in reply at tab 8, paragraph 1(c), "It is true that not everything has to be put." But in this case, given the primacy of this issue or the primacy that assumed in the Commissioner's decision his inability to remember, then this issue had to be far more seriously tested if one accepts Mr Fernon's submission that it was tested at all. The very reasons that the Commissioner ultimately relied upon, upon Mr Fox not remembering or being able to remember, were things that were never put to him, such as the fact that he left a coherent voicemail at 1.30 in the morning. That was certainly never put.

PN1101

So in my submission, the submission made below and the submission made now in this appeal that this was not tested in a real or substantive way in the proceedings is a submission that can be properly made and, by itself in this case, would permit the Full Bench to overturn the decision. But of course in this case the complaints are far more than just a complaint about failing to put certain matters in cross-examination.

PN1102

Finally there is the additional point that was raised on the last occasion on which Mr Fernon didn't address the Commission and that is the comment from Commissioner Roberts to Ms Rapor, after her cross-examination to which Mr Fernon took the bench to, was directly after those passages or those paragraphs to which Mr Fernon took the bench, and effectively cross-examination was proceeding on the basis that he could remember, but not really challenging that he didn't, and what the Commissioner said was, the witness is saying he doesn't recall anything in respect of the incident. He's not able to say whether the incident occurred or not, but he has absolutely no memory of it, and then, "I would now think that I would be guided by what he said and by what comes out in evidence by what other people say about it."

PN1103

Now, in my submission that suggests very compellingly that at that point in Mr Fox's cross-examination the Commissioner believed Mr Fox's claimed inability to remember. So in light of all of those matters, in light of the failure by the Commissioner to mention any of the matters raised below or any of that evidence, in light of his own misleading comment in my submission or something that turned out to be misleading, it probably wasn't misleading at the time, and in light of the delay in this decision, then in my submission the appeal, or the ground of appeal challenging the Commissioner's assessment of Mr Fox's credibility must succeed, it is an unsafe finding, it is wrong, it's an error of fact, and as I say in written submissions, justice requires that it be overturned.

PN1104

The impact of delay in this decision, Mr Fernon did not concede that there was delay in this decision. I think on the last occasion I submitted that he wouldn’t' be able to stand on his two feet and say there wasn't delay. I restate that submission. There was delay in this decision making process. Twelve months' delay in the context of a two day trial, an unfair dismissal proceeding, is unwarrantable and extraordinary. Now, the result is not therefore that there is an error because of delay alone, but in my submission the delay does provide an account or a justification for the errors committed by the Commissioner below.

PN1105

It explains what went wrong in my submission in this decision. Mr Fernon took the Commission to the case of NAIS, which I took the Commission to in some detail on the last occasion. Just so to be clear the appellant does not say that this is on the same page in terms of the extraordinary nature of the delay as the case of NAIS. What the appellant seeks to extract from that decision is a very clear and unambiguous view of the High Court that when one combines credibility findings with delay it's rather a deadly cocktail or that there must be very careful consideration given to the matter.

PN1106

Now, that was a different case. It was a challenge of the merits review tribunal and the only relief in that case that was available was a remittal to the tribunal. So I don't seek to say that there is anything in this case that relates to the outcome in the case, or that that case should dictate the outcome in this case. Rather, I rely more heavily in terms of the principles to be applied in an appellate context, which is what we are dealing with here under section 120 of the Act, I rely on the case of expectation in PDR Realty.

PN1107

The Commission will note that I took the Commission in great detail to that case in the proceedings below and in my submission on any view of this matter the Commissioner's decision does not discharge, if I can use that word, the additional burden on the Commissioner in this case by reason of the delay. Yes, there are reasons given. This is not a challenge on the basis of an absence of reasons, but the reasons are inadequate in light of (1) the delay, and (2) what transpired at the hearing, and (3) what was put by the appellant in written submissions to the Commissioner below.

PN1108

The reasons are utterly inadequate and that has been revealed in my submission by the appellant establishing the errors of fact and law in this case and in my submission the Commission in these appeal proceedings would be satisfied that the delay in this case gives at least a reason, a plausible reason for the errors that were committed by Commissioner Roberts below. Now, in my submission the respondent's case below and the respondent's case in this appeal fails to address the very real and very hard issues that came up for consideration in these proceedings.

PN1109

In my submission an application of simple logic, even of a lay person, when presented with all these facts, but added to that it's not surprise an application of the appropriate and proper legal principles upon which the appellant relies bears the result that Commissioner Roberts got the outcome, got the decision and got his findings in this case very, very wrong. I have dealt with in my submissions with the question of relief, or the appropriate orders should relief be granted. I don't know whether the Commission wants to hear from me about those matters now.

PN1110

SENIOR DEPUTY PRESIDENT MARSH: If they're in writing, I think that's probably sufficient.

PN1111

MS LEGG: In that case I rely on those submissions. In effect I ultimately make the submission that it's appropriate in this case for the Commission to substitute its own decision for the reasons given. I think on the last occasion Senior Deputy President Marsh asked me what the remedy might be and I did say in fact it could be either, that having argued this appeal I must say, I withdraw that submission and make the strong submission that in fact this is a case that really, if the Commission does see fit to grant relief, the Commission should substitute its own decision for the reasons set out. There is a further submission that reinstate is the appropriate end remedy. That of course was the submission that was made below there. This was a classic case for reinstatement in my submission for reasons set out below.

PN1112

There's nothing to change that position if the Commission saw fit to grant leave. Those are my submissions.

PN1113

SENIOR DEPUTY PRESIDENT MARSH: Anything further? We still have to deal with the evidence, the new material. Did you wish to address that, Ms Legg?

PN1114

MS LEGG: I can address it and I think I'd be repeating the submissions that I made before, but I'm happy to do that.

PN1115

SENIOR DEPUTY PRESIDENT MARSH: No, no, only if you want to put anything in addition.

PN1116

MS LEGG: No, nothing in addition, if the Commission pleases.

PN1117

SENIOR DEPUTY PRESIDENT MARSH: Did you wish to say anything further?

PN1118

MR FERNON: Could I just say something very brief about it, if the Commission please.

PN1119

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN1120

MR FERNON: Normally there's a distinction to be drawn between new evidence and fresh evidence. The Act doesn't make that distinction but rather refers to the admission of further evidence. We haven't been able to find any particular consideration of the factors that would inform whether further evidence would be received, but there is a judgment of the New South Wales Court of Appeal which we haven't brought the copy of here, but if we could just give the authority. It's Akins v The National Australia Bank, 34 NSW LR at page 155, and at paragraph 160 his Honour, Clark J said the test for the reception of evidence would be (1) whether it be shown that the evidence could not have been obtained with reasonable diligence for use at a trial, (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict, and (3) the evidence must be credible. Now, the evidence that is - - -

PN1121

SENIOR DEPUTY PRESIDENT HARRISON: That's the common law position.

PN1122

MR FERNON: The common law position, yes, and we'd respectfully submit that that or at least that kind of consideration would be necessary in a case such as this. The affidavit that's sought to be relied upon deals with a couple of matters. The first matter, as I would apprehend it, is dealt with in paragraphs (1) to (10) and in my submission those paragraphs ought be rejected. What they seem to do is to, as it were, comment on the judgment to say in the sense that the Commissioner had got it wrong. For example, I was surprised when reading the decision that the Commission had referred to my apparent Bart Simpson defence, that I had a selective memory, and that I was evasive in the witness box.

PN1123

In my submission they're not matters for an appellant to, as it were, comment upon - - -

PN1124

SENIOR DEPUTY PRESIDENT HARRISON: I think you said that on the last occasion, didn't you, or am I - - -

PN1125

MR FERNON: I did make some short observations about it and it may well be that I had said that. I don't think I said this on the last occasion, that the next part of it deals with what we would submit to be opinion evidence and shouldn't be received because it is opinion evidence. I did say on the last occasion that we would be prejudiced by the evidence. What seems to be said I the affidavit is that there is this opinion out there and that I, the appellant, seek to put it before the court, but we didn't put it before the court on the last occasion for a number of reasons, thereby at least suggesting that it was available.

PN1126

One of the reasons is that I was not in a position to pay for costly expert witnesses that could testify that such memory loss was possible, what we don't know is as to whether or not such an expert witness is available, is costly or otherwise, but certainly if a witness had been brought in the trial before the Commissioner the respondent would have a chance to cross-examine the expert and would also have an opportunity to cross-examine the appellant in a different way. But that wasn't available to the respondent. For example, questions could have been asked of the appellant about his history, his awareness or otherwise of memory loss, if he has such a memory loss and has an awareness of such a memory loss, why it was that he suggested through the proceedings that Ms Lyon had lied, et cetera.

PN1127

There could well have been a different way in which the case was conducted. But importantly what's sought to be done through the fresh evidence is essentially to admit as evidence on the appeal, evidence that would be inadmissible at the trial and so it shouldn't be admitted for at least that reason and it would be inadmissible at the trial because it's merely opinion evidence of a non-expert. Nextly, commencing at about paragraph 18, there's again comment upon the judgment and material that could have been put before the Commissioner, and lastly commencing at about paragraph 30 is evidence relating to matters subsequent to the trial that aren't relevant to the point of the case or the appeal.

PN1128

They are our submissions in relation to the extra evidence, or fresh evidence.

PN1129

SENIOR DEPUTY PRESIDENT MARSH: We might adjourn for a couple of minutes.

<SHORT ADJOURNMENT [12.39PM]
<RESUMED [12.42PM]

PN1130

SENIOR DEPUTY PRESIDENT MARSH: Thank you for waiting. We have formed the view that we will rule on the admissibility of the material which is sought to be put as further evidence in the context about setting. On that basis, unless there's anything else, we'll reserve our decision and the proceedings are adjourned.

<ADJOURNED INDEFINITELY [12.43PM]