C2006/3238, Transcript of Proceedings [2006] AIRCTrans 1276 (8 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16202-1
16203-1

VICE PRESIDENT LAWLER
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER REDMOND

C2006/3238 C2006/3255

APPEAL BY PALMER, NORMAN GEORGE
s.120 - Appeal to Full Bench
(C2006/3238)

APPEAL BY COMMONWEALTH OF AUSTRALIA (AUSTRAC)
s.120 - Appeal to Full Bench
(C2006/3255)

SYDNEY

10.08AM, MONDAY, 27 NOVEMBER 2006

Hearing continuing

PN1

MR A RICH: Your Honour, I appear for the appellant and cross-respondent. I am instructed by MR D MADSEN. MR N PALMER is in the seat behind me.

PN2

MR J HEARD: Yes, your Honour, from the Australian Government Solicitor, and I seek leave to appear for the Commonwealth, the respondent and cross-appellant.

PN3

VICE PRESIDENT LAWLER: Thank you. I take it there's no objection to leave in each instance?

PN4

MR RICH: No, and I should also seek leave, your Honour.

PN5

VICE PRESIDENT LAWLER: Leave is granted, thank you. Have you worked out who is going to go first?

PN6

MR RICH: We had assumed that I would go first, although I was a bit confused by the way that the written submissions ran in that regard. I wasn't sure if the Bench had a view? But the intention was that I would go first and then Mr Heard to follow me. Your Honours, I'll address the - - -

PN7

VICE PRESIDENT LAWLER: Mr Rich, can you make the assumption that we haven't delved into the evidence in terms of preparation?

PN8

MR RICH: Yes. I'll take that approach. I first address the approach that we recommend that the Bench take in terms of the principles on appeal. I don't think there's any great difference between the appellant and the respondent in this regard. Indeed, we accept the principles that the respondent sets out in their submissions broadly at paragraphs 1 and 2 of their submissions, where they point to House v The King and extract the four principal types of error that are addressed in House v The King test, those being relating to wrong principle, extraneous or irrelevant considerations, mistake of fact, or a phrase, take account of material considerations. There's no dispute about those principles applying here. However, in addition to those principles, importantly for the points of appeal that Mr Palmer is bringing before the Bench today, it's important to look at the principles that apply to the way that an Appeal Bench should address questions of findings of fact in particular.

PN9

VICE PRESIDENT LAWLER: I understand that both parties refer to Full Bench decisions and statements in those decisions about how challenges to findings of fact proceed, but isn't the High Court the proper source of authority for this? That's the Abalos, De Vries, Earthline, Fox and Percy line of authorities, together with Warren Coombs in relation to the drawing of inferences? An Appeal Bench being in the same position as a first instance judge, to draw inferences from primary cases now? To the extent that one is not talking about inferences, but primary facts, it's the principles that emerged in Abalos, De Vries, Earthline and Fox and Percy that are the principles that ought be applied? And anything that a Full Bench says has to be a gloss on those principles.

PN10

MR RICH: Yes. That's - well, my submission is that the - the decisions referred to in both my submissions and the respondent's submissions don't depart from the High Court's approach. The approach that is extracted in my written submissions at paragraph 3 we'd say is in accordance with the High Court's approach and is an appropriate course for this court to take. The principles being - in the Roads Corporation v De Kakas case, laid out in paragraph 3 of my submissions as I indicated, where it said:

PN11

For the foregoing reasons, I think I should proceed on the basis that a finding of fact will be open to challenges ...(reads)... if it is not reasonably open on the facts.

PN12

That doesn't - that's the approach we say should be taken. I also want to refer to the decision in Barrick v Qantas Flight Catering Ltd. I can hand up copies of that decision, and just take your Honours to it very briefly. At paragraph 57 of that decision, the extract that I just read from Roads Corporation v De Kakas has been extracted. The Commission accepts that that's the correct approach to be taken and says:

PN13

It follows in our view that the appellant has not established a seriously arguable ground of error in respect of any substantial fundamental misconception of fact by Commissioner Hodder in the decision and subsequent appeal - - -

PN14

VICE PRESIDENT LAWLER: Mr Rich, isn't there a tension between that statement by Batt J and Warren Coombs in the High Court? I understood Warren Coombs in the High Court to stand for this proposition, that where one was concerned with the correctness of inferences that have been drawn, as distinct from findings of primary fact, that the Appeal Court is in just as good a position as the trial judge to draw the correct inference, and the issue of not whether it's reasonably open but whether the inference ought be drawn. You don't need to deal with that now, but you might want to turn your mind to that at some stage during the day if you think anything turns on it.

PN15

MR RICH: I will. Thank you. Now, in relation to findings of fact as opposed to inferences to be drawn from the facts, if I can take your Honours to another decision of this Commission in Department of Social Security v Dean Uink. I have copies here I can hand up. Now, your Honour will see at page 13 of 18, about halfway down the page, the Commission addresses what was noted in
Pham v Taubmans. It says:

PN16

An Appeal Bench should be reluctant to reverse a finding of fact made by a member at first instance, but can do so if satisfied that any advantage enjoyed by the member below as a result of hearing relevant evidence was not sufficient to justify the findings made.

PN17

Then he goes on to quote what was said in Abalos v Australian Postal Commission:

PN18

Where a trial judge has made a finding of fact contrary to the evidence of a witness, but has made no reference to that evidence, the Appellate Court cannot act on the evidence to reverse the finding unless it is satisfied that any advantage enjoyed at the trial, by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion.

PN19

Then he goes on to say:

PN20

Further, a finding of fact made by a member at first instance based even partly on the credibility of witnesses shall be set aside on appeal even where the Appeal Bench thinks that the probabilities of the case are strongly against that finding of fact.

PN21

Unless it can be shown in essence, at the bullet points below:

PN22

- that the member at first instance acted on evidence inconsistent with the facts and controvertibly established by the evidence, acted on glaringly improbable evidence or failed to use or palpably misused the advantage that the member had at first instance.

PN23

Over the page there's a further quote from S S Homestruem and then below that the court says:

PN24

The position is different when questions of credibility are being decided and the matter which remains for ...(reads)... the conclusion of the member at first instance.

PN25

Which is a reference to Warren v Coombs. I see where you - yes. The approach to be taken is the one that's - that's extracted here. To the extent there's an inconsistency then to arise between this extract and the previous cases I referred to. What will be argued in this appeal is that the conclusions that the Commissioner reached at first instance about whether or not Mr Palmer made false and misleading statements and whether or not therefore there was a valid reason for the termination turns substantially on those findings of fact and the evidence which I will go through in some detail in my submission will be demonstrated to simply not support the conclusions that were reached. It's not a matter of credibility. In the end, if you take the evidence of each of the witnesses at their highest, the conclusions that the Commissioner reached weren't available to him on the evidence and I'll take you to - through the evidence to demonstrate that in due course.

PN26

Now, I should - where neither of the parties has addressed the question of leave to appeal in their submissions, I don't think, although it's obviously a requirement that we do, so I will address the question very briefly just to underscore the principles that are involved. If I can refer your Honours and Commissioner to
- back to the Barrick v Qantas Flight Catering decision that I handed up earlier and to paragraph 45 of that decision which is on page 10 of 16 of the copy that I handed up. The relevant principles to be applied, in my submission, are those at paragraph 45 which reads:

PN27

The effect of those cases is that leave to appeal having been sought on the basis of an alleged error in the decisional process, a Full Bench will need to consider whether it is seriously arguable that the decision subject to review was wrong on the point taken and that any such order was of the kind that causes the decision to be attended with sufficient doubt to warrant its being reconsidered, or that substantial injustice would result if leave were refused.

PN28

Subsection 45(2) supplies a distinct test for the Commission to apply when determining whether to grant leave to appeal in a particular case on the ground of importance and the public interest and the same is obviously the case under the
- under section 120(2) of the amended legislation. What that means ultimately is there are two bases upon which appeal - an Appeal Bench may be satisfied that leave to appeal should be granted, the first being the - if you like the traditional grounds, whether it's substantially arguable that the decision was wrong and the point taken, et cetera, and the second being the grounds set out in the legislation referring to the ground of importance and the public interest and that's the test that we say should be applied here.

PN29

Fundamentally, on Mr Palmer's case, it's said that leave should be granted on the basis that the decision of Commissioner Harrison was wrong on the points taken that I will be bringing to the Full Bench's attention and that the decision was attended by sufficient doubt to warrant its being reconsidered and that there will be substantial injustice to Mr Palmer if Commissioner Harrison's decision is not reviewed in the way that we seek to review it. If I can now turn to the - no doubt the basic principles that apply on appeal, if I can now turn to the decision itself. The decision appears in the appellant's appeal books at - in appeal book 4 behind tab 27.

PN30

VICE PRESIDENT LAWLER: Did you say appeal book 4?

PN31

MR RICH: Yes. It's that - - -

PN32

VICE PRESIDENT LAWLER: We have appeal books 1, 2 and 3, then there is an appeal book from the Australian Government Solicitor which certainly has the decision in it.

PN33

MR RICH: Maybe - do you have - - -

PN34

VICE PRESIDENT LAWLER: It's in appeal book 2 in the AGS appeal book.

PN35

MR RICH: Okay. Well, it's the same decision so I'm happy for you to proceed on that basis. Now, the decision sets out at paragraph 4 of Mr Palmer's background, as a technical advisor in the international team of Austrac. It notes that prior to his termination one of his key duties was mentoring staff in the Indonesian equivalent of Austrac which is known as PPATK. Mr Palmer was employed at executive level 1 and he reported to Mr Byrne. Now, there's an important incident on 18 March 2005 where the applicant - in paragraph 5 of the decision, was on a hook-up with Mr Byrne as well as Ms Schultz, who when she appeared before Commissioner Harrison had presumably got married and had a name change to Ms Rosenthal. For the purposes of this appeal, I'll refer to her as Ms Schultz because throughout all the evidence she is otherwise referred to in that way. But on the transcript she's Ms Rosenthal.

PN36

So there was Mr Byrne, Ms Schultz and Mr Kooner. The purpose of the phone hook-up was to discuss, as is set out in paragraph 5, in a general sense issues relating to inter-agency cooperation in Indonesia, particularly the exchange of information between Austrac and other agencies such as AusAID in Indonesia. Now, following the telephone hook-up, there was a discussion between the parties which is also set out there at paragraph 5 which led to a - the Commissioner calls it a serious verbal clash between the applicant and Ms Schultz. In any event, there was an argument between Mr Palmer and Ms Schultz. The incident, at paragraph 6, it is reported the incident was brought to the attention of Ms Boyle who also gave evidence in the proceedings, and I might also mention that the other participants in the meeting on the 18th also gave evidence, Mr Kooner and Mr Byrne.

PN37

When it came to Ms Boyle's attention, she asked each of the participants to prepare a statement about the incident. That's set out at paragraph 6. It was as a result of these statements that Ms Boyle formed the view that because of differences in the statements, that they should be recommended for
investigation - - -

PN38

VICE PRESIDENT LAWLER: What's the date of the statement of Mr Palmer?

PN39

MR RICH: Mr Palmer made a statement dated 24 March.

PN40

VICE PRESIDENT LAWLER: Thank you.

PN41

MR RICH: Which dealt with the incident on 18 March. Ms Boyle recommended that an investigation be conducted in accordance with the Austrac procedure which is referred to in paragraph 7 of the Commissioner's report - decision, I'm sorry, and which the Commissioner defines as the procedure for the purposes of the rest of his decision. Now, the matter was referred to a man by the name of Mr Grills to carry out the investigation. He was engaged to determine whether or not there was a breach of the code of conduct. His letter of engagement was exhibit H4 in the proceedings and only really says that he was engaged to make a determination about whether or not the code of conduct had been breached. Ultimately Mr Grills also appears to have been engaged to recommend a sanction, although that doesn't appear on the letter of engagement, but he ultimately recommended the sanction, which recommendation was accepted ultimately by the director of Austrac.

PN42

Now, the terms of the investigation were essentially set out in a letter from Mr Jenson, who was the director of Austrac at the time and that's set out in paragraph 9 of the Commissioner's decision. The allegation letter set out three suspected breaches, the most important for the purpose of these proceedings is the third breach which relates to a breach of a more serious part of the code of conduct. Particularly the allegation that Mr Palmer provided false and misleading information in response to a request for information, that being the request of Ms Boyle that he prepare a statement about the events of 18 March. The evidence that was - I'll start again. That particular breach led to a recommendation ultimately by Mr Grills that Mr Palmer's employment be terminated, in addition to some other smaller matters.

PN43

And that also is one of the more substantial grounds of the Commissioner's finding at first instance that - or determination at first instance that there was a valid reason for the termination. Now, it's useful to take you to the letter of Mr Jensen because it sets out a tiny bit more detail about the terms of that third suspected breach. Mr Jensen's letter is at - is in appeal book 2 at - behind tab R3
- I'm sorry, behind tab 11 and behind tab 11, it's behind tab R3. Tab 11 consists of the respondent's documents and the - - -

PN44

VICE PRESIDENT LAWLER: What's the appeal book reference?

PN45

MR RICH: It's exhibit H4.

PN46

VICE PRESIDENT LAWLER: Do you have an appeal book with appeal book folio numbers, Mr Rich?

PN47

MR RICH: What we might do, the appeal books that I - - -

PN48

VICE PRESIDENT LAWLER: I think we're working from different appeal books.

PN49

MR RICH: - - - have don't have - yes. It might be easier to proceed on the basis of the respondent's appeal books.

PN50

VICE PRESIDENT LAWLER: That's fine.

PN51

MR RICH: So we're talking page 614 of the respondent's appeal books.

PN52

VICE PRESIDENT LAWLER: Sorry, of the AGS appeal books?

PN53

MR RICH: The AGS - yes, AGS appeal books.

PN54

VICE PRESIDENT LAWLER: 614 is exhibit H4, 5 April 2005.

PN55

MR RICH: I'm sorry, no. It's exhibit H5, I'm sorry, I was incorrect about that, which is the following page. You'll see that conduct - at the last bullet point it's said that the conduct which Mr Jensen suspects may constitute a breach of subsection 13(9) of the Act is the statements made by Mr Palmer in the last three paragraphs on the second page and the first four paragraphs on the third page of your statement of 24 March in relation to the incident on 18 March. So that the allegation is that the false and misleading information that was provided appears in those seven paragraphs. Mr Palmer's statement is exhibit H19, but relevantly, the paragraphs of his statement that are said to - were said to contain a false and misleading evidence in - appear in the Commissioner's decision at paragraphs 52 and 53.

PN56

COMMISSIONER REDMOND: Where do we find those?

PN57

MR RICH: This is in the Commissioner's decision.

PN58

COMMISSIONER REDMOND: In the Commissioner's - - -

PN59

MR RICH: Yes. Paragraphs 52 and 53, Commissioner.

PN60

COMMISSIONER REDMOND: Thank you.

PN61

VICE PRESIDENT LAWLER: Appeal book 661, by the looks of things.

PN62

MR RICH: Now, the - so it's in those paragraphs starting with:

PN63

Officer Schultz could not contain herself and started to verbally castigate me also in front of the others.

PN64

Those paragraphs, 1, 2 and 3 on the bottom of that page, and then the first four paragraphs on the following page, ending with the paragraph that says:

PN65

Ms Schultz appeared to have some second thoughts about striking me and ran from the room.

PN66

Those are the paragraphs that were said to contain the false and misleading information. Now, I'll come back to this statement in due course when I compare the statement to some of the other evidence, but I just wanted to draw to your attention what the allegation was in the first instance and how it was particularised. Following the appointment of Mr Grills, Mr Palmer sent an email to Rick Power who was a manager in the organisation, where he raised concerns about Ms Schultz's behaviour towards another staff member by the name of Ms Windsor. Although in his complaint he didn't refer to her by name, and neither did he refer the complaint to the investigator; ultimately it was referred to Mr Grills as the investigator and it was determined that the complaints that Mr Palmer made in that regard should be added to the investigator's terms of reference.

PN67

Now, the addition of those matters to the questions that Mr Grills had to decide is referred to in paragraph 13 of the Commissioner's decision. Mr Grills was given additional power essentially to conduct a review of actions, investigation, concurrent with his code of conduct investigation, to look at the allegation that
- the matters raised by Mr Palmer. Now, the matters that were raised by Mr Palmer against Ms Schultz appear at exhibit H9 which is page 661 of the respondent's appeal book. Actually no, I'm sorry. That's incorrect. Page 622, I'm sorry. Yes. This is a series of emails. The email - commencing the email correspondence chain that is H9 appears on the - on page 2 of 4 down the bottom from Norman Palmer to Rick Power, where Mr Palmer says:

PN68

I am outlining my complaint against Austrac in that circumstances prior to my charging were not considered and if they had been, it would have been established that I was the victim of harassment not the perpetrator.

PN69

On page 4 of 4 which is a continuation of that same email, Mr Palmer sets out what he terms systematic, inappropriate supervision activity by the now complainant, who is Ms Schultz. And the complaints that are made are that information was clearly available to senior management, that the complaint
- supervisor had on at least two occasions shouted at a junior staff member. As a result, she would be made to cry and subsequently risk - sorry, and subsequently ask to be transferred out of international. Secondly, that the recipient of that harassment had complained to management and an officer of the human resource section about the supervisor's continual harassment - sorry - yes, harassment and behaviour towards her.

PN70

Relevantly, for the findings of Mr Grills, that the recipient of the harassment had reported to other manager within Austrac that similar harassment had been conducted against Mr Palmer in public by Ms Schultz. So the allegations were essentially that there was a - that Ms Schultz had shouted at Ms Windsor and that Ms Schultz had harassed Ms Windsor and that Ms Schultz had viewed similar harassment against Mr Palmer by Ms Schultz. Now, so Mr Grills undertook a review of actions in relation to that complaint against Ms Schultz. It became relevant to the matters before the Commissioner because Mr Grills also ultimately found, as is set out in paragraph 15 of the Commissioner's decision, that Mr Palmer breached the code of conduct in two regards in relation to section 13(9) of the code.

PN71

Firstly, that he made misleading and deliberately false statements in respect of the 18 March incident which were the statements that he made in his 24 March statement that I have referred to earlier. In addition to him - in addition, he was found to have breached the code by having made allegations against Ms Schultz in the course of the inquiry that were wrong and with reckless indifference to the actual facts. So that those allegations that appeared in that email were found to be the basis for a finding that - well, were found to have been wrong themselves and to have been made recklessly ultimately, and they grounded themselves a decision that Mr Palmer had breached the code of conduct.

PN72

Now, on appeal the appellant challenges the Commissioner's findings which were to the same effect. The Commissioner found at paragraph 59 that in relation to the 18 March incident, the applicant had made misleading and false statements in his statement of - he says of 18 March, but I presume he's referring to the statement of 24 March, but about the meeting that occurred on 18 March. Then further at paragraph 72, the Commissioner also finds that - sorry, 73, that the applicant made misleading and false statements in respect of the allegations against Ms Schultz. So those findings are challenged by the appellant in these proceedings, findings that mirror the findings made by Mr Grills. If I can take your Honours to paragraph 51, to look at the - so we can have a look - - -

PN73

VICE PRESIDENT LAWLER: Just before we leave 73, is it not, giving a beneficial reading to the reasons, necessary to read the finding in 73 as being based upon the last sentence of 72?

PN74

MR RICH: Yes. Yes, I accept that. So from paragraph 51 of the Commissioner's decision he addresses the breach of section 13(9) of the code of conduct in relation to Mr Palmer's statement of 24 March that refers to the incidents that occurred on 18 March, which was the meeting and the argument between Ms Schultz and Mr Palmer. The Commissioner sets out at paragraph 51 the terms of the investigation, really, the terms of the allegation against Mr Palmer and then more or less the particulars, by referring to the statement which was said to contain the misleading and - false and misleading information at paragraphs 53 and 52. At paragraph 54 he notes that there was a significant factual dispute about the incident and says:

PN75

It was these differences which led Mr Grills to conclude that Mr Palmer had deliberately lied.

PN76

That's the last sentence in paragraph 54. In paragraph 55 he sets out Mr Grills' conclusions. I'll go to the middle of the extracted quote there:

PN77

To the extent I'm satisfied that Mr Palmer's statement is misleading -

PN78

He says Mr Palmer changed the volume and tone of his voice and spoke to Ms Schultz in an inappropriate manner, that he raised his hand in a stop gesture before she stood up and not after, that the only reason that Mr Palmer raised his hand was to intimidate Ms Schultz and that at no stage did Ms Schultz do anything that could reasonably have been construed by Mr Palmer as to physically attack him. Specifically, she did not stand over him, but immediately gathered her papers and left the room. He finds at - following that he says:

PN79

I am satisfied that Mr Palmer's claims in this regard as so inconsistent with the actual facts that they were deliberately false.

PN80

So he sets out Mr Grills' findings. Then he notes in paragraph 56 that there were significant differences in the version of events given by the other three participants. Sorry - despite the differences, the applicant maintained that his recollections of events in the 18 March statement were genuinely held. Reference is made there to proceedings before him in the submissions of the applicant. Subsequently, in paragraph 57 he says:

PN81

The evidence also highlights some discrepancies between Mr Byrne, Ms Schultz and Mr Kooner's recollections of the meeting which related to the degree of shouting and the raising of Palmer's hands.

PN82

Now, the only - over the page there are six dot points. The first five of those dot points set out differences in the evidence relating to whether or not - essentially whether or not Mr Palmer and Ms Schultz were shouting and whether they were using raised voices or it relates to the - it's the level and tone of their argument. The last dot point relates only to an issue about whether or not when Mr Palmer raised his hands during the course of the discussion which it's suggested there was some dispute about it and I'll address this question particularly in more detail in a moment. But relevantly, those are the only two issues that - on which the Commissioner compared the evidence of any of the witnesses to the argument on 18 March. He says at paragraph 59 - well, actually no, I take you back to paragraph 58, he recognises that Mr Grills accepted that there's always some difference in the way that people interpret events. Seemingly, he seems to accept that proposal. Then at paragraph 59 he says:

PN83

After reviewing the four statements relating to the 18 March incident -

PN84

those statements presumably being the statements of Mr Byrne, Mr Kooner, Ms Schultz and Mr Palmer:

PN85

- and the interview conducted -

PN86

those are interviews that Mr Grills conducted as part of his investigation:

PN87

- I accept Mr Grills' findings that the applicant made misleading and false statements in his statement of 18 March.

PN88

Now, the first thing that arises from that is that it seems that he doesn't make any reference to any of the evidence that was before him in the proceedings. It's probably fair to assume that he did take into account the matters that go before that, but he certainly doesn't make it clear in his conclusion there. He doesn't refer to any of the evidence that he heard. He only refers to the evidence that was before Mr Grills, the statements of interviews conducted.

PN89

VICE PRESIDENT LAWLER: Why isn't that sufficient?

PN90

MR RICH: It's not sufficient because by failing to - well, for a number of reasons. By failing to analyse the evidence before him any more fully than the differences in recollection between the witnesses about the degree of shouting and the raising of hands, he failed to consider the whole of their evidence, and particularly failed to take into account concessions made by Mr Byrne, Ms Schultz and Mr Kooner during the course of the evidence before him. And he failed to take into account any explanation that Mr Palmer made at - of the statements given in evidence before the Commissioner. His approach, even if it was to accept Mr Grills' findings as they appeared in paragraph 55, makes no finding about the facts of what happened on the 18th, but nonetheless seeks to draw the conclusion that what Mr Palmer says nevertheless was false or misleading.

PN91

VICE PRESIDENT LAWLER: Isn't giving this a fair reading, the Commissioner is simply saying I come to the same conclusion as Mr Grills about the 18th?

PN92

MR RICH: That may be the case and certainly that's what he is saying, but he hasn't - he appears to only be relying upon - he doesn't appear to analyse any of the evidence that was before him apart from that which was extracted at paragraph 57 which - - -

PN93

VICE PRESIDENT LAWLER: So this is an adequacy of reasons - - -

PN94

MR RICH: Yes.

PN95

VICE PRESIDENT LAWLER: Is it an adequacy of reasons argument or is it a - truly a - sorry. Is it truly a failure to take into account relevant considerations argument or is it an adequacy of reasons argument?

PN96

MR RICH: Well, in this regard it's - this particular submission it's adequacy of reasons argument primarily, but - and I make a subsequent argument about failing to take into account material considerations, but in this regard, he doesn't explain which facts he accepts or doesn't accept, that Mr Grills found. He doesn't - he just says that he accepts Mr Grills' findings.

PN97

COMMISSIONER REDMOND: Doesn't that mean he accepted the lot?

PN98

MR RICH: Well, it - I accept he may have accepted all of the findings, but not
- but it doesn't mean that he - I mean, the ultimate conclusions rather than the findings of fact. There's obligation upon him, as a decision-maker, sitting in judgment of this matter, to determine the facts that were before him and make a finding about those facts. Mr Grills obviously didn't have a lot of the evidence before him that the Commissioner did below and it was - it was incumbent upon the Commissioner to deal with the matters that he heard and to give reasons for them. And he - although he did so, he did so in a very shorthand manner at paragraph 57 and insufficiently, in my submission, and I'll go to - when I go through the evidence in more detail, it will become apparent why that's the case.

PN99

VICE PRESIDENT LAWLER: So just in summary, your argument is that the Commissioner accepted Mr Grills' ultimate findings. That's not good enough because he needed to make findings of fact rather than just conclusion?

PN100

MR RICH: He needed - well, yes, that's right. He needed to deal with the facts and deal with - and make findings of fact to support his conclusions or to - yes. That's in relation to his adoption of - just of Mr Grills' conclusions in that manner. Now, as I have already indicated, the Commissioner highlighted that there were inconsistencies between Austrac's witnesses' evidence as to what happened on 18 March. He says that at paragraph 57. But he - as I've said, he - because he makes no findings about what actually happened on 18 March, he falls into error in my submission because his ultimate conclusion that what Mr Palmer said was false and misleading has to be an assessment of what Mr Palmer said by reference to what actually happened.

PN101

He has to make a conclusion about the facts, the facts of what occurred on 18 March, before he can reach a conclusion that Mr Palmer misrepresented those facts or represented facts that were false, ie. different to those facts. But having set up that there was inconsistency in the evidence about what happened on the 18th and setting out what some of those inconsistencies were, although insufficiently in my submission, he then fails to determine what actually - he fails to resolve that inconsistency, he fails to determine the facts. He falls into error because he has to determine the facts in order to reach his ultimate conclusion which is about whether Mr Palmer made false statements or misled his employer when he made his statement about what happened on that day. That's my second submission about the error that has been committed there.

PN102

VICE PRESIDENT LAWLER: So if I can just repeat that so I understand it, your argument is that the fact of inconsistencies in the statements of the other three required the Commissioner to make findings of fact about what actually occurred so as to know which of the inconsistencies is being preferred by the Commissioner as the facts that found the ultimate conclusion?

PN103

MR RICH: Yes. That's an error in the decisional process and the reasoning that he's adopted to reach his conclusion.

PN104

DEPUTY PRESIDENT MCCARTHY: You're going further, Mr Rich, and saying by a failure to do that, one couldn't make a conclusion about whether anyone's statements were false and misleading?

PN105

MR RICH: Yes, that's right, your Honour. Because the question of whether something is false or misleading requires one to turn one's mind and make a determination about what the actual facts were. It's only by reference to the actual fact that one can - that someone may have been making false statements about those facts or misleading statements about those facts. There's - - -

PN106

VICE PRESIDENT LAWLER: That doesn't necessarily follow, though, does it? I mean, hypothetically you could have the three versions given by the others, all being inconsistent, but each one of them being inconsistent with Mr Palmer's version, so it doesn't matter which of the combination of inconsistencies are selected. Whichever view the version of events that arises from the other three is accepted, assuming it's accepted that's the premise, then there's a fundamental inconsistency between that and Mr Palmer's version.

PN107

MR RICH: Yes. It still requires - and that's possible. It still requires, in my submission, that there be findings made about what happened. Having identified those inconsistencies, that finding has been made before the conclusion can be reached. Now, in addition, a further ground of appeal is that in comparing only certain aspects of the accounts of the various witnesses, Mr Byrne, Ms Schultz and Mr Kooner and Mr Palmer, by comparing only certain aspects of their evidence about what occurred on 18 March, the Commissioner fell into error. It was incumbent upon the Commissioner to determine whether or not - now I backtrack a little bit. If your Honours will recall the way that the allegation was put in the first instance to Mr Palmer, in Mr Jensen's letter, was that Mr Palmer had provided false and misleading information in those seven paragraphs of his statement.

PN108

The way the matter was run before Commissioner Harrison was that the allegations - or the matters that were before Mr Grills were essentially the matters that were being put before the Commissioner as justifying a finding that the termination was not harsh, unjust or unreasonable. In those circumstances, the Commissioner was considering ultimately whether or not the - Mr Palmer made false and misleading statements in respect of - or in those seven paragraphs. It was not put to him that he made false and misleading statements just in respect of this sentence or that sentence or this particular statement or that particular statement. As a result, in my submission the Commissioner should have taken the approach of comparing accounts of the meeting as a whole in considering whether Mr Palmer's account of the meeting in his statement of 24 March was false and misleading in that way, rather than taking a line by line approach, if you like, as he did.

PN109

In so doing, in my submission, he failed to adequately analyse the evidence and took the approach that he shouldn't have in light of the matters before him and the task that he had to - - -

PN110

VICE PRESIDENT LAWLER: So the error here is taking a global approach rather than specifically identifying - - -

PN111

MR RICH: Well, failing to take - failing to take a global approach, failing to assess the whole of each of the statements. The approach that he took was to - in terms of looking at the evidence before him, seemingly only to look at the issue of whether or not there were raised voices or shouting and whether or not there was a hand raised at one point. These are two small aspects of the seven paragraphs in which Mr Palmer was said to have made false or misleading - provided false and misleading information.

PN112

VICE PRESIDENT LAWLER: I understood you also to be saying that it was incumbent upon the Commissioner to identify precisely which parts of the seven paragraphs were false?

PN113

MR RICH: I'm sorry, I didn't - if I did say that, I didn't make myself clear. He was not - the way the matter was put before Mr Palmer - put to Mr Palmer, the way the allegations were initially run, was that he made false and misleading statements in the seven paragraphs of his statement of 24 March, and that's the way the matter was - the way that proceeded below as well and in those circumstances, rather than taking an approach where he only analysed certain sentences and compared certain sentences for inconsistency, which seems to be the approach taken when one considers paragraph 57 particularly of the Commissioner's reasons, rather than taking that approach he should have assessed and analysed the evidence that was led in respect of all the matters contained in those statements, not just small aspects of them.

PN114

DEPUTY PRESIDENT MCCARTHY: But why should he have to do that? It seems to me what he's saying in paragraph 60 is that there's an appreciation by the Commissioner that there can be differences in accounts of events that occur and he recognises that, but then in the last sentence, seems to be saying, "Well but there's been a deliberate misleading here." Why should he have to go line by line through all of that evidence? He's found effectively from looking at all of that evidence that there's been a deliberate misleading.

PN115

MR RICH: It's not clear from the - what goes before that he's done any - made any real assessment. There's no analysis of the evidence that leads him to that conclusion, in terms of all the evidence before him. He only considers - - -

PN116

DEPUTY PRESIDENT MCCARTHY: Well, maybe not in the reasons, but that doesn't mean there's no analysis.

PN117

MR RICH: No, but my submission is that the reasons should contain that analysis. The analysis that currently seems to have taken place, given the reasons that go before that ultimate conclusion, it doesn't appear that the Commissioner has had regard to the substantial amount of evidence that was led about other matters arising from those statements. He's only looked at the issue of whether or not there was shouting and raised voices and whether or not there was a hand raised at one point, of all the evidence that was led before him about the - whether there were inconsistencies or not between these particular statements. The conclusions that were drawn and that he accepts of Mr Grills', go beyond simply the matters that - of the raising of his voice and the - the raising of voices and the use of hand gestures.

PN118

It also goes to whether or not Mr Palmer intended to intimidate Ms Schultz or whether Mr Palmer did anything that could be construed as physically attacking Mr Palmer[sic], but there's no consideration of the evidence that was before him or any conclusion about the facts in relation to those matters, which go far beyond just the raising of hands and the raising of voices which is the only evidence that he analysed at paragraph 57. And that's an area there's - in his - in the reasoning, in my submission. It is finally submitted that despite what - despite the inconsistencies that are said to arise, that in fact statements of Mr Byrne or the recollections of Mr Byrne, Ms Schultz and Mr Kooner, are for all intents and purposes consistent with the statement of 24 March made by Mr Palmer, in that the evidence which I'll take you to shortly doesn't support the finding that there were those inconsistencies in any event.

PN119

If you don't accept my submissions about the error in the process or - in the decision-making process, and the reasoning, then in any event, it is my submission that findings that were made by the Commissioner aren't supported on the evidence. In that regard, the decision - the findings were wrong. Now, if I can just - if I can first take you to the evidence of Mr Byrne who was the person at the meeting who was the superior employee, if you like. He was the - he was Mr Palmer's manager. As I have already indicated, the issue that was under discussion at this meeting was the sharing of information between the PPATK which was this organisation in Indonesia that Mr Palmer worked with, both provided advice and also mentoring people - sharing information between that organisation and other agencies in Indonesia, including AusAID. That's the substance of the discussion that was taking place.

PN120

If I can go to paragraph 2547 which was - how do you - this is in the transcript. I should work out what the best way of referencing this is for you, given the confusion of the appeal books. It's PN2547, page 258.

PN121

VICE PRESIDENT LAWLER: I think paragraph numbers is the most easiest way to refer to transcript, Mr Rich.

PN122

MR RICH: Yes. Paragraph 2547, which is an introductory question from Mr Chin who was cross-examining Mr Byrne. He says - and he's referring to something in Mr Byrne's statement which I will take you to shortly:

PN123

I said the impression that I had gained was that the apparent disconnection that's between the donor organisations, being AusAID and those other organisation and Austrac was not simply a result of Austrac not being present fort the last meeting, but it was deeper than that .....

PN124

Mr Chin says:

PN125

Do you see that?---Yes, I see that.

PN126

You asked Mr Palmer for clarification in particular, didn't you?---Yes.

PN127

And you did so because it was Mr Palmer's primary responsibility, correct?
---Yes. I don't think I ever argued with the fact that he had primary responsibility as a member of a team and that the answer to the question is yes.

PN128

The point of that is, is he's saying there was a question raised about the sharing of information and Mr Palmer was asked about it directly because it was his primary responsibility. At paragraph 2555, it refers to the approach that Mr Palmer took in saying that he didn't want to share information and giving the reasons as to why he wasn't sharing information, and paragraph 2556 says:

PN129

And you were suggesting to Mr Palmer that by taking the approach that he did, as he expressed to you, he was not following the whole of government approach, correct?---Yes, I did suggest that to him.

PN130

Yes, well that's the fact. The debate between the two of them was that there was an approach Mr Palmer took as to why he didn't want to share information or why he wasn't sharing information and Mr Byrne was saying that information should be being shared between these agencies, basically was the whole of government approach which Mr Palmer rejected. That's the reason that he gave during the meeting. At paragraph 2564 - at 2563 he says:

PN131

You were telling him that he was wrong to take that approach in effect, were you not?---I was trying to explain to him that we need to adopt a whole of government approach.

PN132

At 2564:

PN133

And an approach which you say he was not complying, correct?---Not complying. He flatly refused and says it there.

PN134

The problem was, Mr Byrne, that as you saw it, Austrac in Jakarta was not adequately sharing information with AusAID, correct, in a nutshell?---Yes, that's right.

PN135

It was Mr Palmer's job to share that information in Jakarta, correct?---Yes.

PN136

At paragraph 2581 over the page he says:

PN137

You don't accept that you were criticising him?---No, I didn't. Listen to my answer, please. I said that in terms of seeking clarification, I may have been critical of one aspect of his responses and that response was his flat refusal to do so. That's what I said.

PN138

So there's an acceptance in that course of cross-examination that - in terms of the way the meeting proceeded, there was discussion about sharing information, that Mr Palmer was giving reasons as to why he wasn't sharing information. He was being criticised for that because he wasn't following this whole of government approach and that - and there was no question that he knew he was in the spotlight for not doing what Mr Byrne - or not taking the approach Mr Byrne thought was the appropriate approach to take. Now, if I can now take you to Mr Byrne's statement, and I'll return to Mr Byrne's evidence shortly, Mr Byrne's statement to Ms Boyle initially which was one of the statements which got the investigation going, is exhibit 16, page 16 - which appears at page 643 of the respondent's appeal book.

PN139

On the first page of that statement, down the bottom in the last two paragraphs, Mr Byrne explains the disagreement in essence that I have just taken you to in the evidence as well, but more than what he says here, in addition the evidence as I've already - that I've referred you to indicates that - more directly than in his statement that he was critical of Mr Palmer and the position that he took during that meeting. On page 2 of Mr Byrne's statement at the third paragraph he then indicates that Louise started to speak. Louise is Ms Schultz, and he says there in one paragraph that Louise stated it was important to ensure that Austrac played a role in data coordination in Jakarta and questioned whether it was appropriate to withhold or not supply information that may assist in a whole of government approach.

PN140

Now I'm going to take you to some evidence about what the interaction was between Mr Byrne and Ms Schultz and Mr Palmer and the reason why it's important is because what follows immediately after that is that in Mr Byrne's statement, as he says:

PN141

Upon Louise entering the conversation, I noticed Norman's manner immediately changed.

PN142

The evidence demonstrates that in fact there was a long period of discussion, some three to five minutes on Mr Kooner's evidence, about these issues, where Mr Palmer was being polite, which is consistent with Mr Palmer's statement about what happened leading up to the dispute, but which also demonstrates that both Ms Schultz and Mr Byrne were being quite critical of Mr Palmer in this initial course of the discussion. At paragraph 2606 of the transcript - - -

PN143

COMMISSIONER REDMOND: I'm sorry, I missed that page.

PN144

MR RICH: Paragraph 2606. Mr Chin says:

PN145

What I want to put to you, Mr Byrne, is that Ms Schultz had quite substantial statements to make in this part of the conversation regarding her advocacy of the whole of government approach. Do you disagree that she had a substantial amount to say?---I don't know what a substantial amount is. It was generally rolling conversation, people were making comments or asking questions. I wouldn't call her contribution any more substantial than mine or Mr Palmer's for that matter. It was a three-way conversation and Mr Kooner was just sitting there.

PN146

In the next paragraph:

PN147

Do you accept her contribution was more substantial than what you have put or represented in your statement there?---Well, I never said that was the entirety of what she said.

PN148

Do you accept that her contribution was more substantial than is conveyed there, accepting that you don't purport it to be exhaustive?---Yes.

PN149

He accepts there was a lot more conversation that he - than that which he put in his statement. At paragraph 2613 on that same page:

PN150

The import of Ms Schultz's comments were I think as you previously accepted supportive of your position?---My evidence was that it was supportive of the policy.

PN151

A policy which you were advancing at the meeting?---Yes, that's the policy.

PN152

And the policy is referred to here as the whole of government approach I talked about earlier:

PN153

Do you have a difficulty with the proposition that Ms Schultz was supporting what you were saying in the meeting? Do you have a difficulty with that proposition?---No, I have no difficulty with that proposition.

PN154

Over the page:

PN155

In fact at this point, both yourself and Ms Schultz were telling Mr Palmer that he was taking the wrong approach in regards to information sharing with AusAID, were you not?---Well, after he said that he refused to supply the information, we may well have said that, but it wasn't like a concerted attack or anything. We were just sharing information, discussing information, sharing in the whole of government approach.

PN156

My submission is that what that demonstrates is that ultimately the question put by Mr Chin was accepted. It's true that at that - at a point in the conversation, both Ms Schultz and Mr Byrne were both - what he's saying there, were both telling Mr Palmer he was taking the wrong approach about sharing information with AusAID. And then Ms Schultz had entered the conversation in support of Mr Byrne, in a position Mr Byrne had taken in the conversation. Then at paragraph 2625, a question is:

PN157

Do you accept that Ms Schultz had participated in the conversation in support of the whole of government approach?---Yes.

PN158

Then the following paragraph:

PN159

For some period before Mr Palmer's demeanour changed, as you say?---Yes.

PN160

So in his evidence there he clearly provides a substantial gloss on what's said in his statement that was given to Ms Boyle, where he accepts that despite the one paragraph reference in there and the indication that as soon as she entered the conversation Mr Palmer's manner changed immediately, in fact there was an ongoing discussion about this issue - - -

PN161

VICE PRESIDENT LAWLER: Don't we need to keep on reading this transcript, though, to get the full picture?

PN162

MR RICH: No, I'm not going to go through it any further on this point. Sorry, you say it is read better - - -

PN163

VICE PRESIDENT LAWLER: He's challenged further by Mr Chin on this apparent inconsistency between what he said in his statement and what he is now conceding and he explains it in 2627, doesn't he?

PN164

MR RICH: Yes. So what he says is there was a period of discussion before his demeanour changed and then at a certain point, when she entered the discussion after he said he refused to share information, yes. There certainly becomes a point where things change and I don't think there's any doubt about that, but the point of the previous questions was simply that there was a long period of discussion leading up to this point where Mr Palmer's demeanour changed and where there was a - so I'm not attacking Mr Byrne's credibility by what he says in his statement and the inconsistencies. What I'm saying is they're consistent, it's just that he's been - he hasn't set out in full what occurred in his statement, but he has in cross-examination indicated what happened in some detail. It's not a matter of choosing which version to believe, it's a matter that they're consistent.

PN165

So the evidence of Mr Byrne demonstrates that in the period leading up to the argument, if you like, there was a - Mr Byrne and Ms Schultz had taken a position about sharing information and were saying that Mr Palmer ultimately wasn't sharing information the way that he should be. And that there was a discussion where Mr Palmer was being - where his demeanour wasn't angry or heated, where he was discussing these issues as well. There was a bit of a discussion going on prior to the point where there came some conflict. I won't take you to this particular paragraph reference, but at paragraph 618 in his evidence-in-chief, Mr Byrne also accepts that Mr Palmer had initially spoken politely to Ms Schultz and only when voices became raised that he was deemed - that he was no longer being polite.

PN166

Now, in terms of this part of the conversation, the discussion, it's useful to turn to Ms Schultz's evidence to compare what she says about this period of the discussion, if you like. Her statement to Ms Boyle which provides most of the evidence on this point is at exhibit H17 which appears at page 645 of the appeal book. Can I just indicate, there was an attachment to Ms Schultz's statement which is at page 657 which did not go into evidence. It was marked for information, but didn't go into evidence and so to the extent - I'm not going to take you to that particular - - -

PN167

VICE PRESIDENT LAWLER: So we should just rule that out?

PN168

MR RICH: That's right.

PN169

VICE PRESIDENT LAWLER: 657?

PN170

MR RICH: 657, yes. The point that I was going to take you to, at page 2 of Ms Schultz's statement, which is page 646, she indicates that she - she goes into some detail about the things that were discussed, the matters that were discussed, and without reading it out in great detail, supports the factual propositions that were put already in terms of Mr Byrne's evidence about what occurred in this part of the conversation. She made a number of detailed points, she says, during the course of that part of the discussion, about the relationship between the Austrac and other agencies in Indonesia and about the sharing of information. In her evidence before Commissioner Harrison, she accepted that when she intervened in the discussion, she intervened in support of Mr Byrne and at paragraph numbers 4385 to 4388 she says:

PN171

Your intervention was - the effect of your intervention was critical of Mr Palmer in terms of his failing to undertaking donor coordination or share information to the extent that you felt was appropriate?---Yes. Sorry, well I guess it was critical of the apparent communication that was occurring at the time.

PN172

And the finger was pointed at Mr Palmer effectively?---It was inferred.

PN173

Yes, and that would be - would have been plain to Mr Palmer, no doubt?
---Pardon?

PN174

That would have been plain to Mr Palmer, no doubt?---I would assume so.

PN175

What she recognises there is the same as what Mr Byrne is recognising, in the way the conversation occurred leading up to this argument that took place subsequently. That she intervened in the discussion in the discussion in support of Mr Byrne, essentially taking a position critical of Mr Palmer. If I can turn to Mr Kooner's evidence on the same point, Mr Kooner - his statement appears at
- it's exhibit H18 which is at page 659. On the first page of his statement there, Mr Kooner indicates that there was a discussion that took place between Mr Byrne it seems, the way he - he puts the discussion in he said, she said terms. Norm is Mr Palmer, Matthew is Mr Byrne, and Pete is himself, Mr Kooner, and Louise is Ms Schultz.

PN176

The substance of the conversation that he sets out there is in similar terms, although not as detailed as the evidence of Mr Byrne or Ms Schultz, essentially recognising that there was a difference of opinion about the sharing of information and that Ms - in particular, Louise said:

PN177

I agree we need to share information with donors -

PN178

Being that she was intervening in the conversation in support of the position taken by Mr Byrne and in Mr Kooner's statement, Mr Kooner as well. And that Mr Palmer took a different position, describing his reasons why information shouldn't be being shared. Now, Mr Palmer's statement that deals with this part of the conversation is precisely in the same terms, in my submission. Mr Palmer's statement is at page 19, at page 661. At the bottom of the first page of his statement, he says that - he identifies the problems that arose and that were being discussed following the telephone conference about PPATK not mentioning - to AusAID accepting in relation to IT - which was related to the issue of sharing information ultimately. He says over the second page, at the second paragraph:

PN179

On completion of the hook-up conversation, Matthew took this to mean that I, in the previous program, had not liaised correctly with AusAID and USAID.

PN180

He indicates how he started to explain why, then he says in the next paragraph:

PN181

Matthew was not listening to my outline of the problem and started to castigate me for not sharing private information to the two mentioned agencies.

PN182

And then he describes what he was trying to explain about his reasons for not sharing information. At the following paragraph he says:

PN183

Matthew continued to browbeat me by saying my attitude was contrary to the whole of government approach et cetera.

PN184

And I might say that the use of the words "castigate" and "browbeat" in these circumstances where Mr Palmer is indicating what's being said against him and what he is saying in reply, clearly they suggest - they are words that indicate what Mr Palmer was feeling, that he felt that he was being criticised and castigated. Ultimately the objective facts, if you like, that he is describing as that he was being criticised and an approach was being taken against his and that he felt - he personally felt castigated. At the following paragraph he says:

PN185

Officer Schultz started to verbally castigate me also in front of the others. She was sitting forward in her chair, leaning towards me.

PN186

In the following paragraph:

PN187

Officer Schultz was quite vocal about my non-cooperating with the other aid agencies and said something to the effect that as AusAID were funding the program and we were in effect working for them, I should be giving them everything they requested. I started to explain I worked for Austrac and not AusAID and Matthew was also saying similar points. I politely said that she didn't know the full story. She continued to browbeat me on the intra-agency cooperation issue.

PN188

My submission is what he's saying in those paragraphs is the same. He's saying that there was this criticism of the approach that he was taking. He was in the sights for not doing the right thing, that Officer Schultz, or Ms Schultz, joined the conversation in support of Mr Byrne, also taking a critical position of Mr Palmer, that he was being polite at this point and he felt that he was being browbeaten about the issue. Or castigated, as he says. Which is a matter of his personal feeling, but the objective facts that he's conveying are the same. So in my submission, that part of the discussion, there's no inconsistency between the statement - misleading - any misleading statements being made by Mr Palmer. The next part of the discussion requires that we return to Mr Byrne, his statement, which is H16 at page 643. He says:

PN189

Upon Louise entering the conversation I noticed that Norm's manner changed. He started to raise his voice and became agitated. He interrupt Louise in what she was saying and would not let her finish her remarks.

PN190

The following paragraph, when he says:

PN191

When she tried to resume speaking, he swung around in his chair, raised his hand and began to shout at her quite loudly.

PN192

And the following paragraph:

PN193

Don't lecture me about things you know nothing about. This and other words directed at Louse were at the level of shouting.

PN194

Now, in Mr Byrne's evidence-in-chief at paragraph 560 which I want to take your Honours to now, he says that the words, "Don't lecture me about things you know nothing about", that was the point at which the shouting began, so Mr Byrne says. He says nothing in his statement about Ms Schultz's demeanour. Then at paragraph - this is in his statement at least, but at paragraph 2643, he accepts that Ms Schultz was shouting in response to Mr Palmer. At paragraph 2722, he says
- he accepts at the point in the conversation where Mr Palmer didn't let her finish her remarks that the exchange between Mr Palmer and Ms Schultz was getting heated. That's fair to say, he says. In fact, at this point in the exchange,
Ms Schultz and Mr Palmer were talking over each other at some point? Well, yes, when it became an exchange, yes, and he says but it was initially Mr Palmer who shouted at her:

PN195

But they were both trying to talk over each other?---Yes.

PN196

At that point, do you accept Ms Schultz started to raise her voice?---In an effort to speak to him. She was getting upset. I think I said that, didn't I?

PN197

So his statement is that Mr Byrne - sorry, Mr Palmer shouted, I think his evidence was, shouted at Ms Schultz, saying that she didn't know - she shouldn't lecture about things she didn't know and that after that there was an escalating discussion, an escalating argument between them, where they were both shouting at each other essentially, both talking over each other and shouting. And that's confirmed by - I won't take you to these paragraph references, but it's confirmed at paragraphs 2737 and 2741, that same proposition that their voices were escalating and they were shouting over each other and they were getting more and more heated. But ultimately, the point which commenced the escalation of the argument between them was when Mr Palmer intervened and said, in essence, "Look, don't lecture about things you know nothing about", that's where it all began.

PN198

Ms Schultz's evidence, the first point of reference would be her statement as well, which is exhibit H17, page 646. About halfway down page 3 she says:

PN199

I recall he raised his voice, looked extremely angry and in what I consider to be an aggressive and unprofessional tone said words to the effect of, "Louise, I'll not sit here and be lectured by you about something you know nothing about."

PN200

Sorry, 647 - - -

PN201

COMMISSIONER REDMOND: Whereabouts did you start reading?

PN202

MR RICH: About halfway down the page, at the - - -

PN203

COMMISSIONER REDMOND: Yes, I have found it.

PN204

MR RICH: It's half - yes. In the paragraph that commences, "It's my recollection that at that point", and the second sentence of that paragraph she says:

PN205

I recall he raised his voice, looked extremely angry and in what I consider to be an aggressive and unprofessional tone said words to the effect of, "Louise, I'll not sit here and be lectured by you about something you know nothing about."

PN206

She then goes on to indicate that she subsequently - her response - this is in the second-last paragraph at the bottom of the page, her response was to the effect of:

PN207

You are saying I don't know what I'm talking about?

PN208

And she accepts there that she has been told - had been told by Mr Byrne that her voice was raised during her response to Mr Palmer and although she didn't recall it, she accepted that her voice may well have been raised at that point. Similarly, at paragraph - and I won't take your Honours to this paragraph either, but paragraph 4401 of her evidence in cross-examination she accepted that she raised her voice in proportion to the manner in which she was being spoken to, so it was a direct response to both the tone and level of voice that she was being spoken to. It's at paragraph 4401. Over the page in her statement, 648, she says - following her reply, she recalls that Mr Palmer became more angry. She says there that he raised his arm closest to her and that he said in a more aggressive tone, "You don't know what you're talking about and I won't be lectured by you about something you know nothing about."

PN209

She indicates she was experience an intense emotional reaction in the following paragraph. In my submission, the effect of what Ms Schultz says is the same as what Mr Byrne says, is that there - whether it's shouting or raised voices, either way the discussion - or the argument commences with Mr Palmer intervening in a somewhat aggressive manner, I'd say, whether in tone or level of voice, saying "You don't know what you're talking about, I won't be lectured by you" and then an argument ensued where each of them were talking over each other and arguing more and more loudly. Now, Mr Kooner's evidence there's probably no need to take you to, but his statement which is H18 essentially says the same thing. He just says Norm and Louise, ie. Mr Palmer and Ms Schultz, spoke in a raised/loud voice, so about two-thirds of the way down the first page of his statement, and described what he said and what he said is more or less in the same terms of what Mr Byrne and Ms Schultz gave evidence about as well.

PN210

Mr Palmer's statement on the matter is that - and his statement again is H19, which is page 661. At the bottom of the second page, so the bottom of 662, he's talking - he's - his discussion there about the prelude to when things got aggressive and the first paragraph on the following page which is 663, he says:

PN211

I then said she didn't know what she was talking about. She got offended at that. She started to raise her voice to me, I raised my voice over here, told her to stop it, she didn't know all the facts and that he wouldn't be spoken to in that manner. Officer Schultz became extremely offended, said something about what do I base that opinion on and jumped to her feet.

PN212

It's ultimately the same, in my submission, the same description of events. Mr Palmer describes that his interjection into the discussion at the top of the page there, that she didn't know what she was talking about, caused her to get offended and that was the beginning of an argument between then, ultimately. Mr Grills made something of who raised their voice first and in my submission that's beside the point, that there's no falsity or misrepresentation that appears in the paragraph he's describing, that he started an argument with her by those words ultimately and that there was an argument that ensued following from what he said, at the top of that page. She didn't know what she was talking about. That's what she got offended at, that's what started the argument. He doesn't try to hide from that in his statement.

PN213

Whether or not - equally, whether or not they were shouting or had raised voices is a matter of semantics. It's clear that he's indicating that there was an argument here started by him. So in my submission the statements are consistent in the sense that there's no misleading or false statements being made by Mr Palmer about what's happening in this discussion, both in the lead up to the argument, how the argument started and that there was an argument between them about these things which ultimately caused Ms Schultz to get upset, stand up and leave the room. The next portion of the discussion requires a return to Mr Byrne's evidence. Once again, it's on page 644. I need to go to his evidence in cross-examination again first, I'm sorry, which is at paragraph 2750. At 2750, the question was put:

PN214

In any event, Ms Schultz stood up suddenly?---Well, yes, I'd say she was upset.

PN215

But she did so in a sudden motion?--- I think that's fair to say, yes.

PN216

And she did say Mr Palmer was leaning back in his chair ..... ?---Yes, I think that's fair to say. He was leaning back shouting at her. She stood up.

PN217

He accepts there that Ms Schultz stood up suddenly in a sudden motion during the course - there was an argument going on and at a certain point Ms Schultz stood up suddenly and his statement, although not putting it in those terms, essentially recognised the same things. In his statement he said:

PN218

Louise stood up and said some words to the effect of, "I shouldn't have to put up with this" and then she got up and she appeared to get upset.

PN219

But it appears from the cross-examination that when she stood up, she stood up suddenly, a quick motion. Ms Schultz, in relation to the way that she got up and left the discussion, has not detail in her statement about it, but accepted in - she says that she stood up to leave the room and that she tried to leave the room as quickly as possible. That's in her statement at exhibit H17, and she accepted also in her cross-examination that she may have missed a detail or two of the incident, at paragraph number 4444. She doesn't say much about the way she left the table, how she got up, what she did, except to say that she stood up quickly. She has already said previously that she was emotional about at all this at the time and she says she stood up quickly and she tried to leave the room as quickly as possible. That's what she recalls. What she says in her cross-examination, she may have missed a detail or two.

PN220

Mr Kooner similarly has no detail in his statement about it either. He simply says that Louise left the room. She picked up her papers and left the room. He doesn't say anything in detail about how she left the room or how she jumped up, or got up. But it's accepted by all of them, including Mr Byrne, that Mr Palmer was reclined in his chair at least, laying back at the point where she stood up. Now, in Mr Palmer's statement, Mr Palmer says at exhibit H19 again, which is - it starts at page 661, and at page 663, he says:

PN221

She jumped to her feet -

PN222

This is in the second paragraph on page 663, at the end of the first sentence:

PN223

She jumped to her feet and pushed her chair back.

PN224

I'm just looking at the objective of what he's saying about what physically occurred at the meeting, and then the following paragraph he says that he put his palm up in a stop gesture and that she was standing over him, and in the following paragraph, at the end of the first sentence there, he says that she ran from the room. Now, in my submission, there's no question that everyone agrees that she jumped to her - well, those who recall or say anything about it recall that she jumped to her feet and she did so with some speed. Now, Mr Byrne, though, accepted that it was possible that she may have stood over him. He recognised in his evidence that she may have stood over him, but he didn't recall. He said in his evidence - I'm just trying to find the reference here, sorry. I'll find the reference for you as soon as I'm able to, but he says in his evidence that Mr Byrne - - -

PN225

VICE PRESIDENT LAWLER: We might just adjourn for five minutes, Mr Rich.

<SHORT ADJOURNMENT [11.56PM]
<RESUMED [12.02PM]

PN226

VICE PRESIDENT LAWLER: Yes, Mr Rich?

PN227

MR RICH: Thank you. The reference that I was trying to find earlier was in Mr Byrne's examination-in-chief at paragraph 687, in which he is responding in that sentence to Mr Palmer's statement. About halfway through the paragraph, he says:

PN228

Well, my observation was that when she became more upset -

PN229

Sorry, Commissioner, it's paragraph 687, halfway through the paragraph he says:

PN230

Well, my observation was that when she became more upset, she jumped up, stood up quickly, yes.

PN231

And then the next portion in quotation marks is from - no, it's not:

PN232

And in so doing, was facing me at a - at more than a 45 degree angle.

PN233

He says:

PN234

I thought she was standing at the table because her papers were in front of her and she was standing up, crying, and gathering her papers together. I can't recall her facing Mr Palmer when she was standing up. She may have been, but I don't recall. I recall her gathering her papers and crying, "Invasion of my personal space" and crying.

PN235

What that demonstrates is that he recalls her gathering her papers and standing up. It doesn't recall whether or not she stood over him, but on his evidence - - -

PN236

VICE PRESIDENT LAWLER: What's he quoting there?

PN237

MR RICH: I was just trying to find that, the reference. I thought he was quoting from Mr Palmer's statement, but then now looking for those words, I couldn't see it relating to - page 38 - - -

PN238

VICE PRESIDENT LAWLER: Do you know what he's referring to, Mr Heard?

PN239

MR HEARD: May I have a moment, your Honour?

PN240

MR RICH: I think he might be referring to - I think it's 687. I think he may have been referring - I think in fact he's referring to something else that Mr Palmer put to - I think he's referring to something else that he put to Mr Grills which is exhibit H38 and that's a long email addressing some of these issues and Mr Palmer put to Mr Grills during the course of his investigation. Yes, if you look at exhibit H38, it starts at page - - -

PN241

VICE PRESIDENT LAWLER: 718, yes.

PN242

MR RICH: - - - 718 and he's referring to some statements on the third page of that document - I'm sorry, there's a covering - the document says three of five pages anyway, page 720, I think. And he's referring to - - -

PN243

VICE PRESIDENT LAWLER: I see, yes, at - - -

PN244

MR RICH: - - - those paragraphs there at the top of the page. But the effect of his evidence in my submission is that he doesn't recall, that she may have been standing over Mr Palmer, but he doesn't recall. And no one else has anything to say in their evidence initially about that issue, as I indicated earlier, neither Mr Kooner nor Ms Schultz. The only - the question was put to Mr Kooner and to Ms Schultz by Mr Grills in their interviews, in his interviews with them. The effect of what Mr Kooner said was that he didn't believe that Ms Schultz stood over him in a manner that would lead him to think that she was going to strike him, but what Mr Palmer says that he felt on the defensive and he put his hand up and he felt that she might strike him, which is why this is relevant.

PN245

Mr Kooner doesn't say she didn't stand over him, but just says that he was of the opinion that she didn't stand up - or stand over him in a way which made him think that she was going to strike him. That's exhibit H36, just for reference, which starts at page 712, and Ms Schultz in her interview with Mr Grills, which is exhibit H52, which starts at page 790, says - didn't deny standing over Mr Palmer, but says - - -

PN246

VICE PRESIDENT LAWLER: Sorry, 719, did you say?

PN247

MR RICH: 790; didn't deny standing over Mr Palmer, in response to questions from Mr Grills, but said really that she hadn't contemplated striking or hitting Mr Palmer and she's not the sort of person that would do that. Doesn't expressly deny that she did stand over Mr Palmer. Now, at Mr Palmer's - in Mr Palmer's evidence at paragraph 2338, which I won't take you to directly, but at that paragraph, in his examination - at the end of his re-examination, I think, he says that - he explains what his - what he was talking about in his statement, that he feared that she might strike him, in that he thought she was going to kick him, that she looked - in the second sentence, he thought she might be going to kick him. That's when he was referring to. Now, in my submission - - -

PN248

VICE PRESIDENT LAWLER: Sorry, whereabouts on 790 is the section you're referring to?

PN249

MR RICH: It's at - 790 is the beginning of - is the first page of the - her interview. Now, on the second page of that document, 791, about halfway down the page there's a paragraph that says:

PN250

I then told Ms Schultz that Mr Palmer had said that she had jumped up and stood over him in a manner that made him think she was going to strike him.

PN251

That's on page 792 - I see. So in the appeal book that you have, it's - the page is interrupted so it's - if you go to page 792 which is in fact the second page of her statement, but - and it's a paragraph which commences on page 792 with the words:

PN252

I then told Ms Schultz that Mr Palmer had said - - -

PN253

VICE PRESIDENT LAWLER: Yes, thank you.

PN254

MR RICH: And he said that she rejected the description of the situation, saying that she wouldn't - she hadn't contemplated striking Mr Palmer, et cetera. The effect of what she says there, in my submission, is that she says didn't strike him and didn't contemplate striking him, but doesn't deny it's possible that she stood over him. In any event, the - in my submission - and that's the only evidence against the proposition that - against the factual elements of Mr Palmer's statement to the effect that he - that she, as I indicated before, that she jumped up, stood over him and then she ran out of the room. So I've taken some time to go through all the evidence on the - about the objective facts, if you like, of what occurred at the meeting of 18 March and in my submission, what that demonstrates is that the statements are consistent in terms of what they describe occurred at that meeting.

PN255

DEPUTY PRESIDENT MCCARTHY: Except as to when an arm was raised.

PN256

MR RICH: Yes, that's the only thing I haven't addressed. I'm sorry. Thank you for reminding me. The only other issue is the issue of when an arm was raised.
Mr Palmer’s initial statement was made in response to a question of Ms Boyle immediately after the event that occurred to make the statement about what happened. Mr Palmer made a statement - in his statement he didn’t say anything about him using his hand in the stop sign or anything prior to Ms Schultz standing up. In the statement he said that once she stood up he put – I should take you to the statement he says specifically that at 663 he says in the third paragraph of that page:

PN257

I held my right-hand up palm open in a stop gesture and again told her to stop right there in an endeavour to protect myself that she was standing over me.

PN258

The only time that he mentions that he put his hand up in a stop gesture was when she was standing up. Something was made – and then the first time it’s raised with him as being an issue that whether or not his hand was put up before she got up or when she got up, was when Mr Grills asked him about it when he was interviewing Mr Palmer because at this point Mr Palmer hasn’t been told about what aspects of his statement are in contention - where the issues are that are said to give rise to the false and misleading statements.

PN259

The first he knows about it is when Mr Grills asks him about it and Mr Palmer says straight away, yes, I did put my hand up beforehand there’s no question about that and then I moved it when she stood up in a sort of second gesture. He makes his explanation in his statement which is – which is in his interview with Mr Grills which is exhibit H53, which is – starts on page 794 the relevant extract is on the second page of that document under the heading, raised hand. The next issue I raised with Mr Palmer related to an apparent inconsistency between his account and that of the other three people - - -

PN260

VICE PRESIDENT LAWLER: Sorry, you said 794?

PN261

MR RICH: I’m sorry 796. It starts on 794, yes, I’m on the third page 796, under the heading raised hand:

PN262

The next issue I raised with Mr Palmer related to apparent inconsistencies between his account and that of three other persons with regard to when he raised his palm towards Ms Schultz. In particular I pointed out he said he raised his hand to protect himself from Ms Schultz when she stood over him whereas the others had said he raised it earlier before she stood up.
Mr Palmer stated that that was exactly right that his hand had been raised before Ms Schultz stood up.

PN263

He went on to explain that when Ms Schultz had become extremely agitated and started shouting at him, he had moved his head in two discreet motions, the first movement of which was to raise his hand closer to Ms Schultz in a stop motion. Then he describes how Mr Palmer demonstrated that to him in the meeting. Then the following paragraph, Mr Palmer then stated that Ms Schultz became more aggressive, he expressed the view that she was feeling anger because of Mr Palmer’s comments that she didn’t know what she was doing. Mr Palmer stated that the second movement of the hand was to raise his hand slightly higher in self defence. He stated that Ms Schultz stood up quickly and stood over him, picked up the papers before running from the room.

PN264

That is the open recognition that the first time it’s raised as being in contention there at all, that he did raise his hand. In cross-examination Mr Grills accepted that Mr Palmer – there was no reason to think that Mr Palmer had specifically been asked about the timing when he raised his hand prior to this interview with him. There was no evidence to suggest certainly to suggest that the interaction was given to Mr Palmer when we wrote the statement apart from to write the statement about the events about the 18 March. Similarly Mr Burns initial statement he made no mention of Mr Palmer raising his hand.

PN265

Neither in Mr Kooner’s statement did he mention Mr Burns raised hand except that Mr Burne told Mr Palmer not to point at people like that. Recognising there was obviously some issue about it, but neither of them raised an issue about it either in their statements. Certainly it wasn’t a significant issue in the minds of people who would be at the meeting about when the hands were raised until it was made an issue which needed to be responded to at which time Mr Palmer on the first occasion recognised that he had his hand raised earlier. No one at least on my view of the evidence denies that Mr Palmer had his hand raised when
Ms Schultz was standing. There is no suggestion of the evidence that that’s the case.

PN266

So on the issue of the raised hand it is just on the evidence given when he – given the first opportunity he had to make any – to deal with the matter because he didn’t know it was an issue before that, given the way he dealt with on the first occasion to do it, it can’t be said in any statement in my submission that he was being misleading or making any false statements by omitting to say that he had his hand up earlier. It is a significant conclusion to reach that that omission constitutes a false or misleading statement in circumstances where he was not being asked to address that issue in his statement.

PN267

So I think that addresses each of the objective evidence if you like of what occurred at the meeting. In my submission that detailed analysis of the evidence demonstrates that Mr Palmer’s statement of 24 March in its terms, is not misleading or deceptive – not false or misleading I’m sorry I used the wrong term.

PN268

DEPUTY PRESIDENT MCCARTHY: Mr Rich in that statement, sorry to come back to the issue of the raising of the hand. In the statement on page 663 the second and third paragraphs, is that issue addressed in the evidence anywhere, other than there? That is concern over a physical attack?

PN269

MR RICH: Well it is addressed – I took you to – I mentioned in Mr Kooner’s evidence – interview and Ms Schultz interview that they were not of the opinion. I think Mr Burne also thought that he wasn’t going to be attacked. But Mr Palmer explains his position in his evidence at paragraph 2338, I think it is.

PN270

DEPUTY PRESIDENT MCCARTHY: Sorry what’s the paragraph number again?

PN271

MR RICH: 2338.

PN272

VICE PRESIDENT LAWLER: And following?

PN273

MR RICH: Which is 2338, which is 238 of the appeal book. He says:

PN274

As I said to Mr Grills and I’m not sure if he mentioned it here – yes, then she became more aggressive and I expressed the view that she was fairly angry and then I had a second movement of my hand as I saw her look down at my foot, I thought she was going to kick me. She looked at my head I thought she was going to hit me and I raised my hand slightly in an endeavour to protect myself. I believe it was probably wrong to think that I mean I understand that it was probably a –

PN275

Then he says – there was an interruption, he says:

PN276

I believe it was probably wrong –

PN277

At paragraph 2341:

PN278

To think that in the degree of hindsight but I mean the situation was at the time she was extremely angry. I was upset because she was addressing me in public at the time I believe being angry and standing above me in the circumstances that she was going to attack me. Now looking back at it with hindsight I can look at it and say if I sat down and went through every word and said look okay, it was reasonable that she was going to attack, at the time I thought it was, but now I think it was probably unfair of me to first of all to create the situation because I did create the situation because I told her she didn’t know what she was talking about. That was extremely unprofessional and I pride myself on my professionalism.

PN279

He goes on to say he was in pain. He was in extreme pain and finally, he finishes his answer down at 2345 and says:

PN280

I was in pain, I was suffering from the flu, I was being criticised I thought I was being harassed and how everyone was unprofessional.

PN281

He gives evidence in his statement as well, but he says effectively that at the time he wasn’t thinking rationally and he was under the same pressures as he mentions in his evidence there he wasn’t thinking rationally and that was his thought at the time, but in reflection, it probably wasn’t a fair thought. So he doesn’t back away from having thought that at the time and explains the reasons that he thought that at the time. The other evidence as I said of the other witnesses is effectively that what they saw didn’t lead them to think that she was going to attack him.

PN282

But nonetheless having said that as I’ve hopefully demonstrated the objective facts of what occurred in both statements are the same. The distinction is the way that Mr Palmer expresses the way he felt about what was going on in the meeting both in the way that he felt that he was possibly going to be under some sort of attack and also the way that he thought he’d been castigated beforehand about the issues being raised. My submission about that is set out in paragraph 12 and 13 of my written submissions and essentially what I say there is in terms of the use of the terms castigate and brow beat that he uses in his statement that those terms don’t describe objectively what happened apart from the fact that he was being criticised, what they do is describe his subjective feelings about the criticisms being made of him. There was no evidence that he didn’t feel that way. No evidence in my submission in which you could conclude he didn’t feel that way. He certainly wasn’t cross-examined about whether he felt that way. He confirmed that he did feel that way in re-examination I think.

PN283

In relation to his perception that he might be attacked, he indicated in his statement that he had a bad back, as a result of difficulty moving that he was in some pain and that he felt unable to defend himself and that Ms Schultz was obviously angry, there was a heated argument she stood up quickly. In my submission the evidence is open to the interpretation that she stood over him and in those circumstances he perceived her behaviour to be aggressive, he felt vulnerable and as he says in his own statement which I alluded to earlier he says that his thoughts were instinctive and not rational or calm as in normal circumstances – that’s in paragraph 45 of his statement which is exhibit C1, which I won’t take you to.

PN284

But it demonstrates that there is no evidence to suggest in my submission that he didn’t feel that way. He wasn’t being false or misleading in representing the way he felt and in the circumstances he does describe the objective facts of the meeting can give rise – it is understandable why and how he might have felt that way.

PN285

VICE PRESIDENT LAWLER: Mr Rich during the course of the hearing before the Commission was the alleged falsity and dishonest in Mr Palmer’s statement of 18 March that particularized identified by Austrac?

PN286

MR RICH: Not to my understanding, your Honour might be able to correct me if I’m wrong. But the way I understand it that the matter proceeded and the way that the matter was conducted by Austrac was that – I’ve just got to find the submission is that if I can take you to – this is recorded at paragraph 35 of the respondent’s submissions in the previous – before Commissioner Harrison which I don’t know if they appear in the respondent’s appeal book.

PN287

MR HEARD: Your Honour I regret to say that they don’t. We did email them this morning I understand that they are in the appellant’s appeal book. I’m not sure exactly where.

PN288

MR RICH: Unfortunately, they are in the fourth volume of the appellant’s book, so I might just read the relevant paragraph on the assumption and indicate which paragraph it is on the assumption that the document will arrive by email.

PN289

VICE PRESIDENT LAWLER: Just a moment, tab 24 my associate tells me.

PN290

MR RICH: Yes, tab 24. It is in volume 3.

PN291

VICE PRESIDENT LAWLER: I think we have volumes made up differently from the volumes you have.

PN292

MR RICH: I see, well it’s behind tab 24 then and its – the approach is – the response approach is set out really on a plain Mr Palmer’s statement he recounts quite a different version to the version given by the three participants at the meeting. On Mr Palmer’s version Ms Schultz was the verbal and physical addresser but he was defending himself from a reasonable physical attack. Everyone else’s version Mr Palmer was the verbal aggressive while Ms Schultz reacted by becoming upset or leaving the room. So they took a – they didn’t take a line from that – they didn’t particularize what elements were.

PN293

VICE PRESIDENT LAWLER: I understand that, thank you.

PN294

MR RICH: So that concludes my analysis of the meeting of the 18 March you will be pleased to hear. Just to sort of summarise what I’ve said. The evidence just doesn’t – does not admit of a conclusion that Mr Palmer in his statement of 18 and 24 March made false and misleading statements.

PN295

VICE PRESIDENT LAWLER: What about that paragraph 35, what do you say about that? I understand your analysis but what’s your response to the submission of paragraph 35 that without trying to do a line by line analysis the impression is created in Mr Palmer’s statement at 18 March that Ms Schultz is the aggressor and he’s merely defending himself? That that’s fundamentally at odds with the versions given by the other three.

PN296

MR RICH: My submission is that that’s not the effect of the evidence. That
Mr – it’s the effect of the way that Mr - the way that Mr Palmer felt, he felt that he was being castigated and criticized and he felt that he might be attacked. He doesn’t back away from having since she started the argument that having taken part in the argument – shouting and having raised voices with Ms Schultz. Or that he caused her to – get up and for a second – leave the room quickly and in circumstances where she was quite emotional about what occurred. So that the effect of what he says is not misleading in that regard in my submission.

PN297

It can only be misleading if it can be said false or misleading if it can be said that he – when he talks about the way that he felt about what happened that he was misrepresented in the way he felt. He has explained subsequently in his evidence why he felt that way at the time given that – but nonetheless has got back to the way from the fact – that’s the way he felt at the time. He says now that it’s probably not the right way to feel. He was acting instinctively and not being – and not with reason as you might do in hindsight but generally that’s the way he felt. At the time he was asked to write about the meeting of 18 March and he wrote about what happened and how he felt about what happened.

PN298

At the time when he wrote the statement it wasn’t – it was a request by a manager to write about what happened it wasn’t a formal investigation being sworn at that time and subsequently it was referred to become so. But at the time he was asked by a manager to write about what happened at the meeting and he wrote about what happened in that effect. The next ground of appeal relates to the finding about Ms – about Mr Palmer’s statement in relation to – or Mr Palmer’s criticism I guess or the allegations raised by him in relation to Ms Schultz treating of Ms Windsor which I alluded to much earlier on.

PN299

Now at paragraph – the Commissioner in his decision deals with this issue from paragraph 61 and sets out, which is at page 12 of the respondent’s appeal book. At paragraph 64, quoting Mr Grills and properly sets out what the allegations were and I also took you to earlier on when I went specifically to the email where allegations are raised and it is summarised effectively at paragraph 64. That Ms Schultz had shouted at Ms Windsor. That Ms Windsor had been continually harassed by Ms Schultz and that in the third dot point there that:

PN300

Ms Windsor had reported to other managers that similar harassment had been conducted against the applicant in public.

PN301

At paragraph 65 Mr Grills – I’m sorry Commissioner Harrison properly summarises Ms Windsor’s interview with Mr Grills which revealed that
Ms Windsor had felt intimidated by Ms Schultz the first dot point. Secondly although Ms Windsor hadn’t been shouted at by Ms Schultz on two occasions but rather she’d been spoken to in a dismissive sarcastic way that was hurtful and inappropriate. The third dot point that Ms Schultz had flown off the handle at
Ms Windsor on one occasion. Additionally at on the following page of the first dot point Ms Windsor had mentioned to a supervisor that Ms Ward, that Ms Schultz had cut short the applicant, being Mr Palmer, at meetings a few times in a way that Ms Windsor felt was rude and demeaning.

PN302

Paragraph 66 of the Commissioner’s decision he notes that Ms Windsor handed Mr Grills a copy of an email that Ms Windsor had sent to Ms Boyle at the time that was her manager, so Ms Windsor sent to her manager an email that was an issue with Ms Schultz and she gave that to Mr Grills. The email records that Ms Windsor felt that Ms Schultz didn’t fit directly in the team. On two occasions the way Ms Schultz had spoken to her made her cry. Ms Windsor dreaded coming to work to the point of physical illness. The context of the email also demonstrates that it was most difficult to deal with Ms Schultz that led her to – to ask her to move back to her position, which is to leave the area that Ms Schultz was working in.

PN303

Paragraph 67 and 68 of the Commissioner’s decision refer to evidence of given by Ms Schultz in examination-in-chief and cross-examination and in my submission those that evidence is said that it is relied upon was irrelevant consideration. The question that the Commission has to address here is whether or not when Mr Palmer raised the allegations that are recorded at paragraph 64 whether when he did that, he did so – he made false and misleading statements. Now to be false and misleading in a context of a disciplinary hearing like this, it’s got to be – they have got to be false or misleading – the representation or the allegations raised by Mr Palmer had to been made knowing the false and misleading statements had to be made.

PN304

So they had to be – it’s not whether or not the statements are false in the sense they don’t accord with what actually happened because in that they don’t accord what Mr Palmer understood generally to have happened. It is not constituting misconduct and similarly in relation to the allegation that they were misleading. Now Mr Palmer gave evidence that he spoke to Ms Windsor and that his – the allegations that he raised against Ms Schultz arose in part from what she told him when she spoke to him. At paragraph 1482 of his evidence he said that
Ms Windsor told him.

PN305

VICE PRESIDENT LAWLER: I take it his case was that he was raising this as it were as corroborative evidence?

PN306

MR RICH: Yes, he said that it indicated essentially a – well it - - -

PN307

VICE PRESIDENT LAWLER: A disposition on the part of – to behave in this fashion.

PN308

MR RICH: A disposition that’s right. It made his account - he said there was a question about the voracity to be more likely to be correct than otherwise. That’s the way it was put – and I might say I mean – that’s the way it was put eventually. But initially it was not raised as I understand it as part of the investigation, although there was some questions about that, that probably aren’t relevant in any event that’s the way the submission was put on that it was relevant to the disposition. At paragraph 1482, which I won’t take you to I just record effectively what it says.

PN309

Mr Palmer said that Ms Windsor told him quite clearly that she’d been spoken to in quite a raised voice. He said that what she told him was to be interpreted by him to indicate shouting. That’s at paragraph 1560, 1572 and 1573. He also says – and I’ve recorded these paragraph numbers in the submissions at paragraph 17. He also says at paragraph 1459 that his allegation that Ms Schultz had harassed Ms Windsor was based in part on the discussions with Ms Windsor. So he gives evidence about the discussions and the fact that allegations raised were based in part on his discussions with Ms Windsor.

PN310

Now Ms Windsor’s evidence she didn’t give evidence in the proceedings before Commissioner Harrison. But her interview with Mr Grills went into evidence. In that interview Mr Grills asked Ms Windsor about her discussions with Mr Palmer and that exhibit H37 which starts at page 714, on the second page of that document, 715, the third paragraph on the top starting with the words, when asked what she had told Mr Palmer. Ms Windsor responded she:

PN311

Had not told him anything and that when he approached her about being interviewed he seemed to know all about it.

PN312

She said she did not know how he knew before he asked her to help and that after he did ask. He did not check any of the details of what he had heard with her.
Ms Windsor did explain however and I like this sentence in particular,
Ms Windsor did explain however after he asked, she had spoken to him about her experiences. So she accepts that she spoke to him as well, about her experiences. But there’s no evidence apart from Mr – before Commissioner Harrison – apart from Mr Palmer’s evidence about the content of her discussions or about the basis upon which he made the allegations against Ms Schultz.

PN313

Now there was no account taken it appears on Commissioner Harrison’s on the reading of his decision, no account taken of the fact that the only evidence about the discussion with Ms Windsor was with his own evidence. There is no mention of the importance of the discussions with Ms Windsor in the context of the questions he has to answer. In my submission the Commissioner fell into error to the extent that he took into account the evidence of Ms Schultz. Because in my submission what that indicates is that he is comparing Mr Palmer’s allegation not with Mr Palmer’s appreciation of the facts with the actual facts, which may well have turned out to be different.

PN314

It seems that Ms – he got the impression from Ms Windsor, that Ms Windsor had shouted – sorry that Ms Schultz had shouted at her whereas in the interview
Ms Windsor said no she didn’t there was not shouting, I just felt intimidated or whatever the words were that I extracted earlier.

PN315

VICE PRESIDENT LAWLER: So you say the error is - - -

PN316

MR RICH: He’d taken the wrong approach to the question of whether or not in the circumstances Mr Palmer has made false and misleading statements, because it appears to have taken into account the evidence of Ms Schultz and it appears to have compared what Mr Palmer said to – what Ms Schultz said occurred the actual facts of what seemed to have occurred if you like, as opposed to comparing what he said to the appreciation of what had occurred from being with Ms Windsor immediately before he made the allegations.

PN317

VICE PRESIDENT LAWLER: So on your analysis Mr Palmer would have been making false statements if he had misreported what Ms Windsor had said to him?

PN318

MR RICH: Yes.

PN319

VICE PRESIDENT LAWLER: That wasn’t the focus of the Commissioner’s inquiry rather the focus of the Commissioner’s inquiry was whether or not there was inconsistency between what Mr Palmer said and what Ms Schultz said in
relation to Ms Windsor. Then having preferred Ms Schultz evidence he makes that error so you say?

PN320

MR RICH: Well he compares – what Ms Windsor said to Mr Grills appears to be different to what Ms Windsor, on Mr Palmer’s evidence said to him. So it compares what – the Commissioner compares what Ms Schultz said before him and before Mr Grills and what Ms Windsor said to him to Mr Grills to what on the other hand Mr Palmer says. In my submission he has ignored the importance of what Mr Palmer understood when he made the allegation which is based upon what Ms Windsor said to him. There is no inquiry about what Ms Windsor said to him. So it’s not so much about what Ms Windsor says now or about what Ms Schultz says now.

PN321

It’s about what Ms Windsor said to Mr Palmer prior to him making the allegation, or raising the issue at all. He is called into error by – and perhaps there wasn’t – there was not much evidence about it, there was only Mr Palmer’s evidence. It was always open to – Ms Windsor remains employed by Austrac, as far as I’m aware, and it was always open to Austrac to call Ms Windsor and they didn’t do so. The evidence that went into that matter was Mr Palmer’s and it wasn’t open to the Commissioner to ignore the evidence how important it was and to fail to deal with it or even to raise. It seems he certainly took a different approach, which was the wrong approach.

PN322

DEPUTY PRESIDENT MCCARTHY: Was there any cross-examination on whether Mr Palmer was misrepresenting what Ms Windsor said to him?

PN323

MR RICH: My friend has assisted me and said there was at 1336.

PN324

COMMISSIONER REDMOND: What number did you say?

PN325

MR HEARD: 1336 it commenced Commissioner.

PN326

VICE PRESIDENT LAWLER: To 1365.

PN327

MR HEARD: Actually on page 159.

PN328

MR RICH: There was cross-examination about the circumstances in which the allegations were raised and there was an issue about the allegations were raised with Mr Palmer, rather than Ms Boyle or Mr Grills or anything like that the cross-examination the effect of the evidence as I recall reading it was that Mr Palmer said that he raised it with Ms Power he as the supervisor outside the investigation because there was an issue about Austrac and the way that – Austrac’s treatment of Ms Windsor and about the way they’d also treated him. He was making – there is some cross-examination about that.

PN329

VICE PRESIDENT LAWLER: Mr Rich how long are you likely to be before you finish your oral argument?

PN330

MR RICH: I’ve gone through the substance of the lengthy period of the submission I don’t have much more to say about Ms Windsor and the issue of valid reason for the – the period as I say from the periods that I say occurred in relation to the findings of fact about false and misleading statements. I have to deal with the reinstatement issue and that involves analysing a small portion of the decision. Then we have to deal with the respondent’s case, I can deal with that in response to - - -

PN331

VICE PRESIDENT LAWLER: Mr Heard and Mr Rich, do you have time tomorrow afternoon if we don’t finish today?

PN332

MR RICH: At the moment I do but – what the difficulty is that I have a flown down to Sydney and I’ve got a flight back and I don’t know how movable that is and I’m not sure.

PN333

VICE PRESIDENT LAWLER: Right, well then we’ll sit on – what time is your flight?

PN334

MR RICH: It is not until quarter past seven.

PN335

VICE PRESIDENT LAWLER: Fine we’ll sit on past 4 o’clock, but Mr Heard has to be given a reasonable opportunity to - - -

PN336

MR RICH: I might try and respond to Mr Heard’s submission by relying substantially on my written submissions, which do deal with it in quite some detail and I’ll pick up some points perhaps in response orally but I won’t really won’t address until Mr Heard’s made his submission.

PN337

VICE PRESIDENT LAWLER: We will adjourn now until 2 o’clock.

<LUNCHEON ADJOURNMENT [12.50PM]
<RESUMED [2.06PM]

PN338

VICE PRESIDENT LAWLER: Mr Rich?

PN339

MR RICH: Thank you. Immediately prior to the break I was asked a question by the Deputy President McCarthy about some cross-examination when Mr Palmer was cross-examined about Ms Windsor and what Ms Windsor said to him. My friend Mr Heard pointed us to some parts of the transcript at around PN1360 or thereabouts. The cross-examination does commence around there and there is some cross-examination of Mr Palmer and it proceeds along the lines of – it proceeds this way.

PN340

It cross-examines Mr Palmer about the email to Mr Power that I took you to earlier where he sets out seven points making some allegations about Ms Windsor being shouted at on two occasions about Ms Windsor being harassed and so on, and it seeks to try and compare that statement with an email that Mr Palmer sent to Ms Windsor which was then forwarded on to Mr Grills. That email I might take you to, that email is exhibit H39, which is page 272 – sorry page 723. Page 723 is the email forwarding the initial email to Mr Grills, the following page 724 sets out the email that Mr Palmer initially sent to Ms Windsor.

PN341

The evidence that Mr Palmer gave to the Commission in that part of the transcript that Mr Heard referred to makes the distinction between him sending the initial email to Mr Power as a matter of complaint against Austrac outside of the investigation process and the sending of this email which was sent after it had become clear to him that the allegations that he’d raised against Ms Schultz would be included in the investigation and they are slightly different in their focus in that regard. It is part of the evidence that Mr Palmer gives. What this email demonstrates in part there are five points that he has declared in his email summarising what he understands those aspects of what she’s told him that he understands to be relevant to Mr Grills investigation, at that point at least.

PN342

You will see at point 5 there, is that Louise had shouted at her on at least two occasions and had caused severe emotional stress. That was forwarded on to
Mr Grills as I indicated and that was taken into account by him and that’s the cross-examination that Mr Heard referred to. The only times the cross-examination touches on the discussion, or the source of the allegations that Mr Palmer made in the email to Ms Power or the source of what’s in this email here to Ms Windsor, the only times that the cross-examination touched upon that Mr Palmer makes it clear that he got his information from Ms Windsor.

PN343

I don’t want to take you through all of those paragraph references, but I might just list them for you and in due course, if you choose to look at them you will be satisfied that what they demonstrate there was a significant amount of evidence and cross-examination from Mr Palmer that the information he got that grounded the allegations he made against Ms Schultz came from the discussions he had with her. Those references are paragraphs 1445 and 6, paragraph - - -

PN344

VICE PRESIDENT LAWLER: Start that again.

PN345

MR RICH: Paragraph 1445 and 1446, paragraph 1459, paragraph 1469, paragraph 1482, paragraph 1495, paragraph 1566, paragraph 1572 and I think one or two paragraphs following that. Paragraph 1589 and 1591. Now those paragraphs when you look at the paragraphs in which Mr Palmer says when he was asked well have you – who do you – where you have evidence – where is your evidence for this allegation you’ve made, he says well Ms Windsor told him. There is no evidence to contradict him. What’s more I might say that this email which was initially sent confidentially is between him and Ms Windsor to sort of summarize some of the aspects of what she’s told him that he deems to be significant also indicate quite clearly that she’d told him that she’d been shouted at on two occasions and made to cry.

PN346

So to the extent that sort of suggests more strongly that what is the secondary source, if you like, the documentary evidence demonstrates the discussion that he had with Ms Palmer including her telling him – sorry Ms Windsor, including her telling him that she’d been shouted on two occasions. In any event the effect of all of that is that it leads to at least, is my submission at least in relation to the findings that the Commissioner made that Mr Palmer had made false and misleading statements when he raised the allegations against Ms Schultz. There’s simply no evidence on which such a finding can be made, because the finding depends to – sorry because the finding depends upon the evidence Mr Palmer gave about what he understood when he made the statements.

PN347

The Commissioner’s approach to the evidence is the wrong approach in the sense that he didn’t take any of that evidence into account and a wrong approach in the sense for that reason because he took the wrong approach. There was no evidence to support his finding if he’d take the correct approach.

PN348

VICE PRESIDENT LAWLER: Why was it Ms Schultz’ statement was sufficient evidence?

PN349

MR RICH: Ms Schultz statement about?

PN350

VICE PRESIDENT LAWLER: Ms Schultz position.

PN351

MR RICH: Because Ms Schultz couldn’t give evidence about what Ms Windsor told to Mr Palmer which is the key point. In any event on my submission as I
said - - -

PN352

VICE PRESIDENT LAWLER: Mr Rich there’s reference to Mr Palmer withdrawing allegations the day before the hearing before the Commissioner. What are the allegations that that relates to?

PN353

MR RICH: There were – the allegations which were said to be withdrawn were withdrawn in Mr Palmer’s statement which was filed only shortly before the hearing and his statement commences at page 481 of the respondent’s – the allegations that were withdrawn, were withdrawn – earlier in the decision I pointed to the allegations that were taken into account by the investigating officer Mr Grills in addition to the initial allegations being the allegations about Ms Schultz behaviour towards Ms Windsor. There are also allegations that were made out about the same time of Mr Palmer, about some behaviour by Mr Byrne and they were also taken into account initially by Mr Grills.

PN354

Those allegations related to Mr Byrne’s conduct when he was working overseas in Miamar as well as to – it’s a paragraph 53 one of the allegations was that
Mr Byrne with a problem of consumption of alcohol. At paragraph 53 Mr Palmer says that that allegation was one that he regretted. It was wrong for him to make the allegation and not relevant to the investigation. He unreservedly withdrew it and apologised to Mr Byrne for making it. I’m just checking the allegations – there’s a lot of material here to be covered. There was another allegation – I’m instructed that the allegation that was withdrawn was the one that I’ve pointed to at paragraph 53 and that the other aspects of Mr – were allegations against aside from that withdrawal of that particular allegation.

PN355

There was also contained in Mr Palmer’s statement as I’ve already indicated recognition that he on reflecting back on the incident of 18 March realises that he couldn’t know with any certainty whether Ms Schultz would have attempted to strike him and his reactions and thoughts were instinctive and not rational and calm as in normal circumstances and that appears in paragraph 45 and his regrets at paragraph 46 about that and also appear there. The allegation to respond directly to your question was just that at paragraph 53 which was withdrawn.

PN356

VICE PRESIDENT LAWLER: Thank you.

PN357

MR RICH: So it is submitted that it was wrong for the Commissioner at paragraphs 65 and – I’m sorry at paragraphs 72 and 73 of his decision to find that the applicant made misleading and false statements in respect of the allegations against Ms Schultz, and took a wrong approach which denial to make that conclusion. In any event the evidence of Ms Windsor demonstrates because you see there was some difference between what Mr Palmer and Ms Windsor told him. Namely that she’d been shouted at as opposed to what Ms Windsor told Mr Grills. Mr Grills had been told by Ms Windsor that she hadn’t been shouted at.

PN358

VICE PRESIDENT LAWLER: You talk about Ms Schultz flying off the handle later.

PN359

MR RICH: That’s right flying off the handle, and which is all expected in the Commissioner’s decision and my submission is that even if you take Ms Windsor’s version as being what she told – Ms Windsor’s version to Mr Grills as being what she told Mr Palmer, even on that account there’s no basis for him to find that Mr Palmer has made false and misleading statements. The evidence that Ms Windsor gives clearly in my submission demonstrates harassment, and it demonstrates that she felt intimidated. Ms Schultz flew off the handle, she felt she wasn’t being treated equally, she was made to cry on two occasions she dreaded coming to work and reported feeling physically ill.

PN360

In my submission there is simply no basis for which could be said that doesn’t constitute harassment. In terms of a finding that to say it was harassment was false and misleading anyway. Those are my submissions about that. The next part of it the Commissioner’s decision that is challenged is his conclusion that there was a valid reason for termination which is found at paragraph 103. In my submission the Commissioner relied at paragraph 103 of his decision says:

PN361

In the circumstances I’m satisfied the applicant made false and misleading statements that led to breaches of section 13(3) and 13(9) of the APS code of conduct and that a valid reason existed for termination.

PN362

In my submission as I’ve already indicated the Commissioner was incorrect in finding that false and misleading statements were made in those circumstances and his conclusion that there was a valid reason is also incorrect. It is supported by the evidence. The next point of the appeal is the finding of the Commissioner that the employment relationship had broken down and that reinstatement was an inappropriate remedy. The Commissioner’s reasons in relation to remedy are set out substantially at paragraphs 123 through to 128 of his decision. At paragraph 123 the Commissioner extracts the relevant section and 124 further 31 section of the Act.

PN363

Notes that the primary remedy is reinstatement at paragraph 125 and then summarises the applicant’s submissions very briefly. At paragraph 127 he sets out in my submission his reasons for concluding ultimately that the employment relationship had broken down and that reinstatement would be inappropriate. He summarises the respondent’s submission that might – but in my submission he accepts them and relies upon those submissions for his conclusion in the following paragraph. The reasons that he sets out are threefold and I’m going to deal with them each separately. The first is that Austrac submitted that it could not rely upon Mr Palmer as a truthful and responsible employee and strongly opposed the remedy of reinstatement.

PN364

These were submissions made in writing in part of it in the respondent’s submission to the Commission rather than any evidence given by any particular person who appeared before the Commission to give evidence. The Commissioner erred in my submission in relying upon those submissions because those submissions by the respondent which appear at paragraph 51 of their – I want to make sure I get this right – they appear to be at here they are – the respondent’s submission in reply they are behind tab 16 in the appellant’s materials. I’m not sure where they appeal in the respondent’s appeal book.

PN365

These are the submissions I understand they don’t appear in the respondent’s appeal book, so the best reference is tab 16 which appears in my appeal book 2, but mainly – at paragraph 51 the submission is put, his approach to this matter demonstrates such a lack of insight, such a lack of reason, such a high degree of inflexibility and such a lack of real honest, the respondent feels it could not have him back. The reasons are both in order to protect other staff from Mr Palmer’s baseless and unreasonable attacks and to prevent his further disruption to the workplace. The respondent cannot rely upon an untruthful and irresponsible employee.

PN366

The reasons why they didn’t want him back in that paragraph is said primarily to be to protect other staff from Mr Palmer’s baseless and unreasonable attacks and to prevent further disruption in the workplace, because they say they cannot rely on him to be responsible or truthful. Now there was no evidence on my submission that to suggest that Mr Palmer may make such a claim as he made against Mr Byrne or Ms Schultz against anyone else. Neither was he cross-examined in any way essentially making similar claims against anyone else. Mr Palmer apologised to Mr Byrne and withdrew one of those allegations against him that I referred to earlier at paragraph 53 of his statement in which he acknowledged that he had been experiencing enormous personal difficulties at the time and reacted negatively and offensively which he regretted.

PN367

I might take you back to his statement to just point to some other things that he said in that statement which is at page 661 of the respondent’s materials. At 547 his statement filed in the proceedings, 547 I took you to paragraph 53 of that statement earlier just after lunch. He also sets out beginning on page 9 of his statement – sorry 481 is the beginning of his statement. I’ve already taken you to paragraph 53 where he withdrew one of the allegations against Mr Byrne and I’ve also taken you to some explanations he gave and his recollection – the explanations for the way he felt at the time of the meeting on 18 March. Commencing on page 9 of his statement at paragraph 49, he also sets out some significant personal issues that arose for him during this period, which you would think would be exceptional in one’s life at least.

PN368

He says in 2004 2005, he endured a series of personal events which apparently impacted upon him and destabilised his personal life. His relationship with his de facto partner ended when she moved in with a longstanding friend of his. Though the separation occurred in 2004, he was still dealing with the de facto property issues in the following year. His elderly mother was removed by his niece from his mother’s and his joint family home, which resulted in a serious family rift. His mother was moved from Brisbane to Victoria in 204 and he was still dealing with that issue in late 2004. He was also suffering at paragraph 52 he says from acute back pain he says from the effects of influenza and those matters led to – were going on at the time that these allegations – was going on at the time that he was responding to the allegations being made by Austrac.

PN369

Now so not only is there no evidence in my submission that he is likely to go on and make baseless allegations against anyone else, there are good grounds to suggest that what was going on in his life at the time was an exception – there were exceptional circumstances at the time and there was no ground – there is no evidence to underpin to a finding of that effect and it was wrong for the Commissioner to rely upon that submission in the absence of any evidence to support it. That’s one of the reasons why reinstatement shouldn’t - why an order for reinstatement shouldn’t be made. There was also no evidence that his return to work would disrupt the workplace.

PN370

In fact to the contrary some only Ms Schultz and Mr Kooner gave evidence on a matter even indirectly, the effect of Ms Schultz evidence was that she continued to work with Mr Palmer after the allegations that he made were made, and that they continued to work without there being any problems, and without any complaints being made by her during that period. She was prepared to try to maintain a professional working relationship with Mr Palmer. I refer there to paragraphs 4223, 4224, and 4244 of the evidence. Mr Kooner’s evidence was that he could renew a working relationship with Mr Palmer and that evidence is at PN4594.

PN371

So for those reasons I submit the Commissioner’s reliance upon the submissions made by the respondent in that regard was wrong and not open to him. The second ground relied upon by the Commissioner at paragraph 127 is that Ms Boyle asserted in evidence that Mr Palmer’s position had been filled. Now at Smith and Kimble v Moore Paragon Australia, a decision of that went to this Commission at print 942856. Clearly – it makes it clear that the unavailability of a job vacancy does not provide a basis for refusing to award a reinstatement in that submission.

PN372

VICE PRESIDENT LAWLER: Necessarily.

PN373

MR RICH: Necessarily, that’s correct and in the circumstances - - -

PN374

VICE PRESIDENT LAWLER: That’s only following the Full Federal Court, not the Industrial Relations Court of Australia I think on that point.

PN375

MR RICH: That’s right.

PN376

VICE PRESIDENT LAWLER: But it’s still a factor, isn’t it?

PN377

MR RICH: It’s still a factor no doubt. I’ll take your Honours to the evidence shortly and this arises from - after I’ve gone to the next point. Because the evidence that underpins these claims is so flimsy and unsupported, so lacking in prohibitive value that it was dangerous or wrong for the Commission to rely upon it in any event, it was simply a bald assertion without anything else to back it up by one witness late in the piece. It has to be considered in that light, the weight, although it can be a factor, was not necessarily a factor in this case and shouldn’t have been a factor, given the way the evidence was given, given the evidence that underpinned that assertion. I will take the Commission to that briefly in a moment.

PN378

The third point relied upon was Ms Boyle’s assertion in evidence that
Mr Palmer’s reinstatement would cause the international team significant stress and people looking for jobs elsewhere. Again her evidence in this regard was highly speculative, this is Ms Boyle’s evidence. It contradicted evidence that I’ve already referred to that Mr Palmer continued to work in the international team following the commencement of the code of conduct investigation and that Ms Schultz resumed to work with him without complaint, and certainly neither Ms Schultz or Mr Byrne left as a result. There was no evidence led of any other person leaving during that period, or would leave should Mr Palmer be reinstated.

PN379

Again of those persons involved in the matters that led to Mr Palmer’s termination the evidence was that that Mr Byrne was leaving Austrac at the time of these proceedings and moving to a different organization and going overseas. Ms Boyle was leaving Sydney, in my submission I said that Ms Boyle left the organization, I understand that she remained in the organization but had moved to Paris to do a different function. She is no longer working in the workplace any longer or she wouldn’t be working with Mr Palmer were he to be reinstated.

PN380

Again there has been no – and I will take you to the evidence there’s been nothing to back this allegation up, there’s no evidence to support it in any way. The evidence of Ms Byrne which is the only evidence given about this – about the appropriateness of reinstatement is at paragraph 3409, which is at page 343 of the respondent’s materials. Ms Boyle says – is asked a question by Mr Heard, what do you think the impact would be? She says:

PN381

I think the impact would be disastrous across Austrac it would send a message that potential breaches of code of conduct. It is certainly that disturbing behaviour should not be dealt with.

PN382

Then she says:

PN383

In the international team the position he did occupy has since been filled under tight funding, we don’t have the money to establish another position along those lines.

PN384

Then she says:

PN385

Her relationship with all 10 of the countries under that program is very effective and stable and the nature of our work relationships are very important and I believe the level of stress it would cause the international team would result in at least significant stress leave and people looking for jobs elsewhere.

PN386

Then she says – the question is put that Mr Palmer had made a number of allegations against the international team, and she says yes, without naming who they might be or what’s being referred to there.

PN387

Did the fact of the making of those allegations have anything to do with the opinion you just expressed?---Yes, they are part of it I’m sure people haven’t forgotten allegations that have been made about them.

PN388

Now then there’s a further statement below which is the end of it:

PN389

Would it be feasible to put Mr Palmer into a position in Indonesia?---I don’t believe it would be at this stage, we need a mentor working with Indonesia led by you very effectively at present it would undermine his credibility and our program of credibility and pull him from the program to put Norm Palmer in that role. I just make the point with respect to Norm Palmer’s privacy and the need to be silent about the content of the potential breach of code of conduct in the inquiry. I still imagine that PPATK is well aware that they – of what occurred and so reinstatement of Norm Palmer to that role working with them would damage the program.

PN390

There’s a lot of pure speculation involved in what is being put there. As I said there was no evidence led about any of this, about anything to support any of the allegations that are made here. This is the entirety of the evidence that relates to reinstatement or the inappropriateness of it. There was nothing else.

PN391

VICE PRESIDENT LAWLER: The Commissioner says he will give no weight to part of the answer.

PN392

MR RICH: I think he is referring to the last part of the answer where she speculates about what PPATK is aware of, which is the last part of paragraph 3142.

PN393

VICE PRESIDENT LAWLER: Mr Chin didn’t raise this in cross-examination or seek to address it in cross-examination this was evidence-in-chief?

PN394

MR RICH: That’s right there was no cross-examination on that.

PN395

VICE PRESIDENT LAWLER: Why wasn’t it correct for the Commission to act upon that evidence if it wasn’t challenged in cross-examination?

PN396

MR RICH: The Commissioner can certainly accept the evidence that’s been given but in circumstances where the Commissioner decides how much weight to give it, even the way that it’s been given, and given whatever evidence there is to be led to support it. Ultimately, the question about whether or not – the question about whether it is inappropriate to reinstate requires – given that the primary remedy is reinstatement requires some evidence that of some weight rather than simply speculation. It was the Commissioner is not obliged to accept - - -

PN397

VICE PRESIDENT LAWLER: I would have thought the better argument is that the rationale is just wrong if you are correct.

PN398

MR RICH: That’s right, there are also some inconsistencies within the evidence that’s been given. For example on the first hand she says that it would cost Austrac to send a message that potential breaches of conduct et cetera should not be dealt, this is at paragraph 3409 and then at paragraph 3412 she also says that they respected Norm Palmer’s privacy and the need to be silent about the content of potential breach of the code of conduct inquiry suggesting that nobody outside of those involved would be likely to know about it. Indicating that it is unlikely to be any potential message sent to anybody. In any event, the potential message wouldn’t be one that disturbing behaviour shouldn’t be dealt with but the certain behaviour should be dealt with in accordance with the principles that – well should be dealt with feeling I guess ultimately in accordance with the principles in the decision.

PN399

Furthermore the evidence about stress being caused in the international team just doesn’t add up to anything. There is nothing – the particular evidence of Mr Kooner and Ms Schultz about their willingness to work with Mr Palmer there’s just no evidence to suggest that – there’s nothing to back that statement up, it’s just speculation. The other issue is that in the Commissioner’s decision is that he takes no account of the wide experience of Mr Palmer, both prior to his employment in Austrac and during his employment in Austrac in terms of his ability to be – if he decides to place weight for example upon Ms Boyle’s evidence about the inability of putting – the inability of putting Mr Palmer back into Indonesia. He doesn’t take into account any of the evidence about Mr Palmer’s experience in a variety of roles within Austrac. In particular - just bear with me for one moment - in particular from paragraph - I say in this case - paragraph 3422. I’m sorry, not 22 - 3432, I’m sorry, which is on page 335 of the respondent’s appeal book - recognises, from paragraph 3432:

PN400

Mr Palmer is a highly experienced officer who recognises that -

PN401

she’s calls him a highly experienced operative based upon his time with Austrac and also through the - with Australian Customs that he was employed with Customs as, at paragraph 3436, a training officer, a commercial auditor, a commercial intelligence officer and that he commenced with Austrac in September 1999.

PN402

At 3440 he occupied the role of liaison officer in Brisbane liaising with state and federal law enforcement agencies in relation to Austrac’s work. Then he worked in Indonesia. At paragraph 3446 it notes that he was a mentor of the South-East Asian group of countries in which Austrac is involved. Subsequently at 3450 that he was performing the role of technical adviser on behalf of Austrac in Jakarta, in addition to that previous role as a mentor.

PN403

So Mr Palmer was a man of quite some experience and expertise and had worked in different roles through his career both for Customs and for Austrac, and that wasn’t taken into account either in terms of the positions to which - or the appropriateness of the reinstating and whether or not the position he was in before or to another position.

PN404

DEPUTY PRESIDENT MCCARTHY: Mr Rich, in paragraph 128 where Commissioner Campbell then ..... in relation to the previous hearing, he seemed to be saying, well, the only consideration is the evidence or submissions ...... The way I read that paragraph the Commissioner has taken into account all of the evidence and all of the circumstances including the circumstances that led him to find that the conduct of Mr Palmer was misleading and false. I find it hard to - if that is a correct finding, that it was misleading and false, it’s hard to imagine where employment relations wouldn’t have broken down.

PN405

VICE PRESIDENT LAWLER: The flip side of that if you get up on your primary arguments then you necessarily have to - you necessarily undermine the reasoning for the ..... statement.

PN406

MR RICH: Sir, that’s my submission, yes. To an extent that’s why there has been such a lengthy going through of that evidence because my submission is that if those were matters that were taken into account, and I accept that’s one interpretation of the decision, although it’s not what I submit was the approach taken by the Commissioner, but if that approach is one that the Commissioner took then if I’m successful in my primary arguments about his findings about making Mr Palmer making false and misleading statements then, as your Honour Vice President Lawler notes, that certainly undermines the reasoning substantially.

PN407

The Commissioner also accepts that - notes some of mitigating factors that the relevant - that he found to be relevant but they weren’t taken into account by
Mr Grills and those are noted at paragraphs 97, 98 and 99, it is my submission the - it’s not always going to be the case that a finding that an employee has made false statements necessarily means that an employment relationship is broken down. There is authority for the proposition that the fact of an employee having made false statements doesn’t necessarily mean that there is a valid reason for termination. It depends upon the factual matrix that surrounds the circumstances in which those statements might have been made and the Commissioner referred to - concluded that, well, in that final authority when he came to the conclusion that there was a valid reason. But similarly - - -

PN408

DEPUTY PRESIDENT MCCARTHY: It depends whether the statement was deliberate and what the intent of the statement was.

PN409

MR RICH: That’s part of what’s relevant but equally if the mitigating factors are sufficient to - if there were unusual personal circumstances affecting the individual who had had a long and unblemished history, employment history with the organisation, then I can - and his behaviour was explicable by those personal circumstances, then I can understand - I could imagine a situation where an employer might determine that the relationship hadn’t broken down and that they would move on and things were different in the future.

PN410

In any event, my submission about the Commissioner’s reasoning there is that he deals with the appropriate remedy in that section and the considerations that he relies upon are those in paragraph 127, and that’s my final submission on that, and that he was wrong to rely upon those reasons that ..... here. Those are my submissions on the appellant’s appeal. I note the time - - -

PN411

VICE PRESIDENT LAWLER: Perhaps the better course is to let Mr Heard make his submissions now and you deal with them in reply.

PN412

MR RICH: Yes.

PN413

VICE PRESIDENT LAWLER: In writing if necessary.

PN414

MR RICH: Yes. Your Honour, my - I’ll just take five - I’ll just do a very brief - I’ll deal with some of the things that are raised very briefly, then I’ll sit down, as a overview, the reason being that - what the respondent’s - the reason being I think it’s important to put it in some context and I’ll just address that very briefly. The respondent - the respondent’s points of appeal deal principally, as I understand them, with the provisions of procedural fairness. The decision - - -

PN415

VICE PRESIDENT LAWLER: They’re not bad points either.

PN416

MR RICH: The points raised by the respondent?

PN417

VICE PRESIDENT LAWLER: Yes.

PN418

MR RICH: Well, the - - -

PN419

VICE PRESIDENT LAWLER: I mean, the draft report was a draft report, not a final report. Mr Palmer was given an opportunity to respond. That’s according him procedural fairness. The “new” allegations appear in the final - in the draft report. He has an opportunity to respond, he chooses not to respond. It’s an error, so the AGS, Mr Heard says, for the Commissioner to treat what occurs as a denial ..... defence when in fact what occurred was there was an opportunity to respond provided through Mr Grills’ first letter. No doubt Mr Palmer saw it as something of a futility in a practical sense because he had formed the view that Mr Grills was there as an executioner, he wasn’t going to listen but that’s not an assumption that we proceed upon.

PN420

One of the ironies from Mr Heard’s perspective though it would have ...... The Commission, once error is established and leave is granted, conducts a rehearing, we get to determine the matter afresh for ourselves, clearly with the benefit of your arguments on the substantive issues as to whether or not there was no other reason.

PN421

MR RICH: Yes.

PN422

VICE PRESIDENT LAWLER: So Mr Heard could potentially find himself in a situation that his error identified gives rise to a grant of leave but you probably win because you succeed, as far as the merits are concerned, on a rehearing.

PN423

MR RICH: Yes.

PN424

VICE PRESIDENT LAWLER: Mr Rich, it’s five to three.

PN425

MR RICH: Yes. Maybe we should let Mr Heard - - -

PN426

VICE PRESIDENT LAWLER: Yes.

PN427

MR RICH: I’ll sit down and let ..... Mr Heard.

PN428

VICE PRESIDENT LAWLER: It’s just he needs to have a reasonable opportunity and at the moment it’s still looking fairly grim, the prospects of finishing today.

PN429

MR HEARD: Your Honour, to deal with a housekeeping matter first, I have assembled some volumes of the cases that were referred to in my submissions.

PN430

VICE PRESIDENT LAWLER: Thank you. Mr Heard, we might just adjourn for a couple of minutes so the Bench can have a brief discussion about where we’re heading.

PN431

MR HEARD: Yes.

PN432

VICE PRESIDENT LAWLER: Yes, it may be that we don’t need to trouble you about some parts of your submissions.

PN433

MR HEARD: Thank you, your Honour.

PN434

VICE PRESIDENT LAWLER: I have just articulated to Mr Rich why I think there is some substance in what you say about the allegation of procedural unfairness led against your client. For my part, I’d rather hear from Mr Rich than you in relation to that because I understand the way you put the point.

PN435

MR HEARD: Thank you, your Honour.

PN436

VICE PRESIDENT LAWLER: I think that applies in relation to some of the points you make but so far as you’re concerned, I think what you perhaps need to turn your mind to is whether or not Mr Rich isn’t right, at the end of the day, on the substantive merits so that on a rehearing we’re going to need to be persuaded that is in fact a valid reason. I mean, just - this is very much a provisional view - this does sound like nothing more or less than a bit of a shouting match that occurred where differences of opinion and personality issues were arising in the human sense.

PN437

There are subjective factors so far as Mr Palmer’s own personal circumstances are concerned, his illness, his back problems, his problems with his mother and no doubt the residue of the break-up with his former de-facto, and that this would not be a sacking offence but for the allegation of and the finding of false and deceptive conduct in relation to his statements. I have to say, for my part, Mr Rich has made out a reasonably compelling case that’s a bit tough to be characterising Mr Palmer’s statement as false and deceptive in the sense - not of it being incorrect or wrong but of him deliberately setting about to make a statement that was untrue, bearing in mind that that sort of allegation would attract ..... standard, I simply - I’m just trying to remind myself of the relevant statement.

PN438

Dickson J, as he then was, talks about:

PN439

The nature of the issue necessarily affecting the process by which reasonable satisfaction is obtained, such satisfaction “should not be produced by inexact proofs, indefinite tests nor indirect inferences”.

PN440

Justice ..... talks about it being unacceptable to prove the matter by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.

PN441

When so much of what happened on the 18th was a matter of personal perception, the matters that Mr Rich points to as indicative of Mr Palmer having a genuinely mistaken belief about what he was putting seemed to me to carry a bit of weight, so that’s something you might like to think about while we’re adjourned for a moment.

PN442

MR HEARD: Thank you for those indications, your Honour. I believe Mr Rich has a housekeeping matter he’d like to deal with.

PN443

MR RICH: Sorry, I just have one thing. I intended to hand up at some point during my trawling through all that evidence a summary of - with paragraph references of some of that evidence. It may be of assistance to members of the bench in due course.

PN444

VICE PRESIDENT LAWLER: We’ll adjourn for a few minutes.

<SHORT ADJOURNMENT [3.02PM]
<RESUMED [3.09PM]

PN445

VICE PRESIDENT LAWLER: Mr Heard, take your own course, we’d say that, certainly for my part, your submissions are very clear and I can understand the logic in them and it’s really a matter for hearing from Mr Rich but probably other members of the bench may want to hear from you and certainly you should focus on responding to Mr Rich’s submissions in relation to valid reason.

PN446

MR HEARD: Thank you, your Honour. Your Honour, I think it might be useful to start by explaining to the members of the bench the position from which the respondent came to file its cross-appeal. It’s trying to say that any appeal is against the order made, not against the reasons for decision and the order - - -

PN447

VICE PRESIDENT LAWLER: Sorry, the respondent - what are we talking about, Mr Palmer?

PN448

MR HEARD: Sorry, the respondent cross-appellant, the Commonwealth, your Honour.

PN449

VICE PRESIDENT LAWLER: Yes.

PN450

MR HEARD: It’s tried to say that any appeals against the orders made are not against the reasons for decision. The order made in this case was an order that had the effect that Mr Palmer would have been paid compensation but not reinstated. The Commonwealth filed its cross-appeal in response to the filing of an appeal by Mr Palmer. The primary motive in that, in filing of an appeal, must be to address the order made.

PN451

However, the Commonwealth had a very firm view that parts of the reasoning of the Commissioner were erroneous in law and particularly in relation to what the Commissioner had said about - - -

PN452

VICE PRESIDENT LAWLER: And they reflect upon the processes of the agency you represent.

PN453

MR HEARD: And the whole of the Australian Public Service, your Honour. Had those statements remained a decision at first instance by a Commissioner then the Commonwealth would have been in a position to deal with it the next time it arose but should it - they receive the approval of a Full Bench and that makes it into a very different matter. I think I can bluntly say had Mr Palmer not appealed the Commonwealth would not have appealed.

PN454

Your Honour, I think I should make some background explanation, I won’t be too long, by way of law and introduction to this matter and the reasons that we come to where we are. Mr Palmer and all employees of Austrac are employees of the Australian Public Service engaged on behalf of the Commonwealth by their agency head under the Public Service Act 1999. Your Honour and certainly Mr Rich will be aware that the Commonwealth as the Crown has no common law power of employment. It can only employ in the exercise of a statutory power. That’s the reason for the Public Service Act.

PN455

Because it’s a statute, then decisions taken under it have statutory force and there is a level of formality that is necessarily invoked in doing that. However, one of the matters that concerned the Commonwealth was that some of the remarks by Commissioner Harrison seemed to impose a higher standard on the Commonwealth as an employer than might be imposed on somebody other than the Commonwealth as an employer. Your Honours, I understand that the respondent’s submissions in reply to the applicant’s submissions of 29 May 2006 appear at tab 24 of the appellant’s appeal book and regrettably we haven’t filed those but I would ask that your Honours and the Commissioner refer to parts of it.

PN456

It’s a document of some 18 pages and it’s page numbered at the bottom, and commencing two-thirds of the way down page 11 there is the subheading, “Some General Propositions”. What is set out under 43, 44 and 45 is a description of the legislative background for the Public Service Act and references to the explanatory memorandum to that Act. The matters I would like to focus on are the government’s stated intention which appears near the top of page 12 at the end of paragraph 43. It’s in bold:

PN457

The government considers that the APS should operate to the maximum extent consistent with its public responsibilities under the same industrial relations and employment arrangements as apply to the rest of the Australian workforce.

PN458

What we would say is that in fact the standards that should be applied to the public service should be the standards applied to a model employer in the private sector and there should be no greater procedural standard than that imposed by reason of the fact that it has to be under an act.

PN459

The next two paragraphs set out the criticism in the McLeod Report which was the basis for the Public Service Bill 1999 of the previous discipline division of the former Public Service Act 1922 and its overemphasis on complexity, legalism and concepts analogous to the criminal law. I mention those in particular because many of Mr Palmer’s submissions throughout the inquiry and some of them made to the Commission as well did focus on matters of proceduralism and legalism.

PN460

A code of conduct matter in the public service must be determined according to procedures established pursuant to section 15. Those procedures must be in accordance with the Public Service Commissioner’s directions and Austrac’s procedures are set out at exhibit H2, which appears on page 589 to 592 of the appeal book. I don’t intend to take the Commission to that in any detail but I will say that they are fairly simple, straightforward procedures and are a written statement of what an employer should do in dealing with an allegation of breach of the code of conduct.

PN461

VICE PRESIDENT LAWLER: I don’t recollect seeing anywhere where precisely it was said the - or how it was said that Austrac breached the procedures laid down in the code other than to the extent that there is debate about whether or not Mr Grills’ initial report was final or interim.

PN462

MR HEARD: Yes. There was a - part of Mr Palmer’s argument is that he was not given sufficient particulars of the matters alleged against him.

PN463

VICE PRESIDENT LAWLER: That being the so-called additional allegations raised in the draft report?

PN464

MR HEARD: Well, not only that, your Honour, but he’d complained all along, and I was going to take the Commission to that, that he needed to be given very precise details or details to a very great degree of precision as to what the false and misleading statements were that he was alleged to have made in his statement of 24 March, that the basis of that submission was what was set out in these procedures.

PN465

VICE PRESIDENT LAWLER: You can understand him wanting to know what the particulars were.

PN466

MR HEARD: Yes, your Honour.

PN467

VICE PRESIDENT LAWLER: Well, sorry, one can understand wanting to know what the particulars were. It’s what the defence counsel typically ask for in criminal proceedings.

PN468

MR HEARD: Yes, but it’s not a criminal proceeding, your Honour.

PN469

VICE PRESIDENT LAWLER: No.

PN470

MR HEARD: And I’ll get on to that.

PN471

VICE PRESIDENT LAWLER: And they also ask for them in civil proceedings. Requests for particulars are not unknown in the Courts, Mr Heard, you deal with them on a regular basis.

PN472

MR HEARD: Yes. I’ll address that.

PN473

VICE PRESIDENT LAWLER: And then when adequate particulars are not provided the enjoinder is a strike-out application. You don’t have a ..... as well.

PN474

MR HEARD: Well, I have encountered some of those, your Honour. Your Honour, the starting point of a code of conduct matter in the public service is a report to a delegate of the agency head that an APS employee is suspected of breaching the code of conduct. That report is exhibit H50. It appears at pages 780 to 784. It was a memo written by Ms Boyle on 27 March 2005. Not all of it was admitted into evidence.

PN475

The Commission will see that it referred to a number of suspected breaches by Mr Palmer under the code of conduct. Ultimately a decision was made that two only of those would be followed up as formal code of conduct action and, in the event, both of those were referred to Mr Grills and he found that there was insufficient evidence to support one of them, which was an incident that had occurred in November 2004, and as far as these proceedings were concerned that then became a non-issue because there was - nothing relevant arose out of it.

PN476

The extent to which it’s relevant is there were submissions made along the way about where all this came from and there were references in some of the early exhibits to events which had occurred between November 2004 and March 2005. What happened then was that - I’m sorry. The trigger for that event was of course this argument that went on at the meeting on 18 March 2005. I think I should say at this point and perhaps starting off by explaining how I intend to approach the remarks from his Honour. Mr Palmer as an employee with over 40 years service to his country and with an unblemished record. I dare say that it’s not very often that this Commission sees an employee with that sort of record here having been dismissed from his employment. It is traditional for this Commission to extend, and quite rightly so, a great deal of sympathy to persons with a lengthy and distinguished record of service.

PN477

The case which the Commonwealth ran was that despite that length record of service to his country, Mr Palmer’s conduct following the incident on 18 March 2005, was incompatible with the continuation of his employment and that the Commonwealth had no option but to terminate his employment, and again perhaps going a little ahead of myself, Mr Grills had the experience of dealing with Mr Palmer first hand, and Mr Grills came to the view that Mr Palmer’s employment should be terminated.

PN478

Commissioner Harrison had the experience of seeing Mr Palmer cross-examined at great length first hand and also had the experience of seeing all of the other protagonists give evidence and be cross-examined. Commissioner Harrison came to the view that Mr Palmer should not be reinstated. Those were views come to in the full knowledge of Mr Palmer’s record.

PN479

What I would say to the Commission now is that those views obtained by a first hand encounter with Mr Palmer should be given weight and that opinions which may appear from the papers and are necessarily less vivid impressions that may be gained from the transcript should be heavily tempered by understanding the knowledge and experience of the two people who came to the view that Mr Palmer should not be working at Austrac.

PN480

If I could now just briefly run through what happened following this incident on 18 March. What I would say is that the type of behaviour that we were dealing with is a rather civilised version of the well-known fight in the workplace. The basis - - -

PN481

COMMISSIONER REDMOND: I don’t know, have you been in a steelworks?

PN482

MR HEARD: I have but not for many years.

PN483

COMMISSIONER REDMOND: It sounds pretty low key compared with that.

PN484

MR HEARD: In fact, Mr Kooner, who is an IT consultant, Commissioner, gave evidence of the comparative standards of behaviour in the Commonwealth service workplace and standards of behaviour that he’s seen in a dealings room in a bank and his evidence was to the effect that there is no comparison, that the Commonwealth is a very civilised workplace indeed. So when I say it’s in the nature of the fight, it’s a very civilised version of that.

PN485

However, for the purpose of analogy what we have is something akin to a fight in the workplace. The employer comes along and says: all right, who started it? Three fingers are pointed at one person: he started it. That one person says: no, she started it. All right, we’ll get somebody to look into this. The person looks into this and all three of them maintain he started it. The accused person continues to maintain: no, I didn’t. But then he goes on and produces a series of ever-increasingly convoluted explanations. He also turns around and says: well, I may have had a row with her but she’s a bully and an harasser, and I can prove it, and he may be giving evidence against me but he’s a drunk who mucks up overseas and he’s harassing me as well, he’s accused me of being a terrorist. So these are positive allegations made by the accused employee against the people that he sees as his accusers.

PN486

Having spoken of Mr Palmer’s lengthy record, that must also be something that is taken into account in assessing his capacity to know and understand what he’s doing and what proper standards of behaviour are, and what evidence is. He was a man who with Customs with investigations experience - he was with Customs for about 30 years. He’s a man with broad international experience. He was the anti-money laundering and counter-terrorism financing liaison officer in Jakarta. That’s not a small job and it’s a job that requires somebody with a great deal of nous and understanding.

PN487

We have somebody like that who is making these really quite serious allegations, serious in terms of public service norms of behaviour, against two of his colleagues. So that’s b- - -

PN488

VICE PRESIDENT LAWLER: What role do they play though in the function the Commission had to discharge and that we have to discharge is leave is allowed?

PN489

MR HEARD: What role do which play?

PN490

VICE PRESIDENT LAWLER: Those allegations made against Mr Byrne and Ms Schultz, ..... allegation.

PN491

MR HEARD: We would say that the great - they would play two roles: firstly, the way Mr Palmer dealt with them in cross-examination indicated that he was a person who was not telling the truth about them. We would say that’s the conclusion that Commissioner Harrison came to about Mr Palmer’s presentation in evidence.

PN492

VICE PRESIDENT LAWLER: So you would say that it would be necessary for us, if we were minded to grant leave and even entertain taking a different view on the valid reason to read very carefully the cross-examination of Mr Palmer, but specifically in relation to the way he dealt with those particular allegations?

PN493

MR HEARD: Yes. That’s one of the reasons. And the second is that it flows on from there as to the reasonableness of Ms Boyle’s view which I think must also have been Mr Grills’ view and ultimate the Commissioner’s view as to whether or not Mr Palmer could realistically be put back into a public service workplace, given the way that he conducted himself in relation to those allegations.

PN494

But to go through a few of the more important factual events, it’s already been explained that once Ms Boyle’s report was received a decision was taken to follow up on two of them and we’re only concerned with the one about 18 March 2005 meeting. Mr Grills was engaged. Mr Grills is an outside consultant and he gave evidence about his experience in conducting - - -

PN495

COMMISSIONER REDMOND: Is that normal for the division to outsource its investigations into the conduct of its employees?

PN496

MR HEARD: It’s normal for the smaller agencies to do so, Commissioner. It’s rare for the smaller agencies to have code of conduct matters and it’s only the much larger agencies that have any regular experience in dealing with them.

PN497

COMMISSIONER REDMOND: Thank you.

PN498

MR HEARD: I’m happy to say that by and large public servants are a very well-behaved group.

PN499

COMMISSIONER REDMOND: Are they?

PN500

MR HEARD: When they break out they do make up for it though. Another reason of course in the small agency is that everybody knows everybody and it’s much easier to ensure the appearance of independence if an outsider is engaged. Perhaps just as a quick aside I should say at this point I addressed in my submissions that I sent in my email this morning, which I hope have become available.

PN501

VICE PRESIDENT LAWLER: Yes.

PN502

MR HEARD: Of the steps required in a code of conduct matter, the first is a determination of whether or not the code of conduct is breached. That is a matter of authorisation under the Act, not delegation and, as a result, it can be authorised to an outsider, in other words to a person not a member of the public service. The imposition of a sanction is a matter for delegation, formal delegation, and it can only be delegated according to the requirements of section 78(8) of the Public Service Act and that effectively means it can only be exercised by a member of the Australian Public Service, unless the public service Commissioner approves otherwise in writing in advance. That addresses part of the submissions that were made about the decision making requirements.

PN503

Continuing on, the decision was taken to proceed under the code of conduct. Mr Palmer’s response to that on 11 April 2005 was to send a long email which is both exhibit H9 and exhibit H20 - the long email appears in both exhibits. H20 is at page 664 and H9 is at 622. To Mr Power. I don’t think it’s in dispute - - -

PN504

VICE PRESIDENT LAWLER: The long email? This is 623 in fact.

PN505

MR HEARD: I’m sorry, 623.

PN506

VICE PRESIDENT LAWLER: Of your appeal book?

PN507

MR HEARD: I’m sorry, I didn’t understand your Honour’s reference to 623.

PN508

VICE PRESIDENT LAWLER: In my appeal book on page 623 the email from Mr Palmer to Mr Power - - -

PN509

MR HEARD: Yes, that’s correct, your Honour.

PN510

VICE PRESIDENT LAWLER: - - - of 11 April is on that page.

PN511

MR HEARD: Yes. That email was sent on 11 April and then it’s disclosed on H20 at 664 - I’m sorry, I started to say, I don’t think it’s in dispute that the agency head of Austrac under the Public Service Act at that time was Mr Neil Jensen and the deputy director was Mr Rick Power, and they were the two most senior officers in Austrac. Mr Power communicated to Mr Massettelli by email which appears on page 664, and I don’t think it’s in dispute that Mr Massettelli is the head of HR at Austrac. Mr Massettelli communicated that to Mr Grills, also on 664.

PN512

You will see that in Mr Power’s email to Mr Massettelli it referred to a communication between Mr Power and Mr Palmer and there are three points, the third one of which is “a number of issues raised” - I think that’s a typographical error:

PN513

- in this email relate to matters under inquiry and I think it best to refer this document to Mr Grills.

PN514

That document set out the allegations that Mr Palmer wanted included in the inquiry. We would say that there were four allegations, two of which were dealt with together and they appear in annexures 1 - or the results of those appeared in annexures 1 and 2 of Mr Grills report, which is H3 on page 595 and those - excuse me, I’ll just get the page reference to annexures 1 and 2 - commencing at 605.

PN515

There were allegations against Mr Byrne that Mr Byrne had harassed Mr Palmer by accusing him of being a terrorist. The basis of that allegation was that in a discussion that the two of them had about a management issue Mr Byrne had made a remark to the effect that Mr Palmer had been lobbing grenades from the sidelines. The basis for the allegation that Mr Palmer was - sorry, Mr Byrne was an alcoholic was based on, as it turned out one occasion on which Mr Palmer had smelt alcohol on Mr Byrne’s breath in the office and the allegation that Mr Byrne had misconducted himself overseas in Myanmar was based on an email that Mr Byrne had sent back to the team. The allegations against Ms Schultz were on page 3 of that email and they were based on - refer to the conversation that
Mr Palmer was alleged to have had with Ms Schultz.

PN516

What happened then was that Mr Grills communicated with Mr Palmer and Mr Palmer made a series of written submissions to Mr Grills concerning firstly the meeting on 18 March. Those submissions appear between H21 and H30. It is in those submissions that we see Mr Palmer engaging in the line by line and even phrase by phrase analysis of the statements that had been prepared at Ms Boyle’s request following her becoming aware of the argument at the meeting. Perhaps the one that best shows, or the ones that best show the level of detail to which Mr Palmer took the debate can be seen in H20 on page 683, H24 on page 670 to 674.

PN517

VICE PRESIDENT LAWLER: Sorry, which one are we looking at, which page?

PN518

MR HEARD: Pages 670 to 674 and also 683 to 685, I think are the two clearest examples of a very minute analysis. So, in terms of the debate that Mr Palmer was having with Mr Grills at that stage, it was a debate on a very great level of detail. That debate is shown in exhibit H41 which appears between pages 736 and 739 and basically that’s a series of emails with Mr Palmer saying, “You must give me more detail about what it is that I have said wrong”, and Mr Grills saying, “You have been told which are the paragraphs in your statement alleged to contain the falsehoods. You’ll have to exercise some judgment but I’m basically not going to go into the level of detail that you demand”.

PN519

As we have heard today, this debate continues. Mr Palmer seeks to analyse differences in the statements about the meeting of the four protagonists on an item by item level and what the Commonwealth said and submitted and the Commissioner apparently accepted and acted on was that it was very plain on reading those statements that there were two versions of events and it came down to three people saying he started it and one person saying, no, she started it.

PN520

VICE PRESIDENT LAWLER: So that’s now the particularisation of deliberately misleading and deceptive conduct.

PN521

MR HEARD: I’m sorry, I’m not putting that as particularisation. I’m putting that as the generalisation of what the sort of the debate is.

PN522

VICE PRESIDENT LAWLER: Is that the way you tell us that the case was run?

PN523

MR HEARD: Not on that level of generality, your Honour.

PN524

VICE PRESIDENT LAWLER: You see, it doesn’t strike me as being unreasonable for somebody whose 40 years of career is on the line and is accused of being deliberately false and misleading in what they have said to say, well, just what precisely is it that you say is false and misleading.

PN525

MR HEARD: Your Honour, I intended to take you through some of Mr Palmer’s answers about all of this in cross-examination because it’s my submissions that it was those answers that led the Commissioner to the view that it wasn’t just a matter of somebody recollecting an important event for them in the most favourable light to themselves but that it did go over the line into being false and misleading. But if I could continue just to go through what the - - -

PN526

VICE PRESIDENT LAWLER: Just before you do, if leave were to be granted and we were to be conducting a rehearing what is the Commonwealth’s position? Is it that one just looks globally at those paragraphs in the statement of 18 March and it’s the proposition that was put in paragraph 35 of the Commonwealth’s submissions in reply behind tab 24? Or would you, on the rehearing, be identifying particular elements of the paragraphs in the 18 March statement that you say were false, deliberately false and misleading?

PN527

MR HEARD: Your Honour, we would adopt the points that the Commissioner found in his decision in paragraph 55. It appears to us as Commissioner Redmond identified that that was a summary of the findings in Mr Grills' report that the Commissioner accepted. The submission that we made was the one that was in paragraph 35 but that was on the basis of the evidence that was then before the Commissioner.

PN528

Your Honour, the Commission must remember that Mr Grills had given Mr Palmer a draft report setting out his specific draft findings and we would say those were the matters that were actually in debate, so that was the particularisation that was ultimately relied upon.

PN529

VICE PRESIDENT LAWLER: Just so there’s no misunderstanding about this: is the case an alternative case, that it’s those matters listed in paragraph 55 of the decision or the general proposition in paragraph 35, or is it just the matters listed in paragraph 55?

PN530

MR HEARD: It’s the matters in paragraph 55.

PN531

VICE PRESIDENT LAWLER: Thank you.

PN532

MR HEARD: If I could continue - I would just refer to Mr Palmer’s submissions going through to - well, in fact they went through to H30 but I don’t know that anything greatly turned on anything in H30. Mr Grills also obtained statements from the other protagonists. Rachel Boyle’s statement was H31. He obtained a further statement - or he spoke to Louise Schultz and that’s summarised at H32. He obtained further material from Mr Byrne at H33. He again further interviewed Ms Boyle at H34. He interviewed Mr Byrne and that’s reported at H35.

PN533

He interviewed Mr Kooner, the contractor, and that’s recorded at H36 and he interviewed Ms Schultz and that’s recorded at H52. He also interviewed
Mr Palmer on 20 May and the record of that is at H53. As you already know, he also interviewed Ms Windsor in relation to the allegation concerning her and that’s at H37, which is back at page 714. Mr Palmer made written submissions by email on 25 May following the interview and that’s recorded at H38. Mr Palmer had forwarded some additional material concerning the Claire Windsor matter, that has been referred by Mr Rich, at H39. He made other complaints at H40. I have already referred to H41. Mr Grills sought further submissions from him on
25 April and that’s set out at H42, which is at page 740.

PN534

My purpose in going through all of that is to highlight that there was in fact a great deal of - I mean there were investigations undertaken, there was documents produced, there was submissions sought and received and it was a process in which there was a fair inquiry. What we would say Mr Grills was faced with was two sets of things that he needed to determine. One is what went on at the meeting on 18 March and, as I have said, there were basically two versions of that meeting and he accepted the version supported by three witnesses over the version supported by one, and that was a reasonable conclusion.

PN535

VICE PRESIDENT LAWLER: Wasn’t the point of what Mr Rich took us through at some length this morning that there isn’t in fact a huge difference between the versions? There are points of distinction which Mr Rich rather de-emphasised, who started shouting first and the business about raising arms, but apart from that it was - the material that Mr Rich took us to suggested that reasonable people attending the same event might have come away with that degree of difference in perception.

PN536

MR HEARD: Your Honour, what I would like to do is to read what Mr Palmer said and compare it to what the others said. Certainly there is a great deal of commonality between the versions but I hope on reading this you will understand why on approaching the matter it was approached as to fundamentally different versions. Mr Palmer’s version is at H19 and relevant part of it starts on 662, the third last paragraph:

PN537

Officer Schultz could not contain herself and started to verbally castigate me also in front of the others, that is Matthew and Peter, relatively junior officers. I turned on my signed to answer her remarks. I was still fully prone in the chair at the time and I was now having some difficulty moving as I have had a bad back for 30 years and have had treatments. Officer Schultz was quite vocal -

PN538

MR HEARD: That’s just saying what that was about:

PN539

I started to explain that I worked for Austrac, not AusAID and Matthew was also saying similar points. I politely said to Officer Schultz that she did not know the full, she should not be making these conclusions. She continued to browbeat me on the inter-agency cooperationship. I then said she did not know what she was talking about and she got offended at that. She started to raise her voice to me. I raised my voice over her and told her to stop as she did not know all the facts. I would not be spoken in this manner. Officer Schultz became extremely offended, said something to me about what do I base that opinion on and then jumped to her feet. When she jumped to her feet and pushed her chair back I believe that she going to physically attack me as she had no need to leave her chair at that time. She was only a metre from me. I was in a defenceless position, if that occurred, as I was laying on my side with acute back pain and unable to retreat, unable to defend myself. I held my right hand up palm open in a stop gesture and again told her to stop right there in an endeavour to protect myself as she was standing over me. Officer Schultz then appeared to have some second thoughts about striking me and ran from the room.

PN540

That’s a very clear version of Ms Schultz being the verbal and physical aggressor in the situation. We would say that it’s fundamentally different to what everyone else - - -

PN541

VICE PRESIDENT LAWLER: On that version of events the first offensive thing that’s said is by Mr Palmer: you don’t know what you’re talking about.

PN542

MR HEARD: Well, your Honour, he did say that she was castigating him browbeating him. Those are words indicating - well, certainly not polite conversation.

PN543

VICE PRESIDENT LAWLER: But anyway, I take you point that he certainly is casting her in a less than favourable light.

PN544

MR HEARD: In H16 starting at page 644 is Mr Byrne’s version, starting at the third paragraph:

PN545

Upon Louise entering the conversation I noted that Norm’s manner immediately changed. He started to raise his voice and became agitated. He interrupted Louise in what she was saying and would not let her finish her remarks. When she tried to resume speaking Norm swung around in his chair to face her. He raised his hand with an open palm towards her and began to shout quite loudly at her. I was shocked by this reaction. He said words to the effect, “Don’t lecture to me about things you know nothing about”. This in other words directed at Louise were delivered at the level of shouting. Louise stood up and said words to the effect of, “I shouldn’t have to put up with this”. She appeared quite upset and I said, “Please both be quiet”. Norm kept shouting at Louise. Both of them were talking at once. Louise was by now quite upset. She left the room.

PN546

COMMISSIONER REDMOND: Wouldn’t they have taken the transcript where he was cross-examined on this earlier and it was indicated that perhaps - I’ll have to find it - perhaps the ..... wasn’t as it said in this statement?

PN547

MR HEARD: I was going to take the Commission - - -

PN548

COMMISSIONER REDMOND: The ..... that you took us to - - -

PN549

MR HEARD: Yes. Well, I was - - -

PN550

COMMISSIONER REDMOND: - - - this part before.

PN551

MR HEARD: Yes. If you’d prefer I can take the Commission now to the parts of the transcript that we’d seek to rely on to say these were the parts that persuaded the Commission that Mr Palmer wasn’t telling the truth about it. We made extensive submissions about this, and I’m referring to the document under tab 24, starting at page 9, there’s a heading at the top, “The meeting on 18 March 2005”.

PN552

VICE PRESIDENT LAWLER: Tab 24.

PN553

MR HEARD: In the appellant’s bundle.

PN554

VICE PRESIDENT LAWLER: Page 9?

PN555

MR HEARD: Yes. I would encourage the members of the bench to - when you leisure to do so, as you read through all of these submissions because the argument is there put as to why it was reasonable for the Commissioner to conclude that Mr Palmer’s behaviour had been incompatible with his continued employment and a number of persistent features were identified and isolated in relation to his response to each of these incidents. Those features included the aggressiveness of his reaction, the unreasonableness of his claims, his refusal to be dissuaded from his view, whatever was said to him and whatever evidence was presented to him, his refusal to give up on allegations that he’s made and ultimately - - -

PN556

VICE PRESIDENT LAWLER: This flies in the face of the evidence before us though, doesn’t it, where he’s fallen on his sword on several occasions and given abject apologies?

PN557

MR HEARD: Your Honour, intend to take you through the evidence to show in fact how hollow those apologies were and I would also - - -

PN558

VICE PRESIDENT LAWLER: Mr Heard, are we looking at a prospect of having no chance whatever of finishing this today?

PN559

MR HEARD: Well, I think the way it’s going that may be the case if I’m in effect - - -

PN560

VICE PRESIDENT LAWLER: It’s not your fault because you didn’t start until less than an hour ago and you’re responding to a peppering of questions from the Bench.

PN561

MR HEARD: Yes, your Honour.

PN562

VICE PRESIDENT LAWLER: Mr Rich, when do you need to leave for your plane? Did you say it’s 7 o’clock?

PN563

MR RICH: I’m on the plane leaving at quarter past seven. I think we’re required to have checked in by half an hour beforehand.

PN564

VICE PRESIDENT LAWLER: So, 6.15 or 6 o’clock.

PN565

MR RICH: 6.45 so at this time of day it might take 20 minutes to get there, half an hour.

PN566

VICE PRESIDENT LAWLER: You’ll need to leave about 6 o’clock to be safe. Fine. Thank you, Mr Heard.

PN567

DEPUTY PRESIDENT MCCARTHY: Mr Heard, I’m just getting a little confused about all this, but just looking at your position and Mr Rich’s position, it seems to me that what you’re saying is that the Commissioner, having got 170CG(3)(c) wrong, notwithstanding that you would have accepted his determination, because you accepted his 170CH remedy, whereas Mr Rich seems to be saying: well, having got 170CG(3)(a) wrong, he got 170CG right, but he doesn’t accept 170CH.

PN568

MR HEARD: I think that is one way of putting it, your Honour.

PN569

DEPUTY PRESIDENT MCCARTHY: That’s very kind of you.

PN570

MR HEARD: This has always been a pragmatic jurisdiction and the Commonwealth is a large employer. We have certain interests which are different from those of other employers and it’s those interests that ultimately we say require that Mr Palmer not return.

PN571

DEPUTY PRESIDENT MCCARTHY: ..... but probably should have addressed this to Mr Rich, but he seems to be opening up the CG determination through the - opening up the CH avenue through a CG(3)(a) when really he doesn’t dispute the determination in CG as a whole, because the determination was that it was a harsh determination.

PN572

MR HEARD: Well, yes, it was. I’m sorry, the determination was in two parts. Part was that it was unjust and that was the part that the Commonwealth was particularly interested - - -

PN573

DEPUTY PRESIDENT MCCARTHY: Whether it was harsh or whether it was unjust or whether it was unfair, it is harsh, unjust or unfair, so the determination in 170CG is that it shouldn’t have occurred.

PN574

MR HEARD: Yes.

PN575

DEPUTY PRESIDENT MCCARTHY: The termination.

PN576

MR HEARD: Yes.

PN577

DEPUTY PRESIDENT MCCARTHY: However you arrive at that.

PN578

MR HEARD: That’s what the Commissioner decided, yes. Mr Rich, as I apprehend it, is arguing about the remedy. He’s got some things to say about the Commissioner’s determination because that’s obviously relevant to the remedy that was selected. We say the Commissioner’s findings about false and misleading and statements were correct and we wish to uphold that because that’s relevant not only to the existence of a valid reason, but to the appropriateness of declining to order reinstatement.

PN579

Really, the Commonwealth can’t have senior public servants who can’t be trusted to tell the truth and who attack their colleagues on what we say is an entirely unreasonable basis if they feel themselves under threat.

PN580

VICE PRESIDENT LAWLER: What if it were a passing - the 40 years of unblemished service that you referred to earlier it had been a passing - an unfortunate incident because of the concatenation of illness and back pain and flu and stress with mother and one can hypothesise all the other circumstances that might arise in the particular case.

PN581

MR HEARD: Your Honour, this matter started in March 2005 and Mr Palmer was still arguing the same points in May 2006 when this hearing was concluded. That’s not a passing phase. Perhaps also, if I could again jump out of sequence just to address that and I hope I can now find the reference. Mr Palmer withdrew his allegations - or rather he apologised for having made his allegations against Mr Byrne and he said that it was unprofessional of him to have made them. He did that in exhibit C1 and that exhibit appears starting on page 481. Exhibit C1 was actually filed the day before the hearing started.

PN582

When I was taking evidence from Mr Grills, I took Mr Grills through parts of exhibit C1 that dealt with Mr Palmer’s explanation for what happened at the meeting, and it started at page 485 of paragraph 29. Basically I put to Mr Grills:

PN583

If when this whole matter had started Mr Palmer had come back to you with this statement, what would you have done?---Well, I might have found something warranting a reprimand but I think really I’d have just not made a code of conduct finding at all. I would have said it wasn’t a matter for the code of conduct.

PN584

The problem for the Commonwealth is that this statement was not made until the working day before the hearing started. The cross-examination of Mr Palmer about Mr Byrne showed that this recantation was somewhat hollow but the real problem was that Mr Palmer vehemently continued his allegations against Ms Schultz in circumstances where we say he knew he had no evidence to support him and he - any reasonable person must have known that he simply should not keep saying those things about her. There was no evidence to support the allegations that he made.

PN585

VICE PRESIDENT LAWLER: That’s just not correct, is it? Ms Windsor had acknowledged to Mr Grills - there was a double negative that she acknowledged in effect that she had said those things to Mr Palmer.

PN586

MR HEARD: Well, your Honour, I’m somewhat getting out of sequence but in order to answer your question, no, she did not say that. It was quite clear what she said, and if I could take your Honour to 37. It starts at page 714, and on page 715 in the second paragraph, in response to a direct question from me, Ms Windsor said that Ms Schultz had not shouted at her on either occasion but had spoken to her in a dismissive sarcastic way that was hurtful and inappropriate.

PN587

In the next paragraph it finishes off with her report of her contemporaneous statement to a colleague was, “Louise was short with me” and in the next paragraph, in response to a question from me, Ms Windsor told me that she had not seen Ms Schultz’s behaviour as harassment and she had not described it in those terms to Ms Boyle or to Mr Palmer. That evidence was uncontradicted.

PN588

VICE PRESIDENT LAWLER: I’m sure I have read a double negative today.

PN589

MR HEARD: There is in fact a double negative in the judgment, your Honour, and I’ll attempt to locate it. If it’s that double negative that leading your Honour to have some doubt - in fact, it’s the fourth dot point in paragraph 65.

PN590

VICE PRESIDENT LAWLER: Yes.

PN591

MR HEARD: Your Honour, I would say that is simply either a typographical or a grammatical issue in that particular dot point but the uncontradicted evidence from Ms Schultz’s statement was that she - and it’s written there:

PN592

She had not described it as harassment to Mr Palmer.

PN593

VICE PRESIDENT LAWLER: I was leading you from your more structured approach, Mr Heard, I’m sorry.

PN594

MR HEARD: It’s all right. These are some of the more important points I wish to make but I will need to spend some time going through what Mr Palmer said in evidence about Ms Windsor. But before we get to that, I think I had started to refer to the submissions concerning the meeting of 18 March on page 9 of the submissions under tab 24. In that - - -

PN595

VICE PRESIDENT LAWLER: Mr Heard, just before we go on, I’m just thinking again about timing. Do you think there’s a realistic prospect you’re going to be able to get through what you want to get through before 6.00? I’m just wondering whether the reality is that, given a certain need for Mr Rich to reply, we don’t need to look at another day which could be done via video, Mr Rich.

PN596

MR RICH: Yes.

PN597

VICE PRESIDENT LAWLER: Which would obviate the cost of you coming back to Sydney. If you think you can get through what you need to get through within an hour and a half from now, so that there is half an hour for reply from
Mr Rich then we can press on and sit until 6.00 but I have a horrible feeling,
Mr Heard, that it’s going to take longer than that.

PN598

MR HEARD: Your Honour, every time I thought I could finish by a particular point I have been wrong.

PN599

COMMISSIONER REDMOND: We asked questions, didn’t we?

PN600

MR HEARD: I’m always grateful for questions from the Bench, Commissioner, and I’m happy to answer them but - - -

PN601

VICE PRESIDENT LAWLER: Mr Heard, I ought leave you under no illusions, I for my part am quite troubled that an injustice has been perpetrated in this case on the basis of what Mr Rich has said and I am acutely conscious that I have only heard half the case, having I think fairly candidly confessed that I hadn’t delved into the evidence at the beginning of the day but only read the judgment, the decision and the submissions and that you really need to have an opportunity to do a proper job, so to speak, in terms of - - -

PN602

MR HEARD: I would certainly appreciate that, your Honour, because the basic proposition I’m going to put to the Bench is that Mr Palmer’s performance in cross-examination, particularly on the issue of the allegations against Louise Schulz about Claire Windsor was one of the most unsatisfactory performances I have ever seen from a Commonwealth public servant in the witness box and that it was that passage of evidence in particular, which I will submit, persuaded Commissioner Harrison that he didn’t believe what Mr Palmer was saying. So if the exercise that I have to undertake is to convince the members of the bench on the basis of the transcript of just how unsatisfactory that evidence really was then I really would prefer that I not be doing it under some time constraint caused by not wanting to - - -

PN603

VICE PRESIDENT LAWLER: How are you placed tomorrow afternoon?

PN604

MR HEARD: I’m available tomorrow afternoon.

PN605

VICE PRESIDENT LAWLER: Mr Rich, are you available by video tomorrow afternoon?

PN606

MR RICH: Yes.

PN607

VICE PRESIDENT LAWLER: Fine. Well, why don’t we adjourn until tomorrow afternoon? That will give you, Mr Heard, a chance to be - it will give me a chance to do some extra reading so as not to be asking so many interrupting questions and give you a chance to a more structured approach. I’m going to arrange to do it by video tomorrow afternoon.

PN608

MR HEARD: Thank you, your Honour. And could I, if the time permits the members of the bench, ask that in the meantime to have particular regard to submissions under tab 24 and very particularly the matters in paragraph 18 and the transcript references therein. That goes from page 4 to page 7.

PN609

VICE PRESIDENT LAWLER: Paragraph 18, certainly. Two o’clock?

PN610

MR HEARD: Thank you, your Honour.

PN611

VICE PRESIDENT LAWLER: You’ll need to have a look on the list to see which hearing room it will be in because that will depend upon Alicia being able to arrange it. There won’t be a problem, I’m sure. Anything further from you, Mr Rich?

PN612

MR RICH: No, there’s nothing further.

PN613

COMMISSIONER REDMOND: You might like to in the meantime turn your mind to anything that you want to say in reply to Mr Heard’s submissions so that we can in fact get everything finished because I’m conscious that your client’s interests are served by having an efficient resolution of the hearing.

PN614

MR RICH: Yes, thank you.

PN615

VICE PRESIDENT LAWLER: We’ll adjourn.

<ADJOURNED UNTIL TUESDAY 28 NOVEMBER 2006 [4.10PM]