C2006/3211, Transcript of Proceedings [2006] AIRCTrans 1294 (11 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16210-1

VICE PRESIDENT LAWLER
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER REDMOND

C2006/3211

APPEAL BY CHAND, BIMLA
s.120 - Appeal to Full Bench
(C2006/3211)

SYDNEY

10.04AM, TUESDAY, 28 NOVEMBER 2006

Reserved for Decision

PN1

VICE PRESIDENT LAWLER: Ms Chand.

PN2

MS B CHAND: That's correct.

PN3

VICE PRESIDENT LAWLER: I note you're appearing for yourself. Ms Nomchong.

PN4

MS K NOMCHONG: Yes, I appear with my instructing solicitor, MS C ROBINSON for the respondent and the two people sitting in front of us are work experience and paralegals.

PN5

VICE PRESIDENT LAWLER: Thank you. I take it you seek leave to appear.

PN6

MS NOMCHONG: Thank you. I do.

PN7

VICE PRESIDENT LAWLER: Ms Chand, do you have an objection to Ms Nomchong being given leave to appear?

PN8

MS CHAND: I don't understand. Does that mean that she will appear or that she needs time to - - -

PN9

VICE PRESIDENT LAWLER: Technically she needs leave to appear. Ordinarily, leave would be granted in these sorts of circumstances on an appeal, but you can formally object to leave being granted to her if you wish.

PN10

MS CHAND: Leave meaning as - - -

PN11

VICE PRESIDENT LAWLER: Leave simply to appear, leave for her to actually be able to stand at the bar table and to present the SRAs case on the appeal.

PN12

MS CHAND: It's not a complex case. I can object.

PN13

VICE PRESIDENT LAWLER: So you do object?

PN14

MS CHAND: Yes, I do object.

PN15

VICE PRESIDENT LAWLER: Ms Nomchong.

PN16

MS NOMCHONG: Well, the position is that I have conducted these proceedings in this Commission since their inception and, indeed, in the concomitant proceedings which finalised last week in the Administrative Decisions Tribunal, the New South Wales jurisdiction conducted those. I'm fully conversant with the matter. No objection has been taken to my appearance to date. Ms Chand has appeared self represented on one occasion during that, on a number of occasions during the proceedings here and no objection has been taken. I would press the bench for leave to appear in those circumstances.

PN17

VICE PRESIDENT LAWLER: Under section 100(5), it specifies matters that the Commission must consider in deciding whether to grant leave under subsection (3). Would you like to address those matters for us? I'm sorry, we're concerned with 100(4) and the matters specified in 100(6) which pick up the three factors in subsection 5 and those additional factors listed in subsection 6. It just seems that in the face of a formal, more substantive objection to leave, there's a statutory command to consider those matters listed.

PN18

MS NOMCHONG: Yes, Vice President. May I just have one moment to have a look at them? I wasn't expecting this objection.

PN19

VICE PRESIDENT LAWLER: Certainly.

PN20

MS NOMCHONG: Members of the Commission, may I address each of the matters in turn? I think I have already addressed the issues in whether or not being represented by counsel, the respondent would be able to assist the Commission and bring the best case possible. As stated, I am familiar with all of the circumstances of this case and have run those matters since their inception both here and elsewhere.

PN21

VICE PRESIDENT LAWLER: I suppose that also extends to (b), then.

PN22

MS NOMCHONG: It does apply to (b), I would think. The complexity of the factual and legal issues, the appeal before the Full Bench today involves essentially a dismissal of an application by Senior Deputy President Drake. That was made in circumstances where I ran a notice of motion to strike out the proceedings at an earlier point in time and that the factual matters upon which that notice of motion and, indeed, on which the motion was re-agitated on 27 September 2006 are matters known peculiarly to me. The legal issues have obviously been addressed by the appellant in her own submissions that we received last night, but I must say that up until last night, we were under the impression that Ms Chand would be represented today.

PN23

We had been informed by Mr Oliveri during the ADT proceedings that he was appearing in these proceedings and so we were unaware until we had received Ms Chand's submissions last night in her own name that she would be appearing on her own behalf and, indeed, we sent correspondence to Mr Oliveri in that regard, asking him to comply with the directions given by the Vice President during the directions hearing on 31 October. In all of the circumstances, I think the assistance of myself as counsel for the respondent would assist in the expeditious determination of this matter.

PN24

In the event that leave is not granted, then I don't think that my instructing solicitor, indeed we don't have a representative here from the SRA personally to progress the matter today and that would then, of course, require an adjournment. As I said, we would have attended to that matter had we been informed that objection was going to be taken to my appearance and, indeed, to the fact that Ms Chand was not going to be represented today.

PN25

VICE PRESIDENT LAWLER: Ms Chand, you've got an opportunity to respond to what Ms Nomchong has submitted.

PN26

MS CHAND: All I have to say is the solicitors have been representing the SRA in this matter over a long time and it's not true that the solicitor would not be competent enough and there's no need for counsel and I don't think I'm a match for counsel in this matter and I think it would be basically an unequal - on the balance of the facts, it would be a very unequal argument and as it is, I'm quite nervous and it took me a long time to prepare those submissions and it is not true that Mr Oliveri had informed the other side that he was appearing on my behalf.

PN27

He had already made it very clear at the last hearing that if he doesn't get the time to answer the voluminous material provided by the other side, he would not be able to represent me or do justice to the case and it was a similar stand that he had taken at the Administrative Decisions Tribunal and I was self represented and I had asked for an adjournment at that proceedings as well and it wasn't until Ms Philippa Gormley had agreed to act on my behalf that Mr Oliveri came back as the instructing solicitor.

PN28

Mr Oliveri didn't tell me that. I mean, I don't think Mr Oliveri would inform the other side that he was appearing on my behalf and not inform me that he was appearing on my behalf today and I wouldn't be spending time preparing the submission is Mr Oliveri was going to appear on my behalf today, so it's not as if they did not know that I would be self represented today and I think I did mention it to your honourable self, Mr Vice President, on the last occasion, we had the teleconference, that at the moment I haven't got legal representation, if you recall.

PN29

VICE PRESIDENT LAWLER: Yes.

PN30

MS CHAND: And you did inform me that if I do get a legal representation, you would want a submission in dot form and if Mr Oliveri was going to appear on my behalf, he would have provided those submissions in dot form.

PN31

VICE PRESIDENT LAWLER: Thank you, Ms Chand. Having considered the matters that we are required to consider under subsection 6 of section 100 of the Act, in our view leave should be granted to Ms Nomchong to appear. It's evident from the file that she's been involved in this matter for some considerable period and therefore has a familiarity with the SRAs case and with the facts generally and would therefore be in a position to assist the SRA to bring its best possible case. It's also clear that she has the capacity as counsel to represent the SRA and that that capacity is clearly positive. This is a matter with a complex factual, if not to say legal history and the Commission would be assisted by the submissions of Ms Nomchong in relation to the factual and legal issues that arise in connection with the appeal and I think that is sufficient. Now, the ordinary course of events, Ms Chand, is that you go first and then Ms Nomchong makes her submissions and then you have an opportunity to reply, but just before you start, I want to ask Ms Nomchong a few questions. Ms Nomchong, your submissions set out a chronology as it were of the events or the history of this particular application for relief against termination of employment. The matter was before Senior Deputy President Drake for a strike-out motion on 5 July 2006. It was adjourned, that is the motion to strike the matter out was adjourned to 26 July.

PN32

MS NOMCHONG: If I could just interrupt you, that in fact what occurred was that it was listed for 5 July, there was an allegation by Ms Chand that she had been abandoned by her then solicitors, Turner Freeman. The matter was stood down until 6 July to allow Turner Freeman to appear and answer that allegation. They did not appear. The remainder of the application took place on the 6th when a Mr Vasta, solicitor, appeared for Ms Chand and then it was stood over for determination and further hearing on 26 July.

PN33

VICE PRESIDENT LAWLER: Yes. Now, I can't confess to have read the transcript of 26 July with an eye attuned to every detail, but it appears that her Honour didn't in fact make a decision on the application, but, rather, indicated that she would issue a decision she said tomorrow at paragraph 152 on 26 July.

PN34

MS NOMCHONG: That's correct.

PN35

VICE PRESIDENT LAWLER: Was that decision ever issued?

PN36

MS NOMCHONG: It was, but it was only simply an order that - there was no reasons for decision, it was simply an order dismissing the strike-out motion. I've got a copy of it here. I can hand it up.

PN37

VICE PRESIDENT LAWLER: I'm sure that would be on the file, so there is no decision either in writing as a formal issued decision or a decision in transcript in respect of the decision of Senior Deputy President Drake to refuse the SRAs motion to strike out the substantive application for want of prosecution?

PN38

MS NOMCHONG: No. I think it would be fair to say that what occurred on 6 July was that the matter was stood over until 26 July to permit the parties to make further submissions about the strike-out application and in reality to allow the appellant to put on any further material that she wished to do in order to progress her claim and so during the course of 26 July, her Honour indicated would probably be the best form of words that the position was that the appellant had by then taken some steps at least to progress the matter by putting on the witness statement on 5 July and a document called points of defence and at that stage, her Honour then simply listed the matter for directions on 3 August and set down the new hearing dates.

PN39

VICE PRESIDENT LAWLER: So the bottom line is that we really have no reasons for the decision to dismiss your motion for want of prosecution and it's a matter of inferring that she must have preferred the arguments of Mr Vasta to the arguments you advanced on the 26th and to the extent that it was done on the 5th or the 6th, on those days as well.

PN40

MS NOMCHONG: I think that would have to be the inference. There's certainly no written reasons for decision. Our submission, of course, will be that the events of 5, 6 and 26 July really represented a last chance for the appellant to get her matter ready for hearing. The strike-out motion had, of course, been foreshadowed back on 9 August 2005 when the matter was stood over generally and your Honours may remember that the directions which Senior Deputy President Drake gave on 9 August 2005 when the hearing dates back then were vacated was that she would not re-list the matter unless there was a written undertaking by the appellant to the effect that she was ready to proceed. At that time, we foreshadowed a strike-out motion and Senior Deputy President Drake indicated to us that when the appropriate time came, then we could do that and accordingly, 11 months later, when nothing had been done by the appellant, that's exactly what we did, but in terms of what then occurred - - -

PN41

VICE PRESIDENT LAWLER: It's not strictly correct to say that nothing had been done, is it, because Turner Freeman had commenced to act at some point and there were settlement discussions in March - between March and May of 2006 on your own set of submissions.

PN42

MS NOMCHONG: That's certainly true, but when I say nothing had been done, certainly no affidavit had been filed and certainly no written undertaking had been given that the matter was ready to proceed and it has to be really put in context that at all times during directions, the respondent was advised that there would be eight or nine witnesses who were going to be brought by the appellant in the proceedings and as at 26 July, all that was on foot was a single witness statement from the appellant and this document called points of defence.

PN43

VICE PRESIDENT LAWLER: Now, since then there have been other documents in the nature of evidence filed and served.

PN44

MS NOMCHONG: That's correct. There was a second witness statement from the applicant on 26 July and then a final one on 11 September 2006 and it was after receipt of that final witness statement that the respondent then filed its witness statements on the 22nd or so of December - sorry, September.

PN45

VICE PRESIDENT LAWLER: On the file there's a medical report from Dr Brendan T O'Sullivan, senior consultant psychiatrist of Macquarie Street, Sydney, apparently obtained on the instructions of Mr Panageris, an official with the Rail, Tram and Bus Union, dated August 2005. That medical report seems to find, well, first of all Dr O'Sullivan - or does he call himself Mr O'Sullivan, I'm not sure - Dr O'Sullivan does not agree that Ms Chand has a paranoid personality disorder as diagnosed by Dr Davies and his summary and opinion is:

PN46

I found no evidence at all of any current or past psychiatric or psychological disorder. Ms Chand's emotional state is I believe understandable and comprehensible in view of what has happened to her.

PN47

Now, am I correct in saying that the reason for termination was medical retirement on the basis of mental illness and specifically founded upon the report of Dr Davies?

PN48

MS NOMCHONG: It was a combination of two things. Dr Davies had given two reports diagnosing the appellant with probable paranoid personality disorder, but had certified her on prior occasions as fit for work. A series of events took place in 2004 which culminated in an incident at the respondent's redeployment centre where in short the appellant refused to comply with the retraining program that was going on by insisting that she record with a tape recorder all conversations with the trainer.

PN49

When the session was terminated, the appellant refused to leave the building and had to be assisted by two transit officers at 5 pm that day, after waiting around all day in the redeployment centre. After that, she was stood down on full pay, was directed to go to two further medical examinations with a Dr Sugarman, but again during those medical examinations, the appellant insisted on recording the session with Dr Sugarman and Dr Sugarman would not conduct the examinations in those circumstances.

PN50

Accordingly, what was done was a précis of the way in which the appellant had conducted herself between January 2004 and August 2004. It was given to Dr Davies to provide his further opinion. He came to the view that it was not just the paranoid personality disorder, but taken in combination with her inability to work in a group environment or to work with others really meant that there was no capacity for the respondent to employ her and accordingly she was terminated on those grounds.

PN51

VICE PRESIDENT LAWLER: So is it or is it not - sorry, let me put it a different way. Does the SRA in its defence of the primary application rely upon misconduct or poor performance, or does it rely purely upon incapacity through the medical reasons identified by Dr Davies?

PN52

MS NOMCHONG: The latter.

PN53

VICE PRESIDENT LAWLER: So that the medical report of Dr O'Sullivan squarely meets the SRAs contentions in relation to the basis for dismissal. There is a sharp conflict of medical opinion between Dr O'Sullivan on the one hand and Dr Davies on the other.

PN54

MS NOMCHONG: Yes and no, because Dr O'Sullivan treated the appellant at a particular time, but her treating psychiatrist prior to that was a Dr Don Tran who in fact provided reports to the SRA during the medical retirement process and Dr Tran's medical opinion was that she was in fact suffering from a psychological disorder of major depression and so - - -

PN55

VICE PRESIDENT LAWLER: Sorry, but in terms of the case that Ms Chand has been attempting, using that word in a neutral sense, to put forward in the Commission, the medical evidence that she relies upon to date so far as you're concerned is the report of Dr O'Sullivan?

PN56

MS NOMCHONG: No. We understood that the medical evidence that the appellant was going to rely on was Dr O'Sullivan, Dr Tran and a Dr Benjamin who had also provided some - the reports of Dr Benjamin had also been given - - -

PN57

VICE PRESIDENT LAWLER: Dr Tran, was it, T-r-a-n?

PN58

MS NOMCHONG: T-r-a-n, yes. Mr Benjamin is a forensic psychologist.

PN59

VICE PRESIDENT LAWLER: And what's his view? I'm just interested to know the extent to which there is in fact evidence before the Commission or there was in fact evidence before the Commission at the time that Senior Deputy President Drake determined the application that put in issue substantively the medical basis for the termination.

PN60

MS NOMCHONG: Mr Benjamin's was really a psychometric testing report and it's contained in the pages immediately behind Dr O'Sullivan's report.

PN61

VICE PRESIDENT LAWLER: It basically says she's quite able.

PN62

MS NOMCHONG: No, I think it basically says that the symptoms which she suffered were understandable in the circumstances.

PN63

VICE PRESIDENT LAWLER: That she's quite an intelligent person.

PN64

MS NOMCHONG: According to Mr Benjamin, yes.

PN65

VICE PRESIDENT LAWLER: Ms Nomchong, in the courts, the usual set of circumstances that gives rise to an application to dismiss for want of prosecution or a motion to dismiss for a want of prosecution is repeated failure to comply with directions. That's the classic indicator of want of prosecution. In this particular case, am I correct in saying that there has been no direction made that Ms Chand has not complied with?

PN66

MS NOMCHONG: There has been a direction with which Ms Chand has not complied and that was this, that after the strike-out motion failed in July, directions were made on 3 August that Ms Chand properly prepare her matter. There were no formal directions about the filing and serving of witness statements and materials and the like, but the very basis upon which it went forward really flowed from the directions that were made back on 9 August 2005 and that was this, that the appellant should not be allowed to proceed unless she was fully prepared to run with the matter and what occurred - - -

PN67

VICE PRESIDENT LAWLER: I understand, I think, that's the way you make your case, but in terms of directions of the Commission that one could point to and say there is a direction, you shall file and serve statements by such and such a date, there were no directions of that sort.

PN68

MS NOMCHONG: No directions of that sort, but there was a direction that the appellant - sorry, if I can just go back. It's a rather difficult case. Senior Deputy President Drake refused to make any directions about the filing and serving of material and, indeed, in her judgment said that she thought that the best approach was to let the appellant bring all of the material that she did. Now, bearing in mind that, of course, what was set down for hearing on 27 September was simply the appellant's case. The respondent's case hadn't even been set down for hearing.

PN69

VICE PRESIDENT LAWLER: I understand.

PN70

MS NOMCHONG: So two days for the appellant's lay witnesses, one day for the appellant's medical evidence and that's all that had been set down. The respondent's case was going to be determined later in time. When Mr Oliveri came to court on 27 September, he said we're not ready to proceed, we need another month. Now, there was quite a bit of - - -

PN71

VICE PRESIDENT LAWLER: Did he put it in those terms?

PN72

MS NOMCHONG: He did, and, in fact, it's referred to by - at paragraph 27 of her Honour's judgment, the last sentence reads:

PN73

Despite his submission that the applicant was ready to proceed and had been for some time, he then indicated that the application could be completed in one month's time when the applicant's evidence was all on.

PN74

Now, that is a view that is in fact substantiated by the appellant's submissions to this Full Bench because in her own submissions today, Ms Chand indicates that in fact all of the evidence is not on and that she would seek leave to put on additional evidence and that's to be found at paragraph 9 of the appellant's submission on page 7, so that what was concerning Senior Deputy President Drake in our submission was that despite the fact that Mr Vasta was told fairly and
squarely - - -

PN75

VICE PRESIDENT LAWLER: Ms Nomchong, these are some preliminary questions to try and give the bench as it were the limited framework within which the submissions are going to be made by the parties. I understand what you're saying, but the position is this, isn't it, that there was no direction in the conventional sense for the filing and service of affidavit evidence, statements or other documents which was not complied with?

PN76

MS NOMCHONG: No, but there was a direction that the matter would only proceed when the appellant was fully ready to proceed, which she wasn't.

PN77

VICE PRESIDENT LAWLER: And that was the indication that was made back on 9 August 2005.

PN78

MS NOMCHONG: It was made on 9 August. It was repeated when Mr Vasta appeared for the appellant during the strike-out motion. It was repeated during the directions hearing on 3 August, that is that the only reason that the matter was being listed for hearing was on the basis that the appellant was fully ready to proceed.

PN79

VICE PRESIDENT LAWLER: I understood and maybe I've simply not read enough of the papers, but I understood that the principal basis, indeed the basis relied upon in your submissions for the adjournment application made by Mr Oliveri on 27 September this year was that he had been served with a very large quantity of material and needed time to digest it.

PN80

MS NOMCHONG: Yes, and her Honour makes some comments about that.

PN81

VICE PRESIDENT LAWLER: But you're saying the basis for the adjournment application went beyond that and it was that independently of whatever you had served, Ms Chand still wasn't ready?

PN82

MS NOMCHONG: Yes, your Honour, and that is in fact replicated in the appellant's submissions. In paragraph 9 of her submissions, she indicates that in addition to the material that she's already put on, she will require leave to put on some additional material.

PN83

VICE PRESIDENT LAWLER: I haven't heard from Ms Chand yet, but I anticipate that she's going to say, well, having now looked at the material that the SRA has filed and served, not that it had any obligation to do so, but having done so and having looked at it, there's other material that I need to call, but be that as it may, we can deal with that when it arises, so just returning to this issue of the extent to which directions were not complied with, when the matter was listed for hearing on 27 and 28 September, that listing occurred on 3 August, did the Senior Deputy President seek some assurance that the case was ready to proceed? In other words, did she hold Ms Chand to the condition that had been indicated or imposed on 9 August 2005?

PN84

MS NOMCHONG: It's my recollection that those assurances were given by Mr Vasta on 26 July and that what was occurring on 3 August was simply timetabling. What happened between 26 July and - - -

PN85

VICE PRESIDENT LAWLER: Perhaps you could have your instructing solicitor turn up the relevant part of the transcript where Mr Vasta gives that indication.

PN86

MS NOMCHONG: Well, your Honour, unfortunately for me, I've got every single bit of transcript except the one on 26 July, but if your Honour would be so kind as to give me the court's copy, I'll get my instructing solicitor to do that.

PN87

VICE PRESIDENT LAWLER: Okay, now, the next issue that I've indicated I'm interested in receiving just an outline indication from you, because it impacts upon the extent to which Ms Chand as an unrepresented appellant deals with matters or doesn't deal with matters is this. Ordinarily, a refusal of an adjournment will lead to the dismissal of a substantive application because the adjournment having been refused, the arbitration proceeds, evidence is not led, but then a final determination is made and in the absence of no evidence from the applicant, the applicant must lose and the application is not summarily dismissed, but substantively dismissed because the onus on the applicant to make out their entitlement to relief is not discharged.

PN88

That didn't happen in this case, do you agree, but what happened was her Honour refused the adjournment, did not then seek to press Ms Chand through her representative, Mr Oliveri, to lead such evidence as he was minded to lead in the case which I imagine would have involved inter alia tendering at the very least the medical report of Dr O'Sullivan who was being called on the 20th for cross-examination, but, rather, her Honour proceeded to entertain the SRA motion or renewed SRA motion for a strike-out for want of prosecution. Do you agree that that's what occurred?

PN89

MS NOMCHONG: Yes, your Honour.

PN90

VICE PRESIDENT LAWLER: Does it follow, then, that subject to discretionary matters about whether leave ought be refused on a discretionary basis because of the matters that go to the preparedness or lack thereof of Ms Chand, the real issue on the appeal and the issue on which the appeal turns is whether or not there was an error in her Honour acceding to the application for want of prosecution?

PN91

MS NOMCHONG: I think that's right, your Honour.

PN92

VICE PRESIDENT LAWLER: We're just going to adjourn for a few moments just to discuss how the appeal might most efficiently proceed. My provisional view is and I'd like to discuss it with the other members of the bench is that it's perhaps best to hear from you first as a matter of efficiency also, because we have a part heard appeal that we're going to resume this afternoon when this matter finishes and without in any way intending any disrespect whatever to Ms Chand who has clearly put a lot of work into her submissions, the experience of courts and tribunals is that matters like this are going to proceed most efficiently if we focus on your submissions first, rather than Ms Chand's submissions.

PN93

MS NOMCHONG: Thank you, your Honour.

PN94

VICE PRESIDENT LAWLER: I will adjourn for a few moments.

<SHORT ADJOURNMENT [10.38AM]
<RESUMED [11.01AM]

PN95

VICE PRESIDENT LAWLER: We will sit through until the appeal is finished. Thank you.

PN96

MS NOMCHONG: Thank you. Do I take it that the course of action that your Honour indicated is the one to be adopted?

PN97

VICE PRESIDENT LAWLER: Yes.

PN98

MS NOMCHONG: Thank you. May I also take it that the Full Bench has had the opportunity to read the written submissions that I have filed?

PN99

VICE PRESIDENT LAWLER: Yes.

PN100

MS NOMCHONG: In that case, I will not insult either the Full Bench or my friend by reading through them, but simply address what I see are the salient features of it. First of all, section 120 of the Act requires leave to be granted and leave to be granted for an appeal in this matter on the basis of the public interest test articulated in section 122. The appellant has not shown either in her written submissions and she may have the opportunity to do so in one moment in her oral submissions, but we have not been alerted to any public interest aspect of this appeal.

PN101

We say that it is simply an exercise of a discretion properly vested in Senior Deputy President Drake which was exercised judicially and properly and that the Full Bench would be reluctant to interfere with such a decision without some public interest principle at stake and in particular we note that there is already a Full Bench decision in relation to prosecution matters and that is the decision in Ghalloub, G-h-a-l-l-o-u-b. It's one that I'll be referring the Full Bench to in the course of my submissions, so as a primary point, we would argue that there is no grounds upon which leave to appeal should be granted.

PN102

VICE PRESIDENT LAWLER: Thank you, Ms Nomchong.

PN103

MS NOMCHONG: And that from that point, the appeal ought not be permitted to proceed, but I take it that the position in this Full Bench as in elsewhere is to hear the leave application as well as the appeal proper in toto. The manner in which your Honour, the Vice President, has articulated the appeal I think properly serves us, that is the question that the Full Bench needs to ask itself is whether or not the decision of Senior Deputy President Drake in acceding to the strike-out application was attended by appealable error.

PN104

That really is simply the question and in determining whether appealable error attended her Honour's decision, the Full Bench has to be guided by the principles in House v The King and I have set out those principles in paragraph 28 of my written submissions, but it's worthwhile articulating them. The predominant view in House v The King, a decision of the High Court, was that:

PN105

Appellate judges must not be swayed by what they themselves would have done in the same circumstances as the trial judge. That's not the test. There can be no mere substitution for the appellate bench's view of the matter over the trial judge's, unless, of course, one of the matters indicated were established.

PN106

And it says this:

PN107

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising a discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his.

PN108

Now, that being the test, this Full Bench must then identify what it is that comprises the test for strike-out or applications on the basis of want of prosecution. Now, that is properly contained in the decision of this Full Bench in the matter of Ghalloub, spelt G-h-a-l-l-o-u-b v Aon Risk Services Australia Ltd, print number 956665, a decision of 21 March 2005. Now, your Honours, at the directions hearing I asked if the Full Bench would have with it the copies of the decisions which have been handed up to the trial judge and a copy of that decision has been given to Senior Deputy President Drake, but I do have a single copy of it here if it's not readily available.

PN109

VICE PRESIDENT LAWLER: I think there might have been a slip-up in my chambers, because there was going to be the preparation of copies of those documents for the bench and that hasn't happened.

PN110

MS NOMCHONG: I'm sorry, I only have a single copy of it.

PN111

VICE PRESIDENT LAWLER: That's fine.

PN112

MS NOMCHONG: The decision in Ghalloub was a decision of the President, Justice Giudice, Deputy President Hamilton and Commissioner Larkin and in that decision, reference was made at - I'm sorry, I've handed up the internet copy, whereas the one in my submissions is the Federal Court Reports, if your Honours would just simply bear with me for a moment. It's at paragraph 26 on page 5 of your Honour's copy, but reference was made to a Federal Court decision in Lenijamar, spelt L-e-n-i-j-a-m-a-r Pty Ltd v AGC Advances Ltd [1990] FCA 520; (1990) 27 FCR 388 and the passage which the Full Bench of this Commission went to stipulated this:

PN113

The rules must be administered sensibly and with an appreciation both of the fact that some delays are unavoidable and predictable by even the most conscientious parties and their lawyers and that the likely serious consequences to an applicant of staying or dismissing a claim.

PN114

Further on:

PN115

But two situations are obvious candidates for the exercise of the power, cases in which history of non-compliance by an applicant is such to indicate an inability or unwillingness to co-operate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases, whatever the applicant's state of mind or resources, in which non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative factor of an applicant's default may be such to satisfy a judge that the applicant is either subjectively unwilling to co-operate for some reason or is unable to do so. Such a conclusion would not readily be reached, but where it was, fairness to the respondent would normally require the summary dismissal of the proceedings.

PN116

Now, that was the test to which her Honour, Senior Deputy President Drake, was taken by the respondent in both of the strike-out applications.

PN117

VICE PRESIDENT LAWLER: You say this is a case within the first of the two situations or both of them?

PN118

MS NOMCHONG: In both, but predominantly within the first, that is in which there has been a history of non-compliance demonstrating an inability or unwillingness to co-operate, but it also falls within the second limb because that non-compliance - - -

PN119

VICE PRESIDENT LAWLER: Ms Nomchong, let me seek your assistance and to fairly alert you to what my concern is, so that you can deal with it. I can't see any non-compliance whatever by Ms Chand with directions other than and I'm not on top of the evidence in relation to it, the category of, "non-compliance," and I use that word in inverted commas that you addressed before the adjournment which had to do with the indication that the matter wouldn't be listed unless it was ready to proceed. I just can't see directions that haven't been complied with or orders that haven't been complied with. That's not the SRA's fault, but her Honour for whatever reason has chosen over this extended period not to make directions.

PN120

MS NOMCHONG: With the greatest of respect, your Honour, I think that by focusing your attention on directions or timetables, that you're really misunderstanding the test and I do say that with the greatest of respect.

PN121

VICE PRESIDENT LAWLER: I'm not at all offended.

PN122

MS NOMCHONG: The test is really a non-compliance with a simple direction, be ready for hearing, get yourself ready for hearing. That's the direction. There wasn't going to be for a long period of time, of course - - -

PN123

VICE PRESIDENT LAWLER: Just bear with me for a second. So the real direction was a direction to be ready for hearing and that was the direction given in August 2005.

PN124

MS NOMCHONG: And again on 26 July 2006 and again by implication, although not specifically, at the directions hearing on 3 August.

PN125

VICE PRESIDENT LAWLER: Yes.

PN126

MS NOMCHONG: That if your Honour is focusing the bench's attention simply on a timetable which would read the applicant file their affidavits by such and such a date and the respondent to file their affidavits, it misunderstands the way in which her Honour approached this matter. Her Honour said, well, the applicant can bring whatever evidence that she likes, in whatever fashion that she likes, as long as she is ready to proceed. That's the way in which it happened. Now, there were no requests made by the solicitors for Ms Chand for directions in terms of, you know, the appropriate timetable and yet that was the very basis upon which Mr Oliveri made his complaint on 27 September.

PN127

He says, well, we've been served with all of this material and we're not prepared to meet it and Senior Deputy President Drake quite rightly said, well, the respondent didn't have to serve you with any material, you could have simply started today and that's because the respondent's case hadn't even been listed for hearing and in her judgment she alludes to the fact that if the appellant had found herself in any difficulty in meeting the respondent's case during the course of the hearing, of course, an application could have been made to bring further evidence in reply at another time and that would have been entirely inappropriate, but what occurred on 27 September 2006 was simply that despite all of the assertions and the confirmations by Ms Chand and those who represented her that she was ready to proceed, we came along on 27 September and Ms Chand wasn't here and Mr Oliveri wasn't in a position to proceed. Now, I hesitate to say this, because it doesn't appear anywhere in the evidence, but on 27 September Mr Oliveri did not bring anything with him to court. He didn't have a file, he didn't have a book, he didn't have anything which would have allowed him to in fact progress the claim.

PN128

VICE PRESIDENT LAWLER: He had a medical certificate apparently.

PN129

MS NOMCHONG: Following on from what your Honour said before that he could have, you know, tendered the statement or done something of that kind, he wasn't even in a position to do that, so that, really, what had happened is that the day before, Mr Oliveri had written a letter to Clayton Utz solicitors saying I'm going to make an application for an adjournment tomorrow. Clayton Utz had indicated on behalf of the respondent we will be objecting to that. This matter is now one year and I think 11 months old by the time it had got to - I'm sorry, one year and seven months old by the time that it had got to 27 September and then all of a sudden and we submitted on the day very conveniently a medical certificate appeared to say that the applicant was unwell and couldn't appear. Now, what Senior Deputy President Drake did on that day, it wasn't a knee-jerk reaction and said, all right, well, you know, that's it, Senior Deputy President Drake stood the matter down for a couple of hours to allow further medical evidence to be put and to allow the appellant to come to the Commission and attend, to say, well, all right, I'm not going to grant your adjournment application, so what I'm going to do is stand it down to allow you time to prepare, time to get ready to run the case. When the matter was re-listed, Mr Oliveri simply came back to Senior Deputy President Drake and said, well, the doctor can't come because she's busy and the appellant is sick and not attending. Now, that was the basis on which the adjournment was refused. Much was said, of course, about this voluminous material.

PN130

VICE PRESIDENT LAWLER: Do you think it was reasonable to require the doctor to attend in that time frame?

PN131

MS NOMCHONG: Well, it was reasonable - it wasn't just for the doctor to attend, to get some further medical evidence I think was the direction given
by - - -

PN132

VICE PRESIDENT LAWLER: Well, I thought the proposition was to get the doctor here, either have Ms Chand here or have the doctor here.

PN133

MS NOMCHONG: Yes.

PN134

VICE PRESIDENT LAWLER: So there was a suspicion floating around, you use the word conveniently, about the medical certificate, there was a suspicion floating around that this was a bodgie certificate, that Ms Chand wasn't really sick and this was just a ruse to avoid grasping the nettle of a hearing and the way to overcome that was for either Ms Chand to attend or for the doctor to attend to say she's too sick to attend.

PN135

MS NOMCHONG: Yes.

PN136

VICE PRESIDENT LAWLER: But if one hypothesises for a moment that the certificate wasn't bodgie, Ms Chand was in fact sick and was in fact sufficiently sick that it was reasonable for her not to be attending, so that the only way in which that would be demonstrated was by the doctor attending, was it reasonable to expect the doctor would ignore the doctor's patients and simply come to the Commission by 11 o'clock?

PN137

MS NOMCHONG: Well, I suppose in a sense - was it reasonable? I think it was, in the circumstances in which that certificate was produced, that is that Mr Oliveri told us that he had been contacted by his client the night before, but had not seen the certificate until the morning of the hearing. The first time we saw it, of course, was at five to 10. We hadn't had any opportunity to test the evidence, of course, and that it did seem all too convenient and I think we grabbed the nettle in that circumstance and squarely made that submission to Senior Deputy President Drake. Now, what, of course, happened during the course of that adjournment, that is the couple of hours or the hour and a half in which it was stood down - - -

PN138

VICE PRESIDENT LAWLER: Do you know what is implicit in that, though? What is implicit in that are these allegations that Ms Chand is prepared to abuse the processes of the Commission, she is prepared to give instructions to her solicitor to put forward to the Commission something which she knows to be false, in other words she is guilty of that criminal offence, what used to be section 299, whatever it is now, it's an offence to do something which would be a contempt if it were done in the face of the Supreme Court and that the doctor has participated in this in producing a fraudulent medical certificate. Those are all matters that attract the operation of the Briginshaw principle. They are not to be proved with a finger waving at the truth, as I think Rich J or inexact proof as Dixon J points it and, in fact, there's no proof whatever here. There's nothing more than a suspicion, nothing.

PN139

MS NOMCHONG: Well, could I say this? I agree with you totally. The submission that we put below was that it was convenient and that what then occurred as her Honour - - -

PN140

VICE PRESIDENT LAWLER: I can understand your frustration and I suspect if I had been in your position, I probably would have done exactly the same thing, but that's the luxury that counsel has, but did her Honour have a basis for acting upon that?

PN141

MS NOMCHONG: Well, her Honour then gave Mr Oliveri a very fair opportunity to describe the applicant's symptoms and you'll recall in the judgment that her Honour describes it as an escalating range of symptoms, so that what was contained in the medical certificate was influenza and asthma, making her unfit for work, the certificate was not a certificate directed to the attention of her ability to appear in court and I think that that was a matter squarely underlined by her Honour, that is that what there was was a simple WorkCover certificate saying she's unfit for duties, whatever that meant in circumstances where, of course, the appellant wasn't working at that time, but in any event, it wasn't - and what I think can be inferred from that is that the doctor wasn't told that the purpose of the certificate was for the appellant to provide some evidence to the court that she was unable to sit in the witness box and answer some questions about her affidavit material, a very different proposition to perform the work, one would have thought, but in any event, that's one inference that's available.

PN142

The second matter that happened was that during the course of the time that the matter was stood down, Ms Chand contacted her Honour's chambers personally and when she came back on transcript indicated that those calls had been made directly to her chambers and I think to her mobile and so her Honour was concerned that, well, inferentially if she's well enough to be making phone calls to me, how sick is she really, so her Honour then questioned Mr Oliveri about the nature of the appellant's symptoms and instead of remaining at influenza and asthma, it increased and I think that they are set out in the judgment at paragraph 26 and Mr Oliveri advised that he had spoken to his client, she had advised him that she had severe headaches, pains, body pain, asthma and was aching all over and then at paragraph 29:

PN143

I asked Mr Oliveri to confirm the applicant's condition. He indicated the applicant also had diarrhoea, difficulty in breathing, panic attacks.

PN144

In those circumstances, members of the Full Bench, we say her Honour was entitled to treat the medical evidence with a good deal of scepticism because what she had before her in terms of the medical certificate was then inconsistent with what was being put forward by Mr Oliveri from the bar table, but in any event, in any event the appellant's medical condition is not something that her Honour relied upon. She says that she dismissed - - -

PN145

VICE PRESIDENT LAWLER: This is 45?

PN146

MS NOMCHONG: That's correct, that is:

PN147

I rejected the second basis for the application for adjournment. It was not the basis upon which I dismissed the application.

PN148

That is the adjournment application:

PN149

Ms Chand was not ready to proceed on the grounds which Mr Oliveri had outlined in his first application. Ms Chand knew she had to be ready and she was not. There was no acceptable excuse for her failure to be ready to conduct the matter and I reject the matters put forward by Mr Oliveri.

PN150

So the appellant's illness or otherwise was not a matter taken into account in refusing the adjournment application, but the reality was that after the adjournment application was refused, Mr Oliveri made no application himself to say, well, all right, well, I'll tender the medical certificates and I'll tender the affidavit material. Quite frankly, from my observations and as I say, I say it with some hesitancy because there's no evidence of it, but he simply wasn't in a position to do that. He had come along armed only with the medical certificate as far as I could see.

PN151

VICE PRESIDENT LAWLER: What are we supposed to do with that submission?

PN152

MS NOMCHONG: Well, it was something - - -

PN153

VICE PRESIDENT LAWLER: I am just concerned about - the appeal proceeds on the basis of the evidence before the member below and the decision. Unless there's an application for fresh evidence under subsection 6, there's no reason why you can't call some fresh evidence now. Perhaps your instructing solicitor can give it.

PN154

MS NOMCHONG: Well, I think I might do that, because I think it provides an additional basis upon which it would provide the Full Bench, if you grant me leave to call that fresh evidence, to form the view that was obviously taken by her Honour in the sense that your Honour has quite rightly said, well, why didn't he just simply proceed with his application? I mean, from our point of view, what had happened was that he was so sure that he was going to get the adjournment application that he didn't bring anything.

PN155

VICE PRESIDENT LAWLER: I would be careful, Ms Nomchong. You're making out a case of representative error.

PN156

MS NOMCHONG: Well, I don't know what to do with that either, in the sense that the respondent has been consistently frustrated. We have had to deal with first of all Ms Chand unrepresented. We've had to deal with the RBTU, we've had to deal with three sets of solicitors, all of whom seem to point the fingers at each other for the failure to get this matter ready for hearing. The starting point is really that one year and seven months after Ms Chand lodged her application, she wasn't ready to proceed. That's the starting point and the second point to be made about that, I know your Honour wants to cut me off here, but the second point is that it wasn't as if this strike-out application took the appellant by surprise, that is it had been foreshadowed on 9 August when the matter had simply been stood over generally and our submission of the strike-out application in July 2006 was that if we hadn't put the strike-out application on, the appellant wouldn't have done anything, that is that the only reason that the appellant came to court with affidavit material and the document called points of defence was in answer to the strike-out application. Now, even then, at that point in time, after 10 months of doing nothing, not a document filed, not a statement, not a written undertaking, Senior Deputy President Drake takes the view that says, all right, well, I heard you, Ms Nomchong, but - - -

PN157

VICE PRESIDENT LAWLER: It's a very common occurrence in the District Court and the Supreme Court from my experience, I mean, not perhaps so much in the most recent times with the more efficient case management, but the notion of cases as it were just sitting there with nothing happening on them is a very common phenomenon.

PN158

MS NOMCHONG: Well, I think your Honour would be in error if you then compared the case management system in this Commission with that in the Supreme Court of New South Wales, for example, because it runs under a very different scheme. In fact, there is a specified object under the Act here to deal with matters expeditiously and your Honour would be well aware that most unfair dismissal applications - - -

PN159

VICE PRESIDENT LAWLER: Yes, Ms Chand.

PN160

MS CHAND: May I just go to the ladies, please?

PN161

VICE PRESIDENT LAWLER: Yes, certainly, Ms Chand. We'll just remain on the bench.

PN162

DEPUTY PRESIDENT MCCARTHY: Ms Nomchong, I recognise that Ms Chand is not here, but in your written submissions you address Ghalloub. Were you intending to address the principles of Ghalloub at some stage and how the circumstances here fit or don't fit those principles?

PN163

MS NOMCHONG: Yes, I was, and I was going to do so by reference to the - I had already done some written submissions in the strike-out application and at the directions hearing before Vice President Lawler, I had asked specifically whether those submissions were going to be made available to the Full Bench, so I had assumed that you had in fact read those as well. Otherwise, I can get copies of them.

PN164

VICE PRESIDENT LAWLER: Apologies, Ms Nomchong. That's I'm afraid something else that had slipped through to the keeper.

PN165

MS NOMCHONG: That's all right.

PN166

VICE PRESIDENT LAWLER: My associate can make copies now. Don't trouble yourself, Ms Nomchong. We have a copier readily to hand and my associate will make copies immediately for the other members of the bench. Ms Chand, in your absence there's been a short exchange between the bench and Ms Nomchong just about locating some submissions that Ms Nomchong wants the members of the bench to read which will be photocopied and Deputy President McCarthy asked whether or not Ms Nomchong was going to address the principles in Ghalloub. Those are the only things that happened in your absence. Otherwise, we've been just waiting for your return. Yes, Ms Nomchong.

PN167

MS NOMCHONG: Thank you. Just returning to the - before I leave the medical evidence and the state of the medical evidence, the Full Bench has been provided with some written submissions by the appellant attaching yet a further medical certificate from Dr Balinski. Do you have that in front of you?

PN168

VICE PRESIDENT LAWLER: We have the applicant's submissions, but the attachment does not appear in what was emailed to my chambers, so, no, we don't have it.

PN169

MS NOMCHONG: The document that I have has a separate stamp from the Commission. It might be a separate document that is filed at the same time.

PN170

MS CHAND: I filed it this morning, your Honour.

PN171

VICE PRESIDENT LAWLER: This is annexure BC2?

PN172

MS NOMCHONG: Our one isn't identified, but there was a medical certificate of Christine Balinski dated 27/9/06.

PN173

VICE PRESIDENT LAWLER: Yes, addressed to Senior Deputy President Drake.

PN174

MS NOMCHONG: Yes, sir. The reason I bring that particular certificate to your Honours' and Commissioner's attention is that, of course, it itself written on the very day of the hearing is inconsistent with the litany of symptoms put forward by Mr Oliveri from the bar table. Now, Senior Deputy President Drake didn't take this into account and if accepted by the Full Bench, it has to be - - -

PN175

VICE PRESIDENT LAWLER: Well, there's no suggestion it ever came to her attention.

PN176

MS NOMCHONG: That's right, it's not referred to in the judgment. If it is accepted, it's fresh evidence and may - - -

PN177

VICE PRESIDENT LAWLER: It does certainly have the Commission's fax number on it. In any case, it was faxed.

PN178

MS NOMCHONG: Does it appear on the Commission's file?

PN179

VICE PRESIDENT LAWLER: I looked at the file this morning. I must say I didn't see anything like that. No, it doesn't.

PN180

MS NOMCHONG: It would be my application that the Full Bench would accept this certificate under the fresh evidence rule and I would tender it in my case on the basis that what it does is provide a basis for the Full Bench to consider whether Senior Deputy President Drake determination of the medical evidence and the assertions being made by Mr Oliveri to her were appropriately made. I mean, your Honour has made some comments to me that it was about the Briginshaw standard, about the matters which had to be met. All that was said was really that there was no suspicion about the appellant's medical condition.

PN181

VICE PRESIDENT LAWLER: This document - Commissioner Redmond handed to me a clip of documents which has Redmond C written on top of it. I'm sorry, I'm looking at the wrong date. The faxed letter from Dr Christina Balinski dated 27 September 2006 attached to the submissions of Ms Chand in this appeal and marked annexure BC2 and bearing the receipt stamp of the Commission of 28 November 2006 will be marked MFI1 on the appeal and we'll deal with the admission once Ms Chand has had an opportunity to make some submissions in relation to it.

MFI #1 FAXED LETTER FROM DR CHRISTINA BALINSKI DATED 27/09/2006

PN182

MS NOMCHONG: Thank you. What I want to say about that particular certificate, of course, is that it's dated the very day on which the appellant through her solicitor tells Senior Deputy President Drake that she is suffering from an escalating range of symptoms, including severe heachaches, pains, body pains, asthma, aching all over, diarrhoea, difficulty in breathing and panic attacks. Now, none of those symptoms other than the asthma are described in the medical certificate and my submission about what you should do with that if it's admitted into evidence - - -

PN183

VICE PRESIDENT LAWLER: It's not true.

PN184

MS NOMCHONG: Sorry?

PN185

VICE PRESIDENT LAWLER: The medical certificate refers to flu, doesn't it?

PN186

MS NOMCHONG: The first medical certificate does.

PN187

VICE PRESIDENT LAWLER: Yes.

PN188

MS NOMCHONG: I am talking about the second medical certificate, MFI1.

PN189

VICE PRESIDENT LAWLER: Yes, but the flu is consistent with - well, it refers to an infection, exacerbation of her asthma, doesn't it?

PN190

MS NOMCHONG: I'm not sure about the words that precede exacerbation, whether it's two words, I can't understand what those two words are, but I concede that they could be infection, but it wouldn't seem to be sensible, in the sense that the sentence would then read:

PN191

Consistent with an infection exacerbation.

PN192

The syntax would be - - -

PN193

VICE PRESIDENT LAWLER: In any event, if one goes on when the medical certificate was issued on the 26th, aching and pains all over and diarrhoea may well indeed be consistent with flu. Flu is a label that's applied to a medical condition that can involve a range of symptoms. One would take almost judicial notice of that, given that almost everybody has it from time to time.

PN194

MS NOMCHONG: One would have thought that given that the medical state of the appellant was of such import that if a medical certificate of this kind was going to be sent to Senior Deputy President Drake on the 27th, the very day of the adjournment application, it would in fact contain specific identification of the symptoms being put forward by Mr Oliveri.

PN195

COMMISSIONER REDMOND: Ms Nomchong, you don't think Mr Oliveri might have - if I accept what you said about coming just with the certificate, might have stretched his knowledge that the applicant may not have even said some of those words to him of what was wrong with her on the day?

PN196

MS NOMCHONG: I would never make that submission. I would think that as a solicitor of the Supreme Court of New South Wales, Mr Oliveri would only repeat what had been said by his client and I would think that that would be confirmed by the content of the appellant's written submissions where at paragraph 3.2 she seemingly gives evidence of what she told Mr Oliveri on the day.

PN197

VICE PRESIDENT LAWLER: Ms Nomchong, it's drawing a long bow to ask us to in effect find that the appellant is lying when she says on the 27th I was feeling these things and on the 26th she had a medical certificate that shows a lesser range. It's entirely conceivable that she developed diarrhoea overnight. It's entirely conceivable that she was feeling stress and having panic attacks as the day of judgment descended upon her.

PN198

MS NOMCHONG: I am not suggesting for one minute that the appellant is lying. I am here to demonstrate that there is no appealable error in Senior Deputy President Drake's decision.

PN199

VICE PRESIDENT LAWLER: I must say I thought that was the import of your submissions, that - - -

PN200

MS NOMCHONG: No, the submission that I made with respect was that her Honour considered the medical evidence and was sceptical about it. That's as far as it went and then concluded in paragraph 45 that she didn't utilise any of the medical material for the basis of her decision not to grant an adjournment.

PN201

VICE PRESIDENT LAWLER: Look, you're quite right to bring the focus back to that, because that was the focus that we I think identified as the correct focus of the appeal in any event when we invited you to go first in the interests of efficiency. Could you perhaps just take us now to the evidence that you say makes out the proposition that the real direction was a direction to be ready for hearing and that was given in August, on 26 July and on 3 August 2006?

PN202

MS NOMCHONG: What I want to do - - -

PN203

VICE PRESIDENT LAWLER: And the second proposition for which it would be useful if you could take us to the evidence is where - the evidence that makes good the submission that Ms Chand repeatedly said that she was ready for hearing.

PN204

MS NOMCHONG: I don't want to confine myself to those three matters.

PN205

VICE PRESIDENT LAWLER: No, no, please, that's not in any way seeking to confine you, but at the end of the day, we need to act upon the evidence. You've made submissions, we have yet to read all of the evidence and it would be of assistance to us if you could take us to the evidence that made good those central submissions.

PN206

MS NOMCHONG: What I want to do is put it in context of the principles in Ghalloub and that is - or, indeed, the principles in Lenijamar, that is that Senior Deputy President Drake was entitled to look at the history of the matter and not simply confine herself to the one instance that occurred on 27 September and you'll remember what was said in Lenijamar. The last transgression might have been minor in the greater scheme of things which it wasn't, we say, but it might have been minor, but the court is entitled to look at how long you've taken to get there and what you've done on the way through, so it really goes back to the very start and I don't want to labour the point about it, it is in my submissions.

PN207

The appellant was terminated on 31 January 2005. She filed her application in this Commission on 16 February 2005. It's common ground that the very first conciliation conference was adjourned and the reasons, the excuses given by the appellant are important because they were matters that were taken into account by Senior Deputy President Drake. The first conciliation conference is adjourned on the appellant's application because she was seeking legal advice from the Law Society.

PN208

VICE PRESIDENT LAWLER: Your submission says applying to the Law Society for pro bono assistance.

PN209

MS NOMCHONG: Yes. Is there a difference, your Honour?

PN210

VICE PRESIDENT LAWLER: Yes.

PN211

MS NOMCHONG: Well, let me put it specifically in those terms, that she was seeking legal advice from the Law Society to provide both pro bono - well, it's important because it's the same reason that was given by the appellant later on for not taking any steps to progress the matter between May 2005 and August, really even later than that, a conciliation conference before Mr Caesar on 26 April 2005 which was not successful and the matter was listed for arbitration on 18 and 19 July 2005.

PN212

Now, true it is that the first adjournment application was made by us and it was made by us on two bases, first of all suitability of counsel and second of all it was made on the basis that other than the simple line in the application that the appellant alleged that her dismissal was unfair, we really have no particulars about the basis upon which it was unfair. At that directions hearing, Senior Deputy President Drake declined to make formal directions about filing, what would amount to a points of claim or any further material, but said that because the appellant was unrepresented, what she would do would be to list it for directions and that in those circumstances, the appellant would be able to articulate the basis upon which she was going to pursue her claim.

PN213

VICE PRESIDENT LAWLER: Was there any reason given ever for the non-appearance of Ms Chand at that directions hearing on 7 June?

PN214

MS NOMCHONG: No, not to my knowledge, but I haven't checked that. The matter was then set down for hearing on 23, 25 and 26 August 2005. Now, at that time, the RBTU through Mr Panagiris was representing the appellant. He applied on 9 August for a vacation of those hearing dates on the basis that the appellant had applied for legal assistance under the pro bono scheme of the Bar Association and that she needed time for application to be determined.

PN215

The RBTU through Mr Panagiris indicated that that would be about eight weeks. Now, the reason that's important is that the reason given for the inability to proceed is that the appellant did not have the benefit of legal assistance and why that becomes important is that the appellant is represented by Turner Freeman Solicitors as from November 2005.

PN216

VICE PRESIDENT LAWLER: Ms Nomchong, one doesn't come to the bench free of such defective insight as comes from one's personal practice experience. This is a very common phenomenon, isn't it, that somebody in Ms Chand's position, confronted with complex legal issues to be addressed, finds themselves feeling at sea and wants to try and obtain legal assistance, goes to the Law Society, goes to the Bar Association, goes and speaks to various solicitors, tries to come to an arrangement with them.

PN217

MS NOMCHONG: That's not the criticism, your Honour. The criticism is we're told on 9 August that it's going to take eight weeks for the application to be determined and on 9 August Senior Deputy President Drake says I'm going to stand this matter over generally and I'm not going to re-list it until you, Ms Chand, tell me that you are ready to proceed, I want you to provide a written undertaking that you are ready to proceed. That's what Senior Deputy President Drake says on 9 August 2005. Nothing could be clearer. The second thing that happens on 9 August is, of course, the respondent foreshadows a strike-out application.

PN218

The respondent says, well, it's now seven months since this application was filed. Normally unfair dismissals are turned around fairly quickly in this Commission. We've got this application hanging over our head, we would like it to move forward. Senior Deputy President Drake says if you want to make a strike-out application, you can do so at the appropriate time. Why that's important is, of course, that the appellant is fully put on notice that if she doesn't do something to progress her claim, the respondent is likely to make a strike-out application. Now, no strike-out application is made within two weeks, three weeks, four weeks, no strike-out application is made after the appellant becomes represented by Turner Freeman Solicitors.

PN219

Your Honour is quite right that there were some settlement discussions going on and they covered both proceedings here and concurrent proceedings in the ADT which Ms Chand had commenced, but notwithstanding that, solicitors are obliged notwithstanding settlement discussions to progress the matter, that is between November 2005 and 4 July 2006 Turner Freeman were on record and not once during that period was any step taken by the appellant to progress the matter down here. The matter wasn't listed for directions, affidavits weren't filed, medical evidence wasn't given, no steps were taken during that period. More steps were taken in the ADT proceedings, but that's - - -

PN220

COMMISSIONER REDMOND: Ms Nomchong, can I ask the question of the application for the adjournment of 9 August, you said that was applied for by the union, I understand?

PN221

MS NOMCHONG: Yes.

PN222

COMMISSIONER REDMOND: And at that point in time, did the union indicate that they were no longer representing the applicant? What happened to the union? They disappeared?

PN223

MS NOMCHONG: They disappeared, not straight away. There was a couple of letters. They're not in evidence, of course, but there are a couple of letters, but we understood very firmly from Mr Panagiris that the position was that the union couldn't carry it forward and they were waiting for the appellant to seek independent legal advice.

PN224

COMMISSIONER REDMOND: Thank you.

PN225

VICE PRESIDENT LAWLER: They were just holding the fort.

PN226

MS NOMCHONG: Indeed.

PN227

VICE PRESIDENT LAWLER: You said 4 July. I take it that's the date that Turner Freeman filed a notice of ceasing to act.

PN228

MS NOMCHONG: Ceasing to act, which is the day before the matter was first listed for the strike-out application.

PN229

VICE PRESIDENT LAWLER: 4 July? 6 July is the - - -

PN230

MS NOMCHONG: It was listed on the 5th, the 6th and 26 July, the strike-out application. Another relevant consideration that was available to Senior Deputy President Drake was, of course, that the notice of motion seeking to strike out the appellant's application was filed and served on 5 June 2006, but it wasn't heard for a month later. Now, in that month, of course, nothing happened. In that month, Turner Freeman were on record as representing. It wasn't really until we arrived at the Commission on 5 July that we were presented with the appellant's affidavit and her document entitled points of defence. The reason given by the appellant for the late preparation of material was that she had been studying for exams, that Turner Freeman had abandoned her and that the documents upon which she had been working on her computer was the subject of a disk corruption on the day before. Now, none of those matters, except the abandonment by Turner Freeman really played on her Honour's mind. It was a serious allegation to make in the circumstances and her Honour in fact comments in her judgment on the tendency of the appellant to blame her solicitors for her lack of preparation in this matter. Accordingly, her Honour stood the matter down on 5 July, directed the
respondent - - -

PN231

VICE PRESIDENT LAWLER: Let me express frustration about that. Willing to wound, but not willing to strike. Should we be proceeding on the basis that she disbelieved Ms Chand and that Ms Chand was misleading her in relation to the Turner Freeman abandonment allegation? It's one thing to be suspicious about it, it's another thing to act upon it.

PN232

MS NOMCHONG: Well, I think that that's why SDP Drake did the right thing. She said, well, I don't know one way or the other about this and directed the respondent in fact to contact Turner Freeman to advise them that the matter was going to be re-listed on 6 July so that they could come along if they wished to and make any representations about whether or not they had in fact - - -

PN233

VICE PRESIDENT LAWLER: Well, for the purposes of this appeal, if it ever gets to this point, are we supposed to proceed upon the basis that claims that
Ms Chan made were false in relation to the allegation of Turner Freeman abandonment?

PN234

MS NOMCHONG: I don't think there's any evidence on which you could do that. No, I don't think that there is any evidence on which you could do that, or what your Honour's can simply draw from it is that at the heel of the hunt, the day before the application is to be determined, for a reason unknown to us the retainer between the appellant and Turner Freeman is terminated. Now, all we have is
Ms Chan's assertion from the bar table that she was abandoned by Turner Freeman, again a very serious allegation to make. But there's no evidence about whether that was one way or the other. The only thing which you take from the litany of the history is that simply, at the very point in time we were going to come here and argue a strike out application all of a sudden Ms Chan says, well, I'm not in a position to proceed because I'm unrepresented today because Turner Freeman abandoned me yesterday.

PN235

Then overnight Ms Chan is able to get the representation of Mr Vasta who comes along on 6 July. He also appears on the 26 July I think, then he disappears off the record and Mr Oliveri comes on foot on 3 August. So it's simply a matter upon which when you're looking at the test in Lenijamar you look at the history of excuses, the reasons for the delay, why matters weren't progressed and why matters aren't progressed is that every time we come to the Commission the appellant is pointing the finger at her own legal representation and is doing so in circumstances where there's simply no evidence to support it, except for the fact that no evidence is filed.

PN236

VICE PRESIDENT LAWLER: I thought your submission was that the solicitors have also pointed the fingers at each other.

PN237

MS NOMCHONG: Indeed they have. Mr Oliveri made that very clear in his submissions on 27 September and said he was openly criticising the former solicitor at not having filed evidence sooner.

PN238

DEPUTY PRESIDENT MCCARTHY: Ms Nomchong, as I understand the essence of your submission is that there was a pattern of behaviour that SDP Drake saw it as a pattern of behaviour and there was sufficient from the history of events for her to form that view.

PN239

MS NOMCHONG: In a nutshell that is my submission, your Honour, and that there's no appellable error which attends that. Don't forget that in the House v King principles it's not what this Full Bench would have done in SDP Drake's position.

PN240

VICE PRESIDENT LAWLER: Of course.

PN241

MS NOMCHONG: But there was the litany to which I've just described, the chronology, the history, to put it in non pejorative terms, is that in fact what was before SDP Drake.

PN242

VICE PRESIDENT LAWLER: Well, take us to her decision and show us which principles she applied. I don't see any reference Ghalloub or Lenijamar in there.

PN243

MS NOMCHONG: No, and I can't take you to any references. They were before her and indeed in the transcript - - -

PN244

VICE PRESIDENT LAWLER: How do we know what principles she applied?

PN245

MS NOMCHONG: Well, we don't from her decision. The factual analysis that her Honour undertook is consistent with the principles in Lenijamar and Ghalloub, that is, a factual analysis of a history of non compliance showing an inability to wanting to press the matter, but she hasn't herself articulated the case or indeed the test that she was going to apply. She's come to a factual determination - - -

PN246

VICE PRESIDENT LAWLER: I must say, I look at paragraph 42:

PN247

The history of this matter is one of avoidance by Ms Chan of her obligation to conduct her application.

PN248

And I have some difficulty squaring that away with the actual chronology that's there which, if anything, shows Ms Chand making persistent and repeated efforts to obtain effective representation. She goes to the Law Society, she goes to the Bar Association, she goes to Turner Freeman. They cease to act and one would infer that there were difficulties with the amount of work that was involved and payment arrangements. I don't infer that, but one might speculate about that, then she goes to Mr Vasta and then she goes to Mr Oliveri. Isn't that consistent with somebody who is actually making persistent efforts to try and get their case organised?

PN249

MS NOMCHONG: Well, your Honour, I think that no efforts were taken between 9 August and 5 July, quite frankly. In terms of physically doing something in terms of this case, the only evidence that we have is from the appellant, that she - well, I withdraw that. On 9 August, Mr Panagiris tells the Commission that the reason for the adjournment is so that Ms Chand can access the Bar Association's pro bono legal scheme and that that will take about eight weeks to determine.

PN250

VICE PRESIDENT LAWLER: We don't know what happened.

PN251

MS NOMCHONG: We don't know what happened with that. Ms Chand has put something in her first affidavit about what efforts she made, but in any event, even if that was the case, there's no explanation at all. One of the things that the Senior Deputy President was entitled to take into account was that what explanation could there be between 9 August 2005 and November 2005? Your Honour might be quite right, perhaps the appellant was seeking the assistance of the pro bono legal scheme, but from November 2005 through to July 2006, there's simply no excuse. She had the benefit of experienced industrial solicitors.

PN252

VICE PRESIDENT LAWLER: Who were conducting settlement negotiations it appears for over a couple of months, between March and May, with your client.

PN253

MS NOMCHONG: Yes.

PN254

VICE PRESIDENT LAWLER: Please understand this is a Socratic type of exchange. I'm trying to test the proposition. I do not have a concluded view against you and I'm exhibiting a degree of testing-ness as distinct from testiness precisely because I want to understand what the issues are and what the correct outcome ought to be, but it's just commonplace, isn't it, for parties not to run up additional costs preparing matters, particularly where there are no directions requiring the filing of evidence when settlement negotiations are proceeding, because the more money you spend preparing matters while settlement negotiations proceed, the more difficult - the more impediments you place in the way of a settlement.

PN255

MS NOMCHONG: Well, the way to have got around that and the way in which I personally would have got around it was to list the matter for directions before Senior Deputy President Drake and say we're now acting for the applicant in these proceedings, settlement discussions are proceeding, we want to inform the Commission for politeness and other reasons, that if the matter doesn't resolve, we'll be proceeding to hearing by filing the appropriate affidavit evidence.

PN256

VICE PRESIDENT LAWLER: Prima facie there's some criticism to be levelled at Turner Freeman on the face of these facts. Why does that get visited on Ms Chand in circumstances where Turner Freeman have long since left the scene?

PN257

MS NOMCHONG: Well, quite simply because we don't know about the interaction between Ms Chand and Turner Freeman. I mean, for all we know, Ms Chand could have been directing Turner Freeman not to pursue any of the matters down here and simply to pursue her case in the ADT. We simply don't know. I don't think that Turner Freeman can - I mean, I'm not walking away from the fact that Turner Freeman didn't do anything, but that's not the basis upon which the ultimate conclusion is drawn, that is that there was simply nothing done. In reality, the only reason that this case was re-agitated at all was because the respondent filed a strike-out motion. That was the catalyst which drew the appellant into putting something on and that was in July.

PN258

I mean, even if your Honour is against me to say, well, there were some settlement discussions, you don't have any evidence about the longevity and the difficulty that attended those settlement discussions in terms of getting responses. That might be a matter - and it wouldn't be appropriate to make any conclusions about whether there was a flutter of settlement discussions or whether there was long drawn-out discussions where long periods of time went by without any responses from either party, both of which are possible in settlement discussions, but in any event, even if settlement discussions were on foot, that doesn't explain the cause for delay between May when they came to an end and July when the notice of motion got put on, so again there's an unexplained period of time when nothing was done to progress the proceedings. One would have thought that the appellant would have thought, well, discussions are at an end - - -

PN259

VICE PRESIDENT LAWLER: It's just wrong to say that it's unexplained, is it not, because the explanation given, challenged by you and understandably so, is that Turner Freeman abandoned her, let her down, did the wrong thing?

PN260

MS NOMCHONG: The day before. The day before. There was no allegation that Turner Freeman had abandoned her back in May. The reason that she wasn't prepared to run the notice of motion to strike out the application was because Turner Freeman had abandoned her. There's no allegation that Turner Freeman had abandoned her months before.

PN261

COMMISSIONER REDMOND: Do you know when they did?

PN262

MS NOMCHONG: As far as we know it was when ceasing to act was filed on 4 July, the day before.

PN263

COMMISSIONER REDMOND: The day before. So for us it would be safe to say that we should assume that that's when Turner Freeman abandoned her?

PN264

MS NOMCHONG: Well, I think it would be safe to say that's when Turner Freeman filed their notice of motion ceasing to act. But your Honour really can't draw the conclusion that - and indeed, the challenged and untested assertions from the bar table by Ms Chand that there was abandonment at some period prior to then. There's simply no evidence of that. In any event, as Commissioner Redmond has quite rightly pointed out, the only evidence that you do have available is the Turner Freeman cease to act. If they had abandoned her they would have filed that months before back in March or May, but in any event it doesn't - - -

PN265

VICE PRESIDENT LAWLER: See, we don't know, do we, one way or the other? There's the unchallenged submission from the bar table that her Honour couldn't have acted upon, but didn't, was not obliged to act upon about abandonment by Turner Freeman. But how could her Honour, as it were, draw the affirmative conclusion contrary to Ms Chand that it was some affirmative approach on her part to avoid her obligation to conduct her application.

PN266

MS NOMCHONG: But she didn't, that's the point. That's the very point I'm trying to make, is that the appellant has been given chance after chance after chance and in fact what happened in the strike out application was the last chance. That is, that her Honour didn't draw the conclusion contrary to the interests of the appellant. The notice of motion was struck out. We asked for costs thrown away. We didn't get them, and in fact what had happened was that Mr Vasta and your Honour asked me to identify in the transcript the relevant parts of Mr - and I should say in fairness to Mr Vasta, he did say up front that he had no experience whatsoever in this jurisdiction. He's a personal injuries lawyer. But - - -

PN267

VICE PRESIDENT LAWLER: 26 July?

PN268

MS NOMCHONG: 26 July at PN124 and your Honours can in fact look at all of the material and in fact you should look at all of the transcript for that because it's really about the appellant's readiness to proceed. But at PN124, the Senior Deputy President says:

PN269

Mr Vasta, what she says -

PN270

meaning me -

PN271

is that the matters related to preparation for hearing. It's the preparation of the matter for hearing that has remained unattended to, without attention. There's been no endeavour to have the matter ready for hearing. I don't know what's happened in relation to the settlement of the matter.

PN272

Mr Vasta:

PN273

Well, your Honour, my client points me to, draws my attention to her affidavit. I'm not sure whether it's 4 or 5 July which clearly sets out all that's transpired.

PN274

Yes.

PN275

And then he says:

PN276

As far as the hearing itself is concerned, she's filed the medical report, there isn't a date for hearing. There's no - she has been focusing on the moment, on getting this motion out of the way. She says that she may need to update certain medical reports, but other than that she is ready to have the matter set down.

PN277

Now, later on, over the page at PN133, Mr Vasta says that:

PN278

My client is willing and able to cooperate with the court. Where do we go from here, your Honour? I would ask that the strike out motion be dismissed and that therefore costs will follow accordingly.

PN279

And that was probably due to Mr Vasta's lack of familiarity with costs for revisions down here.

PN280

My client should be allowed to have a case heard before the court and whatever timetable, appropriate timetable agreed on will be adhered to. My client has asked me to put to you that if the matter was dismissed it will cause injustice to her, thank you very much.

PN281

Then over the page at PN147 he says:

PN282

I'm just amazed by the statement that my client would sit back and do nothing when she's been coming through solicitors, she's been trying to do it, profess to have this matter before the court. She's gone to Turner Freeman, she's gone to myself. I'm here representing her. You can see the volume of work that she's done to have this matter ready for hearing. She's now saying, you know, she wants to take a date. She's been ready to take a date. She had trouble last August and she had trouble getting a barrister, but then she got Turner Freeman. Your Honour has seen the attitude of Ms - from Turner Freeman in reply and now at the last stage this is not a strike out application.

PN283

So at that point in time Mr Vasta's asserting positively to SDP Drake that the matter is ready for hearing expect for perhaps an updated medical report. Now, what of course transpired since 26 July was that there was in fact an additional affidavit on 11 September 2006. There was in fact no updated medical report supplied and at no stage prior to 27 September were we informed that the applicant wasn't ready to proceed. So when Mr Oliveri turns up on 27 September with a medical certificate what her Honour has before her is 19 months of a lack of action clearly on this particular application, with a series of excused related to - - -

PN284

VICE PRESIDENT LAWLER: And Mr Oliveri then proceeds to tell her that the case is not ready to run.

PN285

MS NOMCHONG: I'm sorry, your Honour?

PN286

VICE PRESIDENT LAWLER: Mr Oliveri on that day then tells her that the case is not ready to run.

PN287

MS NOMCHONG: That's right. He says, you know, we'd need a month, he says, and that there's an exchange between Mr Oliveri and SDP Drake where she alerts him to the fact. She says, well, you don't have to address all of this material in the respondent's affidavits because we haven't set down the respondent's case yet, and if you want to, you can make an application, obviously meaning an application to put on evidence in reply, if you want to. But Mr Oliveri runs over that and it's apparent, of course, that Mr Oliveri hasn't read the material at all.

PN288

Now, can I just say, much was made about the volume of material and it's a complaint that's made here. It was a complaint that was made at the ADT. One of the affidavits, that of Kerry Messenger, who was a human resource manager at SRA, filed an affidavit. Attached to that were three volumes of annexures. Now, her Honour averts to the fact that Mr Oliveri comes along here and says, we can't meet this, we can't meet this case because - - -

PN289

VICE PRESIDENT LAWLER: Four, not three. They're numbered 1, 2 and 3 but one of them is in two parts.

PN290

MS NOMCHONG: I see, I'm sorry. He says, we can't meet all this material, but as I submitted below and as her Honour referred to in her judgment, most of the material is emails to and from ICAC, the Minister for Transport, the CEO of the SRA and others which were either directed to or from the appellant herself. So this is not material new to the appellant. These are documents which she has either generated herself or has been the recipient of. So it was simply a furphy to keep asserting, as she did and as Mr Oliveri did, that they were taken by surprise by this large volume of material. But more importantly, as SDP Drake pointed out, there was no requirement on us at all to have filed the material.

PN291

VICE PRESIDENT LAWLER: An absolute killer point. To the extent that there's any impact upon Ms Chand, it's of benefit because at least she's got whatever she's able to read, notice of what you're going to say.

PN292

MS NOMCHONG: Indeed, and that's why we took the steps that we did. We'd only been provided with Ms Chand's last affidavit on 11 September.

PN293

VICE PRESIDENT LAWLER: You don't need to persuade us that that was not a point of merit that Mr Oliveri was advancing.

PN294

MS NOMCHONG: All right. Well, let me conclude by then by saying that, in very square terms, although her Honour didn't articulate the principles in Ghalloub, this Full Bench can infer that that was what was put before her by reason of the fact that, if looking at the transcript below on 27 September, I referred her to my written submissions in the strike out application, the written submissions in the strike out application quite squarely go the principles in Ghalloub and Lenijamar. They set out the relevant passages. I had provided copies of both decisions to her Honour which should be on the court file.

PN295

VICE PRESIDENT LAWLER: Yes, they are.

PN296

MS NOMCHONG: And now I might just come to - - -

PN297

DEPUTY PRESIDENT MCCARTHY: Can I go back one step, please, Ms Nomchong.

PN298

MS NOMCHONG: Sure.

PN299

DEPUTY PRESIDENT MCCARTHY: In the proceedings of 27 September, does Mr Oliveri actually state that he wasn't ready to proceed?

PN300

MS NOMCHONG: Yes, he does. I'll just find the - he says he would need a month. I'll just get the - - -

PN301

DEPUTY PRESIDENT MCCARTHY: I know there's reference to a month.

PN302

MS NOMCHONG: I think it's PN86, your Honour.

PN303

DEPUTY PRESIDENT MCCARTHY: 86?

PN304

MS NOMCHONG: PN86. He says:

PN305

My submission is that the applicant is ready, has been ready for some time. It's unfortunate she's sick. There's nothing the court can do about it. There won't be any prejudice to any party if the adjournment is granted. It's not going to be heard today. It wasn't going to be completed today and tomorrow. It can be completed next month and all of our evidence is on. My client is not trying to avoid taking the witness stand.

PN306

That's the reference to a month.

PN307

VICE PRESIDENT LAWLER: But I thought your submission was that he had acknowledged that she wasn't ready, was not ready?

PN308

MS NOMCHONG: She wasn't ready to proceed on 27 September.

PN309

VICE PRESIDENT LAWLER: No. That her case wasn't ready, the preparation of her case wasn't ready. She wasn't ready to proceed on that day because she was sick.

PN310

MS NOMCHONG: No. Well, that comes earlier when he says, we're not ready to proceed because we've been given this large volume of material and I just gave you the transcript reference for that.

PN311

DEPUTY PRESIDENT MCCARTHY: Which is rejected as an application for an adjournment.

PN312

MS NOMCHONG: Yes. It's at PN12 and that's the very - the primary basis upon which Mr Oliveri seeks his adjournment application.

PN313

DEPUTY PRESIDENT MCCARTHY: So the sequence was an adjournment application which was rejected, a strike out application - - -

PN314

MS NOMCHONG: Which was acceded to.

PN315

DEPUTY PRESIDENT MCCARTHY: And during that strike out application Mr Oliveri says that the applicant was ready, apart from her sickness.

PN316

MS NOMCHONG: Yes, that's right.

PN317

VICE PRESIDENT LAWLER: That's directly contrary to your submissions. Your submissions are that he - you took us first to the 26 September transcript at PN124, 127, 133 and 147.

PN318

MS NOMCHONG: Yes.

PN319

VICE PRESIDENT LAWLER: Where there was a statement that it was ready for hearing, but then you said that on 27 September Oliveri says that he's not ready to run the case because the evidence is not - they need to put on more evidence.

PN320

MS NOMCHONG: This is at PN12 where he says, I'm not in a position to deal with these affidavits to 1500 exhibit pages to it, and then goes on to say, you know, we might have to put on other evidence.

PN321

VICE PRESIDENT LAWLER: But that's evidence in reply, surely?

PN322

MS NOMCHONG: Well, that's what SDP Drake pointed out to her. That's the very sequence of events.

PN323

VICE PRESIDENT LAWLER: But certainly that PN12 can't possibly go to establishing the proposition that Ms Chand's case was not ready to be conducted, save for the issue of her sickness, her case in-chief was not ready to be conducted save for her sickness.

PN324

MS NOMCHONG: Excuse me for one moment. My instructing solicitor quite properly reminds me that an adjournment application was in fact made the day before, before the illness of the appellant was known to any of the parties and that that was contained in the - there was a facsimile to the Commission. There was - - -

PN325

VICE PRESIDENT LAWLER: My speculation about this is that Mr Oliveri got this material and adopted an appreciation as to the case being a lot more, a lot larger and a lot bigger than what he'd thought, a lot more difficulty from his perspective, and he threw his hands it he air metaphorically speaking.

PN326

COMMISSIONER REDMOND: He had a stroke.

PN327

VICE PRESIDENT LAWLER: Of course, your client - I mean, none of this ought sound to the prejudice of your client.

PN328

MS NOMCHONG: I'm sorry, your Honour?

PN329

VICE PRESIDENT LAWLER: None of this ought sound to the prejudice of your client.

PN330

MS NOMCHONG: Indeed, your Honour, in the sense that we had come fully prepared on that day to run the case and in circumstances where we felt somewhat unjustifiably put on, I suppose, in circumstances where we thought that the only reason that anything had been done was because of our strike out motion and perhaps what we would have been better to do is sit on our hands and do nothing and standing here before you today I'm - - -

PN331

DEPUTY PRESIDENT MCCARTHY: Retrospect is wonderful, isn't it?

PN332

MS NOMCHONG: It is, yes, and standing here before you today I must say that I'm renewing that view that should have gone with that instinct, but in any event, we didn't. We put the strike out application when the applicant started her preparation. But in any event, looking at the material that you have before you, when Mr Vasta said the matter was ready to proceed on 26 July, clearly it wasn't because more material was put on on 11 September. We were ready to deal with that and we came along prepared to deal with it, and I think your Honour's summation of Mr Oliveri's approach to it is probably the correct one, but, you know, it's - - -

PN333

VICE PRESIDENT LAWLER: Whatever. Okay.

PN334

MS NOMCHONG: Can I just complete - - -

PN335

VICE PRESIDENT LAWLER: Have you finished taking us to the evidence about the real direction, the direction that we move to hearing?

PN336

MS NOMCHONG: I'm sorry, I couldn't hear?

PN337

VICE PRESIDENT LAWLER: The proposition that you put earlier on today that I made a note of, which I think is certainly an important proposition, if not the critical proposition is that the real direction is a direction, it was a direction to be ready for hearing, and you said that that happened in August 2005.

PN338

MS NOMCHONG: Yes.

PN339

VICE PRESIDENT LAWLER: It happened on 26 July and it happened on 3 August.

PN340

MS NOMCHONG: Yes.

PN341

VICE PRESIDENT LAWLER: And then this was not complied with, that Ms Chand had repeatedly said she was ready, but in fact was not ready.

PN342

MS NOMCHONG: Yes.

PN343

VICE PRESIDENT LAWLER: Have we dealt with the evidence now for that?

PN344

MS NOMCHONG: We've dealt with the evidence, so it's that. The other factors that are taken into account in alluding to that of course is the range of reasons that are given and, you know, the sceptical approach that SDP Drake was entitled to take in relation to those reasons, and in fact she comments quite pejoratively about them in her decision and you may say, see for example at paragraph 45 that she says about Mr Vasta, the last sentence:

PN345

Mr Vasta and then Mr Oliveri presented a professional standard that seemed to suit Ms Chand's purpose of avoiding the resolution of the application.

PN346

So she's quite critical of the way in which those two practitioners - - -

PN347

VICE PRESIDENT LAWLER: For my part there is no evidentiary foundation to make that statement, for my part, at least that's my provisional view, but I'd have to go back and read very carefully over your submissions, but there was every reason for her not to be ready to put the case on 27 September, namely that she was sick, and that there was no basis to make any finding that that claim was fraudulent in the Briginshaw sense. One might be sceptical about it, but it's one thing to be sceptical. It's another thing to make a finding that's fraudulent. If that then provides an acceptable reason for her not to be ready to proceed on that day, she was otherwise ready on the material that you've taken us to.

PN348

MS NOMCHONG: Well, no, she wasn't because - excuse me, your Honour. Your Honours, he wasn't ready to proceed because at no time on 27 September did he say, either during - after the adjournment application or during the strike out motion, I am ready to proceed, I will commence the case, I will tender affidavits, I will put forward the medical reports. That's the one thing that didn't come out of Mr Oliveri's - - -

PN349

VICE PRESIDENT LAWLER: I didn't mean ready in the sense that Mr Oliveri was himself personally ready to run it, but that the case in terms of evidence had been prepared.

PN350

MS NOMCHONG: Well, what we now know, of course, is that that's not the case. Ms Chand, in her own submissions, says that she wants to put on more evidence and so that's something that the Full Bench can take into account, but in any event, it wasn't ready to proceed on the 27th, it didn't go forward. Mr Oliveri didn't agitate for it, he didn't ask for it to be stood down simply for one day so that they could come back the next day and do it. I note the time, and I will - - -

PN351

VICE PRESIDENT LAWLER: No, you're right, Ms Nomchong, please.

PN352

MS NOMCHONG: And I will come to the conclusion. If I go back to it. That is, we say quite clearly there's no public interest ground on which the appeal should be granted. Secondly, if you're against me on that and leave to appeal is granted, then we say that there is no indication that SDP Drake transversed the principles in House v The King. She set out the reasons for her decision clearly. She didn't take into account the medical evidence and she relied solely on the fact that Mr Oliveri said he was unable to meet the respondent's material, that it was his primary application.

PN353

He said I can't read the 1500 pages of the respondent's material. That's the reason why he asked for the adjournment application in the first place. It was dismissed and at no time during the rest of that day did he say, well, I'm in a position to proceed, I hear what your Honour says and we can bring some evidence in reply. He doesn't say that. But the events of 27 September had to be put in context of the 19 months of delay that got us to 27 September.

PN354

Could I just say quickly about the appellant's - and I will be very quick on this. We only got the appellant's written submissions last night, so accordingly I haven't put any - - -

PN355

VICE PRESIDENT LAWLER: Do you want an opportunity to put a brief note in submissions in reply in writing?

PN356

MS NOMCHONG: I'm sorry, your Honour?

PN357

VICE PRESIDENT LAWLER: If you're in a position to deal with it now, if you want to put a brief note in writing you can.

PN358

MS NOMCHONG: Well, I think given the time that might be a better thing to do, but in a nutshell it simply is that the cases and principles referred to by the appellant in her written submissions are not on point because they're all cases to do with dismissal, dismissal of cases on the grounds that they are - the general stance type principles, that they are not legally enforceable, ultimately hopeless or those sorts of things.

PN359

VICE PRESIDENT LAWLER: Manifestly untenable.

PN360

MS NOMCHONG: Untenable. You know, reliance is placed on the High Court decision in Daughter v Kanika, which was a case about advocate's immunity. It doesn't simply sit on all fours at all with the case being agitated here. So they are some other things, but I can certainly convert my submissions in that regard in writing so that I can give Ms Chand an opportunity.

PN361

DEPUTY PRESIDENT MCCARTHY: Ms Nomchong, there was a question I asked you earlier about, whether you're going to go through the principles of Ghalloub and I raised that, particularly what I had in mind was your paragraph 45 of your submissions and I think in particular subparagraph (1), which I understood Ghalloub to say whether an applicant had made out an arguable case, rather than that which is stated there and from what my understanding is, is that by submissions on 4 July and an affidavit of 26 September, they were in effect the applicant's case in a nutshell.

PN362

MS NOMCHONG: There were three affidavits, your Honour. There was one on 4 July, one on 26 July and one on 11 September.

PN363

DEPUTY PRESIDENT MCCARTHY: Yes. Why would they not constitute making out an arguable case from the content of those documents - - -

PN364

VICE PRESIDENT LAWLER: Plus Dr Stevenson's report.

PN365

MS NOMCHONG: Dr O'Sullivan's report.

PN366

VICE PRESIDENT LAWLER: O'Sullivan's report, yes.

PN367

MS NOMCHONG: Your Honour, they would, but in the sense that the are three factors identified by the Full Bench in Ghalloub were not criteria which - the way in which I read Ghalloub, and certainly, it simply says well, if you've got one of these factors, then you're out.

PN368

DEPUTY PRESIDENT MCCARTHY: No, I'm not suggesting that. I read your submissions to suggest, and maybe I'm reading them wrongly, but no arguable case had been made out. Now, one of those elements - - -

PN369

MS NOMCHONG: That's not my submission at all.

PN370

DEPUTY PRESIDENT MCCARTHY: Okay.

PN371

MS NOMCHONG: My submission is that in fact the appellant had evidence. SDP Drake was cognisant of that, but then took into account the other two factors articulated in Ghalloub and said, well, I'm not persuaded, simply by the fact that she's filed her evidence, that this matter is ready to proceed. I look at, you know, the long history of the matter, the - - -

PN372

DEPUTY PRESIDENT MCCARTHY: Yes, I misunderstood. I thought you were saying something different.

PN373

MS NOMCHONG: Not at all, your Honour, and that's why I say the cases referred to by the appellant are not apposite.

PN374

DEPUTY PRESIDENT MCCARTHY: The only other issue, and I hesitate to raise this, but I think I'm obliged to, is where in Ghalloub, or anywhere else, do you look at to support the proposition that the Commission has the power to dismiss an application of this nature?

PN375

VICE PRESIDENT LAWLER: Given that the power in section 111(1)(g) is expressly excluded in relation to unfair dismissal applications?

PN376

MS NOMCHONG: I did go to that fairly and squarely. I think it's in the inherent power of the Commission to deal with its own proceedings, and I think that the decision in Ghalloub, in fact that it relates - - -

PN377

DEPUTY PRESIDENT MCCARTHY: We have an inherent power, do we?

PN378

MS NOMCHONG: Well, you would have to ask Mr Howard that question.

PN379

VICE PRESIDENT LAWLER: That's a very bold submission, Ms Nomchong.

PN380

MS NOMCHONG: Yes, I'm sorry, I withdraw that.

PN381

VICE PRESIDENT LAWLER: We're not a superior court of record. I think it's Jago v The High Court that says when you're a creature of statute you've got the powers given to you by the statute and nothing else, full stop.

PN382

MS NOMCHONG: Yes. I will look at that, but clearly what must flow from Ghalloub is the Full Bench is determining a want of prosecution application. It's not struck out on the basis that there's no jurisdiction to make it.

PN383

DEPUTY PRESIDENT MCCARTHY: See, the way I read it, and maybe I read it wrongly, in Ghalloub, I can't see where they address that issue at all but rather they considered the circumstances as to what had happened and SDP Cartwright, I think, in first instance, had found, well, there's no arguable case made out and these other issues, they found that there was in fact evidence before him which he should have considered.

PN384

MS NOMCHONG: Well, I'll have - - -

PN385

VICE PRESIDENT LAWLER: If you plug Ghalloub into the Full Bench database, there's in fact a Full Bench decision in which the President that's presiding that expressly addresses this issue and concludes that there is power, notwithstanding the apparent exclusion of section 111(1)(g). I can't remember the name of it off the top of my head, I was just trying to find it, but there is a Full Bench decision out there that supports that position.

PN386

MS NOMCHONG: Yes. I didn't address that because I just took from Ghalloub the fact that they were entertaining it.

PN387

DEPUTY PRESIDENT MCCARTHY: Yes. I too looked at something post Ghalloub and I can't find it, but I can find individual member decisions post Ghalloub that are at odds with each other as to whether there is a power.

PN388

MS NOMCHONG: Those are the submissions, and would the Full Bench please remind me not to go first next time.

PN389

VICE PRESIDENT LAWLER: Ms Nomchong, a commendable job. Can we just deal with practical evidentiary matters?

PN390

MS NOMCHONG: Yes.

PN391

VICE PRESIDENT LAWLER: Ms Chand, Ms Nomchong contends that on 27 September, that's the day that you were sick, and when Mr Oliveri turned up and applied for an adjournment, that he came to the hearing room with no papers, no files, no documents, no material ready to run the case. Do you seek to challenge that proposition, that factual proposition, that Mr Oliveri didn't bring anything to the hearing room apart from the medical certificate?

PN392

MS CHAND: Can I stand here and put my submissions, or do I have to - - -

PN393

VICE PRESIDENT LAWLER: No, no. I just want to know what your position is. You can challenge it or you can accept it. I mean, you weren't there, but you can make a choice to say, well, I've heard Ms Nomchong say that's what happened and her solicitor can give evidence that that's what happened. Well, in those circumstances I don't really want to challenge it. Or you can say, no, I want to challenge it and hear the evidence. But at the moment Ms Nomchong wants to call some evidence about that and for my part I'm minded to receive that evidence.

PN394

MS CHAND: I'm just a bit worried about challenging it because I haven't got any resources to sort of - I can contact Mr Oliveri again and find out what happened, because it wasn't a matter of contention up until today, that I didn't even bother to check with Mr Oliveri whether he brought any papers or files and I had no reason to do that.

PN395

VICE PRESIDENT LAWLER: Okay.

PN396

MS CHAND: If you know what I mean? I mean, it's like, I can contact Mr Oliveri and ask him if that was the case, but the issue - my only contention is that's not the issue. The issue is - - -

PN397

VICE PRESIDENT LAWLER: I understand. We're going to hear your submissions fully and we'll hear them now, but I just wanted to deal with these housekeeping matters that arise from Ms Nomchong's submissions. They're two evidentiary matters. The first is, Ms Robinson will have to get into the witness box to give evidence about this, should she be permitted and does she need to. She won't need to do that if you accept what Ms Nomchong is putting from the bar table, and I've no doubt that Ms Nomchong would not be lying about this.

PN398

Ms Nomchong, in my experience, observes the standards that one expects from the bar, and that is candour and honesty from the bar table. She says, I saw it with my own eyes that he didn't have these papers with him, but we can't act upon that mere assertion because it's a post-decision event. We need to receive fresh evidence about it. Ms Nomchong's indicated that she wants to call that evidence from Ms Robinson, who was there, if it's necessary. My question to you is, do we need to go through the motions of that occurring, or are you happy to accept Ms Nomchong's word that that's what happened?

PN399

MS CHAND: I'm reluctant to accept Ms Nomchong's ruling on that. The other - - -

PN400

VICE PRESIDENT LAWLER: No, that's fine, that's enough, that's enough.

PN401

MS CHAND: Just the other - one more thing - - -

PN402

VICE PRESIDENT LAWLER: That's enough.

PN403

MS CHAND: Mr Oliveri's office is across the road from here so if - - -

PN404

VICE PRESIDENT LAWLER: You'd like an opportunity to check with Mr Oliveri?

PN405

MS CHAND: Well, I can give him a call, certainly.

PN406

VICE PRESIDENT LAWLER: Okay. Then the second thing is, this letter or medical certificate of 27 September, that's the one that's in the form of a letter, you sought to rely upon that in your submissions. Do you have any objection to it being marked as an exhibit?

PN407

MS CHAND: I don't have any objections to it being marked as an exhibit.

PN408

VICE PRESIDENT LAWLER: Okay. MFI1 will become exhibit A1 on the appeal.

EXHIBIT #A1 MEDICAL CERTIFICATE LETTER DATED 27/09/2006

PN409

VICE PRESIDENT LAWLER: Ms Nomchong, do you mind if we adjourn for a few moments to allow Ms Chand to contact Mr Oliveri?

PN410

MS NOMCHONG: Certainly.

PN411

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

<SHORT ADJOURNMENT [12.31PM]
<RESUMED [12.42PM]

PN412

VICE PRESIDENT LAWLER: Yes, Ms Chand, do you challenge the factual assertion?

PN413

MS CHAND: I do. I spoke to Mr Oliveri just now and Mr Oliveri says that he did have a bag with him, he did have my affidavit with him, he did have his own affidavit which is attached to my appeal on - I think just after the transcript of 27 September.

PN414

VICE PRESIDENT LAWLER: Okay. Just wait for a moment. Ms Nomchong, the factual proposition that's being asserted apparently is that whilst there may not have been folders on the table or documents on the table, there was a bag and it did in fact contain the relevant evidentiary documents.

PN415

MS NOMCHONG: I'm not in a position to challenge that and I think that, you know, if that is the case, then it only makes it worse for the appellant, because then he was in a position to tender something if he wanted to. So I'm not going to seek to bring in the evidence about what was in Mr Oliveri's bag.

PN416

VICE PRESIDENT LAWLER: Thank you, all right. Okay, Ms Chand, your submissions.

PN417

MS CHAND: Okay.

PN418

VICE PRESIDENT LAWLER: You can make the assumption that we have read and will re-read with care your written submissions. It's a matter for you as to how you proceed, but what you might like to think about is really responding to the matters that Ms Nomchong has been saying on her feet today.

PN419

MS CHAND: I'm extremely nervous, I have to say that, and also I'm heaps better at writing and thinking about things than in verbal submissions.

PN420

VICE PRESIDENT LAWLER: Just bear with me a minute. Ms Nomchong, would you have any objection if Ms Chand's reply or response was done in writing?

PN421

MS NOMCHONG: Not at all.

PN422

VICE PRESIDENT LAWLER: Okay. Would you like to - we can finish the hearing now and you can respond in writing. You'll have a transcript of what Ms Nomchong said and you can prepare a written response. Now, we will be specifying a timetable though and you can have input into how much time you need, but the timetable will be firm. Do you understand that?

PN423

MS CHAND: I do, your Honour, but before we do that, can I just take you to some of the really glaring errors in her presentation, which I will quickly point out and that should be enough. If I may be permitted to do that.

PN424

VICE PRESIDENT LAWLER: I think the proposition we're going to put to you is this, and the three of us are agreed, you can't have it both ways. You either do it orally now or you can do it in writing, but you can rest assured that we will read carefully whatever you put in writing and if you want to take us to glaring errors, you can do that in writing just as readily as you can on your feet now. I certainly will not - it will fall to me to do the first draft of a decision and I'm not going to write any draft of a decision unless I've read very carefully everything you've written. Do you understand?

PN425

MS CHAND: I do understand. Can I just tender to the court regarding Mr Turner Freeman. I've got these two - - -

PN426

VICE PRESIDENT LAWLER: So I take it, Ms Chand, you're electing to go with the written response approach, but you want to tender some evidence as well?

PN427

MS CHAND: Yes, that's correct, your Honour.

PN428

VICE PRESIDENT LAWLER: Okay. What do you want to tender?

PN429

MS CHAND: That's the - I haven't got copies of it.

PN430

VICE PRESIDENT LAWLER: You can hand up any original documents and my associate will make copies for you immediately after it's been - if it's accepted into evidence, copies will be made immediately, before you leave.

PN431

MS CHAND: Thank you.

PN432

VICE PRESIDENT LAWLER: Okay. Can you show it to Ms Nomchong first, please. Ms Nomchong, we're in the fresh evidence zone and you can take your appropriate course in relation to that. Ms Chand, just while Ms Nomchong is reading that, let me explain this to you. This is what's called by lawyers fresh evidence on the appeal. There are rules about the admission of fresh evidence. Those rules are relatively restrictive and Ms Nomchong has a right to object to it. The fact that it's relevant is not enough. There are other conditions that have to be met for fresh evidence to be received on appeal if it's objected to. Now, Ms Nomchong may or may not object, I don't know.

PN433

MS NOMCHONG: I probably object simply on relevance. The first is a letter directed to the Registry dated 23 March 2006 in which Turner Freeman files a notice of appearance, and the second is a letter dated 4 July 2006 enclosing a notice of ceasing to act. I'm not sure how they could possible be relevant to the matters on appeal.

PN434

VICE PRESIDENT LAWLER: Okay. What do you say is the relevance, Ms Chand?

PN435

MS CHAND: The fact that it has been alleged that Turner Freeman didn't do anything, be it filed a notice, not only just to act, but also to have the matter re-listed and back on foot in March 2006. So that's the letter to that effect.

PN436

VICE PRESIDENT LAWLER: Can you pass it up, please.

PN437

MS CHAND: Along with the notice of appearance, your Honour.

PN438

VICE PRESIDENT LAWLER: These are both addressed to the Registry. These will appear on the file so that you don't need in fact to tender these. What's in the file is, I think, part of the record for the purposes of the appeal.

PN439

MS CHAND: I think it was back in July 2006 - - -

PN440

VICE PRESIDENT LAWLER: I'll just note for the purposes of the transcript that the documents that Ms Chand has sought to tender is firstly a document of 23 March 2006, a letter from Turner Freeman Lawyers to the Australian Industrial Registry, noting that they have filed a notice of appearance, that the matter was stood over in August 2005 pending further communications from Ms Chand. Is the matter proceeding? "We're instructed to proceed the mater to hearing. Accordingly we seek to have the matter listed in order that the timetable for the provision of evidence may be entered and seek to have the matter listed for trial." And then there's secondly a letter of 4 July 2006 enclosing a notice of ceasing to act.

PN441

So, Ms Chand, those documents will be on the file. You don't need to tender them.

PN442

THE COMMISSIONER: I was actually informed earlier in July that it wasn't on file. So that was the only purpose.

PN443

VICE PRESIDENT LAWLER: Well, could you hand them back, please.

PN444

MS CHAND: Sure.

PN445

VICE PRESIDENT LAWLER: I'll mark them for identification. So letter of 4 July and the notice of ceasing to act is definitely on the file. There's a letter of 22 March, a matter of a notice of representative's appearance and the letter of 23 March has not found its way to the file. Ms Nomchong, there would appear to be some relevance in, given your submissions, that Turner Freeman and through them, Ms Chand, did nothing to try and activate the matter, there would appear to be some relevance in a letter to the Commission which Ms Chand might reasonably be supposed to - which a person in Ms Chand's position might reasonably suppose to be on the file, and it not being there.

PN446

MS NOMCHONG: Well, first of all it's a very late piece of evidence. Clearly it was available, strike out application in July 2006 and it was also available on 27 September 2006 and therefore of course it breaches that particular limb of the fresh evidence rule, that is, it was available below. It's never been relied on before but in any event, of course what was on the file was that the matter was not to be re-listed unless there was a written undertaking from the applicant that she was ready to proceed, and I query whether filing a notice of appearance satisfies that test. I don't think it does, but in any event it must be an extremely interesting inference for the Full Bench to draw that if Turner Freeman really thought the matter was going to be listed for directions on or soon after 23 March, why it took absolutely no steps to agitate that following 23 March. Simply the first time it came back before the Commission was - - -

PN447

VICE PRESIDENT LAWLER: One can speculate as to a whole variety of reasons why that might have occurred, if the assumed facts - - -

PN448

MS NOMCHONG: That might require an understanding of the Registry that I don't have.

PN449

VICE PRESIDENT LAWLER: Or an understanding of SDP Drake's chambers. There may have been telephone calls and things may have been said, who knows. I don’t know.

PN450

MS NOMCHONG: Well, that was never put below. I mean, that really does take us by surprise and it's certainly not an argument that was ever raised. We would object to it going in if that was the inference to be drawn.

PN451

VICE PRESIDENT LAWLER: We'll mark this for identification and make a decision about it in due course, but we note your submission that it doesn't pass muster on the fresh evidence rules because it was available at the time.

PN452

MS NOMCHONG: And also because it was never relied on below and that is a very important factors, not only was it available, but it's never been suggested that that was a step that was taken by Turner Freeman which would indicate some sort of step to agitate the matter below.

PN453

VICE PRESIDENT LAWLER: That may be because the - I don't know, but it might require close consideration to the transcript, but that might be because simply the case wasn't put below the way it's been put here on appeal. You say it was put exactly the same way and that, as it were, allegation, if I can put it that way, against Turner Freeman sitting on their hands and doing nothing was made squarely.

PN454

MS NOMCHONG: It was certainly made squarely by me below.

PN455

VICE PRESIDENT LAWLER: Fine, okay. Well, in any event, we'll mark the letter of 23 March 2006 from Turner Freeman to the Australian Industrial Registry as MFI2.

MFI #2 LETTER TURNER FREEMAN TO AUSTRALIAN INDUSTRIAL REGISTRY DATED 23/03/2006

PN456

VICE PRESIDENT LAWLER: Ms Chand, those documents were on yellow paper. I take it you got them from Turner Freeman, from their file?

PN457

MS CHAND: That's correct, your Honour, and I - - -

PN458

VICE PRESIDENT LAWLER: Was there facsimile transmission record?

PN459

MS CHAND: Not on this paper, no, and I didn't get the file until August 2006 from Turner Freeman and that was one of the bone of contention in the July hearing and I think Mr Vasta did say that it depends on when Turner Freeman is free to release the file and then we reached on certain - - -

PN460

VICE PRESIDENT LAWLER: So what you're saying is there was a dispute with Turner Freeman, presumably about payment of fees, and Turner Freeman declined to release the file until August 2006?

PN461

MS CHAND: It wasn't just the payment of fees. It was a whole range of other issues and subject to that was the release of the file and I won't go into that for - - -

PN462

VICE PRESIDENT LAWLER: When did you say you got the file?

PN463

MS CHAND: I got the file in August 2006.

PN464

VICE PRESIDENT LAWLER: Which date in August 2006?

PN465

MS CHAND: I think I got it on 2 August 2006, part of the file, and part of the file I got later in the first week of August.

PN466

VICE PRESIDENT LAWLER: Ms Nomchong, I note that's before 27 September which was the point that you no doubt make in response.

PN467

MS NOMCHONG: Indeed.

PN468

VICE PRESIDENT LAWLER: Thank you. Now, Ms Chand, subject to those documents, that's the only other material you wanted to tender?

PN469

MS CHAND: Can I - - -

PN470

VICE PRESIDENT LAWLER: What we have before us, just so you understand, is the Commission's file. We have the "evidence" before SDP Drake, which is essentially the file - I use the word "evidence" in inverted commas there - and we have the transcripts of the various mentions and hearings before SDP Drake and we have obviously her orders, but apart from that we do not place any other reliance upon anything else that was said or done by anyone. It's only that material that we act upon. Subject to also relying upon exhibit A1, your second medical certificate or letter from the doctor of 27 September. So is there anything else that you seek to tender?

PN471

MS CHAND: I think there are four documents in that exhibit to - exhibit 1 is attached to the appeal which was the medical certificate issued on 26 September. 27 September, that medical certificate I had not attended her surgery at that stage. I had called her up and she faxed that - - -

PN472

VICE PRESIDENT LAWLER: They're both in evidence. The medical certificate of the 26th is in evidence, that was relied upon, SDP Drake, that's properly before us. We've now admitted the 27 September certificate or letter as an exhibit. Now, is there anything else?

PN473

MS CHAND: Just I would ask or request the bench to look at the points of defence in terms of the history and all the efforts I put in.

PN474

VICE PRESIDENT LAWLER: That's a matter of submission which you're going to put in writing.

PN475

MS CHAND: Yes.

PN476

VICE PRESIDENT LAWLER: The things you want us to look at and the arguments you want us to consider, you're going to put in writing. Okay.

PN477

MS CHAND: Thank you, your Honour.

PN478

VICE PRESIDENT LAWLER: Now, Ms Chand, it's 28 November today. You can expect that a transcript will be available - you'll have a transcript certainly before the end of the week, and probably tomorrow. Is one week after that a sufficient period of time for you to do your submissions, which would take it until 8 December, it would be Friday, 8 December would be the date that you would need to submit your written submission in response to Ms Nomchong's arguments. Now, Ms Chand, this is important. We will not necessarily even read anything that we receive after that date from you. Do you understand?

PN479

MS CHAND: That's correct, your Honour. I do understand.

PN480

VICE PRESIDENT LAWLER: Is that date suitable for you, 8 December?

PN481

MS CHAND: Absolutely.

PN482

VICE PRESIDENT LAWLER: Okay, fine. If, and it's profoundly unlikely, the transcript were not available by that time, then that's something that we might revisit, but it's almost 100 per cent certain you'll have the transcript before the end of the week, and then until 8 December to put in the written submission. Ms Nomchong, you'll need obviously an opportunity to reply to that. The way that this has panned out is that really you've gone first and Ms Chand has gone second.

PN483

MS NOMCHONG: Yes.

PN484

VICE PRESIDENT LAWLER: Fine. Is a week after that satisfactory?

PN485

MS NOMCHONG: Absolutely.

PN486

VICE PRESIDENT LAWLER: I'm not going to destroy your holiday plans?

PN487

MS NOMCHONG: Christmas preparations, no, they're okay. Could I also just say on the record that in my written submissions we've foreshadowed a costs application. I'm instructed not to pursue that, at the end of my submissions that are already on, there will be no application for costs.

PN488

VICE PRESIDENT LAWLER: Fine.

PN489

MS NOMCHONG: Thank you.

PN490

MS CHAND: Sir, can I just understand that, a week from the availability of the transcript which would be - because transcript would be available - - -

PN491

VICE PRESIDENT LAWLER: No, the 8th is the date for your submissions. We're going to set a date now. 8 December at 4 pm you need to have given the submissions to the Registry or to my associate. You've got the email address for my associate.

PN492

MS CHAND: Yes, I do.

PN493

VICE PRESIDENT LAWLER: And a copy to Ms Nomchong.

PN494

MS CHAND: Yes, okay.

PN495

VICE PRESIDENT LAWLER: Okay. Look, some - we'll issue these directions formally in writing so that there can be no dispute about it in due course, no debate, but you can note down Friday, 8 December at 4 pm is your deadline and we will not necessarily even read anything we receive after that time, so in other words you need to make sure that you comply with that timetable, and Ms Nomchong, one week for you which will be 4 pm on 15 December.

PN496

MS NOMCHONG: 15th?

PN497

VICE PRESIDENT LAWLER: 15th, yes.

PN498

MS NOMCHONG: Thank you.

PN499

MS CHAND: Thank you, your Honour.

PN500

VICE PRESIDENT LAWLER: We reserve our decision.

<ADJOURNED INDEFINITELY [1.00PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 FAXED LETTER FROM DR CHRISTINA BALINSKI DATED 27/09/2006 PN181
EXHIBIT #A1 MEDICAL CERTIFICATE LETTER DATED 27/09/2006 PN408
MFI #2 LETTER TURNER FREEMAN TO AUSTRALIAN INDUSTRIAL REGISTRY DATED 23/03/2006 PN455