C2006/3238, Transcript of Proceedings [2006] AIRCTrans 1299 (11 December 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16212-1

VICE PRESIDENT LAWLER
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER REDMOND

C2006/3238

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

SYDNEY

2.09PM, TUESDAY, 28 NOVEMBER 2006

Continued from 27/11/2006

Reserved for Decision

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN616

VICE PRESIDENT LAWLER: Mr Rich, you can hear in Brisbane?

PN617

MR RICH: Yes, I can, your Honour.

PN618

VICE PRESIDENT LAWLER: Good. Mr Heard?

PN619

MR HEARD: Thank you, your Honour. Your Honour, around lunchtime I sent through a supplementary list of authorities.

PN620

VICE PRESIDENT LAWLER: Yes.

PN621

MR HEARD: I don't know if Mr Rich has received those or is aware of them?

PN622

MR RICH: I have received them, but I haven't had a chance to review the authorities obviously myself. I have a list of the authorities.

PN623

MR HEARD: Your Honour, what I'd intended to do before I began addressing the evidence was to outline what the Commonwealth sees as the position on, I suppose, the power of the Full Bench to revisit findings, or what seem to be the critical findings in the first instance decision. I had suggested in my email that because Mr Rich has only just received the list of authorities and this will be the first time that he's heard what I'm about to say, it might be best if I simply outline the essence of our position and that the debate on that proceed by way of written submissions. I'm conscious of not taking up too much time on the video link on matters that truly are matters of law. Would that course be acceptable to the Full Bench?

PN624

VICE PRESIDENT LAWLER: Certainly.

PN625

MR HEARD: Your Honour will see that I have referred to four cases, all decisions of the High Court. The first in point of time is the decision referred to, or one of the decisions referred to by your Honour yesterday in the matter of Warren v Coombs. What I intend to rely on from that authority is that the court there drew a - I'm sorry, all of these authorities deal with the situation of an appeal by way of rehearing and what the Appeal Bench can do in revising findings that were made at first instance. Now, Warren v Coombs is authority for the proposition that once facts are determined at first instance, the Appeal Bench is in just as good a position to draw inferences from these determined facts as was the person who heard it at first instance.

PN626

However, Warren v Coombs also drew a clear distinction between inferences drawn from decided facts and matters that arise as a result of findings of credibility based on observations of the judge at first instance in seeing the witnesses. I'll just briefly read the passage that highlights that distinction and it comes from page 538:

PN627

Where the question at issue is the proper inference to be drawn from facts which are not in doubt, the appellate court is in as good a position to decide the question as the judge at the trial is, that the appeal, although a rehearing, is a rehearing on the documents and not as a rule on oral evidence and where the judge at the trial has come to a conclusion upon the question which of the witnesses whom he has seen and heard are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be, and the appellate tribunal will generally defer to the conclusion which the trial judge has formed.

PN628

Your Honour, we would submit that the critical findings in this matter were whether or not Mr Palmer's statements found by Mr Grills to have been false and misleading in relation to the meeting on 18 March, and particularly also those in relation to the allegations against Ms Schultz involving Ms Windsor, were findings quite clearly on credit. The issue which had to be determined was were Mr Palmer's statements simply mistaken, or was there some other explanation, and was that explanation that they were false and misleading?

PN629

We say that Mr Grills, having interviewed Mr Palmer and the other witnesses, concluded that Mr Palmer's statements were false and misleading and we say that Commissioner Harrison, having heard Mr Palmer give evidence and be cross-examined and all the other witnesses give evidence and be cross-examined, agreed that Mr Grills was right and that that those findings necessarily entailed a finding that the evidence that Mr Palmer had given to the Commission could not be accepted and that the allegations that he continued to press before the Commission and the factual matters he pressed before the Commission were false and misleading. We would say that is clearly in the credit area.

PN630

Your Honour, we would say that the current statement, or definitive statement, of the law is set out by the High Court in the decision of Fox v Percy. Your Honours, I have neglected to hand up the copies of the authorities which I hope there's enough room in the folders I handed up yesterday to include. Now, rather than go through the whole of that decision now, what I would propose to do is to refer to statements, or very recent statements, about it in what I - I'm sorry, your Honour.

PN631

VICE PRESIDENT LAWLER: Sorry, Mr Heard.

PN632

MR HEARD: Yes. Your Honour, what I understand to be the most recent decision by the High Court on this point is CSR Ltd & Anor v Della Maddalena. In that decision, the Commonwealth would submit that the position on the law was set out by the High Court and that position is summarised in paragraph 21 on page 8:

PN633

Even in the case of expressed credibility findings, the statutory duty to conduct a real rehearing remains. It may sometimes justify reversal of a decision by a primary judge who has failed to use or has palpably misused his advantage or where incontrovertible facts or uncontested testimony demonstrates the findings to be erroneous; or where they are glaringly improbable and contrary to compelling inferences.

PN634

Now, your Honour, there are many judicial statements from the High Court concerning this area of how far an Appeal Bench may go in re-examining credit findings. We say that passage summarises them, and that the effect of it is that the Appeal Bench, in order to upset findings of credit about a witness observed at first instance, would require incontrovertible facts or uncontested testimony demonstrating that the conclusions on credit must be wrong, or those conclusions must be glaringly improbable, either inherently or in comparison with objective evidence, or that they are contrary to compelling inferences. What we would say from that is that in order to upset them, the Appeal Bench must be absolutely morally certain that they must be wrong.

PN635

We would say therefore that the ambit of an Appeal Bench's ability to revisit credit findings made at first instance is very limited. We will submit that in this matter there is no material and no circumstances which come anywhere near establishing circumstances that would entitle the Full Bench to revisit Commissioner Harrison's findings on credit on those two critical issues. We would say that the law says that it is not sufficient that a Full Bench on reviewing the transcript thinks that it might have come to a different view and the reason for that is the traditional basis which has been stated on innumerable occasions concerning the inherent disadvantage of the Appeal Bench in not having been able to observe the demeanour of the witness in the witness box.

PN636

In going through the evidence which I now propose to do, I approach that from the point of view of seeking to demonstrate to the Full Bench that there were innumerable instances in the evidence where it was open to the Commissioner to conclude, from observing the demeanour of Mr Palmer giving evidence, that his evidence should not be accepted. I will submit that given that circumstance, it will be abundantly clear that the Full Bench is simply not in a position to overturn the findings that Commissioner Harrison made on those points. We will submit that there is no compelling evidence to suggest that those findings were wrong and that if it be thought that inferences in certain circumstances ought not to have been drawn, that is nowhere near sufficient in terms of the Full Bench performing its appellate function for it to overturn those findings.

PN637

Now, having set that out, if it's convenient to the Full Bench I will now start going through the evidence. Your Honour, yesterday I had referred the Full Bench to the respondent's submissions in reply to the applicant's submissions of 29 May. That was a document of 14 June. What I'd propose to do is go through in more detail some of the matters set out in those submissions. Now, I believe that these are submissions under tab 24, Mr Rich?

PN638

VICE PRESIDENT LAWLER: Tab 24.

PN639

MR HEARD: Yes. Thank you, your Honour.

PN640

VICE PRESIDENT LAWLER: Of Mr Palmer's appeal book. Your Honour, I'd like to start, if I may - well, I'm going to go through this in a slightly different order to the order that it's in the submissions. Now, the reason for that is that the submissions start with one of the allegations that Mr Palmer had made against Mr Byrne, and this is the subheading on page 2, "Lobbing Grenades from Sidelines". Now, that allegation was one of the ones that Mr Palmer conceded he shouldn't have made. But there are a number of points set out in paragraph 9 under that and that was the beginning of these submissions and what we said were common themes in Mr Palmer's approach to this matter; (a) it was an aggressive reaction by Mr Palmer to his manager trying to deal with what should have been minor problems; (b) the accusation was unreasonable. In that case, we said to the point of being bizarre. The third one was that once Mr Palmer's mind was made up, he refused to be dissuaded from his view, whatever was said to him.

PN641

The fourth one was he would not let it go, he simply persisted in it and the fifth one was he was wrong, which we would say is a matter he admitted. However, the live issue, or one of the live issues, we'd say the most significant live issue before the Commissioner were the accusations by Mr Palmer against Ms Schultz in relation to Ms Windsor and the submissions on that start at paragraph 12 on page 3. What we'd say about that in broad outline is that Mr Palmer made that accusation in the exhibit H20. Well, the document is in both H9 and H20. H9 is at 622 of the respondent's appeal book. In summary, Mr Grills was asked to investigate that allegation. He interviewed Ms Boyle, Ms Schultz, Mr Palmer and Ms Windsor about it. Very significantly, he obtained a statement from Ms Windsor, which was H37. That appears at page 714.

PN642

On the second page of that statement, Ms Windsor categorically denied Mr Palmer's accusations that Ms Schultz had shouted at her. She asserted that she did not believe or did not regard as what Ms Schultz had done as harassment, and she also said - sorry, in the middle paragraph of that page:

PN643

Ms Windsor told me that she had not seen Ms Schultz's behaviour as harassment and she had not described it in those terms to Ms Boyle or to Mr Palmer.

PN644

Ms Windsor signed that statement on 1 June 2005 and it was admitted into evidence. Ms Windsor was not called, nor was she asked to be produced for cross-examination. That evidence is uncontested and cannot now be challenged. What we say Mr Palmer's situation was, was that once he had been given a copy of that statement which made it clear that the person that he relied upon to substantiate his allegation of harassment against Ms Schultz did not substantiate it, he needed to either withdraw the allegation or to clarify the matter with Ms Windsor and proceed on either amended evidence or amended allegations. He did neither. He simply continued all the way through the code of conduct matter and all the way through the hearing with his allegation that Ms Schultz had harassed and shouted at Claire Windsor.

PN645

It was simply not open to him to do so and his persistence in doing so was a matter that required explanation. We submitted that he was behaving untruthfully. That was Mr Grills' view and that was the Commissioner's view. The - - -

PN646

DEPUTY PRESIDENT DRAKE: Why didn't you call Ms Windsor?

PN647

MR HEARD: Your Honour, we took the view that we had Ms Windsor's statement. That was the document that was before the decision-maker, unless it was challenged. If it went into evidence it still - we would, I imagine, have argued that the responsibility was on Mr Palmer to call Ms Windsor as he was the one who wished to rely on facts which were contrary to those set out in the statement. We would say that inferences ought to be, and probably were, drawn adverse to him from his failure to do so. But it is also the case that we were not asked to produce her. If I could go to paragraph 18 of the submissions, what was done there was to set out a series of paragraph references in the transcript concerning Mr Palmer's cross-examination and to comment what the respondent said those paragraphs demonstrated.

PN648

It doesn't always proceed in strict sequence. Certain topics were started and then returned to. The first reference starts at PN1340. Now, your Honour, the transcript persistently refers to the tab numbers in the agreed bundle of documents and I'll attempt to translate those into exhibit numbers. 18.2 was H39 - I'm sorry, I think I'm getting ahead of myself there. The cross-examination from 1339 referred in fact to H20 which appears at 664, but in fact, it's the last page of that which contains the dot point allegations concerning the complainant's supervisor. Now, the cross-examination was at that point intended to elicit from Mr Palmer who he was referring to when he spoke of the complainant's supervisor in that email. The Bench will recollect that this was the email of complaint about matters which Mr Palmer asked AUSTRAC to include in the investigation and which were referred to Mr Grills to be included.

PN649

VICE PRESIDENT LAWLER: This is the seven listed items on page 666?

PN650

MR HEARD: Yes, your Honour. I'll just check that. Yes, your Honour. Your Honours will see:

PN651

The person you refer to as the now complainant was Louise Schultz?---I'm not sure.

PN652

Do you need a little time to reread the document to be sure?---Well, there's been - I mean, Rachelle Boyle adds this in because Rachelle has seen this document and she sort of said, well, I don't know who the complainant is. On reading back now a year later, I'm not quite sure who I was referring to as the now complainant.

PN653

Now, your Honours, this is Mr Palmer's document. He went on:

PN654

Well, read the seven points and see if that reminds you who you were referring to?---Well, if Rachelle couldn't understand it, then I'm quite sure how a year later I can, but I'd say it was probably - I don't think at the time I considered Rachelle to be the complainant. I think at that time I probably considered Louise Schultz to be the complainant because it appeared to be that her statement was complaining about the action, so maybe that's correct, maybe. I don't know.

PN655

Mr Palmer -

PN656

There's a typographical error there:

PN657

- read number 1 to 7 and tell us who you were talking about?---Well, that first line seems to suggest to me -

PN658

and so it goes on with a lengthy answer, and - - -

PN659

VICE PRESIDENT LAWLER: And he settles on Ms Schultz.

PN660

MR HEARD: Yes, by 1345 - - -

PN661

VICE PRESIDENT LAWLER: Who you would say was the obvious person being identified?

PN662

MR HEARD: We did in fact submit that she was the person being identified and everyone knew that all along. Now, the comment that I'd make at this point is that if we're talking about findings of credit, the person who hears and sees the witness give evidence is the only person who is in the position to judge the demeanour of the witness in giving those answers. Now, just on reading that, it doesn't look very good. It looks evasive. We submitted that it was evasive. Of course, there's a range of possible explanations. It could be confusion, it could be nervousness, it could be genuine loss of memory in the environment of the witness box, or it could be deliberate evasion. Now, these are matters which are the essence of assessments of credit. And in a case where the critical fact at issue was, were Mr Palmer's statements, his explanation of the meeting and his accusations against Ms Schultz, false and misleading, the Commissioner had to come to a view on credit. That was the issue.

PN663

So what I intend to demonstrate, and I'll try not to belabour this point as I go along, but what I'm intending to demonstrate by going through all of these is that there are innumerable instances where it would be reasonably open to a Commissioner hearing this witness in the witness box to conclude the answers could not be believed. The Appeal Bench, however, is not in the same position to do that because it cannot observe the demeanour of the witness. Now, the second point - I'm sorry. In the submissions we then compared those statements at the last five paragraphs of H46 which are Mr Palmer's long submissions to
Mr Grills - - -

PN664

VICE PRESIDENT LAWLER: Was it ever put to Mr Palmer squarely and directly in cross-examination that he had deliberately and wilfully made false and misleading statements in his 18 March statement?

PN665

MR HEARD: I can't remember if I put a question to him exactly in those terms, your Honour, but when I get onto that part, it's clear that it was put to him that there were plain inconsistencies between his version and the other and he declined to accept that. But I'd also submit that in assessing credit, it's not necessary for an advocate to - - -

PN666

VICE PRESIDENT LAWLER: No, that's - no, absolutely.

PN667

MR HEARD: - - - say in so many words.

PN668

VICE PRESIDENT LAWLER: My concern is whether or not it's with the premise. I have no doubt that what you are going to take us through will make good your proposition that we should not be second-guessing the Commissioner's assessment of credit. My issue is whether or not the Commissioner in fact made any credit-based finding.

PN669

MR HEARD: Your Honour, I will address that perhaps later, but we would say clearly he did and in fact no other conclusion is reasonably available. Now, we then refer to PN1377-83 in which Mr Palmer eventually conceded that the complainant and supervisor was Ms Schultz, but we submitted that must have been obvious from the outset. What we had intended to convey by that was that it took over 40 questions to get there. The second point was that 1356 and 57, Mr Palmer then asserted he had not needed to show his seven points in H20, which is also H9 to Ms Windsor, before he sent it to Ms Power. What had happened was Mr Palmer had evidently spoken to Ms Windsor at some point on or prior to 11 April On 11 April, he sent his long email to Mr Power, the one that included the seven point allegations against Ms Windsor.

PN670

However, it was clear from, I think it is, H39 - if you pardon me a moment? Yes, it is clear from exhibit H39 that Mr Palmer had not sent a copy of his allegations to Ms Windsor until the following day. In other words, he had not checked his allegations with his source before he made them official. That may be put down to imprudence. However, Mr Palmer's cross-examination was almost a year after the event and what we were submitting about at 18(b) was the way Mr Palmer went about dealing with that particular situation. You can see at 1351 there's a reference to 18.2 which in fact is H39, there are two emails dated 14 April and the bottom one is from Claire Windsor:

PN671

Could you possibly forward me the emailed statement that you gave to Rick.

PN672

VICE PRESIDENT LAWLER: Sorry, what's that appeal book number?

PN673

MR HEARD: I'm sorry, 159. Yes. Mr Palmer was then asked to refer to 18.2 and to document 12 which was H20, and that was the seven point accusation. Then at 1357:

PN674

You hadn't shown that email to Ms Windsor before you sent it to Mr Power?
---It had nothing to do with Ms Windsor. The email had nothing to do with Ms Windsor. It was a document between me and Rick Power. It might have related to events that occurred with Ms Windsor, but Ms Windsor didn't have the vetoing option in relation to my complaint about inappropriate, incorrect management procedures. It would have been inappropriate of me to show that to Ms Windsor.

PN675

Now, what we'd say about that is that that answer is just glaringly improbable. The answer that an accusation based on Ms Windsor's statement had nothing to do with Ms Windsor cannot be right. We submitted that that answer was a nonsense. Now, there had been some earlier cross-examination going back to PN861 on the previous day which appears at - I'm sorry, it was earlier that morning, which appears at page 121, where it's said:

PN676

Can I ask you to clarify whether or not you intend to withdraw -

PN677

I'm sorry, this was dealing with paragraph 55 of exhibit C1. That was the statement that Mr Palmer filed the day before the hearing, in which he withdrew or purported to withdraw allegations against Mr Byrne:

PN678

Did you intend to withdraw the allegations against Ms Schultz in relation to her treatment of Ms Windsor?---Well, I really can't do that because Ms Windsor was the one who gave the evidence in relation to Ms Schultz.

PN679

He was questioned:

PN680

Yes, but you made allegations to Mr Power and Mr Grills against Ms Schultz concerning her treatment of Ms Windsor, so I'm asking you, those allegations that you made, do you withdraw them?---I really don't understand the question.

PN681

Now, we'd say that passage, that was a patent prevarication. Then returning to page 160, 1359, recalling Mr Palmer said it was inappropriate to show the email that he'd sent to Mr Power to Ms Windsor:

PN682

Mr Palmer, if it was inappropriate for you to show that email to Ms Windsor, why does the email say from you to Claire Windsor, "Re email, please see attached"?---Because she'd asked me to give her the ones I sent direct.

PN683

Yes, and that was the email of 11 April, wasn't it?

PN684

That's page 20 containing the seven allegations:

PN685

The thing that you attached was the email of 11 April from you to Rick Power?---Yes, I told her about it.

PN686

The one that you just gave evidence it would have been inappropriate to show to her?---Before I sent it to Rick Power, yes, absolutely.

PN687

Why would it have been inappropriate to show it to her before you sent it to Rick Power, but it was not inappropriate to show it or the substance of it to her three days later?---Because Rick Power already had it and as far as I'm aware, I would have been - would have been doing something in relation to it. It was appropriate to show it to Claire Windsor then, but not before.

PN688

Now, just reading that, it's a puzzling series of answers. The witness's demeanour in giving those answers was something that we said led to a conclusion that his answer couldn't be accepted. Then turning over to page 162, PN1393, Mr Palmer is asked to identify the evidence he relied on to have made the accusations of shouting and harassment and continual harassment in the seven points on exhibit H20. It's put to him:

PN689

It's an accusation that Louise Schultz had shouted at Claire Windsor, had harassed Claire Windsor and continually harassed Claire Windsor?---Yes. Yes, that's what was told to me by Claire.

PN690

What evidence did you rely on to make that statement to the deputy director?
---Claire Windsor had told me that. Claire Windsor subsequently had - well, I think prior to that, had sent an email to Rachelle Boyle which is contained in your documents here which - where she quite clearly says that Louise Schultz had been harsh or shouted to her or whatever on two occasions previously and it's in your documents. It's here in your documents. One of the documents here quite clearly is an email from Claire Windsor to Rachelle Boyle, talking about harassment by Louise Schultz which I didn't know about, incidentally.

PN691

I think by that he's meaning he didn't know about the email prior to this:

PN692

You say there's an email from Claire Windsor to Rachelle Boyle?---Yes, in which Claire Windsor says that Louise Schultz shouted at her and harassed her. Harassed her on two occasions -

PN693

And so it goes on. Then we go on to identify the second page of H37. Now, there was - I think we wandered away - - -

PN694

VICE PRESIDENT LAWLER: H37 or H39?

PN695

MR HEARD: I'm sorry?

PN696

VICE PRESIDENT LAWLER: H37 or H39? 18.2 is 39, I thought you said.

PN697

MR HEARD: I'm sorry, you're correct. Yes, Commissioner, I'm sorry about that. Now, if we could go ahead - because for a little way we went onto another topic - to 1447 on page 166, and we went to document 17.6 which was H37 again. The third page of H37 was the email that Mr Palmer had been referring to. At 1448:

PN698

If you turn to the third page, it's an email from Claire Windsor to Rachelle Boyle on 24 February?---Yes.

PN699

Is that the email you're referring to?---Yes.

PN700

In your evidence, you said in this email that Claire Windsor complained that Louise Schultz had shouted at her and harassed her?---Yes.

PN701

Could you please identify where in the email she says that?---In the email she says "she's often rude and short with me and not to others. On two occasions, the way she's spoken has made me cry." When I was talking to Claire
Windsor - - -

PN702

Right, Mr Palmer, I want you to answer my question?---Okay, yes. I have.

PN703

I take it then that you admit that nowhere in that email does Claire Windsor way that Louise Schultz shouted at her, do you agree?---Correct.

PN704

And nowhere in that email does Claire Windsor say -

PN705

I'm sorry, that was objected to. At 1459:

PN706

So when you gave your sworn evidence that Claire Windsor had said in an email to Rachelle Boyle that Louise Schultz had harassed her, what you meant was that you interpreted what Claire Windsor described as harassment?---I was joining the two together. The interview or the discussions I had with Claire Windsor and the email, I'd only seen this email after it was given to me by Mr Grills, and yesterday.

PN707

You gave sworn evidence that in this email Claire Windsor said - - - ?---No, I didn't say that.

PN708

- - - that Louise Schultz - yes, you gave that sworn evidence. I put it to you that you did?---No, that wasn't what I said, no.

PN709

However, that was what he said:

PN710

You gave evidence that in this email, Claire Windsor reported to Rachelle Boyle that Louise Schultz had harassed her?---Yes, yes, and that's my understanding of what it says.

PN711

I'm sorry, your Honour, I think I've just - I seem to have a mistaken reference here. If I could refer to 1458 - I'm sorry, I skipped over that:

PN712

Well, of course she was saying she was harassed. She said on two occasions, "The way she has spoken to me has made me cry". I mean, if that's not harassment, what is?

PN713

What we had submitted about that was that even taking all of this at its highest, Ms Windsor was a relatively junior clerk who evidently had problems with her supervisor. Even if everything Ms Windsor - sorry. Even if Ms Windsor had said the things which Mr Palmer claimed she had, then that would produce a situation of Ms Windsor's word against Ms Schultz and nothing better than that. However, Mr Palmer approached this whole matter, it seems, on the basis that anything and everything he claimed Ms Windsor had said to him was conclusively correct and couldn't be questioned. Now, that was simply never a reasonable position, and considering some of Mr Palmer's background, we'd submit that he couldn't rely on a lack of training or experience to have made such a fundamental error about evidence and accusation - sorry, evidence to support accusations he was making.

PN714

If I could now go back to PN1398 which is on 162, what that referred to was exhibit H39 which was several pages of emails printed together. The second page of H39 includes an email headed, "Statement Outline" and this is another email that Mr Palmer sent to Ms Windsor on 12 April, the day after he'd made the allegations against Ms Schultz to Mr Power. It was evident that the purpose of that email was to set out, as it says in the heading, the outline of a statement for Ms Windsor to give in support of Mr Palmer, a number of factual matters were set out there. Between 1398 and 1446, Mr Palmer was cross-examined about which of the points in the statement outline he said supported the seven allegations that he made against Ms Schultz to Mr Power.

PN715

Now, what we submitted was that although he reluctantly conceded that several points in the outline had nothing in support of the seven points in his allegation, he refused to concede that there was nothing in his statement outline to support accusation number 2, which was continual harassment of Ms Windsor by Ms Schultz, and a complaint to management and HR by Ms Windsor about that. Allegation number 3, harassment of Ms Windsor and Mr Palmer by Ms Schultz and further complaints about it. Or allegation number 4, or statement number 4, rather, that Ms Schultz had apologised to Ms Windsor but not to Mr Palmer.

PN716

VICE PRESIDENT LAWLER: Where are you on at the moment?

PN717

MR HEARD: I'm sorry, it's 18(e) of the submissions on page 5, and page 162 of the appeal book. After some introduction at 1407 in the middle of page 163:

PN718

Now, which of the allegations in the email to Mr Power, 11 April, is that statement relevant to -

PN719

Sorry, and the statement being point 1 - - -

PN720

VICE PRESIDENT LAWLER: We're at 1407 now?

PN721

MR HEARD: Yes, 1407. The statement is that set out at 1405 and it's point 1 of the statement outline email. Mr Palmer's answer:

PN722

I don't think it was. I mean, this statement outline here is the events were that I had spoken to Claire Windsor. Claire Windsor did not want to make a written statement, she only wanted to make a verbal statement because she was concerned that it would be held against her in employment with AUSTRAC, so what happened was after - - -

PN723

Mr Palmer, can you stop?---Yes, fine.

PN724

The answer to my question was that point 1 is not relevant to any of the allegations in the email to Mr Power?---Well, the point 1 was relevant to a statement outline of briefing - - -

PN725

Mr Palmer - - - ?---No, I'm not quite sure if that's the case. What I'm trying to do is - - -

PN726

Mr Palmer - - - ?---It was a briefing - - -

PN727

And the Commissioner interrupted:

PN728

Mr Palmer.

PN729

Mr Palmer then stopped. This is at 1413:

PN730

Thank you. I asked you to identify which of the numbered allegations on the last page of your email to Rick Power of 11 April, point 1 in Claire Windsor's statement outline was relevant to and your first answer was, it wasn't?---Well, as far as I'm aware of - because as I previously said to you, there was a differentiation between Claire Windsor's role and the role I reported to management.

PN731

Mr Palmer, the answer is that point 1 is not relevant to any of the allegations that you made to Mr Power?---I'm not sure if that's totally correct, but maybe.

PN732

Now, we would submit that those are questions and answers from which the Commissioner could clearly draw adverse conclusions depending on the witness's demeanour. Your Honour, I could continue on going through all of these, but I mean, it's simply more of the same. They were - - -

PN733

VICE PRESIDENT LAWLER: And it's all set out in your - - -

PN734

MR HEARD: Yes. It is, indeed.

PN735

VICE PRESIDENT LAWLER: In the submissions that are attachment 24.

PN736

MR HEARD: Yes. I think I should go on to point (f) because that deals with Mr Palmer's refusal to accept the flat contradiction between Ms Windsor's statement at H37 and his accusations of shouting and harassment. That started at PN1436 at the bottom of page 165. The question was:

PN737

You gave in evidence that points 2 and 4 of the statement outline supported point number 5 in the email to Rick Power?---I'm sorry? Sorry, what's the point?

PN738

Then there is a little bit of confusion:

PN739

You agree that you gave in evidence that points 2 and 4 of the statement outline support paragraph number 5?---Well, if that's what I said, then that's the case.

PN740

Then there was an objection. Going to 1444:

PN741

What I put to you is that there is nothing in the statement of outline that supports allegations 2, 3 or 4?---2? Well, of course there is.

PN742

I'm sorry, your Honour, this is still going on. I go down to 1447 - I'm sorry, I've already dealt with that. At 1464 at the top of page 168, I refer to H37, and the passage in the middle of the second page:

PN743

Also in response from me, Ms Windsor told me she had not seen Ms Schultz's behaviour as harassment and she had not described it in those terms to Ms Boyle or Mr Palmer. Do you see that?---Yes, I do.

PN744

Do you see the signature at the bottom of the page?---Yes, I do.

PN745

What do you say?---Ms Windsor was in fear of her job.

PN746

What's your evidence for that?---Ms Windsor's reasons for not giving a statement in the first place.

PN747

What's your evidence for that?---Well, again, Ms Windsor's discussions with me.

PN748

So your report of a discussion you had with Ms Claire Windsor is your only evidence, is that what you're telling us?---No, I mean the evidence.

PN749

What is the evidence?---Well, the evidence is supported by the facts that occurred. Claire Windsor reported to Rachelle Boyle that she had been made to cry on at least two occasions and she was leaving the section because she couldn't stand this harassment. That's why she was leaving.

PN750

All right. Can you go up two paragraphs earlier?

PN751

Then a quote:

PN752

In response to a direct question from me, Ms Windsor said that Ms Schultz had not shouted at her on either occasion. Do you see that? But had spoken in a dismissive, sarcastic way that was hurtful and inappropriate.

PN753

Then Mr Palmer is referred back to his seven points complaint:

PN754

Information was clearly available to senior management that the complainant's supervisor had on at least two previous occasions shouted at a junior staff member?---With the result that she had been made to cry, yes.

PN755

The junior staff member's statement, Ms Windsor said Ms Schultz had not shouted at her on either occasion?---When she spoke to me about it
initially - - -

PN756

No, Mr Palmer, I haven't asked you the question yet?---I'm sorry.

PN757

What is the evidence you rely on for the allegation you put to the deputy director that Louise Schultz had shouted at and harassed Claire Windsor?
---Well, the interview I had with Claire Windsor was she quite clearly said to me that she'd been spoken to in a very raised voice by Ms Windsor -

PN758

and I think he meant Ms Schultz:

PN759

- shouting, and in your terms, here she tones it down to say it was dismissive and sarcastic, it was hurtful and inappropriate.

PN760

It wasn't toned down. It was quite clear she said she did not shout and she did not harass?---As I've said, Claire Windsor was in fear of her continued employment in AUSTRAC and her promotional opportunities.

PN761

A statement for which you have no evidence other than your unsupported word?---My honour and my word as a gentleman, certainly, as I don't have any fear of being dismissed by AUSTRAC.

PN762

Mr Palmer, you did not tell Claire Windsor about what you were going to say to Rick Power against Louise Schultz before you said it?---I have no need to.

PN763

You had made an allegation of harassment against a person about whom you were subject to a code of conduct investigation - - -

PN764

I think the questioning went off on a slightly different tangent from that point. This was a situation where the witness was confronted with clear evidence that the person he said had been harassed had said, I wasn't harassed, I wasn't shouted at, and I didn't say to Mr Palmer that I had been, but he would not give it up.
Mr Palmer then changed his story. If I could ask the Full Bench to go over the page to 1493, he then began to claim that his seven accusations in H20 were not complaints against Ms Schultz, but were only complaints against AUSTRAC management. At 1493:

PN765

You did not check with your witness before you made the allegation to the deputy director?---No, because there was been - - -

PN766

Just answer yes or no. You did not check your allegation with your witness before you made them to the deputy director?---I did check with Claire Windsor. I had no allegations prior to checking with Claire Windsor.

PN767

I then said something that was objected to, and at 1501:

PN768

You went into print to the deputy director to accuse Louise Schultz of harassment which you know as misconduct?---No, I wasn't doing that at all. What I was suggesting to management was that they hadn't investigated the complaints, that management hadn't investigated the complaints correctly.

PN769

Are you sitting there saying that this document isn't a complaint that Louise Schultz harassed Claire Windsor?---Absolutely. This is a complaint of seven points in the front, complaints as to my religious slur, AUSTRA's non-compliance with stated policies, on page 2 on complaint handling, on two occasions, AUSTRACs non-compliance of state policies, the conduct charge being against me under double-jeopardy -

PN770

And so it goes on. AT 1504:

PN771

Are you aware that it's part of the APS code of conduct that an APS employee, when acting in the course of APS employment must treat everyone with respect and courtesy and without harassment?---Yes.

PN772

So if you accused another APS employee of harassing a subordinate, you've accused that person of a breach of the APS code of conduct, haven't you?---I'm sorry, I haven't done that. I haven't done that. I haven't done that. I never mentioned Louise Schultz, only in the critical terms as I said here. You had to ask me who I was talking about because I didn't know who I was directly talking about. I was talking about management. This whole thing here is below. I'm outlining my complaint against AUSTRAC in that circumstances prior to charging were not considered and that it would have been done so, that I was the victim of harassment at the time and not the perpetrator. This is a clear complaint against AUSTRAC management, not against Louise Schultz.

PN773

At 1505:

PN774

So it's your sworn evidence that you did not complain at any time that Louise Schultz had harassed Claire Windsor?---It was my sworn evidence that this document is a complaint against AUSTRAC management and incorrect management procedures. It is not a complaint against Claire Windsor - - -

PN775

And then interrupted:

PN776

I think you meant Louise Schultz?---Yes, sorry, Louise Schultz. It's quite clearly that's what it is, that's what it's headed.

PN777

Then it goes on over the page at 1510:

PN778

I am outlining my complaint against AUSTRAC.

PN779

1511:

PN780

This is not a complaint. I mean, it's been taken by Mr Grills and everybody else as a complaint against Louise Schultz and that wasn't what it was, not in any inference whatsoever.

PN781

What we would submit is that it is hardly surprising if Commissioner Harrison had difficulty in accepting the truthfulness of that answer. Again, there may be many explanations for that apparent contradiction, but depending on the demeanour of the witness and the way he gave that evidence, the finding that he was not be believed when he gave that evidence was certainly open. We also in our submissions drew a comparison between that statement and other statements made by Mr Palmer to Mr Grills. We also in our submissions pointed to the contradiction of an answer given much later when cross-examination was resumed at PN3159, where Mr Palmer gave the explanation that his report was protected as a code of conduct breach report against AUSTRAC management.

PN782

That was part of an argument where he sought to invoke the protection of section 16 which is the whistleblower provision in the Public Service Act, which we made some submissions about further on. The cross-examination concerning this topic continued further down on page 172. Mr Palmer's attention was drawn again to exhibit H37, Ms Windsor's statement.

PN783

VICE PRESIDENT LAWLER: We're on AB172?

PN784

MR HEARD: Yes. Yes, your Honour. At 1519:

PN785

After you had received a copy of the draft report to which was attached the statement of Claire Windsor?---Yes.

PN786

After you'd read that, you made a submission that Louise Schultz has a history of abusive and threatening behaviour?---Yes.

PN787

What evidence did you rely on?---That was my interpretation of it. Yes, her behaviour.

PN788

Please answer the question. What evidence do you rely on to have made that statement?

PN789

That statement being the submission made to Mr Grills after Mr Palmer had received a copy of Ms Windsor's statement. Answer:

PN790

The statement by Claire Windsor to me and the email she sent to Rachelle Boyle.

PN791

I put it to you that you are well aware that Claire Windsor's statement cannot support that allegation?---That might be so, but I mean, that's as I saw it at the time. When I wrote that, that was how I saw it at the time, that I saw that it was abusive and threatening behaviour.

PN792

This is a submission you made in response to a code of conduct investigation?
---No, it wasn't in response to a code of conduct investigation, it was in response to the draft outline of findings by Mr Grills.

PN793

Which of course was the draft code of conduct investigation report. Question:

PN794

Could I ask you to look at page 2 of your submissions?

PN795

And I'm just searching for the reference to that. I'm sorry, your Honour. That was H46, your Honour. And H46 appears at page 746. I'm sorry for the delays in the reference numbers, your Honour. I've become very reliant on a very useful cross-index that Mr Masden had prepared and I regrettably left it in my office. Mr Palmer was referred to the fourth paragraph on page 2:

PN796

Mr Grills' conclusion that I compounded the lack of courtesy and respect towards her by recklessly making unsubstantiated, inaccurate allegation about her (Louise's) behaviour is an over-statement.

PN797

Then:

PN798

No evidence that I submitted was unsubstantiated.

PN799

Answer:

PN800

Yes, because I didn't submit any evidence.

PN801

Question:

PN802

Or inaccurate?

PN803

Thank you, your Honour.

PN804

VICE PRESIDENT LAWLER: Sorry, where are we at, Mr Heard?

PN805

MR HEARD: At PN1531 on page 173, your Honour. I think it's in fact 1532. Mr Palmer had said:

PN806

Yes, because I didn't submit any evidence.

PN807

Question:

PN808

Or inaccurate?---That's right, because I never submitted any. The evidence was given by Claire Windsor. Claire Windsor was the one who said that, you know, whatever. I never submitted any evidence. I never put in a statement to Mr Grills saying anything in relation to her behaviour.

PN809

You put it into Mr Power?---Sorry, not in relation to Louise Schultz's behaviour. The circumstances for Mr Power was that Mr Power had - why it went directly to Mr Power and not Rachelle Boyle at this stage, Mr Power had asked me to report directly to him while the course of this investigation was happening and that's why I reported directly to Rick Power that AUSTRAC management had been deficient in prior investigations leading up to the formulation of the inquiry, that they had done some evasive homework, investigations -

PN810

I'm sorry, I think that is, "had they done":

PN811

- they would have seen that there was perhaps a totally different set of circumstances. This wasn't an allegation against Louise Schultz. Louise Schultz wasn't even mentioned, as I said before.

PN812

Now, quite clearly it was an allegation against Louise Schultz. Commissioner:

PN813

Mr Palmer, I put it to you that you were well-aware that when you referred to the complainant's supervisor, you were referring to Louise Schultz and
anyone -

PN814

In fact, I think it should have been "everyone":

PN815

- everyone knew that?---No. I didn't even know when I was reading back through because it was oblique. I mean, it wasn't a complaint against Louise Schultz, I've said that probably five times now. It wasn't a complaint against Louise Schultz.

PN816

And then made a gratuitous comment. Then he was referred to the bold paragraph:

PN817

At no point did I make any allegations about Louise's behaviour that was reckless or unsubstantiated.

PN818

Then, in an attempt to describe - I'm sorry, this is again quoting from page 2 of H46:

PN819

In an attempt to describe Louise's supervision style and previous behaviour -

PN820

And then Mr Palmer is asked about where he described Louise's supervision style, that is Louise Schultz, answer:

PN821

Well, I - I didn't say I did. I said in an attempt to describe it. I asked an officer who had then directly supervised Louise about her problems, and that was Claire Windsor.

PN822

In fact, Ms Windsor had been supervised by Ms Schultz. Question:

PN823

What you meant by the phrase to describe Louise's supervision style referred to your complaint to Mr Power about Louise Schultz, didn't it?---No, not at all.

PN824

So your evidence is in relation to the bolded sentence, "At no point did I make any allegation about Louise's behaviour that was reckless or unsubstantiated", you're telling us that the reason that's true is because you did not make any allegation about Louise's behaviour?---Correct. Correct. I didn't.

PN825

Now, what we'd say that that answer is clearly capable of conveying to the Commissioner is that Mr Palmer was not telling him the truth. Now, it went on from there, at 1546:

PN826

Mr Palmer, surely you have realised, having read Claire Windsor's statement, that she did not support the allegations in your email to Rick Power?---I don't believe that's the case.

PN827

She said she hadn't been shouted and she hadn't been harassed, but your allegation was of shouting and continual harassment.

PN828

That was objected to and it wasn't pressed. And then 1552:

PN829

Claire had told me on two occasions Louise had spoken to her in such a manner Claire had been made to cry. The words Claire used to describe Louise's manner to me where indicative of shouting, of being abusive.

PN830

Now, from this point there was a - I'm sorry, this questioning refers to page 6 on H46 and that would be 752, I believe, in the appeal book. Now, what this questioning is about was this submission recounted the - appeared to recount the conversation Mr Palmer had had with Ms Windsor, presumably the conversation that occurred before 11 April, on which he relied for all his evidence that Ms Windsor had told him that she'd been harassed. What was being put to Mr Palmer was the way he had described that in the submissions was inconsistent with Ms Windsor having said to him that she'd been shouted at, and that that was merely an interpretation he'd put on what she said.

PN831

However Mr Palmer declined to accept that that was the meaning of what he had written. Going over to 1579 on page 177, Mr Palmer was being cross-examined again about part of Ms Windsor's statement which is H37. Sorry, I have just lost that. On the fifth paragraph of that statement Ms Windsor went on to explain
Ms Boyle, it should be -

PN832

had been sympathetic but had encouraged her to resolve the issue by confronting Ms Schultz about the behaviour but that she -

PN833

As in Ms Windsor -

PN834

had felt intimidated by Ms Schultz and was reluctant to do so.

PN835

Mr Palmer was referred back to the statement which appears at 1575 from his lengthy submission where he also raised the point that Louise would intimidate her. The point of this cross-examination was that Ms Windsor's statement was that she had felt intimidated by Ms Schultz but Mr Palmer had characterised that by saying that Ms Schultz had intimidated Ms Windsor. The point of this was that those two statements are very different. I may well feel intimidated by the Chief Justice of the High Court but it would be an absolute calumny to describe him as having intimidated me. And Mr Palmer was cross-examined - - -

PN836

COMMISSIONER REDMOND: That would depend from where you're coming, wouldn't it?

PN837

MR HEARD: I was going come from the position, with the greatest respect, if I do happen to speaking to the Chief Justice - - -

PN838

COMMISSIONER REDMOND: You ought to try .....

PN839

MR HEARD: Mr Palmer simply refused to accept that what was in the statement did not support what he had alleged which was that the statement provided evidence that Ms Schultz had intimidated Ms Windsor, it did not. Now, I should perhaps return briefly to 1531 on that topic which is going back to page 173, on the subject of whether or not he'd submitted any evidence about Claire Windsor. I'm sorry, I just need to check a reference, your Honour. I'm sorry, I've got to the incorrect passage. It's at 1608. This concerned a section in which Mr Palmer was being asked about the submissions he had made on pages 6 to 10 of H46, his lengthy submission to Mr Grills. At 1607:

PN840

You returned to this topic on page 13?---Sorry, what was the topic again?
Your allegation against Louise Schultz on the basis of the Claire Windsor incident?---I don't think these are my allegations against Claire - sorry, that these are my allegations against Louise Schultz, that these are outlining the points that were raised by Claire Windsor. These are not my allegations against -

PN841

Well, he said Claire Windsor but I think he meant Louise Schultz -

PN842

These are the statements that Claire Windsor gave in relation to Louise's behaviour. I didn't give this evidence. I didn't give this evidence. Claire Windsor gave the evidence.

PN843

And in the circumstances that answer was just unacceptable. It is quite clear that Mr Palmer was the one pursuing the allegations or making the allegations and pursuing the allegations that Louise Schultz had harassed Claire Windsor and Claire Windsor had gone into print and signed a statement saying no, she didn't and I didn't say she had. Now, it was simply not open to Mr Palmer to give that answer and seriously expect to be believed. Now, those were the matters in the transcript that I wanted to refer to concerning Claire Windsor. It's probably at this stage I should turn to the part of our submissions of 14 June, that's at tab 24, concerning the meeting on 18 March and that's on page 9, starting at paragraph 34.

PN844

Again I followed the pattern of identifying certain themes in which we said were unsatisfactory in Mr Palmer's evidence about that and pursuing those through the transcript. Now, it started at 1706 and went on to PN2345 but the first one I highlighted was starting at PN1837 and that was on page 197 of the appeal book. Now, what was happening here was Mr Palmer was being taken through the different statements and asked to comment on features which were said to be points of distinction and factual difference between the statements. At 1837:

PN845

Do you agree that all the other statements -

PN846

And that of course refers to the statements of Mr Byrne, Ms Schultz and
Mr Cooner -

PN847

say that Ms Schultz either jumped or rose to her feet after you had spoken to her, either shouting or in a raised voice?---I don't know if that's the case. I honestly don't know if that's the case.
Do you agree that none of the other statements ...(reads)... steaming over the top of me -

PN848

And it may have been standing over the top of me or steaming, I can't now recall -

PN849

and I'm lying stretched back in a chair when she's obviously distressed. She looks down at my legs and I believe she was going to kick me ...(reads)... give a further version of what happened -

PN850

And of course nobody had ever mentioned kicking before. Answer:

PN851

Well, I'm just saying that the officers - - -

PN852

And then we tried to return Mr Palmer to what was going on in the statements. Now, for there for 100 or so questions and answers, excerpts of the statements were gone through and then going over to PN1942 which is on page 205 -

PN853

You describe a meeting in which you were being, as you put it, castigated and brow beaten by two other people?---Yes, that was the view also held by the inquiry officer who wrote ...(reads)... In his Draft Report. So he agreed with me.

PN854

That's what Mr Palmer asserted Mr Grills had said. Then down to 1947:

PN855

Conclusion was that it was reasonable for you to think that they were -

PN856

Sorry, I missed a bit -

PN857

So you are saying the conclusion was that it was reasonable for you to think that they were castigating you and brow beating you?---Yes, although ...(reads)... which is Mr Grills report.

PN858

And that's back at - I'm sorry, your Honour, H3, which is on page 595 to 613 but I don't know if it's - - -

PN859

COMMISSIONER REDMOND: What page number did you say?

PN860

MR HEARD: 595, but page 7 would be 602, Commissioner.

PN861

COMMISSIONER REDMOND: 602, thank you.

PN862

MR HEARD: I hope that's right. The last dot point on that page, I better just check that it is there. No, I'm sorry, Commissioner, it's page 601. It's the last dot point on page 601.

PN863

COMMISSIONER REDMOND: Thank you.

PN864

MR HEARD: And I then read out:

PN865

Prior to the incident between Mr Palmer and Ms Schultz she and Mr Byrne were not intending to be critical of Mr Palmer personally but were ...(reads)... But that wasn't the evidence you just gave, was it?

PN866

There was then an objection as to what Mr Palmer had actually said and I think we left it that the record would show it. Now, the record shows that Mr Palmer actually said Mr Grills found that -

PN867

It could be reasonably taken by Mr Palmer to believe that he was being brow beaten and castigated by the other people.

PN868

Mr Grills in fact found the opposite. The next submission concerned the evidence that appeared between PN1960 and PN1983 on page 206.

PN869

COMMISSIONER REDMOND: Was that referring to the draft report, that answer, that the reasonably taken, or was that referring to the final report?

PN870

MR HEARD: I believe the passage was the same in both.

PN871

COMMISSIONER REDMOND: It was the same in both, thank you.

PN872

MR HEARD: Now, this dealt with what we asserted was Mr Palmer's late invention that his 18 March statement - - -

PN873

VICE PRESIDENT LAWLER: Which page are we on, sorry?

PN874

MR HEARD: Sorry. We're going to go to PN1960 on page 206. I'm sorry, the submission is on page 9 and 34(c). Now, where I said the 18 March statement, I think the statement was actually dated 24 March but it was about the 18 March 2005 incident. Mr Palmer had claimed that it was covered by the whistle blowing protection of the Public Service Act and it was put at PN1961:

PN875

You were seeking merely to defend yourself both verbally and physically?
---No, I was putting a section 16 report in relation to adverse ...(reads)... I would have written statement in relation to the matter and such and such.

PN876

Mr Palmer was then shown a copy of the Public Service Act and then asked to read section 16 and it's quoted at 1966, or part of it is, and that referred to a report of breaches or alleged breaches of the code of conduct to the Public Service Commissioner. Mr Palmer agreed at 1969 that he had not made a report to the Public Service Commissioner, or (b), to the Merit Protection Commissioner or a person authorised. Mr Palmer agreed at 1971:

PN877

Did you make a report to the Merit Protection Commissioner?---No.

PN878

Or -

PN879

(c) An agency head or a person authorised for the purpose of this section by an agency head.

PN880

And he said "Yes" -

PN881

Who who's that?---Rachael Boyle.
What evidence do you have that Rachael Boyle was the person authorised for the purpose ...(reads)... and that’s why I mentioned it in other reports to Rick Power and whatever.

PN882

Now, it was then put to Mr Palmer that what he was actually doing at the time he made that report he realised he was potentially in trouble over what had happened in the meeting of 18 March and he said, "Absolutely not". Now, what we say happened was he had been asked by Ms Boyle along with all the other members of the meeting to produce a written report on what had occurred at the meeting and he must have realised that he was potentially in trouble over it. It was there open to the Commissioner on hearing this evidence to reject it as untruthful and it went on at 1896:

PN883

It had never occurred to you that you might be in trouble over what happened at the meeting?---No, never did, never did.

PN884

It was then put to Mr Palmer that on realising he was in trouble he responded by accusing Mr Byrne of misconduct, and this is at 1987. Now, 18 March in fact was a Friday and 21 March was the following Monday. These accusations against
Mr Byrne were part of the - or this was one of the accusations that Mr Palmer withdrew just before the hearing as a result of that withdrawal the Commissioner indicated in his judgment that he wasn't going to make any substantive findings about those. Mr Palmer gave further unsatisfactory answers between PN2032 which appears on page 212 and 2087 and he was questioned on his allegation that Mr Byrne had invited Ms Schultz to the meeting on 18 March that probably could lead to conflict.

PN885

The topic of the cross-examination was inconsistency between his answer at 2038 where he said:

PN886

Well, I still don't understand why she was at the meeting. It was an IT technical meeting.

PN887

Now, there were other emails that Mr Palmer had put into evidence and it's just occurred to me that I'm not certain that those emails are in fact in the appeal book. It may be that we need to have a review about providing those to the Commission. Now, Mr Palmer was cross-examined from 2040 onwards on page 212:

PN888

You're aware that all of the descriptions of the conversation -

PN889

That's the conversation at the meeting -

PN890

deal with the relationship between AUSTRAC and AusAid in Jakarta, you're aware of that, aren't you?

PN891

And then that question is repeated. Answer at 2041 on 213:

PN892

The meeting was about the technical response in relation to IT that we were providing to PPATK.

PN893

That being the Indonesian equivalent of AUSTRAC -

PN894

What was written there was only part of what the meeting was about. If we go to the document in relation to the emails where I gave the briefing document to Shane -

PN895

Shane being a person who had been involved having the meeting set up -

PN896

you’ll see there that it covers quite specifically some IT details which is what we were going to discuss. The whole meeting was about the forthcoming meeting for the supply of hardware to PPATK and AUSTRAC were doing software engagement. That’s what it was about.

PN897

Then Mr Palmer was invited to have a look at his most recent statement, that was C1 -

PN898

Now, you heard Mr Byrne being cross-examined by your counsel yesterday concerning a series of emails that form attachment C?

PN899

Sorry, that may in fact therefore be before the Commission. Could you pardon me for a moment, your Honour, and I'll just check whether or not that email is there? I apologise for that. I'm sorry, your Honour, the emails that were attached to C1 appear not to have been reproduced in the respondent's appeal book and I'm not aware if they're in Mr Palmer's appeal book. But on the fourth page of that and we're looking at 2046:

PN900

at the bottom of the page there’s an email from Shane McKenna to Matthew Byrne, cc’d to you?---Yes ...(reads)... It would be good to discuss this over telephone.

PN901

This was the email that caused the meeting to occur -

PN902

Now, immediately is what you described as your briefing paper?---Yes.
Your briefing paper deals with IT issues?---Yes, and other issues ...(reads)... He wanted the meeting and speaking to you on the IT issues prior to that.

PN903

I'm going on then -

PN904

Dear Mathew - - -
Mr Palmer, please just stop.

PN905

I might remind the Full Bench that the topic of the argument at the meeting on 18 March were comments made by Mr Byrne and Ms Schultz concerning the level of cooperation between AUSTRAC in Indonesia and other Australian agencies in Indonesia and clearly that was one of the topics that was going to be discussed at the meeting. Mr Palmer however started off by trying to say it was just a meeting about IT technical issues. Now, going to 2061:

PN906

You’re aware that all of the statements about what was discussed at the meeting, all the other statements refer to a discussion about communications between AUSTRAC ...(reads)... mean PPATK was asked saying why didn’t they tell AusAid what was going on -

PN907

And so it goes on -

PN908

Mr Palmer, where this started off was I was questioning you – sorry, you said that you didn’t understand why Louise Schultz was at the ...(reads)... I have recently taken over the donor coordination role.

PN909

Then at 2073:

PN910

You don't deny that she'd taken over the donor coordination role?---Well, I don’t know whether she had or not. It’s not in my knowledge. ...(reads)... the proposition you were putting in paragraph 5 -

PN911

And 13.6 was exhibit H26 which appears on page 677 -

PN912

the proposition that you were putting in paragraph 5 where you suggested that Mr Byrne had invited Ms Schultz to the meeting because he knew there was a possibility of conflict between you because he knew how you felt towards each other?

PN913

And then there's a reference to the next paragraph -

PN914

Unless his intention all along was to create a confrontation between us.

PN915

Then Mr Palmer's attention is directed to that. Mr Palmer responded:

PN916

I said why didn’t you conclude the meeting as soon as you saw the staff meetings were becoming agitated.

PN917

And then over at 2080 on page 216:

PN918

So what you meant to suggest there was that Mr Byrne had one purpose in inviting Ms Schultz to the meeting and one ...(reads)... didn't really want to be involved.

PN919

Matthew being Matthew Byrne. Then there's a long answer given at 2082:

PN920

Mr Palmer, how is this responsive to my question?---Well, you asked me why she was there ...(reads)... Well, that’s what I believed at the time, yes. When it developed, that’s what I believe.

PN921

Now, the problem of course with all of this is, this is evidence being given by
Mr Palmer 10 months later after he's seen all of the documents and he knows what all of the territory is but he is still saying this. Now, in those circumstances these answers simply aren't realistic and we'd submit that it was open to the Commissioner to draw an adverse conclusion about Mr Palmer's credibility. Now, I continue on in the submissions in paragraph 34 and the subparagraphs of 34. I think given the time I won't continue to go through in such detail.

PN922

VICE PRESIDENT LAWLER: Mr Heard, you can make the assumption that we will, given that paragraph 34 in fact sets out all the references, that we will take ourselves to those paragraphs and will read them. The question yesterday was about the evidence that demonstrated the objective falsity or demonstrated the falsity of 18 March and countered the 24 March statement. I understand how you do that in a number of ways here but a lot of this is really about the credit of
Mr Palmer.

PN923

MR HEARD: Yes.

PN924

VICE PRESIDENT LAWLER: As distinct from evidence that goes specifically to the falsity of the 24 March statement.

PN925

MR HEARD: Well, the objective facts are that the dot points that were set out Mr Grills - I'm sorry, in Mr Grills report that were set out in I think it's paragraph 55 of the judgment that I referred your Honour to yesterday. We say that all of those - that the objective facts about those are obtained by comparing the statements of the protagonists to the meeting. Now, we say that a comparison of those statements produces the objective fact that there are different accounts in relation to those matters. Now, the mere fact that there are differences in statements is neither here nor there, in fact I've been going to make a submission that before people wrote statements about an argument at a meeting and they - there was exact concurrence between three of them, you must conclusively presume collusion.

PN926

It is inevitable that there will be differences between people's recountings of an incident like that.

PN927

VICE PRESIDENT LAWLER: Of course.

PN928

MR HEARD: The issue becomes, is it any more than the natural differences that will occur between people's recollections of the same event? That was the issue that needed to be determined. And Mr Grills came to the view, that having interviewed Mr Palmer, the difference between Mr Palmer's statement and what he saw as the substantial accord of the other statements could not be explained away, and that the correct explanation was that Mr Palmer's statement was false and misleading. And we say the Commissioner, having seen Mr Palmer give evidence about it, agreed that Mr Grills was right and that that conclusion which was expressed in paragraph 59 of the decision on page 11 of the Appeal Book inevitably involved a rejection of Mr Palmer's evidence, and it inevitably involved a finding that Mr Palmer repeating those matters in evidence was also false and misleading.

PN929

I'd also draw the Commission's attention to the Commissioner's quote in paragraph 100 on page 20 under the heading, Was there a valid reason for termination? The Commissioner went to the trouble of setting out a quote from the decision of the Full Bench in McIndoe v BHP Coal. Now, McIndoe was a case about an employee who was observed removing broken hose reel from his employer's premises. The broken hose reel was an item of no value, however there was a strict company policy that broken items of equipment were not to be removed, presumably in order to discourage the breaking of items of equipment.

PN930

Mr McIndoe was confronted about it, he gave an explanation to his employer, which the employer did not accept. He was dismissed. He appealed to this Commission, he was unsuccessful. He appealed to the Full Bench and he was unsuccessful again. The thrust of the finding was that although the original incident was trivial in itself and would not have warranted anything approaching termination, the falsehoods to the - in the last paragraph there. "He," as in the Commissioner:

PN931

Concluded the appellant's attempt to cover up his wrongdoing made it worse and was destructive of the respondent's trust in him. That view was one clearly open to him.

PN932

And the last sentence:

PN933

When the breach is compounded by attempts to cover up the conduct the matter can take on a different complexion.

PN934

Now, McIndoe was a case in which the Full Bench referred to - I'm sorry, I've missed the quote. In fact it's the second paragraph there:

PN935

The appellant knowingly set out to breach company policy and then fabricated an excuse for his behaviour when he was caught. He persisted with the subterfuge even during the hearing. The Commissioner was entitled to take the view that - - -

PN936

VICE PRESIDENT LAWLER: Mr Heard, you might be pushing against an open door. I didn't understand Mr Rich to be denying the correctness of McIndoe or its applicability if the finding that Mr Palmer fabricated or engaged in a course of misleading statement making was correct. Rather he attacks that finding in the way that he did, and you've now answered it the way that you have.

PN937

MR HEARD: Yes. The significance I wish to draw from that is that when Commissioner Harrison made his finding at paragraph 59 he was not merely finding that Mr Grills was correct in concluding that Mr Palmer had made false and misleading statements. He was also, similarly to McIndoe, indicating that Mr Palmer had persisted with that subterfuge during the hearing. We would say that it involved a finding that Mr Palmer had given evidence which was rejected as false and misleading, and that on its proper construction that is the inevitable conclusion on what the Commissioner's decided. Now, we'd say that - - -

PN938

DEPUTY PRESIDENT MCCARTHY: Mr Heard, if you're right on the procedural fairness issue and you're right on the misleading and deceptive conduct, does that necessarily lead to a conclusion that Commissioner Harrison is wrong on the termination being harsh because of the proportionality of the sanction as against, particularly as he goes through the service and those sorts of issues in his decision, that seems to weigh heavily on him forming a view about the harshness of the termination?

PN939

MR HEARD: Your Honour, we've put in our written submissions what our view is about the Commissioner's finding that the termination was harsh. However, it's a certainly credible line of argument - sorry, it is a credible interpretation of what the Commissioner decided, that he came to the view that AUSTRACs decision to terminate was harsh because Mr Grills had had insufficient regard to the matters in Mr Palmer's background - perhaps I could say the compassionate matters. Now, there was evidence from Ms Boyle, and I don't immediately have the reference, that she had at least some awareness of Mr Palmer's personal difficulties. But it was also her evidence that because of the quarantining of the code of conduct inquiry, and she gave evidence that she had nothing to do with it, it appears that what she, as Mr Palmer's manager, knew about Mr Palmer's difficult personal circumstances, was not conveyed to those who made the decision to terminate.

PN940

Now, I'd submit that it would be a reasonable line of argument to say that in coming to the conclusion that Mr Palmer's termination was harsh, what Commissioner Harrison really had in mind was that AUSTRAC should have paid greater regard to those compassionate circumstances, and that in the situation that was before AUSTRAC at the time of the termination the fact that they hadn't taken sufficient account of information that was in their possession could render the termination harsh. However, that was not the situation that was before Commissioner Harrison. Matters had moved on.

PN941

DEPUTY PRESIDENT MCCARTHY: Yes. But what seems to weigh fairly heavily in Commissioner Harrison's mind on a fair reading of paragraph 122 of his decision, are those paragraphs, or a number of paragraphs before that, under the other relevant matters issue, the length of service, the regret, a whole range of things, that it was disproportionate in the circumstances, to be harsh. And then he goes on to say that it was unjust on the procedural fairness ground.

PN942

MR HEARD: Well, I would hope that - there are several points that I would like to make about that line of argument. Firstly, I would hope that we succeeded in persuading the Full Bench that Commissioner Harrison's views about procedural unfairness were simply wrong in law and that they were based partly upon - - -

PN943

DEPUTY PRESIDENT MCCARTHY: I prefaced my question earlier on the assumption you're right on that.

PN944

MR HEARD: Thank you, your Honour. We've made submissions, in fact one of our grounds of appeal was that Commissioner Harrison committed a legal error in the way that he dealt with Mr Palmer's very belated expression of contrition about the allegations he made against Mr Byrne. One of the matters that I've dealt with in the written submissions that I haven't gone through in detail is the cross-examination which tends to show that his expression of contrition went no further than to say I should not have made those allegations, it was unprofessional of me to make them. However, he actually maintained them, and he continued to maintain them again on the basis of hopelessly unsatisfactory material. He maintained them in evidence on the basis of that material.

PN945

DEPUTY PRESIDENT MCCARTHY: Again, I preface my comment, even if you were right on that, that Commissioner Harrison made no error on Mr Palmer being false and misleading or deceptive, even if you're right on that and on the procedural fairness ground, Commissioner Harrison seems to have placed a lot of weight on all of the circumstances, and particularly the length of service and the type of service that Mr Palmer had, to find that the sanction was disproportionate notwithstanding all of those things.

PN946

MR HEARD: Your Honour, I commented yesterday about the difficult position the respondent's in because of Mr Palmer's length of service and the sympathy that engenders from the Commission. What I would frankly submit is, that having seen Mr Palmer in the witness box, Commissioner Harrison concluded, as I've submitted, that he was giving false evidence, and Commissioner Harrison concluded on the basis of that that he could not be put back into his employment.

PN947

DEPUTY PRESIDENT MCCARTHY: Leaving aside the remedy, just the finding that the termination was harsh.

PN948

MR HEARD: Well, the point I was trying to make is, it's conceivable that the failure to take account of all of those factors that, or AUSTRACs - perhaps I shouldn't say failure. The fact that AUSTRAC did not take those matters into account because Mr Palmer did not put them forward in submissions on sanction, could base a conclusion by Commissioner Harrison of what AUSTRAC did was harsh.

PN949

COMMISSIONER REDMOND: Why was it Mr Palmer's job to put that forward?

PN950

MR HEARD: Well, Mr Palmer was specifically invited to make submissions on sanction after the finding on breach was made. What he did instead was he put in the very lengthy submissions in H46 which in fact addressed breach rather than sanction. The reason that AUSTRAC didn't take account of all of those compassionate factors was that Mr Grills didn't know about them, he wasn't an AUSTRAC employee. Evidently Mr Jensen didn't know about them either.

PN951

DEPUTY PRESIDENT MCCARTHY: But Commissioner Harrison knew about them.

PN952

MR HEARD: Commissioner Harrison knew about them.

PN953

DEPUTY PRESIDENT MCCARTHY: And taking all of those things and that knowledge into account he found that the termination of employment was harsh. The procedural fairness aspect of it, he seems to have aligned purely to an unjust termination, saying it was unjust because the procedural fairness wasn't followed, but harsh because of these other factors. That's the way paragraph 122 on a fair reading seems to read, particularly because of the paragraphs under other relevant matters, and that Commissioner Harrison's heading.

PN954

MR HEARD: Yes, I'd agree with that, your Honour. And the background to that is they were not taken into account because they were not before the people who actually made the decision. But they were matters of fact that were in existence at the time of the decision to terminate.

PN955

DEPUTY PRESIDENT MCCARTHY: Well, I'm not saying whether they were or they were not, or could or could not have been taken into account. But Commissioner Harrison took them into account.

PN956

MR HEARD: Yes, he did, yes. I'm not sure if it's directly on point, but the cases that we referred to in our submissions on why Commissioner Harrison should not have taken the belated apology to Mr Byrne into account in Mr Palmer's favour, would in fact support the proposition that he should have taken those compassionate factors into account, and it was quite proper for him to do so. But of course the point that we'd make is, having seen Mr Palmer give evidence and having seen Ms Boyle give evidence, and being aware of all those compassionate factors, and even though having formed a view that what AUSTRAC had done in not considering those compassionate factors made the termination harsh, he nonetheless thought that Mr Palmer ought not to go back.

PN957

DEPUTY PRESIDENT MCCARTHY: A different issue. There's two steps as far as I am concerned. One is the finding that it was harsh, having been harsh, should there be a remedy and what should it be? Now, those issues that you raise with respect to aspects that might have led him to the view that Mr Palmer was misleading and didn't tell the truth may have weighed on his mind in the remedy issue.

PN958

MR HEARD: Yes.

PN959

DEPUTY PRESIDENT MCCARTHY: But having taken all - they also weighed on his mind whether - CG(3), whether it was a harsh termination. Having looked at all of that - and even if you're right on procedural fairness - he nevertheless found, from what he says in 122, that the termination was harsh.

PN960

MR HEARD: Yes, he did find that, yes. We've also challenged that finding on appeal.

PN961

DEPUTY PRESIDENT MCCARTHY: Yes, I understand that.

PN962

MR HEARD: And what we'd say about that was, if the Full Bench was to accept our submissions that Commissioner Harrison's finding about the termination being harsh was wrong, then of course no question about remedy arises, he's not entitled to a remedy. However, if the Full Bench was against us on the point that even though the termination wasn't unjust, that it was nonetheless harsh, then the issue of remedy comes up. Your Honour's quite right, I should have put it in this way in the first place.

PN963

And what we'd say in that circumstance is that if the Full Bench concludes partly against us, you still have to deal with Mr Palmer's appeal then on whether or not the remedy ought to be reinstatement. And we'd say clearly it ought not to be because clearly the factor or the finding of false and misleading statements made by the employee in the investigation and to the Commission, as your Honour pointed out yesterday, would be a very powerful factor against putting him back into the workplace.

PN964

DEPUTY PRESIDENT MCCARTHY: Yes, thank you.

PN965

MR HEARD: Your Honour, I think at this point it might be best if I inquire how the matter ought to proceed from here. I've gone through the submissions. I don't think there's any point in going orally through any of the other parts of the submissions.

PN966

VICE PRESIDENT LAWLER: I think that your written submissions are thankfully very clear.

PN967

MR HEARD: Now, I've foreshadowed that the debate about the extent of the Full Bench's power to revisit credit findings should proceed on written submissions.

PN968

VICE PRESIDENT LAWLER: Mr Heard, I'm happy to - well, from my part. I don't know about the members of the Bench. I'm happy to entertain, if the parties are comfortable with it, some exchange of written submissions about that issue. But I really don't see those issues as being contentious. The authorities are - the principles are well settled, and I don't see there to be any difference of opinion between, or disagreement between yourself and Mr Rich now as to what those proper principles are.

PN969

You see, Mr Rich doesn't, I imagine, disagree with you about what the correct principles are. Where he departs from you is whether or not you can characterise the Commissioner's findings as being properly to be seen as credit based. That is the finding that the 24 March statement was misleading and deceptive.

PN970

MR HEARD: And also I think the Claire Windsor allegations, your Honour.

PN971

VICE PRESIDENT LAWLER: Yes.

PN972

MR HEARD: Well, we would submit most strongly - - -

PN973

VICE PRESIDENT LAWLER: But I understand why you submit that they are, and you articulated it clearly as usual.

PN974

MR HEARD: Well, your Honour, I think I'm at this point seeking some guidance on what further submissions I could usefully make to assist the Full Bench.

PN975

VICE PRESIDENT LAWLER: Well, for my part I don't think you need to make any further submissions. This is not a straight forward matter from my perspective, but your written submissions are clear, you've certainly raised serious doubts, well, complete persuasion in my mind about acting upon Mr Rich's submissions of yesterday. I don't, for my part, need to hear you further. But I will need to go away and re-read very carefully the evidence and the decision and think about it very carefully.

PN976

MR HEARD: Thank you, your Honour. Well, in that case - - -

PN977

VICE PRESIDENT LAWLER: Mr Rich?

PN978

MR RICH: If the Full Bench wouldn't mind I would appreciate a brief five minute adjournment just so I can duck out of the room here and attend to the bathroom.

PN979

VICE PRESIDENT LAWLER: Certainly, Mr Rich. Do you anticipate being very long?

PN980

MR RICH: No.

PN981

VICE PRESIDENT LAWLER: Okay, fine, thank you. We'll adjourn for a very short time.

<SHORT ADJOURNMENT [4.02PM]
<RESUMED [4.07PM]

PN982

VICE PRESIDENT LAWLER: Yes, Mr Rich?

PN983

MR RICH: Thank you for that allowance. The way I might proceed is to first of all address some of the matters that were raised by Mr Heard in his submissions just a moment ago, and then having done that I'll return to the procedural fairness issues that are the principal grounds of appeal raised by the Commonwealth on their appeal. The first thing I'd like to say in response to what Mr Heard has put this morning - I'm sorry, this afternoon, is that - - -

PN984

VICE PRESIDENT LAWLER: Mr Rich, just before you go there, just think about whether or not you need - well, it's a matter for you obviously at the end of the day - whether you need to work that hard in relation to the procedural fairness issues. They're important because the Commonwealth has certain bigger fish to fry here about its processes. But for the reasons that Deputy President McCarthy has pointed out, it doesn't really go anywhere so far as your client is concerned because it was not an essential part of the Commissioner's conclusion that the termination was harsh, unjust or unreasonable because he had an alternative route to get there that wasn't dependent upon the procedural unfairness findings.

PN985

MR RICH: Yes, I appreciate what your Honour says, and I had not intended to say very much. I tend to rely - I should make it clear that we still oppose the grounds of their appeal, but in opposing them I intend to rely principally upon the written submissions that have already been filed with the Commission, and also upon some brief oral statements that I'll make after I've dealt with the matters that Mr Heard has spoken about this morning.

PN986

VICE PRESIDENT LAWLER: Fine, okay.

PN987

MR RICH: The first thing I'd like to say in response to what Mr Heard has said this morning is, that in relation to the question about whether or not Mr Palmer made false and misleading statements in his statement of 24 March, which is what the question is that Commissioner Harrison dealt with, and the question which the Full Bench will need to deal with as well if they determine that the Commissioner got it wrong at first instance. That question, because it necessarily is a question about the contents of Mr Palmer's statement on 24 March, cannot depend in its answer upon anything to do with Mr Palmer's credibility in giving evidence before Commissioner Harrison. Secondly, in relation to the - - -

PN988

VICE PRESIDENT LAWLER: Well, it can depend upon it. I understand your point, Mr Rich, but it can depend upon it indirectly in this sense. That Mr Heard's argument is that, if it's accepted, is that Mr Palmer's asserted poor credibility before Commissioner Harrison allowed Commissioner Harrison to make findings which Mr Heard says are inferentially there, that what was said in the 24 March statement was false and misleading in a relevant sense, because one can draw the inference that the positions that Mr Palmer recorded as being his positions at the earlier time when he gave evidence are positions that can be rejected on a credit basis.

PN989

So whilst I understand the mere fact that some unsatisfactory answer is given before the Commission, it doesn't directly bear upon the question of whether or not the 24 March statement was false and misleading in any material respect. Mr Heard has advanced an argument that can connect it indirectly.

PN990

MR RICH: Well, my submission in relation to that is twofold. The first thing I'd say is that it's rejected that - that we reject that there can be any inferential, or any inference drawn from the Commissioner's decision that he made any conclusions about Mr Palmer's credibility, or that he used any conclusions he may have drawn in reaching his conclusion that Mr Palmer had made false or misleading statements in his statement of 24 March. And in addition it would be a wrong approach in my submission for the Commission sitting now, some 12 months after all the statements were all made, or more than 12 months after the statements were made, that are the subject of the question of whether or not there were false or misleading statements, to draw inferences about the credibility of Mr Palmer in his evidence in the proceedings, and used those inferences to retrospectively determine the credibility of Mr Palmer at the time that he gave the 24 March statement.

PN991

A lot of water has passed under the bridge between that and now, including, for example, the fact that Mr Palmer - and the Commissioner finds this, finds that Mr Palmer had reasonable grounds on which to believe that he had been prejudged on the matter prior to even being interviewed by Mr Grills, that Mr Palmer just by numerous requests for the particulars of what the false and misleading statements were was never provided to them. In fact the first time they were aware that there was any particularisation of what the false and misleading statements were occurred yesterday when your Honour, Vice President Lawler, pressed Mr Heard to finally give up the game and tell everyone what was really the allegation that was being made by the Commonwealth.

PN992

In addition there were obviously those additional suspected breaches that were only brought to Mr Palmer's attention some time after the investigation had commenced. Mr Palmer subsequently lost his employment, and there's been a long period of litigation since then. In those circumstances the using of any inferences about Mr Palmer's credibility drawn during the hearing to which conclusions about the statement that he made on 24 March would be a wrong approach.

PN993

In any event, secondly, having dealt with my views about the credibility issue and the 24 March statement, in relation to the allegations made by Mr Palmer that Ms Schultz had behaved inappropriately towards Ms Windsor, again, the question there about - which is the point I made yesterday, but I'll reiterate very briefly - the question about whether or not Mr Palmer can be said to have made false and misleading statements when he raised those allegations depends upon a question of what was in Mr Palmer's mind, what he understood to be the correct position when he made those allegations.

PN994

In those circumstances the credibility can only - the issue of his credibility can only go to impugn his evidence about what Ms Windsor told him, what he says Ms Windsor told him, and that's the only way that it can be relevant to that particular issue. But regardless of what Mr Palmer says about what Ms Windsor told him, even on Ms Windsor's own interview with Mr Grills and including the email that she passed on to Mr Grills that she originally sent to Ms Boyle, and that's the evidence which the Commissioner extracts in his decision, on that evidence alone it's open to the Commission to be satisfied that - and in fact more strongly than that - it's the unavoidable conclusion, and it should have been the unavoidable conclusion that Mr Palmer was not misrepresenting or making false statements when he said that those actions described in Ms Windsor's evidence amounted to harassment. Whether or not she'd used the term harassment herself is beside the point.

PN995

So the issue of credibility is not relevant ultimately, in my submission, to the Commission's finding of whether or not Mr Palmer made false and misleading statements in relation to either the Windsor issue or the 24 March statement that he made. Having said that though, I accept that - well, I think I probably need to deal with some of the issues that were raised by Mr Heard this morning, and I'll try and do so reasonably succinctly, although there are a number of matters to deal with. The way I might do it is just to go to paragraph - - -

PN996

VICE PRESIDENT LAWLER: Mr Rich, Mr Heard has gone through a detailed analysis of evidence. If your preference would be to put this into a short note or a note, that would be an acceptable course. But it's a matter for you though.

PN997

MR RICH: If the Full Bench is happy for me to proceed that way then I might do that. What I want to say really was just to make some general - well, to deal with some of the things that were said in there by - in a way that probably would be best in writing because, as you say, Mr Heard has already - - -

PN998

VICE PRESIDENT LAWLER: Is there any objection to that course?

PN999

MR HEARD: None at all, your Honour.

PN1000

VICE PRESIDENT LAWLER: Okay, that's fine, Mr Rich.

PN1001

MR RICH: Okay. In that case I'll deal with the matters that were raised in paragraph 18 by written note to the Commission at a time that the Commission agrees is appropriate.

PN1002

MR HEARD: I'm sorry, your Honour, I had intended - just so Mr Rich isn't confused about this - I had intended the Full Bench to refer to the whole of those submissions of 14 June, and all of the - - -

PN1003

VICE PRESIDENT LAWLER: You made that clear yesterday.

PN1004

MR HEARD: Thank you, your Honour.

PN1005

VICE PRESIDENT LAWLER: But you spent some considerable time today looking at two specific sections of those submissions.

PN1006

MR HEARD: Yes.

PN1007

MR RICH: Yes, I will deal particularly with paragraph 18 and the paragraph that commences - - -

PN1008

VICE PRESIDENT LAWLER: Paragraph 34.

PN1009

MR RICH: Paragraph 34 I think it is. Yes, okay. Putting that to one side
then - - -

PN1010

VICE PRESIDENT LAWLER: It doesn't leave very much to reply to, Mr Rich, now.

PN1011

MR RICH: No, I think that's correct. I'm just making sure that I'm satisfied that that's the case.

PN1012

VICE PRESIDENT LAWLER: Mr Heard is a very reasonable fellow and he's not going to stand on ceremony if there's some other proper matter of reply that you include in a note.

PN1013

MR RICH: Okay, thank you, your Honour. Having said that, I don't have anything to say in reply, anything further to say in reply I don't think. What I will do is - - -

PN1014

VICE PRESIDENT LAWLER: Mr Rich, what sort of timeframe would suit you? It can be as bullet point form or as narrative as you like. Obviously you'll do your best to make sure it's properly in reply so that we don't end up with a submission war.

PN1015

MR RICH: Yes. I was just saying to Mr Heard before we resumed after the last adjournment that I am tied up for the rest of this week unavoidably, and we'd appreciate some time next week to do it.

PN1016

VICE PRESIDENT LAWLER: The end of next week?

PN1017

MR RICH: So if the end of next week is an appropriate time then that might be a good timeframe for me.

PN1018

MR HEARD: Your Honour, I'd tentatively, or I'll discuss with Mr Rich about me doing submissions about the High Court cases on the discretion of the Appeal Bench, and Mr Rich responding to those. And perhaps we might be able to - well, I don't know if the Full Bench wants us to do simultaneous submissions or if - - -

PN1019

VICE PRESIDENT LAWLER: No, it's much better if Mr Rich has - if you have those to him first, and then he responds to those and deals with the reply issues that arise from today's oral submissions at the same time.

PN1020

MR HEARD: Yes, I think so, your Honour.

PN1021

VICE PRESIDENT LAWLER: How long do you need to do the - - -

PN1022

MR HEARD: Could I have till Monday, your Honour?

PN1023

VICE PRESIDENT LAWLER: Certainly. Would a week after that be satisfactory, Mr Rich? That would be Monday week for you.

PN1024

MR RICH: Yes, that suits us.

PN1025

VICE PRESIDENT LAWLER: So, Mr Heard, any submission you propose to make on the High Court authorities on the proper role of the Bench should be filed and served by 4 pm on 4 December.

PN1026

MR HEARD: The 4th, yes, thank you, your Honour.

PN1027

VICE PRESIDENT LAWLER: And Mr Rich, any submission properly in reply, including in relation to any submission that Mr Heard makes, should be filed and served by 4 pm on 11 December.

PN1028

MR RICH: Can I ask, your Honour, whether or not, given that my solicitor is based in Brisbane, in terms of the filing of those submissions can they be filed electronically?

PN1029

VICE PRESIDENT LAWLER: Certainly, just be email to my chambers, and my associate will then distribute them to the other members of the Bench, and can make sure that a copy of them gets onto the file.

PN1030

MR RICH: Thank you.

PN1031

VICE PRESIDENT LAWLER: Anything further? Well, in that case - yes, Mr Rich?

PN1032

MR RICH: I was going to say one or two things about the - simply because we do maintain our opposition to the appeal grounds of the Commonwealth.

PN1033

VICE PRESIDENT LAWLER: Yes.

PN1034

MR RICH: Very briefly about those issues. And I really might point principally on the procedural fairness issues. And I know your Honour doesn't want to hear me for very long, and I don't intend to take up much time, but just very briefly. I just want to point the Full Bench particularly to some submissions made by Mr Chin, which I needn't take you to, but when considering the matter Mr Chin's submissions on the point that I would also seek to rely upon appear behind tab 23 of the appellant's Appeal Books, particularly commencing from paragraph 18.

PN1035

MR HEARD: Excuse me, your Honour, I should point out we don't have a copy of the appellant's Appeal Book, and I don't see the necessity in compelling the appellant to go to the expense of producing another one. Perhaps you could further identify the submissions in question.

PN1036

VICE PRESIDENT LAWLER: It's the appellant's written submissions of 83 paragraphs dated 29 May 2006.

PN1037

MR HEARD: Thank you, your Honour.

PN1038

VICE PRESIDENT LAWLER: Paragraph 18?

PN1039

MR RICH: I'm sorry, no , I was incorrect on that, it's at paragraph 22 and following. It's at paragraph 22 and following, I rely upon those submissions in addition to the submissions that I've put in writing already on the matter.

PN1040

VICE PRESIDENT LAWLER: Yes.

PN1041

MR RICH: And also I don't - I'd also urge the Appeal Bench to have a look at the terms, in particular of the Public Service Act, and particularly sections 14 and 15 of that Act, when considering the submissions that Mr Heard makes about the effect of those sections, and also my submissions in relation to the finality of the decision that Mr Grills made when he handed down his investigation report. But I have no further submissions as to procedural fairness aside from those.

PN1042

VICE PRESIDENT LAWLER: Thank you, Mr Rich. Fine. We'll reserve our decision, and I don't think there's a need to issue formal written directions. The parties understand what the timetable is. And if there's some particular difficulty with them please get back in contact with my associate, because there's scope for further time for the parties if that's necessary. I have a series of commitments in the next couple of weeks that means - well, I hoped the decision would be handed down this side of Christmas. It's not going to be within the timeframe that you've set thus far. The Commission is adjourned.

<ADJOURNED INDEFINITELY [4.26PM]