C2006/1551, Transcript of Proceedings [2006] AIRCTrans 151 (9 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14043-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/1551

APPEAL BY P&O PORTS LIMITED
s.81 - Appeal from Registrar to Commission
(C2006/1551)

MELBOURNE

2.36PM, TUESDAY, 24 JANUARY 2006

Hearing continuing

PN1

MS L SHARP: Solicitor for the appellant in this matter and we don't at the moment have an appearance from the MUA.

PN2

THE SENIOR DEPUTY PRESIDENT: Well that is going to make life a bit difficult, isn't it?

PN3

MS SHARP: Yes it is.

PN4

THE SENIOR DEPUTY PRESIDENT: Do you know why they are not there?

PN5

MS SHARP: No I don't. We haven't had any correspondence from them however I was expecting them to appear today.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes well it is a mention. You don't know whether they have received the notice of listing?

PN7

MS SHARP: I don't know that. I mean their names are on the listing. However I assume they would have received it.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have any knowledge of their fax numbers? There is one fax number it has been sent to. Have you any idea – have you had any correspondence with them to that fax number, Ms Sharp?

PN9

MS SHARP: Your Honour, we have had correspondence with the MUA. However I don't have another fax number in the documents that are with me.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. It makes life a bit difficult. How do you see this appeal progressing, Ms Sharp?

PN11

MS SHARP: Your Honour, we were I suppose expecting a hearing date to be determined today with dates for the filing of submissions. I would be happy to undertake to inform the MUA of dates if you were - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Yes but that's – you can bet your bottom dollar that whatever dates we fix will be inconvenient to their lawyers. Do you expect us to proceed by way of re-hearing or are we going to rely on the evidence before the Registrar? I don't as yet have a transcript.

PN13

MS SHARP: We were proceeding on the basis that it would proceed on the basis of not a new hearing of evidence.

PN14

THE SENIOR DEPUTY PRESIDENT: I am sorry? Sorry, could you say that again?

PN15

MS SHARP: Sorry, your Honour. We were proceeding – we didn't think that it would be a new hearing of new evidence. We were assuming that it would just be a matter of legal argument based on the Registrar's decision.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MS SHARP: We – onerous of appeal isn't in relation to any factual finding – it purely a matter of law.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes and how long do you think the matter will take?

PN19

MS SHARP: We would estimate a maximum one day.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. I will just stand this matter down for a moment and I will get my associate to make some enquiries of the MUA to see what has happened. How long would it take you to file and serve your – so it is only submissions that you are going to rely on is it? You will prepare an appeal book of course?

PN21

MS SHARP: Yes your Honour. We would need about two weeks to file submissions.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MS SHARP: My understanding, your Honour, under the rules regarding an appeal book - wasn't required under section 81.

PN24

THE SENIOR DEPUTY PRESIDENT: No so - - -

PN25

MS SHARP: However - - -

PN26

THE SENIOR DEPUTY PRESIDENT: So what do you – what paperwork are you going to provide me with, Ms Sharp?

PN27

MS SHARP: We were proposing to provide basically legal submissions but I am obviously open to what you determine to be appropriate.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes well at the moment I have the notice of appeal and that is it. I will leave it at that. That is all I have got so if you want to assist me you will need to provide the relevant documentation to enable that to be done.

PN29

MS SHARP: Okay your Honour. Yes.

PN30

THE SENIOR DEPUTY PRESIDENT: So if you want two weeks that brings us to about the 7 February. Give the union about two weeks as well – 21 February. Well I am not available until – I could probably do it on 8 March. Is that suitable to you, Ms Sharp?

PN31

MS SHARP: Yes your Honour that date is suitable for us. Would it also be possible for your Honour to make a date for submissions in reply?

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MS SHARP: Possibly one week after the 21st?

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. So the appellant by – what date did I say? The 7th?

PN35

MS SHARP: The 7 February was the first date.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes and the respondent by 21 February. To reply by the 28th. Hearing on 8 March and I think it might be worthwhile if I stand this matter down for a short period to see if we can make contact with the union and my associate can tell them of the directions I propose to make and we will try to ascertain whether they have got any problem with it. Otherwise there will be an application to vary the directions or the date of the hearing and we will have to start again. So just stay in the precincts of the court if you wouldn't mind for a short period and we will resume shortly. Just adjourn temporarily.

PN37

MS SHARP: Okay. Thank you.

<SHORT ADJOURNMENT [2.43PM]
<RESUMED [3.01PM]

PN38

THE SENIOR DEPUTY PRESIDENT: Well Ms Sharp it appears that there has been some mix up in the union office. The relevant officer hasn't received any documentation and he has not been able to contact his counsel to ascertain whether or not counsel is available on the dates we propose. So what I will do is I will make the directions as indicated and I will provide for liberty to apply in the event that it is causing difficulties. If the 8th is not suitable as a hearing date to the union perhaps you and the relevant people there can try to agree upon a date and I will try to accommodate you.

PN39

So I will make the following directions. The appellant is to file and serve full written submissions and any other material upon which it wishes to rely by close of business on Tuesday 7 February 2006. The respondent is to do likewise by close of business on 21 February 2006. The applicant is to file and serve any material upon which it wishes to rely in reply by close of business on 28 February 2006. The matter will be listed for hearing – actually just looking at my diary the date that I proposed is not such a good date. We might just go off the record to find another day, Ms Sharp.

<OFF THE RECORD

PN40

THE SENIOR DEPUTY PRESIDENT: I will set the matter down for hearing at 10.15 am on Thursday 16 March 2006 in Sydney. I will also allow liberty to apply in the event that these directions cause some problems to the union and it can do so on 48 hours notice. Is there anything else, Ms Sharp?

PN41

MS SHARP: No your Honour. Thank you.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes thank you. I am sorry for that inconvenience but I don't know what more we can do than send the material to the right address.

PN43

MS SHARP: Yes thanks your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Adjourn the Commission please.

<ADJOURNED UNTIL THURSDAY 16 MARCH 2006 [3.08PM]