AG2006/4499, Transcript of Proceedings [2006] AIRCTrans 955 (10 August 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15485-1
15486-1

COMMISSIONER GAY

AG2006/4499 C2006/2754

APPLICATION BY TOYOTA MOTOR CORPORATION
s.170MD(6) - Variation of certified agreement to remove ambiguity
(AG2006/4499)

TOYOTA MOTOR CORPORATION AUSTRALIA
AND
ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2754)

MELBOURNE

2.36PM, MONDAY, 31 JULY 2006

Continued from 5/7/2006

Reserved for Decision

PN1151

MR GEORGIOU: Commissioner, I’ve got MR J KELLY with me as well today.

PN1152

THE COMMISSIONER: Thank you. Yes, Mr O’Grady?

PN1153

MR O’GRADY: Yes Commissioner, as I understand it this afternoon has been listed for any short submissions in reply by Toyota and any further submissions that APESMA wish to make for the Commission to consider the outcome in these matters. In the light of the submissions that have been filed Commissioner, I don’t intend to be very long on my feet at all this afternoon. In my submission the matters have been canvassed quite extensively in the written submission that were filed by the parties. We, of course, rely upon those sets of submissions that have been filed by Toyota. The original submissions that were filed on 9 June, and then the final submissions that were filed after the hearing date.

PN1154

THE COMMISSIONER: Yes, 18 July, is it?

PN1155

MR O’GRADY: Yes, that would be right Commissioner, 18 July. With respect to the original submissions, if I could simply remind the Commission of the point that is made in paragraph 28 of those submissions. It is a point under the heading the merits or reasonableness of the competing constructions, and it’s a point that of course, has application both to the section 170LW application before the Commission and the section 170MD(6) application before the Commission.

PN1156

THE COMMISSIONER: Which point was this from, the submissions?

PN1157

MR O’GRADY: Paragraph 18.

PN1158

THE COMMISSIONER: Yes.

PN1159

MR O’GRADY: The point that’s made there is that if one - - -

PN1160

THE COMMISSIONER: Did you say the most recent, or the original submissions?

PN1161

MR O’GRADY: No, no the original submissions on 9 June.

PN1162

THE COMMISSIONER: Yes, all right.

PN1163

MR O’GRADY: These submissions of course were drafted Commissioner, when we only had a 170MD(6) application before the Commission. But the point that appears here in my submission has application to both proceedings. The point is that if you compare the competing instructions there is, in my submission, a logical rationale for the limitation of the transfer payment in the way suggested by Toyota.

PN1164

If on the other hand, one adopts the approach being put forward by APESMA then the transfer payment would be payable irrespective of whether a person’s employment was moved to another location as a result of a redeployment.
You could have two employees who were redeployed. One employee, similar to the case with Mr Ely, who doesn’t change buildings. He gets exactly the same amount of money as another employee who has been redeployed to a different site with all of the attendant costs and inconveniences that that would occasion.

PN1165

In my submission that is a powerful consideration, just standing back and looking at how the clause should work for imposing a limitation on the payment of the transfer payment that is advocated by Toyota. Such a limitation of course, would be consistent to the way in which the clause operates when an employee’s employment is transferred, because an employee’s employment or an employee whose employment is transferred, gets the money by definition. This is not contested as I understand it only when they move to an alternative Toyota site.

PN1166

Commissioner, turning to the submissions filed by APESMA and in reply to our final submissions, there are really only three points I’d seek to make Commissioner. The first point concerns what is put at paragraph 9 of the submissions made by APESMA where it is said:

PN1167

The association is not required to put it’s version of how the final wording appeared in clause 16 the onus is on the company to prove that the words in the agreement were not the intention of the parties.

PN1168

Commissioner, there are two things I’d seek to say about that paragraph. The first is whilst it might be the case that in respect of the section 170MD(6) application, there is an onus upon Toyota, the same could not be said with respect to the 170LW application. So to the extent that the Commission is turning its mind to matters such as onus, it is not as clear cut as to say, well if in doubt, APESMA is entitled to the benefit of that doubt. In my submission, each side bears a respective onus with respect to the respective applications. As the Commission made clear when we were here last time, it’s the 170LW application that has primacy as a means of trying to resolve these issues.

PN1169

The second point I’d seek to make Commissioner, and this is a point that we make in the final submissions that were filed, is that the intention of the parties is not the subjective intention of the parties. It is the mutual intention of the parties ascertained objectively. It is what, if you like, a fly on the wall or a reasonable person sitting in a corner, or a man on the Clapham omnibus - - -

PN1170

THE COMMISSIONER: The Clapham bus singer?

PN1171

MR O’GRADY: That’s the one - would have said the parties must have intended this because of what they said and did, and to that extent we say that the company has proved the intention put forward in the contentions by Toyota. That a man or a reasonable person sitting in the room, watching what was said, and watching what was not said, and the way in which the discussions progressed, would have said, well the parties should have been taken to have intended that the redeployment – the transfer payment should be payable upon redeployment only when there is a move to an alternative Toyota site.

PN1172

The same point needs to be made in respect of paragraph 37 of the APESMA submissions in reply, where reference is made to Ms Stratford and what she intended. With the greatest of respect to Ms Stratford Commissioner, what Ms Stratford intended when she chose the words that appear in the agreement is by the by.

PN1173

THE COMMISSIONER: Yes.

PN1174

MR O’GRADY: It’s her subjective intention. The question is what was the intention of the parties flowing from the discussions where they were both present and their actions and omissions at that time.

PN1175

The last point I’d seek to make with respect to the submissions that have been filed by APESMA, appears from paragraph 61 of those submissions, Commissioner, where I think there is an error or confusion in respect of the power point presentation that’s referred to. As the Commission will recall there are two power point presentations that are the subject of evidence in this proceeding.

PN1176

THE SENIOR DEPUTY PRESIDENT: Yes, one before and one after.

PN1177

MR O’GRADY: Exactly, and it’s the one before, that we say takes on great significance in the determination of these applications. The one after is relevant we submit in the context of the 170LW application, but it’s the one before that we say is of great significance and clearly to the extent that paragraph 61 is talking about a power presentation, it can’t be talking about that one. Because it’s undisputed that the 15 August power point presentation occurred prior to certification.

PN1178

In that context Commissioner, can I take the Commission to one authority in addition to the authorities that are referred to in the submissions that we filed. It’s a decision of Telstra and the Communications and Electrical and Electronic Postal Plumbing and Allied Services and Australian and APESMA. It’s a decision of a Full Bench consisting of Vice President Ross, SDP Lacy and Commissioner Smith, and I’ll hand a copy of that up to the Commission.

PN1179

It’s print PR54989 and this was a section 170 – sorry Commissioner?

PN1180

THE COMMISSIONER: It has a 9, it doesn’t matter you must have - - -

PN1181

MR O’GRADY: Sorry, I did - 954, yes.

PN1182

THE COMMISSIONER: Yes, I’m glad you were not reading out a grid.

PN1183

MR O’GRADY: It was a 170MD(6) application, it was an appeal and the Full Bench considered the principles applicable in such an application in paragraph 46 and following. You’ll see there in bullet points a number of factors that are listed which aren’t really contentious in the context of this case. But importantly at paragraphs 49 and 50 the Full Bench turned their minds to the role of what the employees were told prior to the ballot and the importance. You will see in paragraph 49 they say:

PN1184

In our view the objects of the WR Act generally in part 6(b)in particular are relevant to the exercise of the ...(reads)... good conscience and the substantial merits of the case, without regard to technicalities and legal forms.

PN1185

In the light of that statement and principle, and given the content of the 25 August power point presentation, which is you will recall was also available to employees via the G drive and to which express reference is made in the stat decs filed by all parties at the certification hearing, in my submission the appropriate disposition is that sought by Toyota. If the Commission pleases.

PN1186

THE COMMISSIONER: Yes, thanks, Mr O’Grady. Mr Georgiou?

PN1187

MR GEORGIOU: Extremely briefly Commissioner. With regard to the last point about what was said prior to the ballot. The ballot was conducted by myself along with Mr Larkin from the AMWU. The company has not presented any evidence as to what was said at that meeting and what was in the minds of the employees prior to.

PN1188

The issue of clause 16 was dealt with in two ways and that’s subject of the submissions that I’ve made, and Mr O’Grady constantly refers to transfer payments under clause 16, and always in all of his submissions neglects the words, or redeploying. The payment is not simply a transfer payment. It is either a payment for transfer or redeployment. That was stressed in the meetings held by the unions and to refer to the Telstra case, that is the meeting that is the one that is crucial.

PN1189

The evidence of Mr Ely, was that he was guided by the union information that came out. He attended the union meetings, he wasn’t sure whether he attended the meetings where the power point presentation was made. He was guided by his union representatives and he relied on and still relies on the transferring or redeploying. The issue of the Clapham bus thing, as a Cypriot boy I don’t know where Clapham is, I presume it’s somewhere in Sydney.

PN1190

THE COMMISSIONER: I’m afraid you’ve – you’ve got to think old Dart. It’s in the United Kingdom.

PN1191

MR GEORGIOU: Is it, there you go. I do know, I used to watch that awful show on the buses when I was young.

PN1192

THE COMMISSIONER: Think of Reg Varney and you won’t go too far wrong. Reg had a big common law practice.

PN1193

MR GEORGIOU: Did he? We are getting away from the point.

PN1194

THE COMMISSIONER: No, you’ll come back to it.

PN1195

MR GEORGIOU: Commissioner, the issue of what was the intention of the parties, there is no evidence before you on what the intention of the parties was. There is evidence before you of what the intention of Toyota was and it’s negotiators but there is no evidence or material presented to you on the intention of the parties, because for example, both of the witnesses for Toyota stated that they were not at any union and they don’t know what was put to the employees that persuaded them to vote for the agreement. Toyota has view (a) and - - -

PN1196

THE COMMISSIONER: Were the union officials present at the 25 August?

PN1197

MR GEORGIOU: No.

PN1198

THE COMMISSIONER: Members of the negotiating team present?

PN1199

MR GEORGIOU: I wouldn’t have a clue. I can’t answer who was there for the Toyota representatives.

PN1200

THE COMMISSIONER: You had job representatives at the negotiations Mr Georgiou?

PN1201

MR GEORGIOU: I had one rep yes, Mr Watkins, that comes up in – I don’t know if he was there or not and it doesn’t matter if he was there. I don’t understand even if he was, he can acquiesce to everything that the company says or not refute them, which is not his job. His duty as an APESMA rep is to represent the view of the APESMA members to the company, and the outcomes of the APESMA meetings.

PN1202

There is some store put on by the company, and it is addressed in the submissions, that because people sat there and didn’t say you are wrong, that means they were agreeing with the company. That’s not the way it works. Secret union business is secret union business and what we say at our meetings – and it may well have been said – and the onus isn’t on me to demonstrate to the Commission that the union meetings analyse that in depth and came up with an alternative.

PN1203

THE COMMISSIONER: You see, Mr Georgiou, it is up to you of course, but it might be easier to focus on the way this is put by Mr O’Grady and you can supplement that in any way you like. But as I understand it and what’s put by Toyota is that and I pick up your point about what the representational role of
Mr Watkins was. Well the union attended negotiations and in this case an agreement was negotiated and my understanding was that really the 25 August was later represented by the unions and by Toyota as being common ground. It was very much the explanatory position required to be put and it was relied on by both parties in the certification proceedings.

PN1204

MR GEORGIOU: If you look at the stat decs, I mean – I don’t want to open up a whole different argument here, but the issue of who, or how many people were covered by the agreement. The union’s are not in a position to declare one way or another how many people are covered by an agreement and the evidence was that we believe that all people who were affected by the closure, were covered by the agreement. The company’s view was different.

PN1205

So one could argue that – and if you look at statutory declarations that appear before the Commission and I don’t want to go into this too much – we get a stat dec pro forma from the company that we change accordingly and we all sign it. That’s why the three stat decs look exactly the same almost word for word. That’s what occurred in this instance.

PN1206

THE COMMISSIONER: But job representatives attend meetings like that.

PN1207

MR GEORGIOU: No they don’t attend as job representatives. They were invited as employees.

PN1208

THE COMMISSIONER: They attend as particularly informed employees.

PN1209

MR GEORGIOU: Then they may express a completely contrary view at a union meeting.

PN1210

THE COMMISSIONER: Well they may of course, and that’s you say, that’s secret and it may be entirely secret but if that employee who also has other than their employee responsibilities, has a representational responsibility would it go along to the briefing which is then relied upon by both parties, you say in a perfunctory way perhaps by the unions. If that person sees that there is something put which is fundamentally at odds with what they understand the agreement to be, wouldn’t one expect in the normal course of events that they would say something?

PN1211

MR GEORGIOU: No, because Mr - - -

PN1212

THE COMMISSIONER: Not necessarily to the company officers, but to the say to the - to say there’s a problem here.

PN1213

MR GEORGIOU: It may have been raised. It may have been raised and I can tell you that it was raised with me and I said that’s the view of the company. Mr Ely testified – his evidence and his affidavit states that he asked the representative Mr Watkins, about that clause and that was the interpretation that he was given. He states in his affidavit.

PN1214

THE COMMISSIONER: What was the interpretation he was given?

PN1215

MR GEORGIOU: That it applied to him with regard to redeployment. That’s in his affidavit. The representative is not obliged to correct the company if the company puts a view. The only thing that we are bound by is the outcome of our meetings. It’s the same if it’s a meeting of five unions, where we have 10 members present and there are 50 from other unions. I will only be bound and my members will only be bound by the outcome of our own meeting.

PN1216

THE COMMISSIONER: I think really the important focus here should be the parties are bound by their agreement. There may be other obligations arising from meetings.

PN1217

MR GEORGIOU: Yes, and I’m – and the evidence that we’ve put to the Commission in this matter is that my members believe that that payment applied to redeployment as well as transfer. And there is nothing – and that’s how they voted on the agreement. The words are clear. They are not ambiguous. They are not uncertain. The members read it, perhaps they trust me more than they trust the company in terms of the presentation, I don’t know Commissioner. The words are there they interpreted it. It wasn’t an issue at our meetings in terms of any questions of either or. It was explained at our meetings, each clause, and then it was voted on.

PN1218

Unless the company can demonstrate that the people who voted on it, and no one at the meeting held by the company, they only voted at the meeting that was called by the AMWU and ourselves. That was the outcome, that’s where the employees expressed their view on the agreement and it was not raised. Other than that I think we’ve flogged this issue to death. I think we’ve made our submissions opening and closing and we ask the Commission to determine this matter as soon as practicable, if the Commission pleases.

PN1219

THE COMMISSIONER: Yes, thank you. Yes, Mr O’Grady.

PN1220

MR O’GRADY: My instructions are that Mr Watkins was definitely there I believe that was touched upon the evidence of Mr Temperly, oral evidence. He deals with the conduct of those meetings in his witness statement which is exhibit T9 at paragraph 16. He deals with the issues of the stat decs at paragraph 23 of his statement. With respect to what was said by Mr Georgiou a moment ago about Mr Ely, if you have a look at APESMA 1, in paragraph 9 all Mr Ely says is that on 13 September he attended a meeting called by APESMA where each clause of the proposed agreement was discussed.

PN1221

At no time during this meeting was I advised by APESMA that clause 16 of the agreement was intended to cover only employees who were transferred to a site other than the Port Melbourne site.

PN1222

He doesn’t say that he was told in response to a question that the payment would be payable if he was redeployed on site. To the extent that he is asking questions about this issue of course, Commissioner, it is consistent with their being an inherent ambiguity in the meaning of the clause.

PN1223

THE COMMISSIONER: That’s the Toyota position, there is an inherent ambiguity?

PN1224

MR O’GRADY: We say there is an inherent ambiguity in the meaning of the clause Commissioner, that flows from the punctuation as much as anything else for the reasons that we set out in our final submissions.

PN1225

THE COMMISSIONER: Yes.

PN1226

MR O’GRADY: But it’s a problem that can be remedied through the Commission exercising the powers it has available to it under the two applications that are before the Commission. If the Commission pleases.

PN1227

THE COMMISSIONER: Mr Georgiou, we will bring this to a conclusion, but do you want to be heard on that point? That is, any conflict, or anything that arises from Mr Ely’s affidavit set out in clause 9?

PN1228

MR GEORGIOU: It might have been in the evidence, I’ve just spoken with Mr Ely and he confirms what I put to the Commission. You are asking me now to recall whether it was in his affidavit or his evidence. It certainly arose and if you want to have a break I’ll find out where it is. I’ll call him again and we can ask him if you like?

PN1229

THE COMMISSIONER: I don’t know whether reopening is a good idea. Well I will give you that opportunity and it may be that there is a helpful submission on this point that you can make. So, it’s – my question is about the effect of clause, paragraph 9 of his witness statement and also then his brief evidence in the Commission.

PN1230

MR O’GRADY: Mr Georgiou has asked me whether I have a problem with Mr Ely going into the witness box again. I would have thought that we really should have been dealing with the evidence as been educed in the hearing Commissioner. I don’t mean to be unduly difficult.

PN1231

MR GEORGIOU: I’m not sure if it’s there or not Commissioner, that’s all I’m saying. Just to clarify it.

PN1232

THE COMMISSIONER: I’ll give you an opportunity – I’ll have an adjournment now for 10 minutes or so. This issue as you’ve said for a long time, you are not going to go on in some hurly burly fashion now, that will give you an opportunity to look at his evidence. It isn’t lengthy. Have you got the transcript there?

PN1233

MR GEORGIOU: Yes, I have.

PN1234

THE COMMISSIONER: All right, and if you require more than – in fact I’ll adjourn until you’ve had an opportunity to look at that and also look at the affidavit that he signed. So we will adjourn now for a short time. You might let my associate know Mr Georgiou.

<SHORT ADJOURNMENT [3.02PM]
<RESUMED [3.14PM]

PN1235

THE COMMISSIONER: Yes, Mr Georgiou.

PN1236

MR GEORGIOU: Commissioner, the reference I was making to Mr Watkins was in the affidavit of Mr Ely paragraph 6:

PN1237

At around the same time as management advised about the restructure, I was also made aware through newsletters and by the APESMA representative at Port Melbourne Andrew Watkins that APESMA would hold meetings to ascertain the views of its members and negotiate suitable industrial arrangements concerning the restructure.

PN1238

So it made reference to earlier meetings rather than the one that was specified by the company and the meeting. But I would like to briefly call Mr Ely on two points. Whether he attended the meeting that’s referred to by the company, where the power point presentation was made because the company representatives don’t recall if he was there or not and what was or was not said to him.

PN1239

THE COMMISSIONER: What do you say about that Mr O’Grady?

PN1240

MR O’GRADY: I’m instructed to oppose that application Commissioner. With respect to the – and primarily on the basis that this matter was listed for a hearing, that hearing has concluded, in my submission, at this point in time it wouldn’t be appropriate to allow either party to reopen the case.

PN1241

Secondly, Commissioner, that the matters that are referred to by Mr Georgiou in my submission wouldn’t advance the proceeding anyway because they do not go to what is the objective, or the mutual intention of the parties objectively ascertained. At it’s highest it goes to what was in Mr Ely’s subjective understanding and for the reasons that we’ve already submitted that can’t bear upon these proceedings.

PN1242

With respect to the two issues Commissioner, it’s not put by Toyota that there is evidence that establishes that Mr Ely was at the meeting of 25 August. However, it is put Commissioner that Mr Ely had access to the power point presentation on the G drive and could have looked at that presentation. You will recall that Mr Ely gave evidence that the power point presentation makes it clear when, what the limits are if you like, in respect of this payment. Mr Ely understood that when he read it. In my submission that is material going to the objective or the mutual intention of the parties objectively ascertained and that’s the question before the Commission. For those reasons we object to the application to reopen the case.

PN1243

THE COMMISSIONER: Yes, thanks Mr O’Grady. I can’t see any prejudice for Toyota Mr Georgiou on those limited, for that limited purpose we will have Mr Ely back. He has already given evidence about these things of course, and it would be very important in seeing what his evidence is if he revisits any of those matters. All right come into the box Mr Ely.

<THOMAS FREDRICK ELY, AFFIRMED [3.18PM]
<EXAMINATION-IN-CHIEF BY MR GEORGIOU

PN1244

MR GEORGIOU: Mr Ely, did you attend a presentation by the company on the 2004 agreement on 25 August 2004?---No.

PN1245

How are you so certain?---I since the last hearing I’ve had a chance to look at my diary and I don’t have it mentioned in the diary. I don’t have any memory of going to it and I do have two other activities on that day, that I think probably precluded me going to it.

PN1246

Thank you, did you ever look at the G drive with regard to the information on the agreement?---No.

PN1247

Did you attend the APESMA meeting to vote on the agreement?---Yes, I believe I do. Sorry, I believe I did.

PN1248

Did you ever discuss the agreement with Mr Watkins?---Given that we had adjoining desks, I’m sure I discussed various things at various times, yes.

PN1249

THE COMMISSIONER: Mr Ely, now this is where I want to give you this charge. Your responsibility is to give full effect to your affirmation and the best way to do that is to focus on the particular question being asked, and then you know you’ve got to give an answer to that particular question and it’s got to be truthful and it’s got to represent the whole truth of all the issues that surround it. So that one couldn’t hear your evidence and somehow go away under a misapprehension. So Mr Georgiou will you put that question again please?

PN1250

MR GEORGIOU: Did you ever discuss the agreement with Mr Watkins?---Yes.

PN1251

Did you ever discuss with Mr Watkins, clause 16?---Yes.

PN1252

Did you ever ask Mr Watkins, if in the circumstances pertaining to your situation, you would be eligible for the payment under clause 16?

PN1253

THE COMMISSIONER: Do you mean prior to the agreement being finalised?

PN1254

MR GEORGIOU: Yes, yes Commissioner?---No.

PN1255

You didn’t discuss clause 16 with Mr Watkins?---Excuse me, prior to the agreement being signed I can’t say that I discussed clause 16 with Mr Watkins, no.

**** THOMAS FREDRICK ELY XN MR GEORGIOU
PN1256

Did you ever discuss it with him afterwards?---Yes.

PN1257

What was the nature of that discussion?---Basically does that clause apply to me as being – because I was redeployed.

PN1258

What was his response?---He agreed with my position.

PN1259

No further questions, Commissioner.

PN1260

THE COMMISSIONER: Thank you, yes Mr O’Grady?

<CROSS-EXAMINATION BY MR O'GRADY [3.22PM]

PN1261

MR O’GRADY: Mr Ely you recall the evidence you gave last time about a letter you sent to Mr Neil Wilson on 21 September 2005 exhibit T5?---Yes.

PN1262

In that correspondence you referred to the Alt 61 communications and presentations conducted by Mr Rausa, do you recall that?---Yes.

PN1263

You recall saying that those sessions were informative and proactive?---Yes.

PN1264

You didn’t resile from that when you gave your evidence last time, did you?---No.

PN1265

Part of the information process that was conducted by the Alt 61 group was the power point presentation on 20 August 2004?---Part of the information was apparently that power point which I saw for the first time recently.

PN1266

Another part of it was the provision of various material on the company’s G drive?---Yes.

PN1267

You I think, didn’t dispute that you had access to that G drive should you have a wish to access that material?---Yes, I did have access.

PN1268

Your evidence as I understand is that you’ve had a discussion with Mr Watkins, after the agreement was certified?---Yes.

PN1269

In the course of that discussion, as I understood it you put to him that you would be entitled to the redeployment or the transfer payment even if you were redeployed within the same site?---Yes.

**** THOMAS FREDRICK ELY XXN MR O'GRADY
PN1270

He didn’t disagree with you?---No.

PN1271

Did the conversation occur in that way with you asking the question, well look if I’m redeployed in the same site surely I should get the transfer allowance?---Yes, must that way, yes.

PN1272

That’s a conversation that occurred some time after I think it was the date of the certification was November, so some time after November 2004?---Definitely, yes.

PN1273

How long after November 2004?---I think the matter was certainly discussed on or around May 2005.

PN1274

Was it prior to if you like, post certification information session that was conducted by the company where there was a further power point presentation, do you recall that session?---A post certification session, shortly after certification?

PN1275

No, this occurred as I understand it towards the end of 2005?---If you are referring to Mr Rausa’s - - -

PN1276

Yes, that’s what I’m referring to?---Yes, I remember that and I remember going to it.

PN1277

Was that before or after the conversation you had with Mr Watkins?---After.

PN1278

Shortly after or - - -?---No, it was some months.

PN1279

So you had the conversation with Mr Watkins in May and then this has occurred towards the end of 2005?---Yes, I believe it was August or September.

PN1280

Yes, I understand, no further questions, Commissioner.

PN1281

THE COMMISSIONER: Mr Georgiou?

**** THOMAS FREDRICK ELY XXN MR O'GRADY
PN1282

MR GEORGIOU: No, nothing further.

PN1283

THE COMMISSIONER: Thank you for your evidence, Mr Ely, you can step down.

<THE WITNESS WITHDREW [3.26PM]

PN1284

THE COMMISSIONER: All right Mr Georgiou, I’ll let you make what you want to of that.

PN1285

MR GEORGIOU: No, I’ve nothing further.

PN1286

THE COMMISSIONER: All right. Now it had been my aim to give a decision now and having in the light of what’s been put and the detailed submissions of the parties for which I’m very grateful, it’s necessary for me to reserve my decision in this matter and I will do that. I will endeavour to have a decision ready at the earliest opportunity. Now adjourned.

<ADJOURNED INDEFINITELY [3.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

THOMAS FREDRICK ELY, AFFIRMED PN1243
EXAMINATION-IN-CHIEF BY MR GEORGIOU PN1243
CROSS-EXAMINATION BY MR O'GRADY PN1260
THE WITNESS WITHDREW PN1283