C2007/2658, Transcript of Proceedings [2007] AIRCTrans 228 (8 May 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16801-1

SENIOR DEPUTY PRESIDENT WATSON

C2007/2658

s.120 - Appeal to Full Bench
Appeal by Fletcher, Gerard Francis
(C2007/2658)

SYDNEY

9.03AM, TUESDAY, 24 APRIL 2007

PN1

MR R MOORE: I appear on behalf of the appellant in the matter.

PN2

MR J HEARD: I seek leave to appear for the Federal Police.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. There's no issue about leave in either case. Leave is granted for today's purposes. The Full Bench will consider leave in the substantive proceedings itself. In the normal course, appeals of this type are heard when I am presiding at least subject to directions for the filing and service of outlines of submission. The applicant I think in this case has sought that the matter be brought on for a directions hearing.

PN4

MR MOORE: Yes.

PN5

THE SENIOR DEPUTY PRESIDENT: So I will hear from you perhaps, Mr Moore, as to what it is you are seeking.

PN6

MR MOORE: Yes, the original matter that brought the application for directions was a conversation that my instructing solicitor had I think at the time of filing the notice of appeal, plus the order, plus the decision and that was that - I don't know whether your Honour has had a chance to look at the notice of appeal - Mr Fletcher does not agitate anything on the appeal other than the final order that was made.

PN7

The final order that was made was an order that did not grant him reinstatement of employment, so consequently there was a view discussed at the time of filing that perhaps not all of the matters in terms of the exhibits below were necessary in order to put the final appeal books together and so the directions hearing that's come about today came about in those circumstances where there was sought first of all further time in which to put the appeal books on, but secondly to have some further discussions with the respondent to the appeal as to what material was agreed between the parties to go forward as part of the appeal book and in that regard, we were minded of this fact as well, that in the proceedings below, application was made by the respondent for various materials to remain confidential and the like and, indeed, there was co-operation between the parties below and the same co-operations on the appeal.

PN8

The other reason was not to burden the Full Bench unduly with unnecessary material. Can I just say that I have been approached by Mr Heard today and he has indicated that on behalf of his client, they would be seeking today extra time in which to lodge an appeal themselves questioning the primary findings, that is of both no valid reason, harshness and then the favourable order of my client and, indeed, it might be best at this stage, your Honour, just for me to sit down and let Mr Heard explain the position of his client, because we came to the directions hearing today just to settle the appeal books up and to seek some orders for the filing and the times for the filing. Mr Heard has indicated to me just in the general directions that have been issued through your associate there was one concession that was sought just in terms of direction number 2 that the date be changed from 21 May to 23 May and subject to your Honour's views, that causes us no difficulty, but I think the position is in terms of the standard directions that were issued with that one amendment, that is amenable to both parties and there are some further directions that would probably need to be made today to finalise the appeal book and the nature of the appeals to be brought before the Full Bench on the 28th.

PN9

THE SENIOR DEPUTY PRESIDENT: Very well, so you've been blown out of the water in terms of what you thought the bench was dealing with.

PN10

MR MOORE: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Or potentially. Mr Heard.

PN12

MR HEARD: Thank you, your Honour. If I could say at the outset that on the issue of what material is going into the appeal book, we agree that the sensible course would be for the solicitors to have some discussions as to what was agreed to be in the appeal book and what was agreed to be kept confidential or blacked out and we would concur with an order that the solicitors be given some little time in order to have those discussions, but no doubt some substantial agreement at least can be reached on those matters.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR HEARD: Your Honour, if I could now turn to the issue of the AFP seeking an extension of time in which to file an appeal and filing an appeal. I actually have some documents prepared. I can hand them up now.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR HEARD: They're not at this stage signed. Your Honour, the AFPs position is that raising the issues that are raised in that notice of appeal will not substantially increase the task of the Full Bench. If I could make a brief submission about that. One of the principal issues in Mr Fletcher's appeal is the Commissioner's treatment of a tape recorded interview with one Michael Hurley who I think was described by the Commissioner as a career criminal and a significant figure in the Sydney criminal milieu.

PN17

Mr Hurley was the person with whom Mr Fletcher had the coffee shop meeting which was the genesis of Mr Fletcher's downfall from the police. Mr Fletcher had been - sorry, your Honour, I do apologise, Mr Hurley had by the time the matter came before the Commission been apprehended and was a guest of her Majesty at Long Bay. He was terminally ill with cancer and I am not sure whether or not he had actually died by the time of the hearing, but he had certainly died by the time that the decision was delivered.

PN18

He agreed to participate in a recorded interview in which he made some allegations and that the principal factual matter of relevance in the proceedings was that he said that he had told Mr Fletcher who he was before they had met at the coffee shop. Mr Fletcher's story had been that he did not know who it was that he was going to be meeting at the coffee shop and that was a matter of some significance.

PN19

The Hurley interview occurred after Mr Fletcher had been terminated. It was we say material which subsequently became available to the employer which related to the circumstances in existence at the date of termination, but which wasn't available at the time of termination. The appeal that we seek to institute - I am sorry, I should say we say that the Commissioner in his decision did not take account of the Hurley interview in determining the issues of valid reason for termination or the alternative finding the Commissioner made which was that if there was a valid reason, the termination was harsh.

PN20

However, the Commissioner did take account of the Hurley interview in relation to remedy and he concluded that the Hurley interview provided a reasonable basis for the AFP to have lost trust and confidence in Mr Fletcher and that accordingly reinstatement was not an appropriate remedy. We would seek to argue that the Commissioner should have taken account of the Hurley interview in determining the issue of valid reason for termination and harshness, relying on the well known authorities of McLauchlan v Australian Meat Holdings or I think it's Australian Meat Holdings v McLauchlan, Lane v Arrowcrest, and Byrne v Australian Airlines.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR HEARD: Now, there are a number of circumstances that led to the police not filing the appeal by the final date which I think was 17 April. We didn't become aware that Mr Fletcher had appealed until the afternoon of Monday, 16 April when your associate kindly alerted us to that fact. Through a combination of circumstances, none of the people on the legal team of the respondent were available or, indeed, I think only one is in Sydney and he was tied up, that was counsel was tied up in a major criminal trial.

PN23

We simply haven't had the opportunity to properly consider the respondent's position. However, we would not wish the issue of the Hurley interview which seems to us to be a central issue in Mr Fletcher's appeal, we would not want argument before the Full Bench constrained in any way on the topic of how that material should have been used by the Commission and that's the reason that we now seek leave to file our notice of appeal, but we believe it's really about the same material and the use that the Commissioner should have made of it. We think really that's what both appeals are about.

PN24

THE SENIOR DEPUTY PRESIDENT: Your appeal is squarely based on the Hurley interview, is that correct?

PN25

MR HEARD: Yes, that's correct.

PN26

THE SENIOR DEPUTY PRESIDENT: It's not apparent to me that that's necessarily the case with the appellant's appeal. Mr Moore will no doubt clarify that.

PN27

MR HEARD: I think Mr Moore wants also to rely on something about Mr Nay's material.

PN28

MR MOORE: Yes, and I suppose the challenge in the decision that the Commissioner made below in paragraph 87, there is the paragraph that contains the finding of loss of confidence in the applicant by the Australian Federal Police and in terms of that, there is reference to two pieces of material. There was the evidence from Mr Nay that the AFP had lost confidence in Mr Fletcher by 20 February 2006 in that hearing. Mr Nay provided both a statement or affidavit, I can't recall how it was heard, it may have been an affidavit and also gave some oral evidence concerning the fundamental break-down of the relationship.

PN29

In terms of that oral evidence, he also made reference to several of the exchanges of correspondence and then in addition, as your Honour will see there, there is the reference to the Hurley interview and I discussed this with Mr Heard, we saw that the appeal book in addition to the material already filed would at least have to have comprised the transcript or record of interview of Mr Hurley, Mr Nay's oral evidence to the Commission, Mr Nay's written evidence to the Commission by way of affidavit and then an agreement between the parties as to - I think that would comprise the February correspondence which was exchanged between the parties in the lead-up to the termination on or about 20 February, that they be the material that is included in the appeal book.

PN30

In terms of the way in which Mr Heard has been able to provide me with unexecuted documents, but at least what the form of the notice of appeal that's sought to be filed is and also the application for extension for the reasons which my friend went through with your Honour, it appears that that is the sole ground of appeal that's agitated, that is the use of the Hurley material and whether, if I can just put it in compass, it is material that ought to have been restricted as the Commissioner did to discretionary aspects of the decision as to remedy or whether it should have been utilised to consider the questions of validity and harshness with the ultimate finding.

PN31

On my reading of the material that's been provided to me to date by Mr Heard, that seems to be the only matter that is to be agitated as to the use of the material. Now, on our appeal, that is entirely a point that's raised. They say the material should have been used appropriately below for another purpose in the hearing and it's true to say what Mr Heard has said. My client filed his appeal later in time and I think the inference is that my client in the appeal, the respondent may not have appeal, but now an appeal is on, there are issues that they would seek to raise and it's a question really today as to whether just a simple direction be made of filing that notice of appeal and the question as to whether the acceptance of it out of time be dealt with later, if there is any objection at all by my client. I just don't have instructions on that today, as your Honour would appreciate.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR MOORE: Or alternatively, your Honour accepts or give leave to file it out of time subject to my client's right to object if there is to be an objection to it. The matter could be determined then on the appeal date. If there's going to be no objection, perhaps the other way of handling this for your Honour's associate and the other side to be advised of that, that there is no objection to filing it out of time and at least everyone knows how the appeal is to run on the 28th. It's just the position I find myself in, I don't - - -

PN34

THE SENIOR DEPUTY PRESIDENT: You don't have instructions, yes.

PN35

MR MOORE: I just don't have instructions and my solicitors have been absent from Sydney for a few days, but I am quite happy for your Honour to deal with the material. I think Mr Heard did hand it up, if I recall correctly.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR MOORE: To just have that marked and give Mr Heard leave to file the documents in the registry and subject to my client's right to raise objection to it at hearing.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Heard has a right to file the documents. That's beyond dispute.

PN39

MR MOORE: Yes, perhaps I shouldn't have expressed it the way - - -

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you say. In respect to the application for extension and the notice, obviously if the respondent wishes to file those applications and notices, they will, I have no doubt they will. That will be a matter dealt with by the Full Bench at the time of hearing, but the directions will require each party to address those issues, firstly the application for extension and it may well be that there isn't an objection to extension of time and then the substance of the appeal, so the outlines of argument are in and if the application for extension is accepted, then obviously we're in a position to deal with that in the substantive hearing.

PN41

MR HEARD: Thank you, your Honour. Could I ask for an order excusing the police from filing the copy of the orders and the decision, because I understand they've already been filed?

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. That can certainly be done. There's not much point in replicating it, so we have on file already the decision and order of Commissioner Raffaelli and the parties are going to confer as to the extent to which the material at first instance should be produced in the appeal book and the conditions attaching to some of that material, confidentiality and the like.

PN43

MR HEARD: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: When would the parties be in a position to conclude that?

PN45

MR MOORE: I've had some discussion with my solicitor by phone and he is essentially back in his office come next Monday and if it was of benefit to our friends, we would say a direction just be made that the appeal books be filed on or before 7 May, that is, basically my solicitor upon his return to his offices and perhaps in the intervening period we can perhaps have some further discussions, but we would seek by the latest 7 May. If there were difficulties in the appeal book and what comprised it, well, we will work that out, I think. We've managed to work out what material goes in and doesn't go in in this case in an agreed manner thus far and I don't think the appeal book would cause a difficulty either between ourselves, but just logistically, I think, if it meets your Honour's convenience, 7 May.

PN46

THE SENIOR DEPUTY PRESIDENT: 7 May and that will require an order in effect excusing - well, both parties from filing the full set of materials from
the - - -

PN47

MR MOORE: All material to be relied upon by either party in their appeal should be filed by way of appeal books by 7 May.

PN48

THE SENIOR DEPUTY PRESIDENT: So in effect it will be a common and agreed appeal book filed by 7 May.

PN49

MR HEARD: Your Honour, I must apologise. There was a matter I should have drawn to the Commission's attention. At the end of the proposed notice of appeal, there was an application for a stay of the present compensation order and I haven't alerted my learned friend to that. It may be that - - -

PN50

THE SENIOR DEPUTY PRESIDENT: You may not have instructions again as to whether that's opposed. Given the nature of the appellant's appeal, presumably the appellant is not inclined to take the money and go out and spend it at the moment.

PN51

MR MOORE: No. I suppose if one looks at it, depending if it was an outcome favourable to my client, there may have to be further adjustments in terms of moneys, but be that as it may, can I suggest this for today and it may not be the best way of handling it, but my friend has indicated they are seeking a stay on the monetary amount, perhaps if we could consider that and see if there's a consent order to that effect that can be made?

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, and that might simply be a matter of if each of the appeals is dismissed, for example, and the order remains, that some issue of interest be added by consent.

PN53

MR MOORE: Yes, by consent, but I was just going to say - - -

PN54

THE SENIOR DEPUTY PRESIDENT: Without requiring a variation to the order.

PN55

MR MOORE: Perhaps the parties file a consent order as to stay within say the next seven days and failing that, perhaps your associate be advised.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. I don't actually have an application as yet, let alone a referral from the President to deal with a stay. I would imagine that the President would refer all matters to me, well, to a Full Bench and the stay to myself as the presiding member, so if that can be dealt with in a consent manner without hearing that, as I said, it's certainly suitable to myself. If it does require a hearing, then obviously I will have to do that.

PN57

MR MOORE: I would suggest that it's a matter that I haven't come with instructions. It's a matter that perhaps is not going to be insurmountable in the time frames in which we are dealing with either.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, and it's not a matter which is before the Commission, let alone myself, formally at this stage.

PN59

MR MOORE: Yes. We will see if we can reach some agreement. The parties have co-operated throughout and I think the co-operation can continue.

PN60

MR HEARD: Yes, your Honour. The application for the stay, simply the last paragraph in the notice of appeal I handed up, I understand it's a standard order that's sought in these circumstances.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, very well. What it will come down to as I understand it and correct me if I am incorrect is that the directions would remain as they are, save that the respondent would file and serve on 23 May, is that correct?

PN62

MR MOORE: That's correct. The additional order as to the filing of the material by 7 May.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, and that would be an order excusing the respondent from filing the order and decision of Commissioner Raffaelli and the materials below and an additional order requiring the filing of in effect an agreed appeal book by 7 May which contains all relevant material from the proceedings below which either party intends to rely upon in relation to the appeal and the cross appeal.

PN64

Very well, what I will do is to amend my direction to require the respondent to file in the Commission and serve on the appellant an outline of its submissions in the cross appeal and in response to the appellant's appeal by 4 pm on Wednesday, 23 May. I will also direct the initial appellant, if I can put it that way, Mr Fletcher, to file in the Commission and serve on the initial respondent a document indicating its position as to firstly, the application for an extension of time in instituting the appeal. And secondly, an outline of submissions in relation to the cross appeal by 2 pm on Friday, 25 May, but understanding that that outline would be by its nature brief, given the period of time available, but at least sufficient to give the Commission and the Federal Police some indication of what will be argued against the appeal and in addition to that, I will issue an order excusing Australian Federal Police from filing the normal materials required in instituting an appeal and I will issue an order excusing each party from filing the materials in the matter below in full, but requiring them to file an agreed appeal book which contains all relevant material from the matter below relied upon by either side in the appeals by 4 pm on 7 May.

PN65

I will also direct Mr Fletcher to file in the Commission and serve upon the AFP its position in relation to the stay order sought by the AFP within 48 hours of filing of the application instituting an appeal and if that reflects an agreed stay order, then that can be dealt with by me without further hearing. If it's necessary to list the matter to deal with the stay, that will be done by myself or whoever else the President refers the stay matter to. Obviously, if there's any issue in respect to the materials, the agreed materials to be filed, that can be raised with my associate and will be dealt with in some manner. At the end of the day, I expect that would be an agreed position accommodating all the material which either party thinks relevant. I know it's all fairly messy in terms of how I've stated it, but I will commit that to writing in due course. Does that cover everything that is required by the parties?

PN66

MR MOORE: I think it does, except for the - I've made reference earlier, your Honour, my solicitor returns to Sydney on next Monday and I think you made an order that 48 hours for the cross appeal being filed to indicate a position on the stay. I am just wondering if I can seek an indulgence that that be on or before 12 noon on 1 May?

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR MOORE: And that will allow my solicitor to deal with it in Sydney when he returns and talking to Mr Heard and he will be in his office by then.

PN69

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to that, Mr Heard?

PN70

MR HEARD: No.

PN71

THE SENIOR DEPUTY PRESIDENT: Very well, I will alter that direction to 12 noon on 1 May for Mr Fletcher to file and serve his position in respect to the stay order sought by AFP. Very well, nothing else from you, Mr Heard, at this stage?

PN72

MR HEARD: No, thank you, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: Very well, thank you for that, gentlemen. I will as I say commit all of that to writing in a more sensible form and it will be made available to the parties.

PN74

MR MOORE: Thank you, your Honour.

<ADJOURNED ACCORDINGLY [9.34AM]