C2007/2884, Transcript of Proceedings [2007] AIRCTrans 530 (11 October 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17575-1

VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
COMMISSIONER GAY

C2007/2884

s.120 - Appeal to Full Bench
Appeal by Vidler, Nijel Lyel
(C2007/2884)

BRISBANE

10.04AM, FRIDAY, 28 SEPTEMBER 2007

Reserved for Decision

PN1

MR N VIDLER: I am the appellant.

PN2

MR J W MERRELL: I apply for leave to appear on behalf of the respondent I am instructed by MR K LINCH of Brisbane City Legal Practice.

PN3

VICE PRESIDENT WATSON: Thank you Mr Merrell. Any objection to leave being granted?

PN4

MR VIDLER: No.

PN5

VICE PRESIDENT WATSON: Leave is granted Mr Merrell.

PN6

MR MERRELL: Thank you.

PN7

VICE PRESIDENT WATSON: Mr Merrell we are aware of a matter foreshadowed by your client in relation to the competence of this appeal and it might be appropriate that we hear from you in relation to that matter.

PN8

MR MERRELL: Thank you. There is one case that I will be referring your Honours to. It is not on my reported list of authorities but I have a copy of the case here which I will hand up in due course.

PN9

VICE PRESIDENT WATSON: Thank you.

PN10

MR MERRELL: May it please the Commission. It’s the submission of the respondent that Mr Vidler’s appeal is not competent by virtue of section 685 subsection (3) of the Act. Now your Honours Mr Vidler in his written submissions argues that the decision of Commissioner Spencer dated 15 June 2007 namely that Mr Vidler was a casual employee engaged for a short period within the meaning of section 638 subsection (4) of the Act is in error. Now although Mr Vidler’s notice of appeal doesn’t raise that as a specific ground as I read the notice of appeal that was served on my client.

PN11

Mr Vidler certainly raises the issue of whether Commissioner Spencer was correct in deciding that he was a casual employee engaged for a short period in his written submissions. To make good that submission if I can refer your Honours generally to pages 5 through to 8 of Mr Vidler’s appeal book or the document that’s headed, appeal book primary submission.

PN12

VICE PRESIDENT WATSON: That’s the white folder?

PN13

MR MERRELL: I believe so yes. The page is headed, forward critical issues number 1, the sub heading is, critical points of law in fact which overarch and are subjugate with contentious issues pertaining to the interpretation of section 638 subsection 4 paragraph (a). Without taking your Honours in detail to what
Mr Vidler submits there as I understand his submission, Mr Vidler is generally arguing that Commission Spencer had erred in determining that Mr Vidler was a casual employee engaged for a short period. Primarily centering around the interpretation of the word, engaged in section 638 subsection (4) paragraph (a) of the Act.

PN14

I think to bring the contentious issue down to the primary point of departure between myself and Mr Vidler it was the contention by my client before Commissioner Spencer, that the word engaged in section 638 subsection (4) paragraph (a) of the Act means actually performing work, not engaged in the sense of an agreement to perform work but in the sense of actually performing work. Mr Vidler’s submissions as I understand them contend that the word engaged means in effect employed or an agreement to perform work, or being under a contract of employment as opposed to actually performing work, or being busy or occupied in performing work, relevant to the position concerned.

PN15

So even though it’s not as specific as I understand it, a specific ground of appeal in the notice of appeal, certainly that’s been an issue raised by Mr Vidler in the appeal amongst other matters in my submission that are not relevant. The contention of my client is that on the basis of what Mr Vidler challenges in respect of Commissioner Spencer’s decision, the appeal is incompetent by virtue of section 685 subsection (3) of the Act. Now your Honours will notice from the material that’s been filed and served, that Mr Vidler filed an application for relief in respect of the termination of his employment alleging amongst other things that his dismissal was harsh, unjust or unreasonable.

PN16

My client pursuant to section 645 moved the Commission for dismissal of that part of Mr Vidler’s application for relief on the ground that he was a casual employee engaged for a short period within the meaning of section 638 subsection (4) of the Act. As a result Mr Vidler’s application for relief alleging that his dismissal was harsh, unjust or unreasonable was beyond the jurisdiction of the Commission. Mr Vidler also made application in his principle application for relief or also alleged that his dismissal was an unlawful termination within the meaning of section 659 of the Act. Now as your Honours are aware the notice of motion that can be pursued by a respondent pursuant to section 645 can only concern that part of the application made by an applicant that deals with an application under section 643 subsection (1) paragraph (a) namely a harsh, unjust or unreasonable application.

PN17

A conciliation conference was held first before Commissioner Spencer. The mater was not resolved and then the Commissioner went on to deal with the notice of motion that was filed and served by my client and it was that notice of motion that resulted in Commissioner Spencer’s decision of 15 June 2007. There was no application made by either party for a full hearing to be heard. The matter was decided on the papers, if I can put it that way.

PN18

VICE PRESIDENT WATSON: I notice the last sentence of the Commissioner’s decision indicates that a certificate will be issued in relation to the unlawful part of the application.

PN19

MR MERRELL: That’s so.

PN20

VICE PRESIDENT WATSON: Did that in fact occur?

PN21

MR MERRELL: A certificate has been issued in relation to the harsh, unjust or unreasonable part of the application. The certificate indicated that that part of the application was incompetent. Commissioner Spencer then invited further submissions from Mr Vidler and from my client in relation to the merits, if I can put it that way of Mr Vidler’s unlawful termination application. All of those submissions have been filed and served and as yet a certificate has not been issued your Honour in relation to the unlawful termination.

PN22

VICE PRESIDENT WATSON: Thank you.

PN23

MR MERRELL: I would observe however that Commissioner Spencer’s decision in respect of cordoning off the unlawful termination aspect of
Mr Vidler’s application was correct following the decision of the Full Bench in Nightingale’s case. That is to say that if the harsh, unjust or unreasonable application is beyond the jurisdiction of the Commission the unlawful termination matter may still survive if there’s been a termination at the initiative of the employer.

PN24

VICE PRESIDENT WATSON: So the submissions that have been filed in relation to the outstanding part of the application before Commissioner Spencer relate to the positions of the parties in relation to the alleged unlawful termination?

PN25

MR MERRELL: That’s so your Honour.

PN26

VICE PRESIDENT WATSON: Would it be right in saying that the task of the Commissioner, is to determine whether the matter is capable of being resolved by conciliation or further conciliation?

PN27

MR MERRELL: That’s so.

PN28

VICE PRESIDENT WATSON: And in the absence of a resolution or the prospect of a resolution expressing views as to the merits of the matter, in accordance with the Act.

PN29

MR MERRELL: That’s so.

PN30

VICE PRESIDENT WATSON: Then it will simply be the expression of views in a sense in the course of completing the conciliation process?

PN31

MR MERRELL: That’s so.

PN32

VICE PRESIDENT WATSON: I take it there’s no prospect based on what the submissions have contained of an agreed outcome?

PN33

MR MERRELL: Unfortunately your Honour my instructions are and the position taken by my client is that there is no prospect of the resolution of that part of
Mr Vidler’s applications.

PN34

MR VIDLER: Sir, if I may respond to that part?

PN35

VICE PRESIDENT WATSON: Mr Vidler we will give you an opportunity to respond to all of these matters, but I think we might hear Mr Merrell out in relation to the application as it is useful to get an understanding of all of the surrounding circumstances, hence my question.

PN36

MR VIDLER: Thank you, your Honour.

PN37

MR MERRELL: Just returning to the notice of motion proceedings before Commissioner Spencer. Commissioner Spencer after taking into account the submissions and material that was filed and served by both parties, decided that on the evidence that Mr Vidler was a casual employee engaged for a short period within the meaning of section 638 subsection (4) of the Act. Then Commissioner Spencer as the Commission is required to do within the meaning of section 645 subsection (5) of the Act, made an order dismissing Mr Vidler’s application to the extent that it alleged his dismissal was harsh, unjust or unreasonable.

PN38

Section 645 subsection (5) provides that:

PN39

If the Commission is satisfied that an application to which this subsection applies cannot be made under section 643 subsection (1) on the ground referred to in paragraph 643 subsection (1) paragraph (a) because amongst other reasons the employee is excluded from the operation of sub division B by section 638 then the Commission must make an order dismissing the application at least to the extent that it contends that the dismissal was harsh, unjust or unreasonable.

PN40

So it’s one of those narrow discretions that the Commission has, a narrow discretion of the type described by the High Court of Australia in Coal and Allied for example, or more recently described by the Full Bench in the Village Cinemas case. It’s a narrow discretion similar to that set out in section 649 which deals with the mandatory dismissal of harsh, unjust or unreasonable applications where the termination is for genuine operational reasons. So if the Commission forms the opinion that Mr Vidler’s harsh, unjust or unreasonable application was beyond the jurisdiction of the Commission because he was a short term casual employee then the Commission has no option but to make the order pursuant to section 645 subsection (5) of the Act.

PN41

VICE PRESIDENT WATSON: Whether it’s a discretion in that case, the Coal and Allied case involved a judgment of the impact of industrial action thereby a much broader consideration of circumstances but this may be more in the nature of a finding of a jurisdictional fact rather than a discretion as such in terms of the first part of the task.

PN42

MR MERRELL: Yes, well as I understand the decision of the Full Bench in Coal and Allied – I beg your pardon in Village Cinemas that dealt with section 649 which is not in terms of its general structure not dissimilar to section 645 in that there has to be a state of satisfaction determined by the Commission as to a particular fact. Then if that satisfaction, that state of satisfaction is made out on the evidence then an order must be made. In that case the Full Bench indicated that whilst not relying on – whilst not being directly on all fours with the Coal and Allied case, referred to some of the judgment in the Coal and Allied case that made the distinction between very broad discretions.

PN43

For example, the Commission may extend time and in that case the Commission has to take into account the general objects of the Act. But also referred to a more narrow type of discretion where the Commission has to be satisfied about a particular fact and that satisfaction may amount to a discretion of the type that might be challenged on appeal on the basis of the type of principle set out in House and The King. But that appeared to be what the Full Bench was saying in that case. If that’s not right in any event either way if the matter proceeds, the Full Bench would have to be convinced that there was some sort of error in Commissioner Spencer’s decision.

PN44

But my submission of course is that we don’t get that far. So Commissioner Spencer was satisfied that Mr Vidler was a casual employee engaged for a short period and accordingly pursuant to section 645 subsection (5) made an order dismissing that part of his application that alleged his dismissal was harsh, unjust or unreasonable. As I’ve outlined early generally speaking, Mr Vidler in his challenge to Commissioner Spencer’s decision – or he challenges the correctness of Commissioner Spencer’s decision, namely that he was a casual employee engaged for a short period. Now Mr Vidler’s appeal is brought to the Full Bench pursuant to section 120 of the Act.

PN45

In my submission that appeal cannot be brought by virtue of the operation of section 685 subsection (3) of the Act. Now that’s a new subsection that had operative effective from 14 June of last year. It provides that:

PN46

An appeal to a Full Bench under section 120 may not be made in relation to an order under section 645 subsection (5) or section 646 which deals with frivolous and vexatious applications, or in relation to a decision on an extension of time application within the meaning of section 647.

PN47

That’s an extension of time application where there’s a hearing on the papers or a determination on the papers.

PN48

VICE PRESIDENT WATSON: So it wasn’t inserted by Acts 153 of 2005 to commence in the March 2006?

PN49

MR MERRELL: No, well - I’ll be honest about this, I’m relying on the Act that – the service that I prescribed, it was inserted by Act 153 of 2005 but did not have operative effect until 14 June.

PN50

VICE PRESIDENT WATSON: I see. I have no basis to question it other than the CCH notation, indicates a different operative date but it refers to the same amended legislation.

PN51

MR MERRELL: In any event if it’s 27 March or 14 June, it still had operative affect at the time the appeal was made.

PN52

VICE PRESIDENT WATSON: Yes.

PN53

MR MERRELL: Now my client submits your Honours that Mr Vidler’s appeal notwithstanding the deficiencies in the appeal notice, my submission is that his appeal is in relation to the order made by Commissioner Spencer pursuant to section 645 subsection (5) of the Act. The relevant issue for the Commission to determine whether that submission is correct is whether the appeal that Mr Vidler has filed is in relation to an order or the order made under section 645 subsection (5). That in my respectful submission requires some consideration in this statutory context of the meaning of the words, in relation to.

PN54

My client’s overall submission is that the appeal is in relation to the order because it challenges the decision from which the order was made. The decision and the order are inextricably linked. If Commissioner Spencer didn’t make the decision namely, that on the evidence Mr Vidler was a casual employee engaged for a short period, then the order could not have been made.

PN55

VICE PRESIDENT WATSON: And the order is contained in the decision?

PN56

MR MERRELL: Yes it’s not one of the cases where there’s a separate, as the Commission is aware and I know this from looking at the Commission’s website, there’s a separate section where orders are formally made in relation to these sorts of matters. It wasn’t a case where there was a separate order taken out, but in paragraph 89 of Commissioner Spencer’s decision dated 15 June 2007, the Commissioner states:

PN57

Accordingly the part of the application made on the grounds that the termination of the applicant’s employment was harsh, unjust or unreasonable in accordance with section 643 subsection (1) paragraph (a) is found to be invalid and is dismissed, I order accordingly.

PN58

That’s in the very last paragraph of the decision of the Commission.

PN59

VICE PRESIDENT WATSON: Just so that I’m clear in the submissions you are making you are saying that for the purposes of determining whether the appeal is competent having regard to the provision of section 685(3) it is necessary to have regard to the nature of the instrument that is subject to the appeal and the nature of the appeal within the scheme of the Act and that thereby brings into play that provisions of section 120 as well?

PN60

MR MERRELL: That’s so, there has to be an order under section 645 and in my submission there’s been an order made here. The next question is whether the appeal pursued by Mr Vidler is in relation to the order and if it is in relation to the order, then no appeal can be made.

PN61

VICE PRESIDENT WATSON: What is appealable if it’s not the order under section 120? Is there anything other than the order appealable under section 120 then?

PN62

MR MERRELL: Nothing, nothing. Anything that is in – if the appeal is in relation to the order and my ultimate submission is that if the appeal is in relation to the decision and or the order, then there is nothing that’s appealable.

PN63

VICE PRESIDENT WATSON: Is there an appeal available under section 120 in relation to the decision as distinct from the order having regard to subsection (1) of section 120?

PN64

MR MERRELL: Well it would appear to me that the appeal was made pursuant to section 120 subsection (1) paragraph (a) because it’s an appeal against an order made by a member of the Commission. There was no decision here not to make an award or order. Paragraph (c) sub paragraph (c), (d), (e) and (f) do not apply. (f) doesn’t apply because the Commission has exercised jurisdiction to determine if Mr Vidler was an employee that could bring an application. So it really is only section 120 in my submission only section 120 subsection (1) paragraph (a).

PN65

VICE PRESIDENT WATSON: But your submission is that the only appeal that is available in relation to the decision and order of Commissioner Spencer is an appeal against the order under section 120(1)(a) and if this is an appeal of that nature the appeal is not available because of the provisions of section 685(3).

PN66

MR MERRELL: The only words that I have difficulty with your Honour is where you say if it’s an appeal against the order. It has to be – if it’s an appeal in relation to the order. That’s what I’d like to come to now because those words are expressly used in the Act and in my respectful submission used in a deliberate way. There’s nothing in the explanatory note that I can see that guides the Commission to confirm the otherwise ordinary meaning of the words. I have the explanatory note here that I can hand up if that provides some assistance to the Full Bench.

PN67

VICE PRESIDENT WATSON: The terminology in section – I’m sorry to keep interrupting you – the terminology in section 120 is against an order. The terminology in section 685(3) is in relation to an order and it may or may not be a difference there, but that’s something you are going to address.

PN68

MR MERRELL: If I can put it this way, section 120 provides subject to leave of course, allows a person of a kind mentioned in subsection (3) to appeal against a decision, however the more – and that’s the general provision that allows for the statutory appeals to be instituted. The more specific provision however and the legislature has entered the field and has specifically determined that notwithstanding that that appeal can generally be made against an order, if there is an appeal in relation to an order made under section 645 then that cannot be made. So it’s quite a specific section that in my respectful submission would override the general broader provision that allows the appeal to be instituted.

PN69

If I can make good, not make good, if I can provide some assistance to your Honours in determining this question in terms of what is the meaning to be given to the words, in relation to. It’s not a case on the list, I apologise for that but it’s a case that I will be referring to because it sets out in a very concise way how your Honours may approach the construction of the words in relation to. Now the case that I’ve referred to is Australian Competition and Consumer Commission and the Maritime Union of Australia and Others. A decision of Justice Hill of the Federal Court of Australia. For the record it is reported at 2001 volume 187 ALR page 487.

PN70

It is not the particular facts of this case that I rely on but it’s one of the principles that are espoused by his Honour in the case in relation or concerning the meaning of the words in relation to. Very briefly the facts of this case were that there was a question as to whether the Maritime Union of Australia and certain officials of Maritime Union of Australia who had formed picket lines at a port in South Australia had breached section 60 of the Trade Practices Act. Now if I can take your Honours over to page 496 of the report, in particular to paragraph 44:

PN71

The relevant provision of the Act section 60 provided that a corporation shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer.

PN72

At paragraph 45 his Honour referred to the consequence of section 6 subsection (2) paragraph (b) of the Trade Practices Act on section 60. So section 60 was:

PN73

To be confined to its operation to conduct to which the extent the conduct takes place in the course or in relation to trade or commerce between Australia and places outside Australia.

PN74

One of the relevant questions for his Honour to determine was whether the picket lines by the MUA and by the officials were in relation to trade or commerce between Australia and places outside Australia. That is, was the conduct in relation to international trade. If I can take then your Honours over to page 501 of the report in particular to paragraph 67 which is just under the heading in relationship between the conduct and international trade. If your Honours don’t mind I’d like to read those passages if that’s okay. There his Honour states:

PN75

The principle submission on behalf of the respondents namely the MUA and the officials was that there was not the necessary relationship between the conduct complained of and what in summary of section 6 subsection (2) paragraph (b)(i) be referred to as international trade. It was submitted that the relationship was too remote. By way of example it was submitted that the section could not apply to conduct which affected the supply of goods or services in international trade merely because there was some marginal relationship with that trade but otherwise the conduct had a real and direct relationship to non-international trade. For example, conduct which prevented the supply of pencils to an Australian office of an international shipment might be said in some sense to have a relationship with international trade but one that would be too remote to fall within the section.

PN76

Now it’s the next paragraph where his Honour conveniently sets out the views expressed by the High Court and other Superior Courts of the construction of the words in relation to in the various statutory contexts. There his Honour says:

PN77

It may be accepted that there will always be a question of degree involved in the issue, involved where the issue is the relationship between two subject matters. The words in relation to are wide words which do no more at least without reference to context than signify the need for there to be some relationship or connection between the two subject matters.

PN78

There his Honour refers to the various decisions of the High Court which have made good that – which are authorative for that proposition. His Honour then goes on to say:

PN79

But the phrase is both vague and indefinite –

PN80

Referring to the decision of Justice Taylor in Tooheys case. His Honour then goes on to say:

PN81

like the phrase in respect of the phrase in relation to will not at least normally apply to any connection or relationship no matter how remote.

PN82

Then refers to the decision of Justice Dawson in Technical Products. His Honour then says:

PN83

The extent of the relationship required will depend on the context in which the words are used.

PN84

His Honour then goes on to refer at paragraph 69 to the decision of Justices Beaumont and Lehaine in the Beach Petroleum case which dealt with a number of cases dealing with the phrase relates to and over the next page their Honours stated:

PN85

It will depend upon the context whether it is necessary that the relationship be directly substantial or whether an indirect or less than substantial connection will suffice.

PN86

So that passage in particular at paragraph 69, 68 and 69 of the reported judgment in my respectful submission provides a very good guidance to your Honours in determining the meaning of the words in relation to in section 685 subsection (3). The first principle of course is that the meaning has to be relevant to the context in which those words appear. Secondly of all having regard to the context there is a decision to be made as to whether the words of connection, require a direct or substantial connection or whether it permits not only a direct and substantial connection but a more remote connection.

PN87

Now in my respectful submission having regard to the context in which section 685 subsection (3) appears, which in essence is a prohibition on an otherwise competent appeal made pursuant to section 120, the connection required between the appeal and the order is that there has to be some reasonably substantial connection or relationship between the two. It’s probably not a case, although your Honours don’t have to decide this question on the facts of this case, it’s probably not a case, where your Honours have to turn your Honours minds to whether a very narrow or remote connection between this particular appeal and the order is required to be made out, so that there can be no appeal.

PN88

In my respectful submission prima facie, the section or the connection between the appeal and the order requires some substantial relationship some sort of direct relationship and in my respectful submission that direct relationship is made out here. Returning to section 645 subsection (5) of the Act, the Commission has to make the order, has no option, or it must, has to make the order if the Commission is satisfied that Mr Vidler’s application pursuant to section 643 subsection (1) paragraph (a) is precluded by the operation of section 638.

PN89

VICE PRESIDENT WATSON: Could it be said in relation to – no pun intended – the argument about the phrase, in relation to, that the context includes section 120 of the Act being the provision which empowers or provides for certain appeals to be made, so that that section 120 is part of the context in which the phrase, in relation to, arises in relation to an order. The context also includes different terminology in section 120 compared to section 685, section 120 when referring to an appeal against an order, says against an order. Section 685 refers to in relation to an order. One may have regard to the notions of construction that where different terminology is used in the one instrument that gives rise to an inference that a different intention may be involved.

PN90

MR MERRELL: That could be the case depending on the particular facts of the case, of the appeal that’s sought to be made.

PN91

VICE PRESIDENT WATSON: Yes.

PN92

MR MERRELL: It’s probably not something that your Honours have to decide in this particular case however. On the basis that Mr Vidler clearly challenges the correctness of the decision, be it an exercise of discretion or simply a jurisdictional fact, challenges the correctness of Commissioner Spencer’s decision. He says in effect, notwithstanding what the appeal notice says, he says in effect and this is the way my client has approached the appeal, to be quite fair to Mr Vidler as well, being very fair to him, we’ve approached the appeal on the basis that he is saying that Commissioner Spencer simply got it wrong that he wasn’t a casual employee engaged for a short period. That’s what his appeal, at least his submission challenges. There is a clear and direct relationship between that appeal and the order that was made, because without the decision you can’t have the order. Now the fact that there was - - -

PN93

VICE PRESIDENT WATSON: But if there was an appeal available against the decision as distinct from the order and if this was an appeal against the decision and the order, then do you say that the appeal is nevertheless made in relation to the order?

PN94

MR MERRELL: Yes, different words, if the appeal was only against the order, then that word, then the word against might have been used, or some of the more narrow words would have been used, but in my submission having regard to the statutory context, that is appeals generally can be made against an order but in this case the word against hasn’t been used. The words in relation to have been used and in my respectful submission the legislature was casting a broader net and so that - - -

PN95

VICE PRESIDENT WATSON: At least covering any appeals that might be available, and I’m not assuming that an appeal was available against the decision as well as the order but if it was, it included that phrase includes an appeal against the decision.,

PN96

MR MERRELL: That’s so. There are two ways of looking at it in my submission. If Mr Vidler’s appeal is against the order, then there can’t be an appeal because it’s an appeal in relation to the order. If the appeal is against the decision leading to the order, then it still can’t – it’s still an incompetent appeal because the appeal is in relation to the order. There is a substantial connection or a direct connection, not a remote connection between the order and the appeal. It may be different for example if, not that I think it can be made, but if an order for costs for example as made in relation to the order and there was an appeal against that decision - there was an order made for costs that might be - if one can be made and I don’t think it can be under the Act, that might be too remote a connection to enliven section 685 subsection (3).

PN97

But certainly on the facts of this case either Mr Vidler is challenging the order, which by appeal which he can’t do by section 685 subsection (3), if he is challenging the decision because of the words used in relation to, which are broad words, are wide words which signify some relationship or connection, then there is a question of whether the relationship or connection needs to be direct or indirect. But certainly here because we are talking about an appeal that otherwise could be able to be made against the order, there has to be some substantial connection and in my submission there is a substantial connection between the appeal and the order, in that Mr Vidler is challenging the decision that led to the order. On that basis the appeal cannot be made it’s incompetent and should be dismissed.

PN98

VICE PRESIDENT WATSON: The decision of Commissioner Spencer of 15 June, do you say that that was confined to dealing with the motion to dismiss the application on the ground that was ultimately found to provide such a basis?

PN99

MR MERRELL: That is so, there is only one – my solicitor will just turn up the decision. Yes, if your Honours have regard to paragraph 3 of Commissioner Spencer’s decision there was only one ground advanced in the notice of motion, and that was that Mr Vidler was a casual employee engaged for a short period. There was no other ground advanced under section 645, my client has more than 100 employees and - - -

PN100

VICE PRESIDENT WATSON: Your submission is that this decision only relates to that issue?

PN101

MR MERRELL: That’s so. Your Honours will notice in my outline of submissions that if your Honours agree with my client’s submissions in this regard that the appeal should be dismissed with costs pursuant to section 824, I’ve had regard to earlier decisions of the Commission in particular the decision of Vice President Moore and Deputy Presidents Action and Hall going back to Parker’s case and other cases that followed that which make the point that the Commission unless there’s an express provision somewhere generally doesn’t have an inherent power to award costs and on that basis section 824 would probably not be an authority for awarding costs in this particular case. I conceded that to be a problem.

PN102

VICE PRESIDENT WATSON: Yes.

PN103

MR MERRELL: Unless I can assist your Honours any further.

PN104

VICE PRESIDENT WATSON: Thank you Mr Merrell. Mr Vidler we’d like to hear from you in relation to the particular submissions raised by Mr Merrell at the outset.

PN105

MR VIDLER: Yes, thank you, your Honour. I don’t have all the flash words of Mr Merrell I’m not a professional advocate and I would like to make my response. I’ve relied on my written submissions, I’ve put a lot of effort into those submissions because I don’t have those advocacy skills and the knowledge of the law as Mr Merrell does. I’d like to go in reverse if I may to what was – what Mr Merrell argued. I guess I’m surprised by the suggestion by Mr Merrell that there is no avenue of appeal against an order on this matter. This seems to go against our system of juris prudence, if that’s the correct word.

PN106

If there’s no avenue for such an appeal I believe this would be contrary to the object and spirit of the Act and the intention of parliament. I might say that – I’ll leave that comment until later – but I’d just like to make comment about the words against and in relation. Just listening to the submissions put by Mr Merrell and your Honour during that Mr Merrell’s submissions, I suggest to your Honour that in relation to has the effect of referring to collateral matters. So if I’m talking about something in relation to something else, it could be lots of different things. Collateral matters could be you know, the normal legal collateral matters of you know, evidence, reputation, witnesses, any normal collateral matters, other than the matters which are not matters of fact and law which are in issue.

PN107

VICE PRESIDENT WATSON: So under the circumstances surrounding matters and collateral matters but not the order itself?

PN108

MR VIDLER: Well I’m not sure whether I should be using the word order, or decision. I haven’t had a chance I’ve only received these things this morning and I hear that those two words might be, they may or may not be critical so without having thought of the meaning of those two words and not knowing what’s in the Commission’s mind, I prefer not to comment whether they are orders or decisions. But what I’m saying is that – perhaps I can comment on that at a later time, but I’m saying at 120 where it says 120(1) it says, against, I suggest to the court that that it refers to the normal appeal matters of errors in fact and law which are in issue.

PN109

I’ve attempted to address those in the early part of my written submissions starting at page 5 at the critical points of law in fact which over arch subjugate the contentious issues pertaining to the interpretation of section 638(4)(a) in relation to the decision by Commissioner Spencer. I don’t wish to go - speak orally to that because as I said before I don’t have those skills and I’ve carefully formulated those submissions, by written submissions. to try and refute or point out to your Honours that Commissioner Spencer erred in fact in law on the meaning of casual employee for a short period of time, the meaning of the word, engaged et cetera and that would flow over to critical issue 2(a) at page 11 talking about engaged by a particular employer on a regular and systematic basis for a period of at least 12 months. I’ve actually expanded the arguments in talking about on page 5 of my primary submission, the yellow, sorry the white folder, page 11, critical issue 2(a). I’ll expand on that soon and 2(b). So I’ll address, readdress those contentions elements of - - -

PN110

COMMISSIONER O’CALLAGHAN: Mr Vidler can I interrupt you just to clarify that. Is there any aspect of your appeal which relates to a matter which is not covered by section 638?

PN111

MR VIDLER: I think yes, your Honour. I believe that I’ve - if you go to page 24.

PN112

COMMISSIONER O’CALLAGHAN: This is in the white book?

PN113

MR VIDLER: In the white primary submission.

PN114

COMMISSIONER O’CALLAGHAN: Yes.

PN115

MR VIDLER: I’ve set out all the matters that are in this section here, this is I guess we’ll call them collateral matters, seeking leave to discuss things which are inter-related to this whole affair and this whole matter. So the matters which are directly related to Commission Spencer’s decision, I guess go from 1 to page 23. You can see at page 24 in division (1), that’s I’ve called that division (1) and I’ve headed that at page 24 paragraph 40 - I’ve headed that matters directly related to decision of Commissioner Spencer so those are matters which relate to the Commissioner’s decision are in division (1), so those previous to page 24. Does that answer your question your Honour?

PN116

COMMISSIONER O’CALLAGHAN: Not quite. Perhaps if I can put it in my words and you can correct me if I’ve got it wrong. That it appears that in at page 24 and at the following pages in the white book, you take issue with the way in which the Commissioner approached the consideration of the arguments before her. But you agree those arguments had to do with the operation of section 638. Is that a fair way of summarising the pages starting at page 24?

PN117

MR VIDLER: I don’t think so.

PN118

COMMISSIONER O’CALLAGHAN: That’s the opportunity for you to correct me.

PN119

MR VIDLER: Yes, from page 24, 25, 26 and 27 are more or less a summary of what’s in this book and if I may hand up an index which might be helpful, I’ve given Mr Merrell a copy of the white folder, there’s one there. I think the way I’ve set this book out – I’ve used one for a spacer here – I guess it basically the issue that you are raising your Honour is a little bit to do with the setting out of my appeal book and I tried to explain that at the start but so page 24 to 27, which you might see on the index hopefully is just an overview of what’s in the total appeal book, just to help assist the Commission.

PN120

Page 28 to 30 are some objections which you might be talking about there, page 28 to 30 your Honour are objections which you might be – which I’m objecting to perhaps you are talking about. About certain aspects of the case and that the orders and particular powers and procedures of the Commission at page 30. So just recapping 28 to 30 are just objections. 24 to 27 are a summary of all the divisions and the material in this appeal book. But those matters directly relating to Commissioner Spencer’s decision would appear at page 1 to 23.

PN121

VICE PRESIDENT WATSON: So you accept that Commissioner Spencer’s decision was confined to the issue, the jurisdictional issue raised by the employer and the notice of motion?

PN122

MR VIDLER: No I don’t agree your Honour.

PN123

VICE PRESIDENT WATSON: Well you say it travels beyond that in relation to comments that were made?

PN124

MR VIDLER: That’s correct. I suggest - I just can’t locate it quickly but I raise the point that Commissioner Spencer was biased through the comments that she made. Comments that weren’t in issue about – suggest words to the effect that the employer, the respondent employer was kind, generous, a model employer, so I think she overstepped the mark because credibility and people’s reputation weren’t in issue at that point. So that was one of the issues which I raised which were – which were - I appeal directly against, the fact that she raised those comments. She appeared to be going beyond the jurisdictional matter and to be overly favouring the respondent.

PN125

Because that critical issue, forward critical issue (1) to 2(b) I readdressed the meaning of engaged and I tried to point out why Commissioner Spencer erred in fact in law. I say that I was employed for – in fact I was employed - I was engaged, I was engaged for 12 months and three weeks. Commissioner Spencer divides the time periods up period one and period two. In period one, I call that the Jude Abs investigation period where I was stood down pending the investigation to employees letter of complaint which I say was fabricated, false and unlawful. I’d also say it was fraudulent.

PN126

So those allegations were never tested. That letter of complaint those allegations which damaged my reputation and caused my dismissal according to the affidavit put in by the respondent, that was the direct cause of my termination this employees letter of complaint which contained these damaging, unsubstantiated allegations. I never had a chance to respond to those, and put my case according to the rules of natural justice and due process. I say this is not good enough because the Brisbane City Council the respondent has a workplace justice process which is referred to, which I say is a legal requirement to follow a legal due process with.

PN127

The code of conduct says that in the Public Sector Ethics Act also refers to the code of conduct. So what I’m saying there are instruments, and processes and legal processes in place which the respondent did not follow. It’s mentioned in the award, EBA6 which is subject to another application here before the Commission and so that was period one there was an investigation which was never completed. I was terminated in the first period, which was just before June, I think, I don’t know the exact date. Commissioner Spencer called that period one or words to the effect.

PN128

Just prior to my termination I wrote out and filed a whistle blower’s complaint against dishonest conduct and which is in the red folder, setting out nine or 10 complaints in there of the serious nature against the respondent. May I say, it’s not actually against the respondent it’s actually the respondent sticking up for these dishonest employees and that’s the point, I can’t understand why they are going through this because it’s not the respondent per se it’s the fact that they are sticking up for these people, without even testing the evidence. It’s got me amazed, but anyway I’ll keep going. So that’s the timeframe one and the whistle blowers complaint - - -

PN129

VICE PRESIDENT WATSON: Can you just – and it’s useful to understand the general context in which your application was made and the nature of the arguments that you are raising. I asked Mr Merrell this about the situation regarding the unlawful aspect of the claim and I think I interrupted you when you sought to respond to that. But what is the position in relation to that aspect?

PN130

MR VIDLER: Yes, I did check with Commissioner Spencer’s associate yesterday. No decision has been made now, just interrupting my submission then and go back to that, is that the unlawful, unjust and unfair, it’s all intermingled and it’s very difficult sometimes to differentiate between the two. To clinically separate one from the other, which Mr Merrell has suggested in his arguments, doesn’t do anyone justice because it sort of the information of one, as I said before, they are so interwoven and so complex and as the Commissioner said, this is an unique case and it deserves unique ways of dealing with it.

PN131

I haven’t even got a look into a court yet and yet this employer has done all these things, all the instruments say and all the statues say you shouldn’t be doing and here I am today, trying to get my foot in a door to see a court and so on that point to put on record, I’ve always - I’ve asked to - see if I can take a new approach in this I’ve offered to settle the matter, the respondent doesn’t want to know a thing about it. They are determined to pursue with this at all costs and apparently in the amount of money, barristers and who knows what’s happening behind the scenes. So they seem to be doing this with an incredibly determined effort.

PN132

They won’t let me see documents. They won’t show me the investigation report and to the whistler blower’s complaint, which is pretty suspicious in itself. So all these underlying and sinister issues which I’m trying to get my head around and test in court but I can’t get there. So if I may continue with it.

PN133

VICE PRESIDENT WATSON: I take it from what you are saying however, the unlawful aspect of your complaint is currently awaiting the issuing of a certificate by Commissioner Spencer and that following the issue of that certificate you then have certain options in relation to progressing that matter, not in the Commission but in a court and that – and I take it that you’re indicating that that’s what you intend to do and you believe that there’s an inter-relationship between many of the matters raised in the unfair dismissal application if I can term it that and the unlawful aspect, is that correct?

PN134

MR VIDLER: That’s correct, very true your Honour, yes.

PN135

VICE PRESIDENT WATSON: I think it’s also important for us to deal with the issues that are before us and to consider the point that’s been raised by the employer that the appeal that you have lodged and is before us is not competent because of section 685(3) and it is useful to understand the general context and submissions you’ve made about the general objects of the Act. But doesn’t it come down to whether we’re in a position to rely on general provisions of the Act when there is a specific provision of the nature of section 685(3) and really our task is to ensure that we give effect to that provision as and whatever it may mean? But really the preliminary issue is – does it preclude this appeal on the – in relation to the jurisdictional issue that the decision of Commissioner Spencer, whether this appeal can proceed?

PN136

MR VIDLER: Yes I agree your Honour, the reason I went into the submissions about the engagement, the meaning of the word engaged et cetera, was because Mr Merrell spent a substantial amount of time on it in his submissions before you but I’m willing to allow the written record to stand on those issues and move on to the critical points of section 683 you said?

PN137

VICE PRESIDENT WATSON: 685(3).

PN138

MR VIDLER: If I might say without prejudice that I was not actually aware too of section 685(3). During the last course of my preparation of this appeal I do now, and I wasn’t aware of it until last Friday so I just want to put that on record. However I haven’t had much time to prepare the material for that and certainly haven’t had much time to read the case that Mr Merrell put up. But I will say again I really believe that in relation to, really does mean collateral matters because how can it be that you can’t have an appeal from an order. I mean it just doesn’t make sense legally in our – I guess in our legal system that we can’t appeal. I guess appeals have to stop somewhere, or cases have to stop somewhere but to stop it before it even gets to an appeal is unbelievable.

PN139

So I say again that in relation to has the effect of collateral matters, as I said before and repeat it and that section 121 where it says, appeal against, actually means against the normal issues associated with an appeal, errors of fact and law which are in issue. I also like to correct the record and say that I believe that I filed an appeal under section 121 and 122 in the public interest. I don’t have my appeal document here.

PN140

VICE PRESIDENT WATSON: Section 120, do you mean section 120 subsection (2)?

PN141

MR VIDLER: Yes, I think so, I may have – I believe - - -

PN142

VICE PRESIDENT WATSON: Yes, leave to appeal. A Full Bench shall grant leave to appeal under subsection (1) if in it’s opinion the matter is of such importance that in the public interest leave should be granted. Is that the provision you refer to?

PN143

MR VIDLER: I didn’t hear you, sorry?

PN144

VICE PRESIDENT WATSON: The Full Bench shall grant leave to appeal if it is in its opinion the matter is of such importance that in the public interest leave should be granted?

PN145

MR VIDLER: Yes I believe I wrote that down, but I don’t have that attached, your Honour. Did I write that down?

PN146

VICE PRESIDENT WATSON: Yes.

PN147

MR VIDLER: Okay sorry. So in this white book, in fact I address the issue of public interest at division 6 page 84 public interest considerations. That would be on the index that I’ve given you marked there down the bottom. It’s a short thing your Honour, if you wanted to read it, or I can just speak to it.

PN148

VICE PRESIDENT WATSON: Yes, we have had the opportunity to read your material and - - -

PN149

MR VIDLER: I just want to add to that the Public Sector Ethics Act which Brisbane City Council is governed by I believe and I made submissions, I have submissions here about the Public Sector Ethics Act, it really suggests, it really doesn’t suggest it prescribes that the Brisbane City Council has to follow it’s own code of conduct, it’s actually written in there. They expect the highest ethical standards of public officials and I guess there’s no leeway on that, there’s no give or take, there’s no arbitrary you know, there’s no random application of the ethics, it’s got to be done all the time to the best of your ability. Follow the processes and do all the things that is expected of a public entity.

PN150

In the Brisbane City Council there are 7000 employees, I’m sure I’m not the only one that’s had this problem but that’s just hearsay. But the Public Sector Ethics Act, which you wouldn’t be aware of I would make the presumption, is that you know it clearly lays out what’s expected of the respondent and I submit that they’ve railed miserably in adhering to their systems and applying their systems with due diligence and their records of duty of care and all those other words that I could use. I’ve got some expert commentary in there who I class as expert commentary and Andrew Podger he says that you know, that the public service did have a responsibility for due process and reporting honestly when asked questions in the public.

PN151

That’s at page 87 of the white primary submission. You will see extracts from the Brisbane City Council’s Code of Conduct, which a copy of it appears in my appeal if you want me to take you to it. In fact, it’s module blue, green tab, number 3 in the module blue book. Code of conduct to adhere to it is compulsory as the Public Sector Ethics Act states, it must be complied with, it can’t be just randomly used or arbitrarily applied. Public officials should carry out official public sector decisions faithfully and impartially. If I were to take you to the code of conduct there’s lots of sections in there about obeying the law, improper use of powers, or allow them to be improperly used. All the decisions need to be and seen to be fair and transparent. In my case, I haven’t had any due process in the systems and the processes weren’t adhered to by the respondent, and that gets – that’s – so I just wanted to take you to the public interest.

PN152

VICE PRESIDENT WATSON: Is this relevant to the section 685(3)?

PN153

MR VIDLER: No, except the only reason I raise that your Honour is because we spoke about 120 subsection (2).

PN154

VICE PRESIDENT WATSON: Yes.

PN155

MR VIDLER: So other than that I don’t have any – I don’t have a great knowledge of section 685.

PN156

VICE PRESIDENT WATSON: You’ve indicated the nature of your difficulty that you were not aware of the provision and it does appear to be hidden away, away from other provisions. You weren’t aware of that provision until it was brought to your attention last Friday, but you’ve said that the phrase, in relation to, as I understand your submission whereas Mr Merrell has said that that is a broader term than against an order, you say that it is narrower than against an order and relates only to collateral issues?

PN157

MR VIDLER: That’s exactly right, yes.

PN158

VICE PRESIDENT WATSON: Yes, so that’s - you argue that it should be construed in that way given the logic of whether there should be an appeal that one would expect there be no appeal in relation to a matter of this nature and that you rely on the objects of the Act and the general purpose of the Act in that regard to support the construction that that phrase, in relation to, should be given a narrow meaning rather than the meaning that Mr Merrell relies on?

PN159

MR VIDLER: That’s right your Honour, if I were to summarise my primary points in relation to that, that would be exactly what I would and what I’ve been trying to say.

PN160

VICE PRESIDENT WATSON: Thank you.

PN161

MR VIDLER: If I can just check my notes – that’s all I have on that.

PN162

VICE PRESIDENT WATSON: Thank you Mr Vidler. Mr Merrell?

PN163

MR MERRELL: Your Honours I apologise, this is my fault I omitted to do two things earlier on. I think it would assist your Honours if I did hand up the explanatory memorandum from the 2005 bill that dealt with section 685 subsection (3).

PN164

VICE PRESIDENT WATSON: Yes, you are going to need to give Mr Vidler an opportunity to respond.

PN165

MR MERRELL: Yes, I was going to say I apologise I will give that opportunity to Mr Vidler. Before I take your Honours to that for the sake of completeness I will also hand up extracts from the Acts Interpretation Act that deal with when recourse to such extensive material maybe had.

PN166

VICE PRESIDENT WATSON: We might mark these documents they are not decisions.

EXHIBIT #M1 EXTRACTS FROM EXPLANATORY MEMORANDUM

PN167

MR MERRELL: Sorry that’s not the amending bill that’s the Acts Interpretation Act.

PN168

VICE PRESIDENT WATSON: Sorry the Acts Interpretation Act.

EXHIBIT #M2 THE PROVISIONS FROM THE ACTS INTERPRETATION ACT

PN169

MR MERRELL: Your Honours will be well aware of the provisions of the Acts Interpretation Act in essence it provides that extrinsic materials such as explanatory memorandum relating to a bill but contain the provision under scrutiny that regard may be had to that to confirm the ordinary meaning conveyed by the text of the provision taking into account it’s the provisions context in the Act and the purpose and object of the Act. Or it may also be taken into account if the provision is ambiguous or obscure, or if the ordinary meaning leads to a manifestly absurd or unreasonable result.

PN170

In my submission in regard to the material that I’m going to take your Honours to it can be relied upon simply to confirm the ordinary meaning in section 685 subsection (3). If I can take your Honours to page 339 of the explanatory memorandum and in particular paragraph 2258 where it provides that:

PN171

The proposed subsection 170JF subsection (3) –

PN172

Which is the section 685 subsection (3) prior to it’s re-numbering:

PN173

-would make it clear that the right to appeal to a Full Bench does not apply in relation to an order under section 170CEA(5) –

PN174

Now that CEA(5) – I beg your pardon - - -

PN175

VICE PRESIDENT WATSON: Thank you, yes, I think yes, 225(a) paragraph 225(a) I think you are referring to.

PN176

MR MERRELL: That is so, yes. The numbering has changed but 170JF subsection (3) is 685 subsection (3) and 170CEA (5) is 645 subsection (5). So it states that the right to apply to a Full Bench does not apply in relation to an order and that in my respectful submission would provide some assistance to your Honours to determine the ordinary meaning conveyed by section 685 subsection (3).

PN177

VICE PRESIDENT WATSON: Does it say anything more than what the section says?

PN178

MR MERRELL: Probably not and that’s why I raised it earlier on, I think for the sake of completeness it should – for the sake of completeness because I referred to it I think I should hand it up to the bench, but as I said earlier it probably add a great deal other than to confirm in my submission the ordinary meaning of the submission. Taking into account of course there is a requirement for your Honours to construe section 685 subsection (3) but as your Honour said before, my submission is that the words in relation to have a broad meaning. Broader than the word it gets, some other words would have been used if the restriction on the appeal was to be narrower than is contended for by Mr Vidler.

PN179

The other thing that I omitted before your Honours was simply in relation to the MUA case and that’s again its not the facts that I relied upon but his Honour in that case did determine that the conduct of the MUA and its officers was in relation to international trade so that there was the connection there between the conduct and international trade. That part of the decision is set out at paragraphs 76 through to 78 on pages 503 and 504 of the reported decision. I’m happy – subject to – I’m in your Honours hands I’m happy for Mr Vidler to have some time to consider that explanatory memorandum if he requires.

PN180

VICE PRESIDENT WATSON: Yes Mr Merrell, Mr Vidler also indicated I think it more in passing, that he had offered to settle his litigation and I was just wondering having regard to what you indicated as to the outstanding status of the unlawful matter whether that is something that whether your client is still prepared to consider and whether a further opportunity of conciliation is something that your client may be interested in. You may wish to get instructions on that. We are going to have a short adjournment to allow Mr Vidler to look at the explanatory memorandum.

PN181

MR MERRELL: Yes that would be something I would require some instructions given that your Honour has raised that. Thank you for that opportunity.

PN182

VICE PRESIDENT WATSON: Yes. Mr Merrell just in relation to exhibit M1, were you able to check the second reading speech as well and is there anything in the second reading speech that bears on that particular amendment?

PN183

MR MERRELL: I did check the second reading speech, it was sometime ago, my recollection is there wasn’t. I was going to say during the adjournment I could – I wouldn’t have the opportunity to double check that but my recollection is no there wasn’t anything specific in relation to that.

PN184

VICE PRESIDENT WATSON: Yes.

PN185

MR MERRELL: I wouldn’t like to be – it was quite a long speech as I recall and I did check that and I – my honest recollection is I can’t recall. I would have had that – I didn’t see anything about that in the speech.

PN186

VICE PRESIDENT WATSON: As I recall it didn’t descend to a lot of detail.

PN187

MR MERRELL: I think there were greater issues for the responsible minister to advise the parliament of than section 685 subsection (3), that’s probably right.

PN188

VICE PRESIDENT WATSON: Mr Vidler would you like an opportunity to consider this latest material that’s been raised?

PN189

MR VIDLER: I’m so happy that Mr Merrell presented it your Honour because in my reading of it, it confirms exactly, its almost exactly a duplicate of what it says in the provision anyway. It says no more than in relation to, it still uses the same terminology in relation to, so it just confirms what was said before, it has the effect of referring to collateral matters and in regard to exhibit M2, the Acts Interpretation Act, what was it 15 AB he referred to, Mr Merrell the use of extrinsic material, the use of ordinary meanings I would like to address that that the ordinary meaning is exactly no different to what I said before. You know, if you have a relation as far as a family relation as an example, I haven’t got my dictionary here, but perhaps if I had an adjournment I’d go and find a dictionary and perhaps if I need to do that I will.

PN190

VICE PRESIDENT WATSON: We don’t want to unduly delay but we also want to give you an adequate opportunity to address this preliminary point and if you would like a short adjournment, we’re really looking at 15 minutes.

PN191

MR VIDLER: I’m happy to proceed on I think most of us know, we all know what a relation is and a relation is someone distant similar to collateral it is not directly linked to the immediate point, immediate family. So the ordinary meaning is clear, or it should be clear. 15 AA of the exhibit M2 is use of – regard has to be had to the purpose and the object of the Act and we are talking about the Workplace Relations Act.

PN192

VICE PRESIDENT WATSON: You say that assists the argument you raised previously.

PN193

MR VIDLER: Yes that’s my argument and finally 15A says construction of acts to be subject to constitution, I’m not a constitutional lawyer, but I’m sure that there are you know our legal system there are cases to deal with rights of appeal, and people need to be able to have an appeal in our criminal and civil procedures and I think without going there, I think it’s all pretty clear. It certainly doesn’t divert from my argument whatsoever.

PN194

VICE PRESIDENT WATSON: Yes, thank you. Mr Merrell would you like an opportunity to get instructions in relation to the question we put to you?

PN195

MR MERRELL: Yes, I’d like that opportunity thank you.

PN196

VICE PRESIDENT WATSON: How long do you need?

PN197

MR MERRELL: Five minutes.

PN198

VICE PRESIDENT WATSON: We’ll adjourn for five minutes.

<SHORT ADJOURNMENT [11.26AM]
<RESUMED [11.30AM]

PN199

VICE PRESIDENT WATSON: Mr Merrell?

PN200

MR MERRELL: Thank you your Honours for that indulgence. Unfortunately your Honours my instructions are that my client’s not – doesn’t see any way that we can settle Mr Vidler’s unlawful termination.

PN201

VICE PRESIDENT WATSON: Yes, thank you. We thank the parties for their submissions in relation to the section 685. We consider in the circumstances that those submissions raise significant issues which require further consideration. What we would propose in those circumstances is to reserve our decision in relation to that matter. But in the light of the significance of the section not proceed to hear the appeal today in relation to that matter.

PN202

We would propose to reserve our decision on the preliminary point and depending on the outcome of that matter either the matter would be struck out as the appeal would not be competent or otherwise the appeal was able to be continued if the submissions of Mr Vidler were accepted. But we would propose not to continue further with the matter today. We would hope to publish our decision at the earliest opportunity but we can indicate that’s unlikely to be today. On that basis we would propose simply at this stage to adjourn this matter pending the handing down of our decision on the preliminary point.

PN203

MR VIDLER: Excuse me your Honour, do I have to speak on the costs issue that was raised by Mr Merrell or has Mr Merrell withdrawn that?

PN204

VICE PRESIDENT WATSON: I don’t think we need to hear from you in relation to the costs matter in the light of what Mr Merrell said it is simply as we understand it a matter of considering whether the appeal is competent at this stage and all parties rights are reserved, but the cost issue does not appear to arise at this stage.

PN205

MR VIDLER: Yes.

PN206

VICE PRESIDENT WATSON: The Commission will now adjourn.

<ADJOURNED ACCORDINGLY [11.32AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 EXTRACTS FROM EXPLANATORY MEMORANDUM PN166
EXHIBIT #M2 THE PROVISIONS FROM THE ACTS INTERPRETATION ACT PN168