D2006/58, Transcript of Proceedings [2007] AIRCTrans 87 (28 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16512-1

SENIOR DEPUTY PRESIDENT KAUFMAN

D2006/58

APPLICATION/NOTIFICATION BY AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION
s.158(1) RAO Schedule - Application for alteration of eligibility rules
(D2006/58)

MELBOURNE

10.25 AM, THURSDAY, 15 FEBRUARY 2007

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

Continued from 15/12/2006

PN293

THE SENIOR DEPUTY PRESIDENT: I think there appear to be some changes in appearances.

PN294

MR C DOWLING: Yes, your Honour. I appear on behalf of the Australian International Pilots' Association in place of what has formerly been Mr Macken.

PN295

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dowling. There is somebody in Brisbane? Who is in Brisbane, just before you start, Mr Borenstein?

PN296

MR M MOY: I appear from Deacons on behalf of Virgin Blue, continuing my appearance.

PN297

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moy. Mr Borenstein.

PN298

MR H BORENSTEIN: I seek leave to appear with MR E WHITE for the AFAP in place of Mr Pasfield.

PN299

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well, Mr Borenstein, you're seeking some documents.

PN300

MR BORENSTEIN: I am. Your Honour, it's our application for an order for production of documents under section 111(1). Your Honour, to save some time, we've prepared a short outline of the argument we want to advance, if I might hand that up and provide a copy to Mr Dowling.

PN301

THE SENIOR DEPUTY PRESIDENT: Thank you. Just before I look at that, Mr Borenstein, I am having difficulty understanding the actual request and I don't know if it's me just being back from leave, my brain may be a little bit slow at the moment, but I can't for the life of me at the moment understand what paragraph B in most of the orders sought means, the paragraph that reads:

PN302

The effect of the operation -

PN303

MR BORENSTEIN: Your Honour, the case that is going to - part of the case that will be advanced against the AIPA application by us and I suspect by some of the other objectors is that the purpose, the real purpose behind this application is to protect the position of the Qantas, the AIPA pilots as against the pilots that are employed in the various airlines which the AIPA application seeks to extend its eligibility rule to cover.

PN304

THE SENIOR DEPUTY PRESIDENT: To protect the AIPA in Qantas?

PN305

MR BORENSTEIN: Yes. Well, there are no others. Well, perhaps I should qualify that. There is a claim that there are others.

PN306

THE SENIOR DEPUTY PRESIDENT: Yes.

PN307

MR BORENSTEIN: Now, your Honour, I can exemplify that very briefly by a document which has been produced by one of the witnesses for Jetstar. It's attachment MTW6 and it's a document that was distributed by the president of AIPA on 12 November of 2003 to all Australian and international Pilots' Association pilots. It's addressed:

PN308

My fellow Qantas pilot -

PN309

and it's headed:

PN310

High stakes in low cost carrier.

PN311

It talks about the threat to Qantas pilots by the emergence of the Jetstar operation and the low cost operation at Virgin and it talks about the salaries that are paid to those pilots and goes on to say:

PN312

This proposal devalues the profession to such an extent we believe it will impact negatively on your careers and the Qantas brand.

PN313

And then it goes on to say some other things:

PN314

Obviously there's considerable background to the LCC proposal, but we at AIPA have not yet included ... (reads) ... seat at the table to conclude a deal and to obtain the seats in the flight deck.

PN315

Now, your Honour, to translate, perhaps, that's an indication that AIPA is concerned about the effect on Qantas pilots and the flying and the conditions available to Qantas flying by the competition that's emerging or that was to emerge at that stage from the Jetstar operation and also from the Virgin operation.

PN316

THE SENIOR DEPUTY PRESIDENT: I understand the way that's put, but as a matter of English grammar, I've still got difficulty understanding precisely what's sought.

PN317

MR BORENSTEIN: If I can take perhaps item 1 in the proposed order:

PN318

Minutes of all meetings of AIPA -

PN319

et cetera, et cetera -

PN320

dealing with the effect of the operation of any of the airlines referred to in the application -

PN321

which is the various ones listed -

PN322

on the conditions of employment including available flying for pilots employed in Qantas main line operations.

PN323

THE SENIOR DEPUTY PRESIDENT: The effect of the operation of any of the named airlines?

PN324

MR BORENSTEIN: Yes, exactly what was in that note, your Honour, the fact that they are flying with pilots that are being paid significantly less and that they are flying in competition with the Qantas pilots.

PN325

THE SENIOR DEPUTY PRESIDENT: And what's meant by including available flying?

PN326

MR BORENSTEIN: Including available flying means the flying that is available to these pilots as opposed to other pilots.

PN327

THE SENIOR DEPUTY PRESIDENT: They're the hours of flying?

PN328

MR BORENSTEIN: Yes.

PN329

THE SENIOR DEPUTY PRESIDENT: The flying time?

PN330

MR BORENSTEIN: Yes, your Honour. It may be unfortunate shorthand,
but - - -

PN331

THE SENIOR DEPUTY PRESIDENT: I suppose it's more important that the other side understand it than I understand it.

PN332

MR BORENSTEIN: If it requires some elaboration, that can certainly be done, your Honour, but the substance of it is what I've said to your Honour.

PN333

THE SENIOR DEPUTY PRESIDENT: I think I now understand the substance. Yes, thank you. I interrupted you. Just give me a moment to read the outline.

PN334

MR BORENSTEIN: Yes, your Honour, certainly.

PN335

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein.

PN336

MR BORENSTEIN: Now, your Honour, just to make some brief comments to supplement the written outline, the principles that we've set out from the clerk's case in paragraph 4 are principles which have been broadly accepted in the Commission over the years. The detailed exposition that we have sought to make starting at paragraph 9 of how we say that these documents are relevant speaks for itself, but can I just give your Honour a specific reference?

PN337

I've taken your Honour to that document which as I said was exhibit MTW6 which was a document in 2003 expressing the view of the president of AIPA about the significance of these new carriers in the field and the significance for the Qantas pilots. There is also material which we propose to tender at the trial which is in the form of pleadings in a proceeding which AIPA have issued against Qantas in which they complain about the fact that Qantas has transferred aircraft to the Jetstar operation and crewed them with Jetstar pilots and the case at the moment is bogged down in pleading fights.

PN338

I think AIPA is on their third attempt at a statement of claim, but in any event, there is within the statement of claim a passage - I can hand a copy up if it assists your Honour. This is a document which is described as the further amended application and behind it is the further amended statement of claim and if I could ask your Honour to turn to page 7 of the statement of claim at paragraph 25A.

PN339

THE SENIOR DEPUTY PRESIDENT: Yes.

PN340

MR BORENSTEIN: Your Honour will see that there is there extracted a discussion between Mr Woods who is the president - I think he's the former president - the present president of AIPA and Mr Dixon who is the CEO of Qantas and your Honour will see that Mr Woods says:

PN341

Our pilots are concerned about the flying to be done by the four A330-200 aircraft.

PN342

They're the ones that have gone from Qantas to Jetstar, your Honour. Mr Dixon says:

PN343

They're not your pilots.

PN344

Mr Woods says:

PN345

It's our flying.

PN346

So obviously they understand what's meant by flying, your Honour, and Mr Bussell from Qantas says:

PN347

It's not your flying. It's Qantas group flying.

PN348

And then Woods says:

PN349

We want to do the flying on these aircraft and we're prepared to do that flying on Australian airline conditions.

PN350

Now, Australian airline conditions are not Jetstar conditions, they're another operator in the Qantas group and Mr Brown says:

PN351

No, that doesn't even come close. We're dealing with the Jetstar pilots' council for that flying.

PN352

Now, your Honour, that provides a further foundation in the evidence already for the argument that we propose to advance at the hearing and these documents are intended to elaborate that theme which is a theme which is created in the documents that we already have from AIPA. The final document that I wanted to refer your Honour to is an exhibit from Mr Woods' statement. It's exhibit IW21 and this is a document which is addressed to Eastern Airline pilots and it's dated 7 March of 2005. In this document AIPA propounds to the pilot body its reason for having the rule change and having a pilot body for the whole of the Qantas group and it says:

PN353

Having a united pilot body will also ensure that we do not under-bid each other for jobs in the Qantas group.

PN354

The same theme. Now, this theme goes back to the earlier document in 2003 and, your Honour, we propose to make out a case that having regard to the structure of AIPA which is dominated by the Qantas pilots, that the true purpose of this will change is not to protect the interests of the pilots that are sought to be enrolled by virtue of this rule change, but, rather, to ensure the interests and flying, to use that term, of the Qantas pilots and that that will bear on your Honour's judgment about the comparative merits of the two organisations competing, so, your Honour, we say that in relation to the first five categories of documents, they are designed to extract information in relation to those matters and we've specified that in the two subparagraphs and we've explained the basis for that.

PN355

We also wish to challenge and we do challenge the enrolment by AIPA of a number of pilots. There's an assertion in Mr Woods' statement about numbers of pilots that have been enrolled from Eastern Airlines and Jetstar and there's been some documents that have been provided to us about those people, but in the material that Mr Woods has provided, he has provided two communications. One is a document IW20 which is a letter on 20 November of 2004 to all Jetstar pilots and the other one is IW21 which is a letter of 7 March 2005 which is a letter to Eastern Australian Airline pilots headed invitation to all Eastern Australian Airline pilots to join AIPA.

PN356

THE SENIOR DEPUTY PRESIDENT: Yes, they're the documents that refer to the legal advice.

PN357

MR BORENSTEIN: Yes, your Honour, and in both cases they say that they have legal advice and they express the substance of that advice as being that those pilots are eligible to join.

PN358

THE SENIOR DEPUTY PRESIDENT: Yes, and it's your submission that that's sufficient to waive privilege, is it?

PN359

MR BORENSTEIN: Yes, sir, and we rely on the judgment of Young J in the AWB case where his Honour sets out the relevant authorities and comes to the view that the state of the authorities is that the disclosure of the substance of the advice constitutes a waiver of the legal privilege. We've handed up a copy of the extracts from it, your Honour, and it's summarised on the last two pages, your Honour, perhaps from paragraph 159 to the end, so the last two pages.

PN360

THE SENIOR DEPUTY PRESIDENT: In fact, it's his Honour's concluding sentence, really, isn't it?

PN361

MR BORENSTEIN: I am sorry, your Honour?

PN362

THE SENIOR DEPUTY PRESIDENT: His Honour's concluding sentence encapsulates - - -

PN363

MR BORENSTEIN: Yes, and it's supported by the decision in the Full Court in Bennett which he refers to a little bit higher up and there's a general discussion earlier which one doesn't need to go to on this, if it's disputed by Mr Dowling, I doubt that it will be. We made this request, your Honour, for the documents on 6 February, so it's a good month before the trial was to start. It was done by correspondence.

PN364

We asked for an acknowledgment that AIPA would agree to provide the documents within a reasonable time and that was not forthcoming and that led to our instructor communicating with the Commission and asking for the order to be made. Subsequent to that, we received correspondence and I think your Honour has been provided with copies of the correspondence taking objection in a general way to the making of an order for production.

PN365

Your Honour, we have demonstrated in the outline and in the comments I've made this morning the relevance and the significance of the documents which we seek. This is not a jurisdiction where one can get discovery and so a party is left only to this device in order to obtain documents that are important for the case. It's not a case of fishing. We've demonstrated that there is already a factual basis in the material that we have for the claims we wish to advance and on that basis we're entitled to seek further materials which will assist in that process.

PN366

The documents which we seek aren't burdensome to obtain. We've explained why we've nominated the date of 2001 as the opening date which is that the material from Mr Woods in his witness statement at paragraph 85 indicates that AIPA first took interest in the early Jetstar operation which was then still under the banner of Impulse, but owned by Qantas at the time when that happened and sought to involve themselves at that point. That was 2001 and so we felt that was an appropriate starting point for the material.

PN367

The types of documents that we've asked for are not in our expectation voluminous. Minutes of meetings of the committees of management, the committees of management not every day, but on a periodic basis. One assumes there's a minute book which can readily be accessed and perused. General meetings, well, they would be even less frequent, so one would think that the minutes of those wouldn't be of any great length. Reports and presentations to those meetings, well, they will be as much as the actual meetings themselves, so if there aren't any meetings, there won't be any reports.

PN368

If there are meetings, then they will flag the reports and that will be readily available. Letters to existing or prospective members, your Honour, some of those letters have been produced in the material that AIPA filed, so one assumes that they have been through a file or a folder of correspondence dealing with this subject and so one imagines that it would not be a large task for them to revisit the folder and extract any other documents which perhaps they haven't seen fit to put in as supporting their claim.

PN369

The Insight documents, they're periodical magazines. I am instructed they're issued quarterly and so we didn't think that that would impose any great burden for somebody in AIPAs office to go back and get set of the back copies if they're still in existence. The same with the periodical bulletins and, of course, the legal advices are readily available and so, your Honour, we submit that given that any request for documents imposes some burden, this is not an onerous burden and there is ample time in which it can be undertaken and the documents provided.

PN370

We would ask your Honour, if your Honour is minded to make an order, that the order be returnable a short time before the hearing so we can see the documents before we come to court on the day of the hearing, whether that be on the preceding Friday or Thursday or whatever is not a matter of any great moment to us, but we would like to have them before the trial dates, before the date the trial starts. Finally, your Honour, in relation to the form of order which was submitted, there is a recurring typographical error.

PN371

THE SENIOR DEPUTY PRESIDENT: Yes, I've noted that.

PN372

MR BORENSTEIN: Which I would ask your Honour to amend. It's at the end of paragraph 2(b), at the end of paragraph 3(b) and at the end of paragraph 5(b).

PN373

THE SENIOR DEPUTY PRESIDENT: Yes. You've just replicated some of the words from clause 8.

PN374

MR BORENSTEIN: Yes. We are at the mercy of computers, your Honour. Unless there are any other matters that your Honour wishes to raise with me, that's the basis on which we seek the order.

PN375

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Borenstein. Mr Moy, do you wish to say anything?

PN376

MR MOY: Your Honour, Virgin Blue has no position on the application.

PN377

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moy. Mr Dowling.

PN378

MR DOWLING: Thank you, your Honour. Your Honour, if I could start with a brief chronology. My learned friend has given you some of the chronology in relation to the request of the exchange of correspondence. Your Honour will be aware that the matter was last before you on 15 December and it was on that day that Mr Pasfield on behalf of Mr Borenstein's client indicated that he would be seeking certain documents.

PN379

He identified those documents as documents in relation to the membership records of AIPA in respect of pilots that it has enrolled employed by Eastern and Jetstar. I think that was in response to some exchanges between him, Mr Macken and yourself in relation to, well, there's going to be documents, let us know as soon as possible. He identified those membership documents. On my instructions, those documents were sought under cover of a letter dated 20 December of 2006 and provided by my clients, AIPA, if I can refer to them in that shorthand way by letter of 2 February 2007.

PN380

It was not until 6 February that the documents sought or in fact letters of 6 and 7 February that the documents sought in the draft notice that's before you today were sought from AIPA and that's despite the proceedings being commenced by application on 17 May of last year.

PN381

THE SENIOR DEPUTY PRESIDENT: When were the witness statement on behalf of your client filed, Mr Dowling?

PN382

MR DOWLING: On or about November of 2006. Mr Woods' is dated 17 November of 2006, so certainly there was no request at that time and it's not clear to me on what Mr Borenstein has said why that could have been so. There was on my instructions a response from those instructing me and authored by Mr Macken setting out as your Honour is aware and has been referred to AIPAs objection to the provision of those documents and that was dated 9 February on my instructions and on my instructions, that was not responded to in any detailed way other than something that I will come to, your Honour. Mr Pasfield on behalf of the AFAP simply set out that the documents were relevant to the questions arising under sections 158(4)(a), (b)(v), 7(b) and 8, so simply reciting all but one I think of the subsections of 158 that it is that AFAP rely on.

PN383

THE SENIOR DEPUTY PRESIDENT: He didn't go on to say how it was contended that they were relevant.

PN384

MR DOWLING: No illumination at all, your Honour.

PN385

THE SENIOR DEPUTY PRESIDENT: We've now had that from Mr Borenstein.

PN386

MR DOWLING: Yes, so that's the background in relation to the exchange of requests and the opportunity that the AFAP has had to make this request at an earlier stage. In relation to the relevant principles that guide your Honour, we don't disagree that your Honour has a discretion and a broad discretion. We don't disagree with the principles that are set out in the extract from his Honour Munro J in the Alcoa case. There are, of course, some parts of that that we highlight and that I draw upon to take you to the specifics of the notice. Those relevant parts are that:

PN387

The subpoena must specify with reasonable particularity documents which are required to be produced.

PN388

That is the first relevant part that I want to identify to your Honour. The second is that:

PN389

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.

PN390

And perhaps thirdly and fourthly together:

PN391

A party will not be required to produce documents where to do so would be oppressive or where the demand for production is a fishing expedition.

PN392

So broadly we're in agreement on the principles. We highlight those particular parts and I will rely on them when I deal more specifically with the notice. In relation to the notice, your Honour, if I can deal broadly with those documents identified in paragraphs 1 to 5 and leave the section of legal advice to one side for the moment and I will deal with that at the end. It's the submission of AIPA that section 158(4)(a) and (b) requires the Commission to form an opinion as to whether there is another organisation to which the relevant persons could more conveniently belong or who would more effectively represent those persons and that is an opinion to be formed by the Commission on the basis of the present circumstances and in the present application and in my submission the Commission is not assisted by the considerations and deliberations and I should say here if they exist - I will come to the limited instructions that I have in regards to some of the categories, of members or former committee members of AIPA in 2001 or, in fact, for that matter, at any time, your Honour.

PN393

We say that such deliberations really lack any legitimate forensic purpose. To that we add that the application is made expressly in the context of the present circumstances and the recent changes in arrangements of flying. The application at placitum 3.1 and I can read the relevant extract to your Honour, rather than you hunting through and finding it, provides that:

PN394

The reasons for the proposal include -

PN395

the proposal being obviously the proposal to alter the eligibility rule -

PN396

the operation of the word principally in the existing rule is of uncertain effect and has already led to the transfer of aircraft flying in employment of airline pilots to companies argued to be Australian airlines, not "principally" is engaged in providing international regular public transport airline services in order to shut out AIPA from having constitutional coverage for airline pilots employed by such companies and to weaken the industrial strength of airline pilots employed by Australian airlines.

PN397

Now, that, your Honour, is one of the bases upon which the application is made and presents the context for the application. Now, we say further to that deliberations in 2001 or 2002 or 2003 can't possibly bear upon the current environment in which the application is made and in some respects that's borne out by the extract of the pleading that Mr Borenstein has taken you to in relation to the Federal Court proceeding. I think I can say that I'm not sure that much turns on it.

PN398

It's not the present pleading, the present relevant pleading in that proceeding. That identifies the movement of flying and the concern of AIPA with respect to the movement of that flying, demonstrates the current change in circumstances in relation to flying, doesn't as Mr Borenstein would have you believe imply of itself that the result of all of that is AIPA is only concerned with their own membership and the application makes that clear.

PN399

It's concerned with the movement of flying, the change in circumstances of that flying and being able to adequately and appropriately represent the interests of the members or the membership - I withdraw that, your Honour, to represent the pilots, be they flying for Qantas or another Australian airline engaged in, et cetera, et cetera, so with respect we say that's misrepresented that that demonstrates an interest only in the flying of Qantas pilots and we say it makes out the position that the relevant circumstances as they are today, the movement in flying.

PN400

The case as put here is that some flying is going from Qantas to Jetstar and the application is made on the basis that eligibility should extend to Jetstar, therefore we will be able to adequately represent those pilots because there are, as the application suggests, circumstances in which we have been shut out from representing those particular pilots. Of course, in relation to Jetstar, whilst it's being used as an example, it didn't commence its airline services until May of 2004, at least in its present guise, didn't commence flying internationally on the materials filed by it until December 2005, I think that was a trans-Tasman flight and then didn't commence flying more broadly - my apologies, your Honour, doesn't propose or hasn't proposed until 2006 to fly more broadly internationally, so again we say that demonstrates the irrelevance of 2001, 2002, 2003 in relation to what's being put by my learned friends in relation to the position with respect to Jetstar.

PN401

In reliance upon the letter that has been provided by those instructing my learned friends, I should for completeness say it sought to rely on for relevant purposes the provisions of 158(5) and (7) and they are in relation to the undertaking in relation to demarcation disputes and the risk that there might be a demarcation dispute. That doesn't seem to have been advanced by Mr Borenstein today, but we say, we really put the same proposition, that the considerations and deliberations in that regard in 2001 and 2002 don't assist your Honour at all in making the necessary or forming the necessary opinion about any undertaking given or about any serious risk with respect to a demarcation dispute.

PN402

If I can deal nextly, your Honour, with the question of oppression. My learned friend would have you believe that the documents are all neatly in a folder and it's simple and you just flick through the folder. We all know, of course, it's never that simple. The order as drafted at the moment on my reading would require the examination of all meetings of the AIPA committee of management since January 2001, the examination of all AIPA general meetings since 2001, the examination of all AIPA special general meetings since 2001, the examination of all reports or documents containing presentations provided to or considered by the AIPA committee of management or any AIPA general or special meetings since 2001, the examination of all letters sent by AIPA to its members or prospective members since 1 January 2001, all letters on my submission, the examination of all newsletters, bulletins or circulars published by AIPA to its members or prospective members since January 2001 and upon that examination then requires a qualitative assessment of whether any of those documents in the words of the draft deal with the effect of the operation of any of the airlines referred to in the application on the conditions of employment, including available flying for pilots employed in Qantas main line operations.

PN403

Now, I've had some difficulty understanding that. Mr Borenstein has explained it. Our position is that it shouldn't have to be explained in the terms it has been explained. It should be clear on its face. It clearly isn't, demonstrated by the fact that your Honour had some difficulty understanding it. Secondly, the qualitative assessment that's required in relation to the examination of all those documents is again whether the documents deal with again in the words of the draft the issue of AIPA extending its eligibility rule to cover pilots employed by any of the airlines referred to in the application.

PN404

Now, as I say, these documents on my instructions aren't all in one place and it's not possible, of course, it perhaps goes without saying to isolate those documents that might deal with a particular - I withdraw that, your Honour, those documents that deal with a particular issue have not been isolated, of course, so as I say, all of the documents would need to be examined. Now, it's said in relation to 2001 and perhaps my learned friend can clarify it that 2001 is chosen because that's the point at which Mr Woods identifies some interest in these airlines and paragraph 85 of Mr Woods' statement is relied upon. I might be misreading paragraph 85, but paragraph 85 provides that:

PN405

AIPA provided assistance and advice to Impulse pilots to negotiate a certified agreement when Impulse was first taken over by Qantas. This assistance included AIPAs professional staff and president providing verbal advice to Jetstar pilots, producing a draft agreement that was suitable for certification and the referral to an industrial lawyer to finalise the drafting and certification of the agreement.

PN406

It's not clear to me how that dates things from 2001. All that paragraph identifies is particular assistance provided at that time. Mr Borenstein would like that to be the starting point. That doesn't flow to me from that paragraph. The correspondence that was communicated between the parties indicated that it was the instructions of AFAP, that that's when in the words of the correspondence AIPA became interested in Jetstar and the regional airlines. We say that doesn't properly make out the point, but nevertheless the substantive point is the relevance of those - the two substantive points, your Honour, are the relevance of those deliberations, if there are any, to what is to be determined by you in the present application and the oppressive nature of the request.

PN407

THE SENIOR DEPUTY PRESIDENT: Mr Dowling, talking of oppression, are you instructed as to how many meetings, general meetings or other, have been held since 2001 and whether there's a minute book of those meetings?

PN408

MR DOWLING: I am not, your Honour. I apologise for that.

PN409

THE SENIOR DEPUTY PRESIDENT: You haven't had much time, so there's no need to apologise.

PN410

MR DOWLING: No. I think my instructor did forward some correspondence to you indicating that because the matter was brought on at short notice, we wouldn't be able to have a representative here and that made obtaining instructions difficult and unfortunately I don't have those instructions. That perhaps leads me to the legal advice because I'm not in a position to provide to your Honour any indication as to what that advice may be and by that I mean whether it's in written form or whether it isn't and what it contains.

PN411

THE SENIOR DEPUTY PRESIDENT: If it isn't, you can't produce it.

PN412

MR DOWLING: That's right. That's certainly true, but I'm certainly not in a position to be able to say what it contains and for that reason, my submissions with respect to the legal advice is that that is a question that should be deferred. There is a live question as to whether a privilege attaches and whether the privilege has been waived. I don't cavil with the principles that have been put to your Honour, whether privilege has been waived by the comments made by the former president of my client in relation to what the advice contains.

PN413

There is a live issue in my submission and in circumstances where I don't have instructions in relation to whether that advice is in documentary form or have been able to see it if it is, my submission is that that question should be deferred until such time as I am able to obtain sufficient instructions in relation to that advice. It may be that we wish to put on material about it. It may be and I can't make any undertaking in this respect, given my instructions, it may be that we're able to produce it to you, your Honour, and some determination made as to whether there is privilege and whether it has been waived, but on present instructions, my submission is that the question in relation to 6 and 7 should be deferred until such time as I am in a position to deal with them.

PN414

Your Honour, there is only one other matter. I have dealt with what we say the question of relevance is and what we say the oppressive nature of the request is. There was some reference made to a fishing expedition by my learned friend. We say in that regard that the documents as they are set out in the draft order before you don't identify with any specificity a document or category of document that can properly be evidence in support of the AFAP case as it's currently put on the material and in that respect, that qualifies it as a fishing expedition. There is no specific document referred to and cross-referenced to the material put in support of the objection.

PN415

In that respect, it's not an attempt to garner further evidence in support of the submission put. I take that submission no further. The principal submission is put in relation to that irrelevance and that of oppression and the submission I put with respect to the legal advice, so unless there any questions, your Honour, that is the submissions I wish to make.

PN416

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dowling. Mr Borenstein.

PN417

MR BORENSTEIN: Yes, your Honour, just briefly.

PN418

THE SENIOR DEPUTY PRESIDENT: Before you start, why was this request not made in December, given that the witness statements that alerted you to these issued has been filed in November?

PN419

MR BORENSTEIN: Your Honour, I can't offer you an explanation for that. The position was that following the Christmas vacation, there were conferences held at which preparation for the hearing was discussed and these matters emerged from that. We can understand that the Commission and our friend might be peeved about the fact that it wasn't all asked for at the same time, but we would submit that that's not a determinative factor in - - -

PN420

THE SENIOR DEPUTY PRESIDENT: It's a factor in the exercise of discretion.

PN421

MR BORENSTEIN: Well, with respect, your Honour, it's not unless your Honour determines that as a result of that there's been some oppression.

PN422

THE SENIOR DEPUTY PRESIDENT: Yes. I think that's the subtext of Mr Dowling's submission. You've left it too late. We can't now in the time available trawl through all these documents to find the information. You should have known about it because of the witness statement that led to this line of inquiry was available.

PN423

MR BORENSTEIN: Well, your Honour, I understand that that's how he wants to put the argument and I'd like to say a few things in response to that.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes.

PN425

MR BORENSTEIN: First of all can I say that he complained about the response from Mr Pasfield to the letter that Mr Macken had sent on 9 February. I think your Honour has at the end of the day been provided with all of the letters backwards and forwards and I don't want to trouble your Honour to go through them in any detail, but can I say that the first two letters which asked for the documents, that is the letter of 6 February and then a subsequent letter asking for the advice on the 7th, asked for a response by 8 February and no response was forthcoming by 8 February.

PN426

That being the case, your Honour will see on the court's file, on the Commission's file, that Mr Pasfield wrote to the Commission and sent his letter into the Commission. It was late on that same day, after the letter had gone to the Commission, that Mr Macken's letter was sent. He had received a copy of the letter that had gone to you, was sent raising the various issues on 9 February.

PN427

The fax stamp on our copy of the letter is 17.29 which is a minute before 5.30 by my reckoning and in that letter, various concerns are raised and that letter, of course, was on the 9th which was the Friday, 5.30 on the Friday afternoon, Mr Macken then wrote to the Commission or faxed to the Commission at 4.48 on the Monday a message which indicated, this is 12 February, four days ago, a message indicating opposition to the application and in the fourth paragraph of that fax cover sheet addressed to your Honour, to your Honour's associate, he asserted at that point that the application was pressing.

PN428

THE SENIOR DEPUTY PRESIDENT: That seems to have been faxed to the Commission at 2.58 pm that day.

PN429

MR BORENSTEIN: We got it at 1648, but leaving that aside for the moment, your Honour, the point I want to make about that is that by 2.58 or whatever it was, Mr Macken had presumably taken sufficient instructions to form a view upon which he could make the assertion to the Commission that the application was oppressive. Your Honour should take note of that when determining the strength of the argument that's now put by Mr Dowling that it's oppressive, but he can't give you the details of why it's oppressive.

PN430

He can't tell you, for example, in response to the answer which your Honour asked which one would have thought was a question that should have been asked by Mr Macken or someone else before coming here this morning, how many meetings were there of these various bodies, a simple question and one could have been told we don't know the exact number, but it's every month or every three months or every six months or there hasn't been a general meeting at all in the last five years.

PN431

In the cases, your Honour, and your Honour no doubt from your own experience at the bar would recall that in the cases one can come and say oppression, but one has to flesh out the bones. One has to say it's oppressive because the documents are all in China or the documents are in Perth or we don't have any staff, but what's being put here is simply it's oppressive and so the only factor that you have is the time, you don't have anything else.

PN432

You're not told, for example, look, at least we rang someone at the office and we asked them about X, Y and Z and they said they just couldn't tell us. We don't even have that. We have nothing except an assertion of oppression which is made first on 12 February. One trusts that Mr Macken didn't do that without instructions and so for the last four days, knowing that this was going to be on, what have they been doing about finding out just how hard this is going to be, if it's going to be hard at all?

PN433

Now, it may be, it may be, but normally one sees either an affidavit or at least a submission that indicates why or the nature of the oppression so the Commission can deal with the matter properly, but here no such thing is advanced. In the affidavit material that they filed, of Mr Woods' affidavit material at paragraph 44 in aid of their argument that they are well equipped to represent all these pilots, they say that they have 10 full-time staff, including two lawyers.

PN434

Now, there's no explanation as to the difficulty that would be imposed on those 10 staff to look for the minutes of the meetings over the last five years or thereabouts. There's no explanation of that. My friend couldn't even tell your Honour if there's a minute book so that you could just take one folder off the shelf. Now, that's not a proper basis for a claim of oppression and we say that your Honour ought to be sceptical and hesitant in accepting that assertion.

PN435

Now, when Mr Macken did send his letter to Mr Pasfield, Mr Pasfield replied and he didn't just simply say that the documents are - this is the letter of 12 February, a copy of which was sent to your Honour on the following day, he didn't just say it goes to sections A, B, C and D. He went on to say:

PN436

The documents identified are apt to expose the true purpose and motivation of AIPA in seeking the extension of its eligibility rule and the request for legal advice is based on the use to which they've been put in AIPAs communication with Jetstar and Eastern pilots.

PN437

Now, it didn't run into five pages, but it conveyed the thrust of what I've said to your Honour this morning and, in any event, in our objection, these are matters that we raise in our objection in any event, in various paragraphs of our objection, so Mr Macken was told on Monday after he had sent his letter, he was told why it is we want these various documents and we heard nothing more from him after that. Now, we submit that he's on notice, he was on notice on the 6th and the 7th.

PN438

On the 12th, he had formed a view about oppression and yet nothing is produced to the court - to the Commission about that and your Honour ought not to accept that objection to the production of the documents without more. Now, turning then to the criticism that Mr Dowling made about the notice, the proposed notice, he says that the opinion that the Commission needs to form under section 158 is an opinion based on present circumstances.

PN439

That may well be so, your Honour, but where the Commission is required to make a comparative judgment as between the abilities of one organisation and the other to undertake the tasks identified in the section, it would be ludicrous to suggest that there is no relevance in examining the track record of the organisations in question and particularly so when Mr Dowling's own client has filed material relying upon its efforts in the past, it has an industrial representative for pilots and so we say, your Honour, that it's quite disingenuous to suggest that the history which would expose the performance level and also the motivation for undertaking the application is irrelevant.

PN440

My friend also said that the application is made on the basis of current circumstances and he points to paragraph 3(i) of the application which talks about the movement of flying and he made the submission that they were concerned and were prompted by the movement of flying from Qantas to Jetstar, but the application goes far beyond that. The application seeks to cover pilots at Virgin. Now, how can one accept that at face value when the application itself is inconsistent with it?

PN441

Mr Macken's client wants to cover the pilots at Virgin. Now, I read the papers occasionally, your Honour, but I haven't seen any report of flying being transferred by Mr Dixon from Qantas to Virgin and so again one has to query the basis upon which this argument is being advanced because the facts don't support it and again it would be hamstringing the Commission in its consideration of the matters that the section requires to simply take a snapshot at 10.15 am on the first day of the trial and say look at nothing else.

PN442

It's a nonsensical proposition, your Honour. True it is you decide the matter on the material that you have at the time and the circumstances at the time, but all these things happen in a context and everybody brings baggage which bears on the judgment that you have to make about their ability to do things thereafter and that's what this material is all about, then finally, your Honour, there's the question of oppression, your Honour, and I've made some submissions about that in respect of the correspondence from Mr Macken.

PN443

Again, the generality of the way in which it's put from the bar table leaves much to be desired. Mr Dowling says at one point the documents are not all in one place. That seems to suggest somebody has at least made that inquiry, but then they don't go on to say where they are. They don't go on to say they're not all in one place, some of them are on the 5th floor and some of them are on the 1st floor, so that the court can make a judgment about just how onerous it would be to travel between the two floors or perhaps between two buildings that are next to each other or something of that sort, but if that inquiry has been made, why haven't they gone that little step further to illuminate the problem, so that the Commission is properly informed?

PN444

They haven't done it and so again one should hesitate considerably before accepting that as any foundation for an argument of oppression. Finally, your Honour, our friend says he hasn't been able to work out the question of whether there's been a waiver of the legal advice, the privilege in relation to the legal advice. That was a matter that was raised in a letter of 7 February. There's now a week gone by.

PN445

The material upon which we rely is material that's produced by our friend's client, documents that they've disseminated to the target pilots and we don't understand why it's not possible for our friend to advance an argument one way or the other as to whether there's been a waiver, but taking his submission at face value, he seems to be saying that he needs more time to work out the issue and if that's required, well, we would invite the Commission to fix another day when he can come along and tell us what the position of AIPA is on the question of waiver rather than take up time during the days fixed for the trial of this matter.

PN446

They seem to be the two alternatives. We would have thought it's more effective to have these matters resolved beforehand, but that's our view and we would urge that on the Commission. As for the matter of fishing, our friends seem to make that submission in a very muted way, properly so we would submit, your Honour, because there's no element of fishing here. If your Honour goes back to the passage that we've extracted from the Alcoa case, Munro J explained what's meant by fishing and the explanation is that:

PN447

Fishing is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all.

PN448

I went to some lengths, your Honour, when I made my earlier submissions to point out to your Honour that we have a case and that there is material that supports the case that we want to put and these documents are not sought to find out whether we have a case, but simply to support the case which we already have and I think that's plain if one looks at the documents that I referred your Honour to earlier.

PN449

Another error that our friend makes about that is to say that it's necessary that the documents that we seek to support simply need to support - can only be not fishing if they support our case. We would submit that we're entitled to have documents if they do one of two things, if they either advance our case or assist us in the destruction if you like of the respondent's case and so it's not necessary for us to point to something in our case and say all the documents are relevant to that. We've pointed to material in the AIPA case which we say they are relevant to.

PN450

They're relevant to defeating that case, they're relevant to the issues that arise out of that material in the AIPA case and they're relevant to the issues in the application and in the objections. Our friend has taken you to the application and there are counter propositions in the objections, so they're relevant on issue, they're relevant on evidence and there's material already there for those matters in the case, so it can't be said that we are looking for a new issue to raise, rather than exploring the issues that are already there, so for all of those reasons, your Honour, we would submit that - there's this question of flying and I've discussed that with your Honour.

PN451

We're content - if there's a concern about it, we're content to clarify what that means, although in the documents that I read to your Honour from the AIPA president, they seemed to understand what flying is, even though people who aren't pilots may not understand that.

PN452

THE SENIOR DEPUTY PRESIDENT: I didn't at the beginning of this hearing, Mr Borenstein.

PN453

MR BORENSTEIN: No, your Honour, but I think your Honour has only had a passing interest in the airline industry over the years. Subject to that, your Honour, we would ask your Honour to make the order that we have proposed.

PN454

THE SENIOR DEPUTY PRESIDENT: Thank you. I would just like to consider this matter. I will give you a decision shortly. It won't be before 12 o'clock, so you can go and have a cup of coffee, if you like.

PN455

MR BORENSTEIN: Shall we come back at 12 o'clock, your Honour?

PN456

THE SENIOR DEPUTY PRESIDENT: Yes, if you would. I don't guarantee that I'll be prompt, but I'll try to be here by 12, but not before 12. Mr Moy, if you wish to excuse yourself, you're welcome to do so.

PN457

MR MOY: Thank you, your Honour.

PN458

THE SENIOR DEPUTY PRESIDENT: We will adjourn temporarily and not before 12 o'clock this afternoon.

<SHORT ADJOURNMENT [11.26AM]
<RESUMED [12.07PM]

PN459

THE SENIOR DEPUTY PRESIDENT: I've decided that I will make an order to produce substantially in the form sought by Mr Borenstein. It seems to me that the notice to produce has been drafted with reasonable particularity and by the meaning of subclause (b) in the various proposed orders, it is relatively clear, especially to those concerned. It seems to me that generally the documents sought are capable of being relevant to the matters in issue.

PN460

I take Mr Dowling's point that the Commission deals with the matters at the time of the hearing, but the context in which the application is made and the reasons for it may be relevant. I am not convinced that the order if made will be oppressive. Mr Dowling asserts that, but I take Mr Borenstein's point that nothing has been put to me as to why an order of the type sought would be oppressive and I don't accept the submission, if it be made, that the order sought is fishing.

PN461

There is a case and it may advance the case or detract from the applicant's case. I will make an order in the form of the draft with some alterations. The documents will be required to be produced to the registrar by close of business on Thursday, 1 March 2007. The documents sought in clause 1 of the draft order will be required to be produced. I am not convinced that those sought in clause 2 of the proposed order, being presentations and so on to various meetings, are sufficiently probative as to require their production and clause 2 will not be made.

PN462

Clause 3 with the correction flagged by Mr Borenstein will be made, as will clause 4 and 5. I will defer the issues of the legal advice sought in proposed paragraphs 6 and 7 until the hearing. I accept that Mr Dowling hasn't had sufficient time to prepare a submission in relation to those matters. If necessary, additional time will be provided before or after court to ensure that the matter will be finalised in the time that has been set aside for it. I think that concludes the matters. Is there anything else?

PN463

MR BORENSTEIN: Your Honour, I wonder if we might have leave to inspect and, if appropriate, copy the documents that are produced to the registrar?

PN464

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Dowling. That seems an appropriate course.

PN465

MR DOWLING: It does, your Honour. Other than the difficulty I face with respect to how the documents are set out, where they're placed, those sorts of things are matters that I don't have instructions on, so it's a little difficult for me to accede to such a request.

PN466

THE SENIOR DEPUTY PRESIDENT: The order will require their production to the registrar. Once they're with the registrar, I am inclined to give leave to have those documents inspected and copied. Otherwise, there's not much point in the order.

PN467

MR DOWLING: No, no, I took it from Mr Borenstein that he was anticipating that inspection might take place at some time prior to that.

PN468

THE SENIOR DEPUTY PRESIDENT: No, no. At the Commission, once they're produced to the registrar, that inspection can take place on Friday.

PN469

MR BORENSTEIN: The 2nd.

PN470

THE SENIOR DEPUTY PRESIDENT: The 2nd, yes.

PN471

MR DOWLING: The only matter that I reserve, your Honour, I know there's been an issue raised by Mr Macken appearing on my client's behalf before me in relation to the confidential nature or otherwise, the important private nature of some of the material, I can't say whether what's described in this material falls into that category, but if I could simply reserve that position with respect to the copying. It might be that there might need to be a limitation as to - - -

PN472

THE SENIOR DEPUTY PRESIDENT: I am prepared to order that any matters of the nature that were discussed on the previous occasion in December that would identify persons ought be blacked out.

PN473

MR DOWLING: Yes.

PN474

THE SENIOR DEPUTY PRESIDENT: Mr Borenstein nods his accession to that.

PN475

MR DOWLING: As the Commission pleases.

PN476

THE SENIOR DEPUTY PRESIDENT: I will issue an order in the terms that I've just indicated shortly, but the parties are aware of it, so you can prepare your preparation, Mr Dowling.

PN477

MR DOWLING: Thank you, your Honour.

PN478

THE SENIOR DEPUTY PRESIDENT: Adjourn the Commission.

<ADJOURNED ACCORDINGLY [12.12PM]