C2006/3977, Transcript of Proceedings [2007] AIRCTrans 97 (5 March 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16530-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER GAY

C2006/3977

APPEAL BY HANDS, PETER
s.120 - Appeal to Full Bench
(C2006/3977)

MELBOURNE

2.33PM, MONDAY, 19 FEBRUARY 2007

PN1

MR R MILLAR: I seek leave to appear on behalf of the appellant, Mr Peter Hands.

PN2

MR M RINALDI: If the Commission pleases, I seek leave to appear on behalf of the respondent.

PN3

JUSTICE GIUDICE: Thank you.

PN4

MR MILLAR: Sir, I’m grateful for the Commission standing the matter down for a few minutes to allow discussions to be pursued. I’m pleased to advise that those discussions have been fruitful and an in-principle agreement has been reached between the parties which would see the appeal being discontinued. However, as part of the arrangements which have been agreed in principle, we would seek the making of an order by the Commission by consent of the parties varying the amount which has been awarded to be paid in paragraph 53 of the Commissioner’s decision, to $4317.30.

PN5

The reasoning is that that figure, $4317.30 represents 10 per cent of the legislative cap as applicable to Mr Hands and without allowance for mitigation from that figure. However, the appeal would otherwise be discontinued upon the variation being made to that figure.

PN6

JUSTICE GIUDICE: Yes, go ahead, Mr Millar.

PN7

MR MILLAR: With that, simply a variation in the amount that’s payable by the respondent to the appellant to $4317.30. The appeal will otherwise be discontinued.

PN8

JUSTICE GIUDICE: Do you need to vary the order? There was a separate order made.

PN9

MR MILLAR: Yes.

PN10

JUSTICE GIUDICE: Which hasn’t been the subject of a notice of appeal but rather took it that the notice of appeal being directed at the decision was in fact directed at the order. I mean the operative part of the process is the order, not the decision.

PN11

MR MILLAR: Well, indeed.

PN12

JUSTICE GIUDICE: But I’m not doing anything other than making sure we make an order which is effective.

PN13

MR MILLAR: Yes. And that is of course quite right. Rather than the content of paragraph 53 of the decision it’s the content of the order that is sought to be varied.

PN14

JUSTICE GIUDICE: Sorry, Mr Rinaldi, were you going to say anything?

PN15

MR RINALDI: That is a consent position, your Honour. And we’re not troubled by reading the appeal, the notice of appeal as though it’s directed to the order. That’s clearly - - -

PN16

JUSTICE GIUDICE: It’s a common mistake. People don’t express their appeal correctly.

PN17

MR RINALDI: Yes. So we apprehend that given that it is a consent position that it’s within the Full Bench’s powers to vary that order to that figure, which is simply 10 per cent of what would otherwise be the legislative cap or what we would say is the amount the Commission would otherwise order on Commissioner’s reasons pursuant to section 654(7), the difference being that the Commissioner took off the $2000-odd from that six-month legislative cap and this consent position has been reached on the assumption that that should have been done before applying the legislative cap, therefore simply apply the 90 per cent reduction on account of misconduct to the legislative cap. That’s where we get the slightly different figure of $4317.30 in lieu of the previously ordered figures of $4094.84.

PN18

JUSTICE GIUDICE: Yes. Well, we don’t of course make any comment on what might or might not be the correct way in which to approach it because we haven’t heard the arguments.

PN19

MR RINALDI: No. We understand that. The other - ground 1 of the appeal, as the Full Bench would be aware, was withdrawn.

PN20

JUSTICE GIUDICE: Yes. Is there anything else, Mr Millar or Mr Rinaldi?

PN21

MR MILLAR: No, your Honour.

PN22

JUSTICE GIUDICE: The orders that seem to be appropriate would be that leave be granted to appeal; that the order made by the Commissioner on 15 November 2006, that is the serial number PR974626 be amended by deleting the amount of $4094.84 in paragraph (a) and substituting the amount of $4317.30 and our order would come into effect from today’s date. I think that that will be sufficient, will it not, to dispose of everything?

PN23

MR RINALDI: I think so, your Honour.

PN24

MR MILLAR: Yes, your Honour.

PN25

JUSTICE GIUDICE: All right. We’ll issue that order today. If there’s nothing else we’ll now adjourn.

<ADJOURNED ACCORDINGLY [2.41PM]