RE2008/2185, Transcript of Proceedings [2008] AIRCTrans 357 (11 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18731-1

SENIOR DEPUTY PRESIDENT LACY

RE2008/2185

s.770(2)(b) - Application for orders by Commission for abuse of system
Australian Building and Construction Commission
and
Construction, Forestry, Mining and Energy Union-Construction and General Division, WA Divisional Branch
(RE2008/2185)

MELBOURNE

3.59PM, MONDAY, 30 JUNE 2008

Continued from 13/6/2008

Hearing continuing

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

PN140

MR C RAWSON: Your Honour, I seek leave to appear for the applicant.

PN141

MR M SWINBOURN: I appear on behalf of the CFMEU.

PN142

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Swinbourn, any objection to Mr Rawson being granted leave?

PN143

MR SWINBOURN: No, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: Thank you. Leave granted, Mr Rawson. I have listed this matter this afternoon to try and work out the program for hearing. I have received from the parties draft directions and I’ll deal with those in due course. But Mr Rawson, I understand you have some difficulty or your counsel has some difficulty in availability for October?

PN145

MR RAWSON: Yes, your Honour. I regret that since we initially advised our availability for a two-week hearing commencing 13 October, counsel has had another matter on which she was waiting for a listing, listed for four weeks commencing - I’ll correct that, I believe it’s two matters listed back to back but commencing 20 October, which means that counsel is unavailable from Monday, 20 October through to I believe it’s Friday, 14 November. Those are two commitments that arose after we initially indicated that we were available for a hearing commencing 13 October for two weeks.

PN146

THE SENIOR DEPUTY PRESIDENT: The Commission endeavours to meet the convenience of the parties but my diary is getting pretty full and fitting all of this in is becoming a little bit difficult. And, as you can imagine, the remaining members of the Commission are pretty busy or tied up at the moment with Award Modernisation. What has been the involvement of your counsel to date in this matter?

PN147

MR RAWSON: Your Honour, counsel - senior counsel has been involved in the matter extensively for a considerable period of time. Counsel has been involved in and prior to the preparation of the application and has a considerable involvement in the matter over some months. I would also submit that the fact that my client saw fit to take this step of briefing senior counsel in the matter indicates the significance with which my client foresaw the need for senior legal representation and a matter which is Perth matter, will be heard presumably in Perth and the Bar I’m instructed is much smaller in Perth than it is in Melbourne, your Honour.

PN148

I perhaps should also indicate that we have also retained junior counsel who has not as yet appeared in the matter but it is intended that senior counsel be present and appear at the hearing of the matter.

PN149

THE SENIOR DEPUTY PRESIDENT: All right. What do you say about it, Mr Swinbourn?

PN150

MR SWINBOURN: I suppose from the respondent’s point of view - I mean, the representation obviously of parties is generally a matter for each of the parties so we can’t say we’re in a great hurry to have this matter listed. We previously made an application to have it adjourned so - - -

PN151

THE SENIOR DEPUTY PRESIDENT: I appreciate that. In fact, that’s one of the ironies of this matter, that the adjournment application was opposed but you’d probably have that matter over and done with in Perth before the matter gets on for hearing anyway.

PN152

MR SWINBOURN: Yes. So from the point of view if there are further delays caused from the unavailability of counsel, it doesn’t really present a problem for us at this point in time. I can’t really add anything more to it today.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Rawson - and you needn’t stand because of the video. It’s probably best to remain seated.

PN154

MR RAWSON: Sorry, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes. What are the dates then that you’re proposing?

PN156

MR RAWSON: Well, your Honour, counsel is available for the week commencing 13 October and counsel is next available on the week commencing Monday, 17 November and at this stage counsel is available from that date until the Christmas break. So two possibilities present themselves, your Honour: one would be to list the matter for a week commencing 13 October and for a second week commencing 17 November; and the second possibility would be to list the matter for a fortnight commencing 17 November.

PN157

THE SENIOR DEPUTY PRESIDENT: The reason that I didn’t want to list it for a fortnight beginning on 17 November - it doesn’t give a lot time before the end of the year to finalise the matter if I wanted to get it finalised, and I would rather have it finalised before the end of the year than carry over because of the break that I’ll be having over the Christmas period and my unavailability until the end of January.

PN158

Mr Swinbourn, are you content to have the matter broken or heard in two parts?

PN159

MR SWINBOURN: I would submit to the Commission that we’d prefer that the matter be dealt as a whole. I mean, there’s an inconvenience inherent in splitting up matters in terms of the availability of witnesses and also the union, given especially since we’re often not aware of what other matters may arise during that period. So our preference would be for the matter to be listed from a two-week period in November rather than to have it split over October and then November. It does present inconvenience as can be appreciated, I think, when the matter is split.

PN160

Obviously this matter is going to rely a lot on witness evidence so if we have a witness that’s halfway through their evidence-in-chief or cross-examination at the end of the first week and then they have to wait another four weeks or so before the commencement, there’s a possibility of how that may affect that evidence. So our preference would certainly be for the matter to be listed for a two-week period. I think the parties would reasonably anticipate that it would be over by then and certainly at the end of two weeks if the matter is not resolved then it would only be a matter of probably submissions and tidying up with a few other witnesses.

PN161

A week on one side and a week on the other side is slap bang in the middle so, as I say, I suspect we’ll halfway through examining a particular witness at a particular time or a party would be halfway through its case and these things don’t tend to be neatly lined up with the applicant having their case in the first week and us having the second week. Those are the points that we would put to the Commission. As I say, the further delay is not an issue for us in any event.

PN162

THE SENIOR DEPUTY PRESIDENT: Just remind me, how many witnesses do you have?

PN163

MR SWINBOURN: Do we have? I’m not in a position to say that. Obviously everybody that is currently a named party to this matter would be a witness and, as I understand it, there are - I think it’s four or five-named respondents. Mr McDonald himself will be the subject of - would be a witness and his evidence will be long and lengthy, I suspect, and certainly the cross-examination from the other side will be long and lengthy so there will be a number of witnesses in this matter on both sides.

PN164

THE SENIOR DEPUTY PRESIDENT: Do you know how many witnesses you may have, Mr Rawson? Remain seated.

PN165

MR RAWSON: I apologise, your Honour. We haven’t finalised our witness list but we would expect to call at least 15 and possibly more than 20 witnesses.

PN166

THE SENIOR DEPUTY PRESIDENT: How long do you anticipate your case may take?

PN167

MR RAWSON: Well, to some degree that is dependent on cross-examination.

PN168

THE SENIOR DEPUTY PRESIDENT: Of course. I appreciate that.

PN169

MR RAWSON: I’m certainly unable - I mean, on one view it might be said that if the matter were listed for hearing commencing 13 October there’s always the chance it will finish within the week. I think I’m really unable to put that submission with too much force. It’s an outside possibility but it’s certainly by no means likely, I think, on our current expectation.

PN170

THE SENIOR DEPUTY PRESIDENT: With 15 witnesses you’ll be lucky to finish your case within the week, wouldn’t you?

PN171

MR RAWSON: That’s quite possible, your Honour. I mean, it’s impossible - - -

PN172

THE SENIOR DEPUTY PRESIDENT: It depends on cross-examination.

PN173

MR RAWSON: Yes, it’s always impossible to predict and it does depend a lot on cross-examination but that is a possibility.

PN174

THE SENIOR DEPUTY PRESIDENT: Well, Mr Swinbourn, do you think - do you believe your clients would be disadvantaged if we were to list the first week for the applicant’s case and have the second week for you to run your case?

PN175

MR SWINBOURN: Only to the extent that - well, I suppose if they have to finish their case within the week then perhaps not. I don’t think that’s the case but if they haven’t examining their witnesses by the end of the week and depending on which witnesses remain, I mean, there’s always the fear of the contamination of the remaining witnesses’ evidence by there being discussion in the month between the two matters and particularly if someone’s only part heard - if there matter has only been part heard we would be quite concerned as to whether or that person may be influenced or may speak to other witnesses about their evidence.

PN176

I mean, if they were strictly limited to that week, they had to put their case within the week, I suppose a 50/50 arrangement would be certainly fair. But I suspect what would happen is we’d come to the end of the week, if they hadn’t finished their case then they would be scrambling to make submissions to the Commission that they should be allowed to extend the time in which they have to present their case because it would be - as a matter of fairness and those situations are always difficult for the Commission given its requirement to act on fairness.

PN177

I wonder whether or not they’d be able to present their case in a week and whether they’d be actually prepared to tailor their case in a manner that would allow them to do it within a week.

PN178

THE SENIOR DEPUTY PRESIDENT: Well, given that there will be witness statements there shouldn’t be a great deal of examination-in-chief.

PN179

MR SWINBOURN: Well, that is a point. Again, my experience with these matters is - notwithstanding that witness statements are filed, there will be - I don’t think there are witness statements in response to witness statements and so therefore they will raise a number of matters that are brought up in the statements that are made by our witnesses and certainly there’s often a significant degree of re-examination of the witnesses in giving evidence-in-chief.

PN180

It’s not the case that they just tend to rely on the witness statements and then open the field for the respondent to cross-examine their witnesses. It tends to be the case that we get a significant amount of re-examination which tends to chew up a lot of time. And as I say, I’m just conscious of how that works out and the practicalities of it - you know, on Friday afternoon of the first week and they simply haven’t finished presenting their case, and they’re in the position where they’re asking for more time and that then affects our ability to present our case in the following week that’s set aside.

PN181

THE SENIOR DEPUTY PRESIDENT: It appears that we’re left with little option other than to have it in the two weeks beginning 17 November. But that perhaps means that the parties can have more time, if they so desire, to prepare their cases. Are the parties content for me to adjust the proposed timetable to accommodate that extra time or do you wish to put any further material or propose directions yourselves?

PN182

MR RAWSON: Your Honour, for our part if your Honour is proceeding to move forward on the basis of our proposed minute, we’d be quite content for your Honour to adjust the times accordingly with reference to the new hearing date.

PN183

THE SENIOR DEPUTY PRESIDENT: Yes. And what about responding witness statements?

PN184

MR RAWSON: We had made provision in our minute for reply statements.

PN185

THE SENIOR DEPUTY PRESIDENT: Yes.

PN186

MR RAWSON: And we had envisaged that we would need to do so.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes. Are you content with that then, Mr Swinbourn?

PN188

MR SWINBOURN: I’m in a disadvantage unfortunately, your Honour. I have only been handed this file this afternoon because Mr MacLean who usually deals with this matter is unfortunately caught up in another Court so I’m loathe to make a commitment of that kind without first having an opportunity to speak to Mr MacLean who will bear the responsibility for the case when it’s actually - or for the preparation of the case. So I’m not sure I can give an answer to that at this point in time.

PN189

Obviously, it would simply be a matter this afternoon of getting hold of him and then seeking his views and then him communicating that to the other parties but at this stage I can’t say one way or the other. I wouldn’t like to think that I’ll go back to the office and commit him to a process that he’s not comfortable with for a number of reasons.

PN190

THE SENIOR DEPUTY PRESIDENT: Perhaps what I’ll do is - perhaps the most convenient way to deal with it is for me to issue the notice of listing for the two weeks commencing 17 November and incorporating in there the directions adjusted according to the extra time that’s available and giving parties liberty to apply so that if you wish to or your principal wishes to make further submissions in relation to that, they can make an application for that purpose.

PN191

MR SWINBOURN: Thank you, your Honour.

PN192

THE SENIOR DEPUTY PRESIDENT: Is that convenient for you, Mr Rawson?

PN193

MR RAWSON: Yes, your Honour.

PN194

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Very well. Thank you for your attendance this afternoon, I’ll issue - - -

PN195

MR SWINBOURN: Just one - sorry, Senior Deputy President. The minute of directions wasn’t agreed between the parties. There remains the issue of the notice to admit facts. We don’t agree with that being included as part of the directions and as I understood, that was why this matter was listed today. So we would like that to be removed from the directions and that would be point 2 of the applicant’s proposed minute of directions, being:

PN196

The applicant have leave to serve on the respondents a notice to admit facts.

PN197

We would like that to be deleted in its entirety. We don’t believe - if you would like me to make submissions as to why we believe that - - -

PN198

THE SENIOR DEPUTY PRESIDENT: Yes.

PN199

MR SWINBOURN: We don’t quite frankly believe that it’s necessary in this matter for such a technical and legalistic requirement as a notice to admit facts to be included. And of course it’s trite for me to say this but the Commission is meant to proceed on the basis of not having regard or without legal technicalities in forms and a notice to admit facts, in my experience, is an unusual matter to have particularly when the parties have agreed to provide the Commission with an agreed statement of facts as well as witness statements, and witness statements in response.

PN200

We would simply say that it’s unnecessary and it’s unfair. The burden that it places on us is much greater obviously than it places on the applicant. It will involve more time and cost for us and also it has the possibility of us having - it’s more prejudicial to us than it is - the simple fact remains that the onus rests on the applicant to make its case. It’s not for us to correct any defects in its case by having the requirement to admit facts. We think that the process that’s laid down without having the admission of facts would put the applicant in the position where it will know the case that it has to prove at the time of hearing and that, as I say, it’s unnecessary to go down the path of formally requiring us to admit certain facts as the respondent.

PN201

So, as I say, in my experience - and it may not be your experience, your Honour - but in my experience it’s unusual in the Commission to have a requirement to admit facts. It’s something that’s more akin to proceedings in the Federal Court where the respondent - the applicant may be more familiar but, as I say, in the Commission it’s not generally a matter that’s issued - the parties generally proceed on the basis of agreed facts. Obviously any facts that aren’t agreed are matters that need to be proved before the Court.

PN202

That’s where we’re coming from and, as I say, we just don’t think it’s necessary. It’s overcomplicating the proceedings making it more technical, more legal which is not necessary in this matter.

PN203

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Rawson? Is there going to be an agreed statement of facts? I notice that’s - - -

PN204

MR RAWSON: There are probably two broad things I need to say to that, your Honour. The first is that there is no agreement that the parties will file a statement of agreed facts. On the contrary, the applicant proposes to file a notice to admit facts. The respondent proposes that in lieu of that there be leave for the parties to file and serve a statement of agreed facts. We don’t agree to that course.

PN205

The second point to make is essentially to acknowledge that what we do propose is an unusual course and indeed we have thought long and hard about it before seeking it because of the fact that it’s an unusual course. I can indicate that the range of - the broad range of matters which the applicant seeks to deal with by way of a notice to admit facts are facts that we would expect to be uncontentious about more or less threshold matters relating to this application such as, for example - and certainly this will be the first of the facts that we’d propose to have admitted - that the CFMEU is an organisation registered under schedule 1 of the Workplace Relations Act.

PN206

We would also - we also envisage including in such a document facts about which officials of the CFMEU were employees of the CFMEU on certain dates and which of them held entry permits at certain times under the Workplace Relations Act. Obviously, under any notice to admit procedure, whether in the Federal Court or in this Commission or in any other forum, they do not merely as a device in service operate so as to bind the other party in any fashion. And certainly with the open - in our direction foreshadows, that the CFMEU would be able to not admit any fact in our notice to admit simply by serving notice of that non-admission. With that obvious - - -

PN207

THE SENIOR DEPUTY PRESIDENT: Sorry, just bear with me. What’s the consequence though in this jurisdiction of not admitting facts?

PN208

MR RAWSON: The only consequence that we can apprehend, and I’ll be frank and this is the reason, in essence, behind the desire to seek it, is that the theoretical or potential consequence under section 824, if an unreasonable refusal to admit resulted in our client incurring unnecessary expense unreasonably. By way of example, if we were forced to go to the trouble of searching the CFMEU’s returns or to serve notice to issue summonses for taxation records to prove the employment of various officials and in due course were all duly approved, that might - and ultimately it’s a matter for your Honour - be the sort of thing that might amount to an unreasonable refusal to admit.

PN209

Clearly, it’s unlikely that refusal to admit that certain words were said on certain days or that certain things were done within certain person’s actual or ostensible authority, are not the type of admissions that are likely result in your Honour exercising your discretion in that way. And it’s not our intention to seek to drastically cut into the length of the proposed hearing by pursuing admissions of that nature.

PN210

Obviously, there would be little point in doing so because it would be open to the respondents to dispute those admissions and in the event that we were successful in proving some of those facts there would be very little likelihood of any cost implications flying from that. The obvious intent of such a document is exactly the intent that we seek, to avoid the need to go to trouble and expense of pursuing simple straightforward facts that we don’t expect to be in dispute, most of which are peculiarly - well, perhaps not peculiarly but at least centrally in all the respondents rather than the applicants.

PN211

THE SENIOR DEPUTY PRESIDENT: Mr Swinbourn, did you want to say anything else in response to that?

PN212

MR SWINBOURN: Well, only to the extent that in this jurisdiction my experience is that a statement of agreed facts is - I mean, the union is a professional organisation. It employs lawyers and industrial officers of a professional nature. We would obviously cooperate with ABCC to the extent necessary to make sure that this matter runs efficiently. There’s been nothing being presented to suggest that we wouldn’t cooperate with the preparation of an agreed statement of facts which would be normal course of conduct. What mister - my learned friend seems to be referring to in relation to the need to do this, is that somehow we won’t cooperate and therefore will result in them incurring unnecessary costs.

PN213

We run the risk, if we behave that way of them making application under the Act, obviously for those costs. If at the end of the day they have to prove them and that’s the risk that we - and the burden that rests with us. So they’re not without a remedy if at the end of the day we don’t cooperate. But I would suggest that there’s reason to form that assumption. We’ve cooperated with this matter at the professional level that we’re expected to and as officers of the Commission and, as I say, I don’t think there’s anything necessary in this matter, or special about this matter that would require them being - given the ability to make us admit particular facts in the fashion that’s been described.

PN214

We simply prepare the statement of agreed facts, the kind of things that Mr Rawson has mentioned, the kinds of things that are normally agreed to in the course of these proceedings. As I say, I couldn’t see any special reason as to why they should be entitled to get the order - the direction that they’re seeking in this particular matter.

PN215

THE SENIOR DEPUTY PRESIDENT: Has the applicant sought from the union any agreement as to facts at this stage?

PN216

MR SWINBOURN: No.

PN217

MR RAWSON: Not at this stage, your Honour, no.

PN218

THE SENIOR DEPUTY PRESIDENT: Given the amount of time that’s available what I’m going to do - I won’t make a direction that the applicant serve a notice to admit facts but if - just bear with me a moment.

PN219

If by the date on which I determine that the respondent is to file its material, that is, its witness statements, there has not been an agreed statement of facts reached or agreed between the parties, then the applicant has liberty to apply for the direction that it may or have liberty to serve a notice to admit facts.

PN220

MR RAWSON: Yes, your Honour.

PN221

THE SENIOR DEPUTY PRESIDENT: All right.

PN222

MR SWINBOURN: Thank you, your Honour.

PN223

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Anything else?

PN224

MR RAWSON: No, your Honour.

PN225

THE SENIOR DEPUTY PRESIDENT: Thank you. The matter is adjourned.

<ADJOURNED UNTIL MONDAY 17 NOVEMBER 2008 [4.24PM]