C2008/2572, Transcript of Proceedings [2008] AIRCTrans 416 (6 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18719-1

VICE PRESIDENT LAWLER

C2008/2572

s.120 - Appeal to Full Bench
Appeal by Turville, Genevieve
(C2008/2572)

SYDNEY

10.35AM, MONDAY, 30 JUNE 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN SYDNEY

PN1

THE VICE PRESIDENT: This is a mention in matter number C2008/2572, section 120 appeal to the Full Bench appealed by Genevieve Turville. This is a mention that's being conducted by telephone. It's being reported by Legal Transcripts. Present on the line apart from myself is Mr Andrew Freer of KJB Law. You are there, Mr Freer?

PN2

MR A FREER: I am, thank you.

PN3

THE VICE PRESIDENT: And Mr Luke Connolly, of Clayton Utz. You're there, Mr Connolly?

PN4

MR L CONNOLLY: Yes, I am.

PN5

THE VICE PRESIDENT: Thank you. Mr Connolly, I've received a letter by email of today's date raising various matters.

PN6

MR CONNOLLY: Yes.

PN7

THE VICE PRESIDENT: Making a submission that the appeal should be dismissed on the papers. Mr Freer, have you seen that correspondence?

PN8

MR FREER: I've received that correspondence this morning.

PN9

THE VICE PRESIDENT: Okay, fine. Mr Connolly, if I can just raise a couple of matters in relation to correspondence. I understand the points you make in paragraph (a) are that there has not been strict compliance with rule 13(1) with the introductory words where it refers to a paginated appeal book, and rule 13(1)(d) where you rely upon the requirement that each document was an exhibit or written submission in the proceedings and relates to the grounds of appeal. In respect of paragraphs (b) and (c) they both deal with the question of leave. Whilst leave is a requirement specified by section 120 perhaps you can draw my attention to any part of the rules that requires the notice of appeal to address the question of leave.

PN10

MR CONNOLLY: Look, your Honour, maybe not so much that the rules require it, but certainly as I understood it, the notice of appeal must give reasons for leave in so much as the Act, that the Full Bench must hear reasons for why leave ought be granted and it should at least at first instance be documented on the appeal notice.

PN11

THE VICE PRESIDENT: Before deciding how the Commission should deal with the correspondence, I just want to make sure though I understand the basis upon which each of the matters is put. The letter intends that the notice of appeal is defective and I'm asking you whether or not there's any particular rule or provision that you rely upon? Was it - - -

PN12

MR CONNOLLY: Not precisely with respect to the notice not containing leave with respect to any rule. Only that the provision of the Act. I'm relying on the Act, your Honour.

PN13

THE VICE PRESIDENT: Fine. And in relation to grounds (3) and (4), I understand that you would say, I suppose, in a compendious fashion there, those grounds are embarrassing because they're so lacking in particularity and you don't know what case it is you have to meet in the appeal.

PN14

MR CONNOLLY: Yes, your Honour.

PN15

THE VICE PRESIDENT: Then in relation to the final point, you rely upon rule 13(2), I take it, in respect of time frames, that's the filing of an appeal "must be instituted within 21 days after the date of the award, order or decision appealed against"?

PN16

MR CONNOLLY: Yes. What we say is because the appeal notice is an appeal book were not filed as required by the Act that now it is out of time.

PN17

THE VICE PRESIDENT: Well, the decision was made ex tempora on 3 June. The order was made on - - -

PN18

MR CONNOLLY: If I can assist, your Honour, I think the order was 3 June.

PN19

THE VICE PRESIDENT: I'm sorry, I've got the wrong date for the ex tempora decision. 23 or 24 May?

PN20

MR CONNOLLY: Yes. It was a Friday before 3 June, so bear with me, your Honour.

PN21

THE VICE PRESIDENT: I've closed down the file note.

PN22

MR CONNOLLY: I think it was Friday - - -

PN23

THE VICE PRESIDENT: It's either the 23rd or the 24th.

PN24

MR CONNOLLY: My assistant will help.

PN25

MR FREER: I can possibly assist. I think it was the 23rd, your Honour, 23 May.

PN26

MR CONNOLLY: Yes, 23 May, that's correct. 23 May was the ex temp decision of his Honour.

PN27

THE VICE PRESIDENT: Order is 3 June, notice of appeal filed on 23 June. It wasn't served at that time but that's the time it was filed.

PN28

MR CONNOLLY: Yes.

PN29

THE VICE PRESIDENT: And sub-rule (2) of rule 13 talks about an appeal being instituted within 21 days. My provisional view is that that's a reference to the filing of the appeal rather than the service of the appeal and it would seem the appeal was instituted within 21 days of the making of the order. Now, I suppose you've got a technical point available to you that the extent of the appeal challenges the decision as well as the order which is outside the time. You say there's been no application to extend time. I need to hear from Mr Freer as to whether or not in fact there would need to be an extension of time. I suppose technically there's no availability for the extension of time in respect to the decision as distinct from the order, and then whether or not such an application was made ..... necessary. Do you really want to press this, Mr Connolly?

PN30

MR CONNOLLY: Look, your Honour, to be honest I think I'd be - no, is the answer. I'm not going to press the point that the appeal note was defective. What I did want to do is bring all these things to your attention, your Honour, but what I'm more interested in, get down to the bare bones, is some particulars of the appeal notice, your Honour.

PN31

THE VICE PRESIDENT: I just want to be clear precisely about what's happened, because there was a confusion of language there, at least in my mind. You're not pressing any point based upon the timing of the filing of the notice of appeal?

PN32

MR CONNOLLY: I'm not going to press the timing of the appeal notice. I've brought to the attention of the Commission, what I'd like to see, your Honour, is an appeal book served on us that is in the appropriate form and particulars of the appeal notice. That is just so vague that we can't at this stage even answer it.

PN33

THE VICE PRESIDENT: Okay. I will deal with each of those matters, but in terms of the submission that the appeal should be dismissed on the papers I take it that falls along - - -

PN34

MR CONNOLLY: We do not press that, your Honour, to make that perfectly clear.

PN35

THE VICE PRESIDENT: Okay, fine. Now, Mr Freer, it's perfectly reasonable for the respondent to want to know, in case it is that it has to meet on the appeal, my view is that grounds (3) and (4) are not adequately particularised and if they need to be particularised, therefore there'll need to be a direction for the filing of a notice of appeal that provides appropriate particulars.

PN36

MR FREER: Yes, your Honour.

PN37

THE VICE PRESIDENT: And it seems to me in any event there's going to need to be comprehensive written submissions in this particular case because of the nature of the grounds of appeal. Do you have any difficulty with that?

PN38

MR FREER: No.

PN39

THE VICE PRESIDENT: Fine. Now, there's also the issue of evidence. Ground (1) contains a series of paragraphs that assert denial of procedural fairness by reference to things that were done in the conduct of the hearing. Now, it's not necessarily clear to me that that will necessarily - sorry, start that again. It's not clear to me that it would necessarily be adequate just to be relying upon the transcript. It may well be that there's need for some evidence in relation to some of the particulars that are relied upon in respect of ground (1).

PN40

MR FREER: Yes.

PN41

THE VICE PRESIDENT: Have you turned your mind to that?

PN42

MR FREER: I have. I suppose the difficulty from our perspective is that our firm is not currently in possession of a number of the documents which were either exhibited or which were the subject of communications between the applicant and the Commission at that time.

PN43

THE VICE PRESIDENT: Was that some practitioner was exercising a lien over the documents or is that because the, whatever your client said, is unable to supply you with them?

PN44

MR FREER: At this stage that's the difficulty. There are some documents which we simply don't have access to through our client.

PN45

THE VICE PRESIDENT: Do you have the file from the previous practitioner, Mr Stoltz?

PN46

MR FREER: I don't, although I believe his involvement was limited in the sense that his primary instructions were to attend and seek an adjournment of the hearing. The documentation which he refers to in the transcript appears to be documentation which was exchanged prior this involvement in the matter. So I don't at this stage anticipate that his file will be of significant - - -

PN47

THE VICE PRESIDENT: Presumably you've asked your client where the documents are.

PN48

MR FREER: That's right.

PN49

THE VICE PRESIDENT: Does she have them?

PN50

MR FREER: I don't believe she has all of them. I was - - -

PN51

THE VICE PRESIDENT: I'm just - again - - -

PN52

MR FREER: My approach subject to any comments your Honour may have was to seek the indulgence of the Registry to produce some of those documents which were tendered or which were produced to the Commission as a part of that preliminary exchange of documentation, but pending today's directions hearing, I hadn't taken the step of doing so.

PN53

THE VICE PRESIDENT: Mr Freer, the original file still hasn't arrived in my chambers. It's en route from Senior Deputy President Kaufman's chambers.

PN54

MR FREER: Yes.

PN55

THE VICE PRESIDENT: So do I understand what you're asking is to be able to get hold of the documents you need from the original Commission file, the file below?

PN56

MR FREER: I think that's correct, but at this stage, again subject to any comment, it may be that access to both the exhibits and to some specific correspondence which was exchanged between the claimant and the Commission that that may be the most practical way of filling in the gaps and the documentation that my friend is referring to.

PN57

THE VICE PRESIDENT: The appeal is going to be listed on 6 August which is about just over five weeks away. You're going to need to get hold of those documents. You're going to need to deal with producing them - I'll come back to the appeal book in a moment. The appeal books have to be addressed in some fashion to determine.

PN58

MR FREER: Yes.

PN59

THE VICE PRESIDENT: You're going to need to put on any evidence that you wish to rely upon in addition to that which is formerly part of the record already, the transcripts and the exhibits and submissions that were handed to the Senior Deputy President and you're going to need to do written submissions. Then the respondent has got to have a reasonable opportunity to deal with all that material on the spot. I'm afraid the pressure is going to have to be on your side rather than the respondent's side.

PN60

MR FREER: Yes.

PN61

THE VICE PRESIDENT: Now, if you had until Wednesday the 17th - - -

PN62

MR CONNOLLY: Your Honour, I beg your pardon, can I cut across for one moment just before you make those orders - - -

PN63

THE VICE PRESIDENT: No, I wasn't - - -

PN64

MR CONNOLLY: Sorry, before you arrange dates then.

PN65

THE VICE PRESIDENT: No, I wasn't proposing to make any directions. I was just exploring what can be agreed and I was starting with Mr Freer and I was going to come to you, but if you've got - - -

PN66

MR CONNOLLY: Yes. It's just that my counsel is unavailable who was counsel at first instance, so I'm very keen to use him again. He's unavailable on 6 August.

PN67

THE VICE PRESIDENT: What about the 7t?

PN68

MR CONNOLLY: No, he's not. He's on holiday with his family and he's advised me he cannot change. He's available after 13 August. In fact I've got all the dates that my principle instructor and my counsel are not available. I ask for the indulgence of the Commission. I apologise for any inconvenience.

PN69

THE VICE PRESIDENT: Mr Freer, are you proposing to brief Dr Spry?

PN70

MR FREER: That's correct.

PN71

THE VICE PRESIDENT: Do you have available dates for Dr Spry?

PN72

MR FREER: Look, I was given an informal indication that 6 August was a date that was contemplated by the Commission and I've obtained his availability on that date, but I haven't more generally obtained his dates. So I apologise for that. I have got a call into him this morning to speak more broadly about his availability but I would just need to follow that through to confirm his broader availability and I have no difficulty with my friend's position on the question of his counsel that was used in the original proceedings.

PN73

THE VICE PRESIDENT: There's a small practical difficulty at this end in that the President sets up a series of Full Bench rosters and then allocates matters. He sets them up well in advance, at the beginning of each year and at the end of each year for the 12 months following and then he allocates matters to those rosters, and so the members who are constituting the Bench keep that time free and if the 6th and the 7th were rostered dates for this particular Bench, whilst it's open to us to move it to a different date, I'm happy to follow the parties. That's going to involve finding a time that's convenient to the three members of the Bench as well or when the three members of the Bench are available. So it's not going to be possible to set a date now about some further consultation if the other members of the Bench with the parties.

PN74

Now, Mr Connolly, first of all, who is your counsel?

PN75

MR CONNOLLY: My counsel is Nick Harrington.

PN76

THE VICE PRESIDENT: And what's Mr Harrington's available dates?

PN77

MR CONNOLLY: Well, he's given it to me the other way, his unavailable dates. His unavailable dates are 26 July to 10 August inclusive.

PN78

THE VICE PRESIDENT: Yes, okay.

PN79

MR CONNOLLY: There's 23 and 25 July, I'm sorry, he's also not available. So 23 to 10 August, not available, and then 11 and 12 and 13 August not available and 20 and 28 August not available and 10 September not available, and that's it.

PN80

THE VICE PRESIDENT: Okay, fine. Can I just ask about venue for a moment. The matter was filed below, it was filed in Tasmania and heard in Launceston. The notice of appeal has been filed in Canberra. Is Canberra the preferred venue of the applicant, Mr Freer?

PN81

MR FREER: Dr Spry is located in Queensland. It's envisaged that we would certainly have no objection to Canberra or Sydney as venues and then subject to either views of the Commission or my friend about venue, I think our submission on venue would be that if it was more convenient to the Commission, and that was preferred and Sydney was an appropriate venue, that would be suitable, or alternatively Canberra if that was suitable to the Commission.

PN82

THE VICE PRESIDENT: Mr Connolly, you're Melbourne based. Is Mr Harrington Melbourne based as well?

PN83

MR CONNOLLY: Yes, he is. Our preference on my instructions are that either Launceston or Melbourne.

PN84

THE VICE PRESIDENT: Where is the applicant residing these days, Mr Freer?

PN85

MR FREER: She's still located in Launceston.

PN86

THE VICE PRESIDENT: Now, if you turn your mind to evidence in respect of round one, in terms of any oral evidence that you would be seeking to lead, seeking leave to lead, and you have leave to lead the evidence, but is that confined to evidence from the applicant?

PN87

MR FREER: I'd expect so and it may even be that we are relying on that which flow from the documentation rather than seeking leave to call the applicant for that purpose. That's the thinking at the moment.

PN88

THE VICE PRESIDENT: Well, all I can - that just underscores the need for comprehensive submissions on this particular point because the respondent may wish to call evidence.

PN89

MR FREER: Yes.

PN90

THE VICE PRESIDENT: Depending upon how you put the matter and the material that you seek to rely upon. So I just want to be mindful that even if you don't seek to put in any witness evidence, it may be that the respondent may choose to do so, or may seek to do so.

PN91

MR FREER: Yes.

PN92

THE VICE PRESIDENT: Okay. So we have Mr Harrington unavailable dates as of the end of last week. We don't have Dr Spry's available dates and I don't know the available dates of the other members of the Full Bench. What I'm going to try and do is to find a time that would be before that first block of unavailable dates. So before 24 July. Now the 6th and the 7th were no good for Mr Harrington either, were they, Mr Connolly? 6th and 7th - I'm sorry, I'm confused.

PN93

MR CONNOLLY: I'm sorry, are you there, your Honour?

PN94

THE VICE PRESIDENT: No, that's fine, that's fine. Is 16 August - sorry, 15 August, that's a Friday, that would be suitable for - that's not on Mr Harrington's unavailable dates?

PN95

MR CONNOLLY: 15 August is fine, your Honour, from our end.

PN96

THE VICE PRESIDENT: Yes, and the following Tuesday, 19 August. So why don't we try for those as two dates that Mr Spry is available and the other members of the Bench are available and it will be or other of those two dates.

PN97

MR CONNOLLY: Yes.

PN98

THE VICE PRESIDENT: If we need to go to other dates I'll have my associate contact the parties by phone and work it out informally that way.

PN99

MR CONNOLLY: Yes.

PN100

THE VICE PRESIDENT: Now, in terms of venue, the applicant gets to select the venue where proceedings are commenced and prima facie if they commence proceedings where they're resident, that's an appropriate venue and that's what occurred in this case. The applicant has no doubt selected Canberra as the Registry in which she has sought to file the appeal because it's where you're based, Mr Freer.

PN101

MR FREER: Yes.

PN102

THE VICE PRESIDENT: But I don't know that the applicant gets to choose the venue for the appeal at her wish, but unless you're agreeable to Melbourne, it's going to need to be Launceston.

PN103

MR FREER: Right.

PN104

THE VICE PRESIDENT: In other words it's perfectly reasonable for the respondent to say that it's unhappy with - - -

PN105

MR FREER: Yes.

PN106

THE VICE PRESIDENT: They've got no particular connection beyond that where the representative for the applicant has chosen to obtain work from them. If Dr Spry is travelling then he's going to have to travel whether he's going to come to Sydney or Melbourne or Launceston. I presume it would be more cost effective from your perspective to go to Melbourne than Launceston. I don't think you'd prefer to have Launceston, saving the applicant to travel - - -

PN107

MR FREER: Yes, okay.

PN108

THE VICE PRESIDENT: What's your preference? Do you need to speak - - -

PN109

MR FREER: Would that be appropriate, if I could check those dates and respond on that issue of venue at the same time, your Honour, would that be appropriate?

PN110

THE VICE PRESIDENT: Okay, fine. If you could contact my associate about that.

PN111

MR FREER: Yes.

PN112

THE VICE PRESIDENT: Now, at this stage, Mr Freer and Mr Connolly, what I had in mind is a timetable, a directions timetable which will require the filing of amended notice of appeal which is properly particularised. Any further evidence, any evidence that the applicant would be seeking leave to lead pursuant to section 126 in connection with ground (1) and comprehensive written submissions, then a time for any evidence in reply submissions for the respondent and then any submissions in reply by the applicant and to have that timetable with an appropriate time for the respondent to deal with it, with the timetable finishing a couple of days before the hearing date. Do either of you have any comment about that?

PN113

MR CONNOLLY: No, your Honour, that seems fine to us, the respondent.

PN114

THE VICE PRESIDENT: Is that fine by you, Mr Freer?

PN115

MR FREER: Certainly.

PN116

THE VICE PRESIDENT: Okay, well, I think that - - -

PN117

MR CONNOLLY: Save for one thing, your Honour, that is a notice of appeal but also the receipt of an appeal book in the appropriate time.

PN118

THE VICE PRESIDENT: Sorry, I forgot to deal with the appeal book. Mr Connolly, I think that a practical approach needs to be taken to this in the sense that the appeal book at the moment - correct me if I'm wrong - is essentially transcript?

PN119

MR CONNOLLY: That's correct.

PN120

THE VICE PRESIDENT: And the transcript has sequential paragraph numbers from beginning to end so that it's possible to locate any page in the transcript in the appeal book quickly by reference to a paragraph number in the transcript and that it will just be a waste of an unnecessary further expense for the applicant producing multiple copies of the appeal book with pagination numbers for the purposes of bringing up any further pages in the appeal book. Now, that doesn't apply to what will be come effectively a supplementary appeal book in respect of the exhibits and submissions that the applicant is going to need to put before the Commission and serve on the respondent.

PN121

So, Mr Freer, it's going to be necessary for you in a supplementary appeal book which will contain the additional documents that need to be before the Bench to make sure that that's paginated and appropriate copies available.

PN122

MR FREER: Yes, that's understood.

PN123

THE VICE PRESIDENT: Now, Mr Connolly, do you want to raise any objection to that course?

PN124

MR CONNOLLY: Thank you for that, your Honour.

PN125

THE VICE PRESIDENT: Right, fine. Now, Mr Freer, you understand that if it's not in the appeal book you're not going to get to rely upon it unless you get leave on the day?

PN126

MR FREER: Yes.

PN127

THE VICE PRESIDENT: So it's a matter for you to work out for yourself what needs to be in the supplementary appeal book and to work out what evidence you might be able to seek leave to lead with respect of ground (1), but if it's not served, then it's not going to be getting in unless there's very good reason.

PN128

MR FREER: Yes.

PN129

THE VICE PRESIDENT: And you will need leave to do that. Okay. Is there anything further that either of you needs to put on the record?

PN130

MR CONNOLLY: I'm sorry, your Honour, are you going to give dates now for submissions and outlines or is that going to be served to us?

PN131

THE VICE PRESIDENT: No. I'll issue some directions once we've got the dates set, because it may well be that those dates that I've suggested are not suitable to one or other of the members of the Bench or Dr Spry and if that is so, then we'll need to search for another convenient date and I'll have my associate do that by phone.

PN132

MR CONNOLLY: Yes, your Honour. I think the amended notice of appeal was were the particulars going to be dealt with, is that correct?

PN133

THE VICE PRESIDENT: That's right, and so there'll be a reasonably short time frame - you will get an extended period to respond because I appreciate that you'll be starting effectively from scratch once you get the amended notice of appeal, any evidence that the applicant is going to seek leave to file in the appeal and the written submissions.

PN134

MR CONNOLLY: Yes, your Honour.

PN135

THE VICE PRESIDENT: And if you've got any difficulties, obviously, with the directions then you can feel free to contact my chambers and refer the mention. But, Mr Connolly, if you've got - - -

PN136

MR CONNOLLY: Your Honour, can I seek - - -

PN137

THE VICE PRESIDENT: If you've got a properly particularised notice of appeal, comprehensive written submissions and the evidence, you should be in a position to deal with it on the 4th.

PN138

MR CONNOLLY: Yes, your Honour. Can I be so bold as to suggest that paragraph (2)(c) would need particularisation as well.

PN139

MR FREER: We'll take that on board, (2)(c).

PN140

THE VICE PRESIDENT: Well, I mean, I think there are a variety of places where there might be further particularisation in respect of ground (1), but what I had in mind was that if the comprehensive written submissions are put, it's even better than having particulars. You know precisely how the argument is put.

PN141

MR CONNOLLY: Yes, your Honour.

PN142

THE VICE PRESIDENT: And this is clearly a case that calls for - I'm in two minds as to whether the average appeal submissions are a good idea or not these days, but in this case it seems to me that it's quite important to have written submissions and that they are thorough. In other words, Mr Freer, the respondent should not be caught by surprise by an argument that's put on the day of the appeal hearing.

PN143

MR FREER: Yes.

PN144

THE VICE PRESIDENT: And the way that that occurs is to make sure - that doesn't mean that submissions need to be long, but they need to cover the points that are going to be made and if there's - you ought not assume that you're going to be allowed to put arguments that haven't been identified with adequate precision in written submissions - - -

PN145

MR FREER: Yes.

PN146

THE VICE PRESIDENT: Anything further from you, Mr Freer?

PN147

MR FREER: No. I'll endeavour to respond to your associate if that's appropriate, just with the availability and the venue issued today. If I can speak with Dr Spry.

PN148

THE VICE PRESIDENT: Okay, if you could that ASAP so we can - I mean, Mr Harrington no doubt is sitting there available like a taxi cab on the rank to take briefs and those days may disappear so if we sort this out today that will be better and I'll speak to the other members of the Bench immediately. Okay. Anything further from you, Mr Connolly?

PN149

MR CONNOLLY: No. Many thanks for your time, your Honour.

PN150

THE VICE PRESIDENT: That's fine. That concludes this telephone mention.

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