C2008/2572, Transcript of Proceedings [2008] AIRCTrans 432 (6 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18852-1

VICE PRESIDENT LAWLER

C2008/2572

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

SYDNEY

10.09AM, THURSDAY, 24 JULY 2008

Continued from 30/6/2008

Hearing continuing

PN151

THE VICE PRESIDENT: Mr Connolly, you’re on the line on behalf of the respondent; is that correct?

PN152

MR L CONNOLLY: That’s correct.

PN153

THE VICE PRESIDENT: Ms Turville, you’re on the line as well; that’s correct?

PN154

MS G TURVILLE: Yes I am.

PN155

THE VICE PRESIDENT: Thank you Ms Turville. The situation that we’re in at the moment is that at the last directions hearing a timetable was set with formal directions being issued on 4 July, which required the filing of evidence by the appellant, an amended notice of appeal, and any evidence that leave would be sought to rely upon in respect of the procedural fairness ground by 27 July; with submissions from the respondent and any evidence in reply that it was seeking to file, also to be filed by 14 July.

PN156

Any outline of submissions and evidence in reply from the appellant, you Ms Turville, was to be filed by 19 July with a hearing - sorry, 19 August. Let me start that again, I’m sorry, I’ve got my dates wrong.

PN157

So the formal directions were issued on 4 July. They required the appellant’s material by the 22nd, the respondent’s materiel by 14 August, the appellant’s reply material by 19 August, with an appeal listed for 21 August.

PN158

Ms Turville, your solicitors filed a notice of ceasing to act dated 14 July 2008. It was received late in the evening on 14 July 2008, and my associate contacted you the following day to make sure that you had a copy of the directions, and that you were on notice that there was a need to comply with them, notwithstanding the withdrawal of your solicitors.

PN159

There has been no compliance with the first step in the timetable and I notice that the respondent has sent, or has copied us in to correspondence to you, threatening to move to have the appeal summarily disposed of in the event that you haven’t filed material by 12 noon today.

PN160

Now there are particular circumstances that attend this listing which motivated the note in the directions. Ms Turville, are you familiar with that note in the directions.

PN161

MS TURVILLE: I’ve got the directions in front of me.

PN162

THE VICE PRESIDENT: Do you see the item number four?

PN163

MS TURVILLE: Item number four.

PN164

THE VICE PRESIDENT: Yes, “The Commission notes the listing of this appeal has been postponed to allow both parties to be represented by their counsel of choice”.

PN165

MS TURVILLE: Yes.

PN166

THE VICE PRESIDENT:

PN167

Particular circumstances attending that postponement make it necessary to require the filing of full written submissions. The above directions are intended to ensure that each party is fully appraised of the evidence and arguments that the other party will seek to lead or advance, so as to exclude as far as possible the need for an adjournment. In the absence of exceptional circumstances, neither party will be permitted to lead evidence or raise arguments that have not been disclosed in accordance with these directions.

PN168

Do you see that?

PN169

MS TURVILLE: Yes.

PN170

THE VICE PRESIDENT: Okay. Now if the Commission gives effect to that note you are presently, as we speak, in the position where you’re going to need to demonstrate exceptional circumstances in order to be permitted to lead any evidence or raise any arguments at all in the appeal.

PN171

MS TURVILLE: Yes.

PN172

THE VICE PRESIDENT: I understand the position to be, in terms of what you have conveyed to my associate, that the problem that you’ve got is payment of your solicitors.

PN173

MS TURVILLE: Yes.

PN174

THE VICE PRESIDENT: The solicitors are not prepared to do further work on the matter and neither is counsel unless and until a particular payment has been made.

PN175

MS TURVILLE: That’s correct.

PN176

THE VICE PRESIDENT: Okay. Do you have arrangements in place, as we speak, to make a payment to them or is it going to be a case of you needing to conduct the matter as a self-represented appellant?

PN177

MS TURVILLE: I’ve only got today - - -

PN178

THE VICE PRESIDENT: Please, I don’t want to know about the details of what payments have to be made or what-have-you, but I want to know whether or not you have been able to make arrangements that mean you will be represented again; or is the position that you are going to have to act for yourself?

PN179

MS TURVILLE: I’ve only got enough money to pay for half of what’s required.

PN180

THE VICE PRESIDENT: So you’re going to have to act for yourself?

PN181

MS TURVILLE: Yes.

PN182

THE VICE PRESIDENT: Mr Connolly, I understand that the respondent is seeking to take a fairly aggressive approach to this matter and that it would be within the respondent’s rights to seek to have the appeal summarily disposed of, as you have threatened. However it seems to me that at first blush the particular circumstances are such that Ms Turville would find herself attracting some sympathy from a Full Federal Court, in the event that that was a course the Commission pursued.

PN183

That first blush assessment is what has motivated the listing of this mention this morning, because it seems to me that the appropriate course is to re-jig the timetable, to give Ms Turville another chance to put on an outline of submissions and any evidence that she is minded to seek to rely upon in respect of the procedural fairness grounds, in order to dispose of the matter fairly.

PN184

MR CONNOLLY: Your Honour, I think that’s a fair assessment. I can’t cavil with that.

PN185

THE VICE PRESIDENT: Okay.

PN186

MR CONNOLLY: However can I just say that our position would be that she be given only a few more days as a second chance and that if we can please retain that 21 August date.

PN187

THE VICE PRESIDENT: I understand the desirability of retaining the 21 August date.

PN188

Ms Turville, what wasn’t specifically noted or made explicit in the directions, there was no specification of the reasons for the importance of maintaining the timetable. One member of the Bench has a commission that expires a week after 21 August and therefore if the appeal is to proceed on 21 August, the decision has to be made and reasons given within a week.

PN189

Now there is the possibility of seeking to have the President reconstitute the Bench for a third time, not a second time but for a third time, and I am not averse at all to asking the President to do that if it’s appropriate. But another member of the Bench is on a long-planned month’s leave between a date shortly after the appeal and another month, which is going to take us into October.

PN190

MS TURVILLE: Right.

PN191

THE VICE PRESIDENT: There are other problems that are attendant upon a postponement that I don’t need to go into, and specifically - - -

PN192

MR CONNOLLY: Your Honour, can I suggest we’re happy for our timetable, the time we have to prepare, to be shortened.

PN193

THE VICE PRESIDENT: Mr Connolly, if I can just come back to you. I understand you’re an experienced practitioner; Ms Turville is not, and you understand what’s what in relation to the practicalities of programming matters and if I can say so with respect, fully expect you to be a professional competent, reasonable in all of this; and I’ve not doubt that’s what you’re going to be.

PN194

MR CONNOLLY: Indeed, your Honour.

PN195

THE VICE PRESIDENT: Having been a practitioner myself in the past, I have an understanding of what is involved for you and for your counsel in terms of dealing with this particular matter. I was just wanting to explain to Ms Turville so she understood the practical circumstances that bore upon the disposition of the matter from the Commission’s perspective.

PN196

So Ms Turville, problem number one is the expiry of the commission of one member of the reconstituted Bench. That problem can be overcome by having a third reconstitution - sorry, a further reconstitution. The second problem is the long-planned leave of another member of the Bench, which would force an October hearing date. The third problem is award modernisation commitments that I have which are particularly heavy as the end of the year approaches.

PN197

From what you’ve said, Ms Turville, we’re going to have to proceed upon the basis that you’re not going to be represented by lawyers, and that therefore you need to, yourself, prepare a document which is going to articulate adequately the grounds of appeal; your identification of the precise errors that you say SDP Kaufman made.

PN198

MS TURVILLE: Yes.

PN199

THE VICE PRESIDENT: And your outline of arguments. I understand that that’s a forbidding and imposing task for a litigant in person, but unfortunately that’s just the harsh reality that you face. We do not have a comprehensive legal aid system in this country.

PN200

MS TURVILLE: I know.

PN201

THE VICE PRESIDENT: Legal services are expensive. If you can’t afford them, you can’t afford them, but you can appear in person and you can expect to receive sympathetic treatment in terms of the Bench not holding against you your inability to articulate, you know, in a precise legal form what your complaints are about SDP Kaufman’s decision.

PN202

Now what I want to do is to be able to set a time now for you to file an outline of argument in which you’re going to specific, with sufficient precision for the respondent to know the case that it has to meet, what you say is wrong with SDP Kaufman’s decision.

PN203

Mr Connolly, whilst the previous directions had required full written submissions, I don’t think it’s realistic to expect that of a litigant in person, but I think it is essential - and I’ll impress this upon Ms Turville - that there be an express articulation of each of the precise errors that are said to have been made and an outline of why each of those precise alleged errors is said to be an error. Do you have any objection to that course, Mr Connolly?

PN204

MR CONNOLLY: Well I mean we’re in your hands, your Honour. We’re in the circumstances that we’re in. Can I just say - - -

PN205

THE VICE PRESIDENT: Can I say, Mr Connolly, in the event that you find yourself - I mean, fairness is a two-way street here. The Commission has an obligation to accord procedural fairness to both parties and that includes the respondent, and merely because the respondent has the capacity to be legally represented, Ms Turville, does not mean that it’s not entitled to be treated fairly as well.

PN206

MS TURVILLE: Yes.

PN207

THE VICE PRESIDENT: If the respondent is taken by surprise then it must have an adequate opportunity to deal with it. If we’re to hold the 21 August haring date, which it seems to me is necessary in all the circumstances, then you must not be raising arguments that arise for the first time on the day of the appeal. The respondent has to know about them beforehand, otherwise it doesn’t have a fair opportunity to deal with them.

PN208

So Mr Connolly, we will make sure that there is an opportunity provided for the respondent to deal with arguments that are raised and I’m seeking - - -

PN209

MR CONNOLLY: Thank you, your Honour. I do have further things to say on the timetable when - - -

PN210

THE VICE PRESIDENT: No, well we haven’t actually got to the precise form of the timetable yet. I’m simply proposing something at the moment.

PN211

MR CONNOLLY: Thank you, your Honour.

PN212

THE VICE PRESIDENT: I wanted to get your agreement, if you were prepared to give it, that instead of requiring full written submissions it would be an outline document of the sort that I’ve described.

PN213

MR CONNOLLY: Yes, your Honour, we agree to that.

PN214

THE VICE PRESIDENT: Fine, okay. So Ms Turville you’re not going to be required to file full written submissions, but what you are going to be required to do is to prepare a document which identifies with precision each of the errors that you say SDP Kaufman has made, and a brief outline as to why you say what you allege as an error is in fact an error. Do you understand that?

PN215

MS TURVILLE: Yes.

PN216

THE VICE PRESIDENT: Okay, fine. We are in a situation where the appeal is listed for 21 August. It is presently today 24 July. There are four weeks between now and the hearing of the appeal.

PN217

Mr Connolly, what I would like to do is to give a proportionately greater period to Ms Turville to prepare her material, than to you the respondent. My thinking on this is that a party who is represented by a firm which has the standing of your firm, by a solicitor who is as competent as you are, with competent counsel, is going to be able to prepare a response to material prepared by a litigant person much more expeditiously than the litigant is going to be able to prepare their material.

PN218

So I think that given the withdrawal of Ms Turville’s legal representatives the better course is to give Ms Turville at least two weeks, and perhaps even a little more than that, to prepare her material; and then give you a relatively shorter period, just over a week to prepare your material.

PN219

MR CONNOLLY: Well your Honour I’m in your hands, but I must object to that for these reasons; we’ve been through all of this before with this applicant. Ms Turville has had from 4 July to 22 July. We have had no information, letter, correspondence at all from her to say that she has had any issue with the timetable.

PN220

THE VICE PRESIDENT: No doubt, Mr Connolly, she has believed, up until the time when the solicitors pulled the pin, if I could put it that way, that it was in their hands and that they would do whatever needed to be done. In any event, that was the first aspect of your objection to the course I was suggesting.

PN221

MR CONNOLLY: I just think it’s too long, given she’s had this time, and a week for us puts us under some pressure. It means she has had - - -

PN222

THE VICE PRESIDENT: Well it rather depends, doesn’t it, upon what is in the material that she delivers. It may be material that you can deal with very expeditiously or it may create enormous headaches for you.

PN223

MR CONNOLLY: Well it could be, but in two weeks’ time we may not eve n receive anything from her again, and I just think a week is enough for her, your Honour, but I’m in your hands.

PN224

THE VICE PRESIDENT: Yes, okay.

PN225

MR CONNOLLY: She has had three weeks.

PN226

THE VICE PRESIDENT: Yes.

PN227

MR CONNOLLY: We’ve heard nothing, received nothing, and now she’s getting a further two weeks. If we get a week I just think the balance is not there, with the greatest respect.

PN228

THE VICE PRESIDENT: Look, Mr Connolly, the practical reality is this, and surely you understand it: someone in Ms Turville’s position has gone to some solicitors and given them instructions. She has, in her mind, put the problem of the preparation of material in the hands of the solicitors, ready to provide whatever instructions are necessary to enable them to do it. The circumstance has been where the solicitors have ceased to act because of the inability to arrive at suitable fee arrangements.

PN229

Ms Turville is left in a position where the solicitors will be providing her with nothing, no doubt exercising a lien in respect of whatever work they have done this far, or whatever documents they’ve produced in draft form, so that Ms Turville is effectively starting from scratch.

PN230

Ms Turville, I take it your solicitors haven’t provided you with any documents and are not prepared to do so?

PN231

MS TURVILLE: No. I mean they’ve been really nice.

PN232

THE VICE PRESIDENT: Are they going to give you the draft documents that they were working on?

PN233

MS TURVILLE: No.

PN234

THE VICE PRESIDENT: Have you asked them for them?

PN235

MS TURVILLE: No I haven’t. I didn’t realise that I could.

PN236

THE VICE PRESIDENT: It might be more of a hindrance than a help, in any event.

PN237

MR CONNOLLY: Your Honour, the primary objective is to keep that date so I’m in your hands with respect to the timetable. I just wanted to point out that the solicitors removed themselves directly on 14 July. The only reason we’re here today is because we wrote to Ms Turville saying, “Where’s your material?” I mean, there’s been no - - -

PN238

THE VICE PRESIDENT: No, you’re here today because when the material wasn’t filed in the context of a notice of ceasing to act, I was concerned about jeopardising the 21 August date, for the reasons I’ve articulated. I had independently determined to list the matter for mention and it is a coincidence that your correspondence has arrived as well.

PN239

MR CONNOLLY: Thank you, your Honour.

PN240

THE VICE PRESIDENT: Okay.

PN241

Ms Turville, you were present during the whole of the hearing before SDP Kaufman?

PN242

MS TURVILLE: Yes, that’s correct.

PN243

THE VICE PRESIDENT: You had discussions with your former solicitors and counsel, no doubt, about the alleged errors that can be identified in SDP Kaufman’s decision and in the way in which he conducted the case?

PN244

MS TURVILLE: I approached Mr Frier because I didn’t - - -

PN245

THE VICE PRESIDENT: No, no, I’m sorry, Ms Turville I need to stop you. I don’t want you to say anything that actually passed between you and your legal advisors, okay? That’s privileged and I don’t want to know about it unless you make a free and full and voluntary choice to disclose anything.

PN246

But I just wanted to ascertain whether or not you have in fact had discussions. I don’t want to know what they are. I want to know whether you’ve had discussions with your former lawyers about the errors that could be identified in SDP Kaufman’s decision.

PN247

MS TURVILLE: No, I find it’s too technical and I read the document that they did produce and I suppose it’s quite a way, way from how I would express things.

PN248

THE VICE PRESIDENT: Okay.

PN249

MS TURVILLE: And I didn’t quite understand. I don’t understand when it’s put into legal language.

PN250

THE VICE PRESIDENT: Okay, well there’s nothing to prevent you from putting what you think are the errors in SDP Kaufman’s decision in ordinary lay language. In fact there’s a lot to be said for that. You may obviously choose to take your own advice about that, and no doubt wise people would counsel you to do precisely that, if you were able to arrange it.

PN251

MS TURVILLE: Thank you.

PN252

THE VICE PRESIDENT: But if the worst comes to the worst, using your own lay language is better than nothing; do you understand?

PN253

MS TURVILLE: Yes.

PN254

THE VICE PRESIDENT: Okay. Now Ms Turville, as I said before, fairness is a two-way street and the respondent has an entitlement to be treated fairly, as well as you. Unfortunately it’s just the fact that there is no comprehensive legal aid scheme in this country. If people can’t afford to get lawyers they may have to do it themselves.

PN255

Now I’m going to accommodate you in the sense of not holding you to the strict position that was foreshadowed in the note in the directions. But this time, with the new directions, you will need to comply. Do you understand?

PN256

MS TURVILLE: Yes.

PN257

THE VICE PRESIDENT: Okay, and if you don’t comply then in the absence of truly exceptional circumstances - you know, a car accident that leaves you incapacitated, something really serious happening of that sort - you’re at serious risk of the appeal being dismissed. So you need to make sure that you put something in by the date that’s specified.

PN258

It doesn’t need to be a full, comprehensive argument but it needs to foreshadow, with sufficient precision for the respondent to know what it has got to meet, what your arguments are in terms of each of the alleged errors that you want to rely upon in SDP Kaufman’s decision. Do you understand that?

PN259

MS TURVILLE: Yes, I understand.

PN260

THE VICE PRESIDENT: Okay, fine. Now 7 August, Ms Turville, is two weeks from today. That’s going to be the day for you to file a document which identifies the errors that you rely upon in SDP Kaufman’s decision, and the reasons why you say each of those errors should be found to be an error. I’ll be issuing some directions which will spell this out in quite simple language as to what is required.

PN261

I’ve indicated to Mr Connolly, and he doesn’t object to it, that it will be a far less onerous obligation, in terms of what you’ve got to prepare, than what is in the existing directions, bearing in mind that you are now no longer represented by lawyers.

PN262

MS TURVILLE: Thank you.

PN263

THE VICE PRESIDENT: Okay, but I just want to impress upon you the importance of getting a document in on that day. In the absence of truly exceptional circumstances, if you don’t file something on that day you are going to lose the appeal.

PN264

MS TURVILLE: Okay.

PN265

THE VICE PRESIDENT: Okay. This doesn’t need to be a document that’s 50 or 60 or a hundred pages long. It might be five pages, it might be six pages, it might be 10 pages. Basically you need to say, “This decision is affected by error. Here are the errors that I say occurred”. One, two, three, four, five, six, however many there are.

PN266

MS TURVILLE: Right.

PN267

THE VICE PRESIDENT: Then you need to say, “The reason why I say SDP Kaufman erred in relation to error 1 is this”, in summary, “and the reason why I say SDP Kaufman erred in relation to error 2 is this”, and you say it in summary.

PN268

So for example, your notice of appeal alleges that he made errors of fact. It doesn’t tell us which facts that were found were errors of fact. So the respondent needs to know that so it can counter-prepare its case.

PN269

So this document you’re going to prepare is going to say, “SDP Kaufman erred when he found fact X. He shouldn’t have found fact X, he should’ve found fact Y and here is the reason why”, in summary. Do you understand?

PN270

MS TURVILLE: Yes.

PN271

THE VICE PRESIDENT: So that document is going to need to be in by
7 August, which is two weeks from today. If you were there and heard it, and you have some sense of why you think - just a layperson’s sense of why you think SDP Kaufman’s decision was wrong - you should be able to prepare such a document.

PN272

If you are able in any way to get some further advice about what can go in such a document, even if the solicitors are not going to act on the record, then that’s something you might want to consider doing as well. You might want to consult with a legal centre, a community legal centre or the like. Or if you have some money but not enough to pay the solicitors, you might be able to find another solicitor who is able just to give you some advice; or a barrister is able to give you some advice in their office or their chambers.

PN273

MS TURVILLE: Okay.

PN274

THE VICE PRESIDENT: In any event, that’s a course that you can follow if you wish. It’s a matter for you.

PN275

MS TURVILLE: Yes.

PN276

THE VICE PRESIDENT: Mr Connolly, you will have until Monday the 18th and then the 20th at noon will be a require submission time. Ms Turville, this will all be spelt out in a document that Alicia will get to you later today.

PN277

MS TURVILLE: Thank you.

PN278

THE VICE PRESIDENT: We will keep the hearing date of 21 August. Ms Turville, is there anything that you need to say, or want to say at this point?

PN279

MS TURVILLE: No. No, thank you.

PN280

THE VICE PRESIDENT: Mr Connolly?

PN281

MR CONNOLLY: Yes, there is, your Honour.

PN282

THE VICE PRESIDENT: Yes.

PN283

MR CONNOLLY: Her document that she is going to be putting together will spell out particulars of paragraphs 3 and 4? I note that the original timetable required her to provide particulars.

PN284

THE VICE PRESIDENT: Do they? I’ll make sure that the directions require that to occur and I’ll require it in a language that Ms Turville will have no difficulty understanding.

PN285

MR CONNOLLY: Thank you, your Honour, and finally your Honour, in the directions there is that paragraph that refers to whatever is not mentioned in the outline et cetera. What I’m getting at is no ambush and no surprise on the day.

PN286

THE VICE PRESIDENT: Yes.

PN287

MR CONNOLLY: So that is everything she is going to want to say will at least be outlined in the document and there will be nothing further that we aren’t aware of, that’s adduced on the day.

PN288

THE VICE PRESIDENT: There will be an appropriate note, Mr Connolly.

PN289

MR CONNOLLY: Thank you, your Honour.

PN290

THE VICE PRESIDENT: I mean, look Mr Connolly you’ve been in cases where you have been acting for clients where things have occurred to you at the eleventh hour and one still puts it and then it’s - - -

PN291

MR CONNOLLY: Yes, I understand that, your Honour. I just meant more that that is the understanding and if there is that sort of thing then that can be dealt with on the day. But the general understanding is that - - -

PN292

THE VICE PRESIDENT: Absolutely. No, that’s fine and there will be a note to that effect.

PN293

MR CONNOLLY: I appreciate that, your Honour.

PN294

THE VICE PRESIDENT: Sorry, was there anything else from you?

PN295

MR CONNOLLY: No, your Honour.

PN296

THE VICE PRESIDENT: Okay, upon mature reflection I think I should just revisit with Ms Turville the question of evidence.

PN297

Ms Turville, just let me explain the basic lie of the land here. An appeal is ordinarily conducted exclusively on whatever was before the member below, and that’s typically confined to the transcript of the evidence, the exhibits that were tendered and marked at first instance, and whatever written submissions were handed up. So that’s the material that the Appeal Bench looks at and it looks at nothing else. Do you understand that?

PN298

MS TURVILLE: Yes, what about the document that he wouldn’t accept?

PN299

THE VICE PRESIDENT: That’s presumably something that’s referred to in the transcript.

PN300

MS TURVILLE: Right.

PN301

THE VICE PRESIDENT: Well, when you say the document he wouldn’t accept; you tried to hand the document up in a hearing and he wouldn’t receive it?

PN302

MS TURVILLE: That’s right.

PN303

THE VICE PRESIDENT: Okay, well the transcript will no doubt refer to that. I’ll use that as an example in a moment, but I just wanted to take this in an orderly fashion.

PN304

So the basic position is that the Appeal Bench is confined, in terms of what it will look at and decide the appeal on, to the decision itself, the transcript of the evidence, whatever documents were tendered and whatever submissions were handed up.

PN305

Now a Full Bench is allowed to receive fresh evidence on appeal, if it grants leave for that to occur, and there are rules governing - principles governing when fresh evidence will be received. They’re basically commonsense, okay? If it’s evidence that you didn’t have at the time, that you’ve only just discovered, that’s an example.

PN306

If it’s evidence that you couldn’t reasonably have discovered at the time of the hearing, but you’ve subsequently discovered, well that’s an example of something that will be allowed in on fresh evidence.

PN307

If things happened that are relevant to the fairness of the way the case was conducted, outside of the hearing, then you may be in a position to lead evidence about that. The Full Bench may be persuaded that evidence of that sort should be admitted as well.

PN308

The grounds that have presently been articulated by the notice of appeal prepared by Dr Spry suggested the possibility that you, or your lawyers, may have been going to call evidence about things that were said and done outside the hearing, for example, in telephone conversations with SDP Kaufman’s chambers, or in correspondence with SDP Kaufman or the Commission that never made it into evidence in the hearing.

PN309

MS TURVILLE: Yes.

PN310

THE VICE PRESIDENT: To the extent that you’re going to rely upon things that were said or done, or rely upon documents that did not find their way into evidence, you need to tell the respondent about that evidence so it’s not taken by surprise; so it has a chance to respond to it. This is a matter of commonsense, I hope you would see.

PN311

MS TURVILLE: Yes.

PN312

THE VICE PRESIDENT: So you understand that?

PN313

MS TURVILLE: Yes.

PN314

THE VICE PRESIDENT: Okay, I’ve explained that to you now but I’m going to prepare a set of directions that will explain it as well. If you’ve got any misunderstanding as to what the effect of the directions is or what they require, or you’re confused about it in any way, just give Alicia a call.

PN315

MS TURVILLE: Thank you.

PN316

THE VICE PRESIDENT: Okay, anything further from you, Ms Turville?

PN317

MS TURVILLE: No.

PN318

THE VICE PRESIDENT: Mr Connolly?

PN319

MR CONNOLLY: Yes, your Honour. The direction in the original directions allowed Ms Turville to provide evidence with respect to ground 1 and ground 1 only.

PN320

THE VICE PRESIDENT: Yes.

PN321

MR CONNOLLY: Is that still the case or are we expanding the directions?

PN322

THE VICE PRESIDENT: Mr Connolly, I must say I intended the direction, and read it, to have a slightly different effect from that which you summarised in your correspondence that you copied to the Commission.

PN323

A party has a right to seek leave to lead fresh evidence. I did not intend by those directions to curtail that right in any way. What I intended was to ensure that in respect of a topic where there was, in the nature of things, a likelihood that such evidence would need to be led if the case was to be run properly, that you were apprised of it and we weren’t faced with the situation where we needed to have an adjournment.

PN324

Those procedural fairness grounds in ground 1, several of them just say on their face, “This may be depending upon things that happened outside the hearing, either in telephone conversations with chambers or in correspondence”. I don’t know because I haven’t looked at the file and haven’t spoken to Senior Deputy President Kaufman about it. I’ve got no idea.

PN325

But it just struck me that those grounds were the sorts of grounds that may well call for that sort of evidence to be led, and the purpose of the direction in paragraph 1(ii) was to ensure that where we have an obvious candidate for fresh evidence, of the sort that ordinarily one would have leave to lead, because necessarily that sort of evidence is not going to be part of the record, that you had notice of it and that we dealt with it expressly. Now having said that, is there something you wanted to say or respond to?

PN326

MR CONNOLLY: I don’t think there’s much I can say on that, your Honour. Sorry, I think I recall on the last directions that I did ask that consideration be given by your Honour as to further particularisation of paragraphs 2B and C of her appeal notice. I notice that wasn’t in the original directions. I was wondering whether you could revisit that.

PN327

THE VICE PRESIDENT: Well I think B - no, I understand your point and you should have particulars for 2B and C and they will be incorporated into the amended directions.

PN328

MR CONNOLLY: 2B and C and 3 and 4, thank you, your Honour.

PN329

THE VICE PRESIDENT: Yes. Ms Turville?

PN330

MS TURVILLE: Yes.

PN331

THE VICE PRESIDENT: Just let me summarise to you what Mr Connolly is referring to you. I don’t know whether you have the notice of appeal in front of you, do you?

PN332

MS TURVILLE: Yes, I do.

PN333

THE VICE PRESIDENT: Okay, if you look at 2B and C.

PN334

MS TURVILLE: Yes.

PN335

THE VICE PRESIDENT: “His Honour made findings not supported by the evidence before him”. The respondent says, “Which findings?” and that’s a reasonable question. So what you need to do is to be able to say, “The findings that were not supported by the evidence were as follows, finding A, finding B, finding C”. Do you understand?

PN336

MS TURVILLE: All right.

PN337

MR CONNOLLY: With reference to the transcript.

PN338

THE VICE PRESIDENT: Yes, and then so far as C is concerned, “The overall tenor of his Honour’s remarks to the appellant during the course of the hearing, including his reprimand to the appellant”. Well the overall tenor is sort of like a global thing, but you shouldn’t imagine that the Full Bench is going to sit there during the hearing and have you read the whole of the transcript.

PN339

What that is directed towards is saying that the Senior Deputy President used certain remarks and said certain things at various times that created this flavour.

PN340

MS TURVILLE: Yes, I have that in mind.

PN341

THE VICE PRESIDENT: Okay. What the respondent wants you to say is which things, “Tell us where. Tell us the paragraph numbers in the transcript that constitute the various things that you say constitute this overall tenor and the reprimand”.

PN342

MS TURVILLE: Okay, so I shouldn’t assume everything is obvious. I need
to - - -

PN343

THE VICE PRESIDENT: Exactly. You shouldn’t assume anything is obvious. That is a really insightful way of putting it. Okay, and listen, you don’t need to write an essay on this. What they’re after is, “Here are the transcript references. Paragraph number 263, paragraph number 231, paragraph number 237, paragraph number 445”. Do you follow?

PN344

MS TURVILLE: Yes.

PN345

THE VICE PRESIDENT: Now that’s in relation to 2C. In relation to 2B, you know, “The finding that you did X. See decision paragraph number 675. Finding Y, see paragraph number 712”. Do you follow?

PN346

MS TURVILLE: Yes.

PN347

THE VICE PRESIDENT: Okay. Mr Connolly, anything further?

PN348

MR CONNOLLY: No, your Honour.

PN349

THE VICE PRESIDENT: Alicia just reminds me, Ms Turville, that same issue arises in relation to paragraphs 3 and 4. Do you see paragraph 3?

PN350

MS TURVILLE: Yes.

PN351

THE VICE PRESIDENT:

PN352

Kaufman SDP erred in dismissing the appellant’s application and his Honour made findings that were not based on the evidence before him.

PN353

Which findings do you say there is no evidence for? Then at paragraph 4:

PN354

Kaufman SDP erred in that his Honour made findings as to credit which were not reasonably open to him.

PN355

Which findings as to credit are the ones you’re attacking there.

PN356

MS TURVILLE: Yes.

PN357

THE VICE PRESIDENT: Okay?

PN358

MS TURVILLE: Okay.

PN359

THE VICE PRESIDENT: All right. Mr Connolly, anything further?

PN360

MR CONNOLLY: No, your Honour.

PN361

THE VICE PRESIDENT: Fine. Ms Turville, anything further from you?

PN362

MS TURVILLE: No thank you.

PN363

THE VICE PRESIDENT: Fine. Okay, an amended set of directions will be prepared and sent to the parties later today. That concludes this telephone mention. Thank you.

PN364

MR CONNOLLY: Thank you.

PN365

MS TURVILLE: Goodbye.

<ADJOURNED UNTIL THURSDAY 21 AUGUST 2008 [10.48AM]