C2007/3513, Transcript of Proceedings [2008] AIRCTrans 436 (8 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18883-1

SENIOR DEPUTY PRESIDENT DRAKE

C2007/3513 DR2007/283 C2007/3625 C2007/3673 U2007/376

s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Mr Ron Lever
and
Australian Nuclear Science and Technology Organisation
(C2007/3513)

SYDNEY

MONDAY, 14 JULY 2008

Continued from 23/4/2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED BY TELSTRA

Hearing continuing

PN595

THE SENIOR DEPUTY PRESIDENT: Good afternoon.

PN596

MR S JAUNCEY: Good afternoon.

PN597

THE SENIOR DEPUTY PRESIDENT: Mr Lever, I’m thinking of segmenting the hearing, having had a look at the amount of material to be considered, and a few other things in your matter. There’s also a question about your witness, who has written to me asking for confidentiality in relation to her identity, and wants an answer to that matter. You have subpoenaed her; is that true? That’s right?

PN598

MR R LEVER: I’ve submitted a form. I don’t believe I’ve got a form signed back yet. But I have submitted a form, R60 I think from memory.

PN599

THE SENIOR DEPUTY PRESIDENT: Right. Well, I don’t think there’s any difficulty in referring to a witness by a particular agreed non-specific identifying name. We can call her Ms X or Ms Y or some other, and deal with her in some fashion that protects her confidentiality to some extent. I cannot guarantee that it won’t be necessary for me in some fashion or other to deal with matters affecting her, but all I can do in relation to that matter is undertake to deal with it in a manner that, so far as I can, protects her identity if that’s what she wishes, and if the parties have no objection. I don’t think that Mr Jauncey has any objection to proceeding in such a fashion, do you Mr Jauncey?

PN600

MR JAUNCEY: No, your Honour.

PN601

THE SENIOR DEPUTY PRESIDENT: So we will decide on the day how to identify that witness and I’ll leave you to convey those matters to her.

PN602

MR LEVER: Thank you, your Honour.

PN603

THE SENIOR DEPUTY PRESIDENT: We will decide later but we will just proceed in some fashion that cloaks her identity, if that makes her more comfortable. But I don’t think it’s appropriate that I engage in that correspondence, that’s a matter for you.

PN604

MR LEVER: Fine.

PN605

THE SENIOR DEPUTY PRESIDENT: Okay? Now in relation to your application, your evidence will be proceeding first?

PN606

MR LEVER: That’s right.

PN607

THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, what do you say about how long it would take you, after Mr Lever has given his evidence-in-chief, to deal with Mr Lever’s evidence?

PN608

MR JAUNCEY: Your Honour I believe that we can deal with the cross-examination of Mr Lever, Mr Bloom and Ms Juric within probably three to four days, and certainly within a week.

PN609

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Lever, do you have anything to say about that?

PN610

MR LEVER: Well, I don’t know how long I’m going to take. I haven’t received a statement or witness statements from Mr Jauncey as yet, so I don’t know how many witnesses he’s - - -

PN611

THE SENIOR DEPUTY PRESIDENT: No, no, just deal with your evidence at the moment; it’s your case I’m timetabling.

PN612

MR LEVER: Well I think probably a week would probably see my oral evidence through, yes. There is an issue of - I have an issue in relation to ANSTO’s production of documents. I’m not quite sure how that’s going to be dealt with; whether it’s going to be dealt with in the hearing or separate to the hearing, but prior to the hearing.

PN613

THE SENIOR DEPUTY PRESIDENT: Well before we get onto that, we agree maybe within a week? Mr Jauncey says three to four days and I think he has a better idea of what his cross-examination will be like. So I think that we should say four days, maybe five?

PN614

MR LEVER: That’s fine.

PN615

THE SENIOR DEPUTY PRESIDENT: Okay, and that would be your case then, Mr Lever?

PN616

MR LEVER: In relation to cross-examining ANSTO’s witnesses?

PN617

THE SENIOR DEPUTY PRESIDENT: No, no, no. The way it works, Mr Lever, is you put your evidence on and Mr Jauncey gets to cross-examine those witnesses, including yourself, and then you get to - they give evidence in reply and then you close your case, and then he calls his witnesses.

PN618

What I’m asking you about is your own case, the evidence you want to put on, not your cross-examination of his witnesses.

PN619

MR LEVER: Well I would think probably a couple of days to put my evidence on, your Honour.

PN620

THE SENIOR DEPUTY PRESIDENT: Right. Well in that case I’m going to list your case for the week commencing - well it’s already listed for the week commencing 25 August, right?

PN621

MR LEVER: Yes.

PN622

THE SENIOR DEPUTY PRESIDENT: I’m going to list it for the 25th, 26th, 27th and 29th, not the 28th, we’ll pause for that day. Okay?

PN623

MR LEVER: That’s fine.

PN624

THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, as to your case.

PN625

MR JAUNCEY: Yes, your Honour, there are two things to bear with here. First of all I can say that we anticipate witness statements or affidavits being filed from 10, possibly 11 witnesses. I can provide their names if that’s of any assistance to people. I think that in terms of leading them in chief, there will be very little additional oral evidence that I would wish to call in chief. Nearly everything would be dealt with in the statements and it is only if a few additional questions might need to be asked, due to something arising out of Mr Lever’s case. But I think that it will depend entirely on how long it takes; it will depend entirely on how long cross-examination takes.

PN626

THE SENIOR DEPUTY PRESIDENT: All right, and when do you expect to have those statements served by?

PN627

MR JAUNCEY: Yes, your Honour, that’s the second point. Your Honour, we were originally or the original timetable contemplated on 23 April was that Mr Lever would have his evidence on by 4 June, and we would have our evidence on by 16 July.

PN628

As things transpired, Mr Lever’s evidence was not filed and served by 4 June. His own statement was served on us the next day, 5 June. Ms Juric’s statement was served on us on 12 June and Mr Bloom’s statement was served on us on 16 June, which was some 12 days after the anticipated date. I understand from Mr Lever that your Honour granted Mr Lever an extension in relation to the filing of Mr Bloom’s evidence, but nevertheless it was his case was not on until 12 days after the anticipated date.

PN629

In the circumstances, we would ask for an extra 12 days, moving from 16 July to 28 July, in order to finalise our affidavits. That would mean that we would still have had the same period of six weeks, from the time that Mr Lever filed his last affidavit. We have had significant progress in preparing and finalising a number of affidavits. I suspect that it will not take until 28 July to get all affidavits on, and if it were to assist, then we could certainly be filing and serving affidavits as they were filed, rather than just waiting for one bulk delivery on 28 July.

PN630

THE SENIOR DEPUTY PRESIDENT: Right. Well I think that’s certainly more beneficial because Mr Lever can be dealing with those affidavits as they’re prepared, rather than having them all land four weeks before the hearing. The 25th would be four weeks behind, if they were all in by then, but if you can get some of them in earlier that would be better for Mr Lever.

PN631

MR JAUNCEY: Look, I have no doubt that some affidavits will be finalised before then and I’ll undertake to have them filed and served as we are able. I anticipate most likely that the first batch will be available this Friday or the following Monday.

PN632

THE SENIOR DEPUTY PRESIDENT: All right.

PN633

Do you have any objection to that method of proceeding, Mr Lever?

PN634

MR LEVER: Yes, your Honour, I do. My affidavit or statement was - - -

PN635

THE SENIOR DEPUTY PRESIDENT: I’ll have to have you talk up just a little bit, Mr Lever. I can hear you but it’s a strain.

PN636

MR LEVER: Sorry. Is that better?

PN637

THE SENIOR DEPUTY PRESIDENT: Yes, a little bit. Yes.

PN638

MR LEVER: My statement was filed on 3 June and a copy was provided to Mr Jauncey’s office on 5 June, as Mr Jauncey has stated. It is by far the most substantial statement and Mr Jauncey, in my view, and ANSTO have not been disadvantaged in any way in relation to my statement.

PN639

In relation to Ms Juric’s statement, Ms Juric had filed hers also I believe on 3 June, possibly the 4th, and she filed that directly. I then obtained a copy through your associate and passed that on to Henry Davis York. Ms Juric and Mr Bloom’s statements are both fairly short statements and I can’t see them coming a few days later would have delayed ANSTO or Henry Davis York in any way in preparing for their defence.

PN640

Now in relation to Mr Jauncey’s comment that there was 10 to 11 witnesses, I’m a lay person, I don’t have legal representation and I don’t have the resources. It’s going to take me a considerable amount of time to deal with 11 statements or affidavits, even if they’re filed progressively, and in effect the request to provide ANSTO and Henry Davis York with extra time will be to my detriment, and I don’t think it’s justified.

PN641

In fact, Mr Jauncey had written to me late afternoon some three or four weeks after receiving my statement ..... had extra time to file, and he had not even noticed in my statement I had forgotten to include one annexure. So it’s clear to me for the first three or four weeks they weren’t even looking at my statement. If they had, they would have seen that annexure.

PN642

So my objection, your Honour, is that I have limited resources, only myself, whereas ANSTO is a large organisation and Henry Davis York is a large legal firm. They have had my statement for the whole period, that they were required to put their statements on, and I can’t see any reason or justification for any delay.

PN643

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Jauncey, do you want to reply?

PN644

MR JAUNCEY: Your Honour, just a few things. Number one, Ms Juric’s and Mr Bloom’s statement were not exactly short. Ms Juric’s was 24 pages, Mr Bloom’s was 21 pages, so it was a considerable amount of information arising substantially late; in one case eight days late; in one case 12 days late.

PN645

The other thing I would say is in relation to the assertion that for the first three or four weeks we weren’t even looking at Mr Lever’s statement, well that is denied. We have been doing what we can in relation to these matters from the word go, but when statements are arriving 12 days late then other things need to be - I mean, the simply fact here was your Honour made very firm directions to Mr Lever requiring him to put his statements on by a specific date.

PN646

Mr Lever did not comply with those directions and he is then seeking to push the detriment back on to us as a result of his own non-compliance, and we say what is good for the goose is good for the gander. We are asking for an extra 12 days, which is exactly the period that he got. We are not asking for more than six weeks, but we want six weeks from the time that all the evidence is on.

PN647

The reality is that Ms Juric’s statement and Mr Bloom’s statement deal with matters outside Mr Lever’s own statement, and therefore required is to go back and speak to various witnesses about a range of additional matters. In addition, because of the delay we are now in a position where Mr Ryan is now on holidays until the end of next week, and Ms Wisby has been away for a week and a half, and that has made it more difficult. The reality is that Mr Lever will have a month in which to review the evidence prior to hearing, even on our proposed timetable.

PN648

THE SENIOR DEPUTY PRESIDENT: All right. On the basis of dividing the hearing commencing 25 August into four days, I think that it’s then appropriate, Mr Lever - I’ll deal with the other matters later - to have a break so that you can both review the transcript of what has taken place in that week.

PN649

MR LEVER: Thank you, your Honour.

PN650

THE SENIOR DEPUTY PRESIDENT: Rather than proceed immediately into the respondent’s case.

PN651

MR LEVER: I appreciate that.

PN652

THE SENIOR DEPUTY PRESIDENT: Now it takes at least three days to get a transcript, if you do it, and so you won’t have it in your hands really until the end of the week commencing 1 September.

PN653

MR LEVER: Right.

PN654

THE SENIOR DEPUTY PRESIDENT: You can then have either - the week commencing the 15th is totally free for me. What about you, Mr Jauncey and Mr Lever?

PN655

MR JAUNCEY: I will just check my diary.

PN656

MR LEVER: Seems all right.

PN657

MR JAUNCEY: I don’t believe that that will be a problem for me personally. The one thing that I should say is that Mr Davies has an overseas holiday to South America scheduled for an extensive period of time. He, I understand, leaves on 22 September, so if we were able to start on the 15th then we would need to have Mr Davies’s evidence and cross-examination completed by the end of that week, so that he was in a position to take the scheduled leave. My understanding is that there are flights and accommodation booked.

PN658

THE SENIOR DEPUTY PRESIDENT: I don’t think that would be a difficulty. It’s just a question of whether you are available.

PN659

MR JAUNCEY: Look, I am certainly available that week. So that is not a difficulty from our point of view.

PN660

THE SENIOR DEPUTY PRESIDENT: Mr Lever?

PN661

MR LEVER: Your Honour, that sounds fine to me.

PN662

THE SENIOR DEPUTY PRESIDENT: I think, Mr Lever, if you have got until 15 September, rather than 28 August, to consider cross-examination of the respondent’s witnesses, then you giving the extra 12 days will not be a difficulty. It’s not as if you have to call them on the 28th, cross-examine them on 28 August.

PN663

MR LEVER: I appreciate that, your Honour, but I thought that would have been the case anyway. There still would have been a period between.

PN664

THE SENIOR DEPUTY PRESIDENT: There might.

PN665

MR LEVER: Where a review would have been - - -

PN666

THE SENIOR DEPUTY PRESIDENT: Not necessarily. That’s why I thought, given the fact that you are not represented, you would be better off with a pause. Most cases just run to conclusion with no gap.

PN667

MR LEVER: Your Honour, I thank you for that.

PN668

THE SENIOR DEPUTY PRESIDENT: I think that you would find that a bit difficult.

PN669

MR LEVER: Yes, your Honour, I would.

PN670

THE SENIOR DEPUTY PRESIDENT: Okay, I’m going to give you the 12 days, Mr Jauncey, until the 28th and I’m going to list the matter for the week commencing the 15th, to be completed. I’m going to set it down until the 23rd. I think I can give you up until the 24th; I don’t that will be necessary but it’s better, I think, to allow those days not to be interrupted.

PN671

MR JAUNCEY: Thank you, your Honour.

PN672

THE SENIOR DEPUTY PRESIDENT: All right. As to production of documents, if there is anything to be done about that, as to inadequacy of production, I think that’s better argued in person. Does anyone disagree with that?

PN673

MR LEVER: I agree with that, your Honour, but I’m just wondering whether that should be done prior to the hearing.

PN674

THE SENIOR DEPUTY PRESIDENT: Of course it will. How about 23 July at 2 pm?

PN675

MR LEVER: Just a moment.

PN676

MR JAUNCEY: Your Honour, I am free on that date.

PN677

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN678

MR LEVER: Yes, your Honour, the 23rd seems fine for me too.

PN679

THE SENIOR DEPUTY PRESIDENT: Okay.

PN680

MR LEVER: Could I ask Mr Jauncey to name the 10 or 11 witnesses that he may be calling; that might assist.

PN681

MR JAUNCEY: Yes, certainly. I am happy to either do that now - well, I’m happy to do that now.

PN682

THE SENIOR DEPUTY PRESIDENT: All right, do that.

PN683

MR JAUNCEY: It will be Dr Graham Hall, Ms Lata Wisby, Mr Rod Davies, Mr Doug Cubbin, Dr Ian Smith, Mr Eric Ryan, Dr Kaplan; and then I anticipate one or probably both of Mr Florian Gladschka and Ms Blunden; and I anticipate that I will also require a statement from one or probably both of Mr John O’Shea and Mr David Denton.

PN684

MR LEVER: Thank you.

PN685

THE SENIOR DEPUTY PRESIDENT: Is there any other matter?

PN686

MR JAUNCEY: Your Honour, there is. Your Honour, we forwarded to your Honour’s associate this morning three proposed orders for production of documents or things that we wish to ask your Honour to issue. One proposed order is directed to Dr Maine, who was a doctor seen by Mr Lever in July 2007, though I think the appointment was not actually until August.

PN687

The second proposed order for the production of documents or things was directed to Ms Esme Nasser, who is a clinical psychologist seen by Mr Lever at various times, and we anticipate that Mr Lever may wish to rely on findings that she has made, to make various assertions in the proceedings. The requested orders to both Dr Maine and Ms Nasser really just relate to their clinical notes of the specific consultations and some other ancillary documents.

PN688

The third proposed order for the production of documents or things was directed towards Mr Lever. Your Honour will recall that one of the issues in the proceedings is the recording by Mr Lever of a meeting with other persons.

PN689

THE SENIOR DEPUTY PRESIDENT: Yes.

PN690

MR JAUNCEY: Mr Lever in his statement has actually reproduced transcript which he says is of that meeting.

PN691

THE SENIOR DEPUTY PRESIDENT: There is a telephone going off in my room at the moment. Could you wait one moment?

PN692

MR JAUNCEY: Certainly, your Honour.

PN693

THE SENIOR DEPUTY PRESIDENT: Thank you, I’ve just removed the offending object.

PN694

MR JAUNCEY: Thank you, your Honour. Yes, your Honour, as I was saying, Mr Lever has reproduced in his statement what he says is a transcript of the meeting. We say that we are entitled to test that and the proposed order would require Mr Lever to provide the recording device which he used to make the relevant recording, the original tape or cassette or electronic device onto which the recording was made, together with any copies, as well as documents relating to the acquisition by him of the recording device. We would ask that your Honour make the three proposed orders in the terms sought.

PN695

THE SENIOR DEPUTY PRESIDENT: Well I think what I will do is make the summonses returnable for the 23rd, which is the date in any event that Mr Lever’s matters will be able to be attended to.

PN696

MR JAUNCEY: Yes, your Honour, the only difficulty we have is that unlike the court rules in many courts which enables a party to have a summons issued simply by presenting it at the registry, my understanding here is that we actually need the order for production made by your Honour.

PN697

THE SENIOR DEPUTY PRESIDENT: Yes, well I have no doubt that those, if you sent them this morning, will be received by my associate. I’ll sign them and send them back to you and make them returnable for the 23rd.

PN698

MR JAUNCEY: Thank you.

PN699

THE SENIOR DEPUTY PRESIDENT: Then those documents can be produced by Mr Lever on that day or we can hear argument from him if he thinks they ought not to be.

PN700

MR JAUNCEY: Thank you, your Honour. I should just say for completeness that drafts of the proposed orders were emailed to Mr Lever this morning, so that he is aware of them.

PN701

THE SENIOR DEPUTY PRESIDENT: All right.

PN702

Mr Lever, do you have any objection to those matters being listed for the 23rd as well?

PN703

MR LEVER: I’ll take Ms Nasser first.

PN704

THE SENIOR DEPUTY PRESIDENT: You will take what?

PN705

MR LEVER: Ms Esme Nasser, the clinical psychologist.

PN706

THE SENIOR DEPUTY PRESIDENT: I don’t want to hear argument about whether you should be producing them or not. You can argue about those matters on the day, if you think that the documents should not be produced to the employer.

PN707

MR LEVER: Okay. Well I’ll leave it to that. I did actually return an email to Mr Jauncey or Ms Bernadette Carey and also to the Commission, your Honour. I emailed an audio copy of that recording. That’s all I have.

PN708

THE SENIOR DEPUTY PRESIDENT: All right. Well we can deal with that on the 23rd.

PN709

Is there any other matter?

PN710

MR JAUNCEY: Not from our side, your Honour.

PN711

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

PN712

MR LEVER: Your Honour?

PN713

THE SENIOR DEPUTY PRESIDENT: Yes.

PN714

MR LEVER: There is one other matter with regards to ComCare. They were ordered to produce and I still have not had any notification as to whether they have or haven’t produced, and I’ve sent a note to your associate.

PN715

THE SENIOR DEPUTY PRESIDENT: Have you checked with the registry whether any documents have been produced?

PN716

MR LEVER: I have on occasions checked yes, and Ms Campbell would also have informed me as soon as it arrived.

PN717

THE SENIOR DEPUTY PRESIDENT: Well if they arrive directly in our chambers we would know, but we don’t necessarily check every day in the registry. If they have not been produced by the 23rd I’ll make appropriate orders, all right?

PN718

MR LEVER: Thank you, your Honour.

PN719

THE SENIOR DEPUTY PRESIDENT: Thank you. Good afternoon.

PN720

MR JAUNCEY: Thank you, your Honour.

PN721

MR LEVER: Good afternoon.

<ADJOURNED UNTIL WEDNESDAY 23 JULY 2008 [2.00PM]