C2007/3513, Transcript of Proceedings [2008] AIRCTrans 501 (5 September 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19022-1

SENIOR DEPUTY PRESIDENT DRAKE

C2007/3513

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

10.12AM, MONDAY, 25 AUGUST 2008

Continued from 23/7/2008

Hearing continuing

PN780

MR R. LEVER: I represent myself and my wife Judy Lever.

PN781

MR S. JAUNCEY: I appear on behalf of ANSTO, with me is
MS B CAREY. Also in the court is MS S COLE, ANSTO's general counsel.

PN782

MR LEVER: Yes, I am not sure what process or procedure is here but Mr Bloom is also a witness of mine and I have an email from him. His mother is gravely ill and he hasn't been able to appear.

PN783

THE SENIOR DEPUTY PRESIDENT: I don't think we are likely to get to any other witnesses for a little while.

PN784

MR LEVER: I just thought that you should know that he is still wanting to put a statement in reply but hasn't been able to because he has been away and he has been looking after his mother.

PN785

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Would you like to provide me with that letter.

PN786

MR LEVER: Yes, certainly.

PN787

THE SENIOR DEPUTY PRESIDENT: Yes.

PN788

MR LEVER: I am not sure what the process is but there are a couple of matters that I would like to address before we actually start the hearing, if that's possible.

PN789

THE SENIOR DEPUTY PRESIDENT: Yes.

PN790

MR LEVER: It's in relation to the production of documents from ANSTO. I have written to Henry Davis York and asked them to identify what they have produced and who it was produced from, with the several productions of documents that they have provided to the Commission or filed here, but they refused to actually identify the actual documents as to who they were produced by and that is going to cause me some difficulty when it comes time to cross-examine those witnesses in that I would want to be able to use what they produced in cross-examination. Some of the documents can be identified simply because of what is on the actual document as to who it may have come from, but it still doesn't say whether it was actually from their file or whether it was from somebody else's file. I have asked ANSTO a number of times to produce that and they haven't.

PN791

I also wrote to them on 22 August and it was after I had managed to get through ANSTO's affidavits that were being filed at various times, and I have asked them to provide - I haven't had a response so they may have some documents here, I'm not sure, but I have asked them to provide Mr Denton's original file, Mr O'Shea's original file, Dr Hall's original file, Mr Thorburn's investigation file. He was involved in investigations, as I understand it, with myself and Ms Juric, and
Mr Ryan, he was also allegedly involved in an investigation of Ms Juric. So in the security file of Ms Juric to the latter part of 2004, I believe there are documents in relation to that investigation that haven't been produced.
Mr Cubbin, a relatively newcomer to ANSTO, his predecessor was Mr Cullen and prior to that it was Dr Doherty, and both of those would have had files in relation to myself that have yet to be produced.

PN792

THE SENIOR DEPUTY PRESIDENT: Right. It seems to me that Mr Jauncey can address that a little bit later, what I want to do is start this case. You should open your case, Mr Lever. I think that in fact you have given a summary of what your case is in your affidavit, but if you want to say anything else about the matters you rely on you should say them now.

PN793

MR LEVER: Can I just say one more thing before? I have also summoned Sergeant Cartwright from the Australian Federal Police Protective Services.

PN794

THE SENIOR DEPUTY PRESIDENT: Yes, I have had a phone call from the federal police about that matter, I have told them that Sergeant Cartwright will have to attend if he's been subpoenaed and I have undertaken to make a call to the federal police officer handling that matter in Canberra and tell her when she might be called. So when we know when that is likely to be we will make a telephone call.

PN795

MR LEVER: I see. So he is obviously not going to be here today then.

PN796

THE SENIOR DEPUTY PRESIDENT: No.

PN797

MR LEVER: No, okay. I would like to make an opening statement if I could, your Honour. We are here today because ANSTO and Mr Lever have a different interpretation of a set of facts as to ANSTO's treatment of Mr Lever.

PN798

THE SENIOR DEPUTY PRESIDENT: You can call it yourself if you like.

PN799

MR LEVER: I wasn't sure what to say then actually.

PN800

THE SENIOR DEPUTY PRESIDENT: Yes, yourself. You are representing yourself, you can say "and I". It's a bit awkward for you to be talking in the personal third.

PN801

MR LEVER: I thought in some ways it might help me actually.

PN802

THE SENIOR DEPUTY PRESIDENT: All right, whichever suits you.

PN803

MR LEVER: Thank you. In this case about ANSTO and the federal government agency's atrocious behaviour towards myself. All facts have context. The context within which facts are stated. If you remove or alter the context the facts can be manipulated, a twist here and a turn there and the context of the facts are polluted and/or changed, they are spun. Mr Lever will show in this hearing that ANSTO have spun a web of lies and deceit, fabrication, engineered to protect certain ANSTO staff, senior management staff of ANSTO to the detriment of myself.

PN804

I intend to peel away the web, the façade that ANSTO have built around them. I will do this by presenting evidence, evidence on each of the facts and provide the Commission with the proper and true context of these facts. Much of this case will turn on credibility, the credibility of myself and credibility of witnesses that will be called during this hearing. I ask that the Commission allow an open and free interrogation of the facts and their context through the various witnesses. Your Honour, ANSTO will seek to limit the context of evidence in support of their misrepresentation of the facts.

PN805

It is true some of what will be discussed in this case has been discussed in other jurisdictions. Each of these cases have been heard to date have the same set of facts, but that is not a proper reason to limit this Commission in hearing all the evidence pertinent to this case. Mr Lever asks that any evidence in relation to
Mr Lever's treatment of ANSTO senior managers and credibility of their witnesses be heard. This case is about bullying, victimisation and harassment of the worst kind that Mr Lever have had to endure for over three years. This is a case about an employer being able to destroy a hard working employee. It is a case about an industrial relations advisor whose support from senior managers that persecuted a union delegate, myself.

PN806

This is a case about an employer being able to use it's resources without any form of external scrutiny against myself. This is a case about ANSTO being able to spend as much of the taxpayers money without limit to protect their practices. This is a case about ANSTO's credibility. This is a case about the credibility of ANSTO officers. This is a case about ANSTO's senior managers, I believe, perverting the course of justice to protect themselves. The transcript of this hearing will become a permanent record, one of many examples of ANSTO's behaviour towards it's employees in the case of Mr Lever. This may be my last opportunity to receive a fair and just outcome.

PN807

Your Honour, Mr Lever is forced to be in this adversarial position as Mr Lever does not have sufficient funds to afford legal representation. ANSTO have counter-argued that Mr Lever's working relationship has irrevocably been broken. Your Honour, I believe Mr Lever's case is somewhat different to the run of the mill type case. My difficulties are not with my line management or my actual workplace, my difficulties are with Mr Davies. Mr Davies is the industrial relations advisor. I will show that during the course of this hearing that
Mr Davies has been involved, and indeed orchestrated and controlled all that happened to me. It is true Mr Davies could not do what he has done without the assistance, principally that of Dr Smith, ANSTO's ex-chief executive officer.

PN808

Mr Davies has had control of the full resources of ANSTO to persecute myself. Through this ill-treatment by Mr Davies and others I suffered a psychological injury in late 2004. This cannot be disputed. The injury from this time on has been compounded by Mr Davies and the actions or inactions from this time onwards. Mr Lever's treating practitioner tried to protect Mr Lever from further compounding his injury and/or re-injury by placing restrictions on Mr Lever's return to work. This restrictions in part were directed to Dr Smith and Mr Davies. Dr Smith no longer works for ANSTO. It has always been Mr Lever's position that he felt he could successfully return to work if Mr Davies and Dr Smith were excluded from being involved, normally they are not.

PN809

Mr Lever today has recovered from his injury but placed in a similar work environment that was the cause of his injury without certain protections would be negligent and inconsistent with the principles of preventative medicine. Forums such as the Commission may be viewed as a stressful environment, this is true. The Commission is also a forum where I, with a fair and just hearing, where I can lay out all the details of my injury and subsequent treatment with therapeutic effect. For the past three years I have tried to expose the truth re my matters. This is an extraordinarily difficult task in circumstances where documents are withheld, they are destroyed and where management close ranks.

PN810

I do not know whether I will ever learn the whole truth but I believe I have discovered enough to be able to show the length and the extent of certain ANSTO officers are prepared to go to protect themselves. What we have here is human resources/industrial relations pointing to the medical centre and security. The medical centre is pointing to human resources and industrial relations and security, and security are pointing back at the medical centre, human resources and industrial relations, with me caught up in the middle of it. Thank you your Honour.

PN811

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jauncey.

PN812

MR JAUNCEY: Yes, your Honour, there are five matters before the Commission today. One is an unfair dismissal claim. I don't actually have the number for that but I'm sure I can leave that there. ANSTO says that Mr Lever was dismissed for a combination of three reasons. Reason no.1 is that during the course of federal court proceedings Mr Lever revealed that he had access and printed a document from the deleted user directory of an HR employee. ANSTO says that Mr Lever's conduct as an I.T. systems administrator in accessing, viewing and printing that document was a very serious breach of trust required of any systems administrator. We say that his actions in that regard alone amount to serious misconduct warranting summary dismissal.

PN813

In addition there are other matters. The second matter relied upon by ANSTO is Mr Lever's conduct in secretly tape recording a meeting without the knowledge of other participants, an action which we say struck at the basis of respect that one employee is required to show to another. The third is Mr Lever's repeated refusal to fill in forms despite direction by ANSTO. As I said, we say that the first matter alone warranted termination, but certainly when all three matters are considered in context we say that the Commission will find that the termination was not harsh, unjust or unreasonable.

PN814

The second matter before the Commission is Dispute DR2007/283, it was a matter notified under the Dispute Resolution Provisions in the Act It has been agreed between the parties to treat the matter as a dispute notified under section 170LW of the Act as enforced prior to March 2006 and to regard it as a dispute notified under the provisions of a certified agreement, certified shortly prior to the introduction of the Workchoices amendments. That matter relates to the accrual of leave entitlements over a period of time. There is no dispute in relation to the facts. ANSTO's ceased the approval of leave entitlements in late 2006 or with effect from late 2006. It is a matter of whether it was legally entitled to do so and it is an interpretation of the law point. I apprehend that there are separate issues about the continuing payment of superannuation. Again it is an interpretation point. We say that Mr Lever was not sick at that time and the accruals therefore do not occur. Issues may, however, arise as to the Commission's jurisdiction to deal with the superannuation point. The third matter is another - - -

PN815

THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Jauncey, do you intend to deal with that matter by way of submissions at the end of the dismissal matter?

PN816

MR JAUNCEY: Yes, I don't believe that it will require any separate evidence.

PN817

THE SENIOR DEPUTY PRESIDENT: So that we will deal with the unfair dismissal matter primarily in conclusion, each party will put their submissions about the other files.

PN818

MR JAUNCEY: It was my intention, subject to the Commission's thoughts, the evidence - there is going to be a commonality of evidence between the various matters and I took the view that if we regarded evidence in one as evidence in all that would probably be the best way of proceeding.

PN819

THE SENIOR DEPUTY PRESIDENT: That's what I was thinking too.

PN820

MR JAUNCEY: Then submissions at the end could deal with each matter separately. The third matter is C2007/3513. It is a dispute notified under section 170LW of the ANSTO Enterprise Agreement 2006. It relates to return to work issues and Mr Lever's assertions that ANSTO was improperly blocking his return to work. It is tied up to some degree I suppose in the unfair dismissal matter, but of course the Commission will be aware of certain previous matters relating to disputes about Mr Lever's return to work. The fourth matter is C2007/3625. Once again it is a dispute notified under section 170LW in respect of the dispute settlement provisions of the 2006 agreement. It relates to issues again surrounding Mr Lever's return to work in July this year and incidentally picks up issues about his failure to fill out the security forms.

PN821

THE SENIOR DEPUTY PRESIDENT: This year?

PN822

MR JAUNCEY: Sorry, last year, my apologies, your Honour. As a result there is some cross-over in respect of the unfair dismissal matter. The fifth and final matter is dispute C2007/367. It deals with a request by Mr Lever to access annual leave late last year. That leave has now been of course paid out to Mr Lever as a result of termination of his employment, so he has received the benefit of the leave and I would have thought that that matter has fundamentally been overtaken by events, but if Mr Lever wishes to continue to agitate it then he may do so. Your Honour, I am prepared to deal with the issues raised by Mr Lever in respect of documents and evidence, I am happy to do that now or otherwise at the Commission's convenience.

PN823

THE SENIOR DEPUTY PRESIDENT: No, I don't think it's necessary for you to say anything now. I think there is sufficient material before the Commission to understand where the issues lie. Mr Lever, what is your position in relation to 3673? I think the issues in that file, to express my own view, are overtaken somewhat. Whatever happens with your leave will come out in the wash, if you like, of the U file proceedings, the unlawful termination proceedings. I'm not sure that it requires a separate notification now. If you want it left open I am happy to leave it so.

PN824

MR LEVER: The relationship is also with the accrual of super and any further leave entitlements.

PN825

THE SENIOR DEPUTY PRESIDENT: I think that's dealt with in the other.

PN826

MR LEVER: In the other dispute, so it should carry on through, so they are sort of linked, yes.

PN827

THE SENIOR DEPUTY PRESIDENT: No, no I don't think they're linked. I think that issue is a matter that can be dealt with in the other file. I think this is superfluous.

PN828

MR LEVER: Thank you, your Honour, yes. On that basis yes I agree, yes.

PN829

THE SENIOR DEPUTY PRESIDENT: Do you agree with that Mr Jauncey?

PN830

MR JAUNCEY: I am never going to be found disagreeing with one less dispute, your Honour.

PN831

THE SENIOR DEPUTY PRESIDENT: Well we can always reopen it if we need to but I think it's superfluous and can be closed.

PN832

MR LEVER: Yes, your Honour.

PN833

THE SENIOR DEPUTY PRESIDENT: Mr Lever, do you wish to swear as to the matters in your statement or affirm them?

PN834

MR LEVER: I'll swear them, your Honour.

PN835

THE SENIOR DEPUTY PRESIDENT: Would you take the witness box - - -

PN836

MR JAUNCEY: Your Honour, just one thing, I'm sorry to interrupt. I do have a number of objections to various parts of Mr Lever's various affidavits.

PN837

THE SENIOR DEPUTY PRESIDENT: Right, we will deal with that first.

PN838

MR JAUNCEY: My only issue is whether we want to deal with them now so that he doesn't have to be making submissions from the witness box.

PN839

THE SENIOR DEPUTY PRESIDENT: Certainly, we will deal with them now. Is anybody else in here could?

PN840

MR LEVER: No, I'm fine. Your Honour, I would actually like Ms Juric to -
Ms Juric has taken a day off work to attend today and it was my intention to put her in the witness box - in fact Sergeant Cartwright was the first witness I wanted to call and then Ms Juric but Mr Cartwright is not here, so Ms Juric is.

PN841

THE SENIOR DEPUTY PRESIDENT: It is usual to start with the applicant's evidence.

PN842

MR LEVER: Ms Juric is going away on leave as well.

PN843

THE SENIOR DEPUTY PRESIDENT: When is she going?

PN844

MS JURIC: Next week.

PN845

THE SENIOR DEPUTY PRESIDENT: I think I will give some thought to that, in the meantime however I think we will just open at least and hear the objections and get the first affidavit tendered. Just have a seat Ms Juric, thank you.

PN846

MR JAUNCEY: Yes, your Honour. Unfortunately I do have quite a few. Your Honour, dealing - - -

PN847

THE SENIOR DEPUTY PRESIDENT: Ms Juric, why don't you take a walk and come back at half past 11.

PN848

MS JURIC: Certainly. If I may say, your Honour, I am needed at work this week.

PN849

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, but there is no need for you to sit there listening to this. Come back at half past 11 and I might have formed a view about what the time table will be.

PN850

MS JURIC: Thank you, your Honour.

PN851

THE SENIOR DEPUTY PRESIDENT: You have taken today off anyway, haven't you?

PN852

MS JURIC: Yes, I have got today off.

PN853

THE SENIOR DEPUTY PRESIDENT: All right, thank you.

PN854

MR JAUNCEY: Yes, your Honour. Dealing with the first affidavit signed by Mr Lever I believe on 3 June 2008, if we start at paragraph 13 through to 17. Perhaps if we start with 13 and 14. These are just simply assertions about what Dr Smith authorised or what Mr Davies is alleged to have done.

PN855

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jauncey can I tell you something about what I think about this. It might inform your objections. This affidavit is not in the usual form.

PN856

MR JAUNCEY: No, your Honour.

PN857

THE SENIOR DEPUTY PRESIDENT: Many of the things in single paragraphs are submissions.

PN858

MR JAUNCEY: Yes, your Honour.

PN859

THE SENIOR DEPUTY PRESIDENT: They are the basis - I think they almost amount to his opening, this is what I want to say, which is what he repeated in his opening. I want to say this, this is what I think the evidence will establish. For that reason, although many of the things from 13 to 17 are simply allegations, not affidavits as to factual matters I intended to treat them as a statement of submissions in that fashion, and in that way if they are that I don’t think they are objectionable. If I treat them as statements of fact that he wants to rely on and leave in his affidavit then they are objectionable. If they are treated in that fashion do you object to them?

PN860

MR JAUNCEY: Your Honour, I have no difficulty with them going in as statements of the witness's belief, but I would object to them going in to in any way be sought to be evidence of the truth of the assertion.

PN861

THE SENIOR DEPUTY PRESIDENT: That is the manner in which I intended to accept them in the statement.

PN862

MR JAUNCEY: Your Honour, 13 to 18 I am happy to go in on that basis.

PN863

THE SENIOR DEPUTY PRESIDENT: Wait until I just write this down. The statements of Mr Lever's understanding.

PN864

MR JAUNCEY: Yes.

PN865

THE SENIOR DEPUTY PRESIDENT: Mr Lever, do you understand what we're doing here?

PN866

MR LEVER: Yes, your Honour.

PN867

THE SENIOR DEPUTY PRESIDENT: That I think accurately represents what you were doing in 13 to 18 is stating your position, is that right?

PN868

MR LEVER: Yes, your Honour.

PN869

THE SENIOR DEPUTY PRESIDENT: You tell me if you have something to say about what I am doing with Mr Jauncey, otherwise I will deal with it just as he goes through them.

PN870

MR LEVER: Thank you, your Honour.

PN871

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jauncey.

PN872

MR JAUNCEY: Yes, the second sentence of paragraph 30, it's a conclusion rather than evidence. I am happy for it to go in on the same basis but not as proof of the assertion.

PN873

THE SENIOR DEPUTY PRESIDENT: This is from "attempts"?

PN874

MR JAUNCEY: Second sentence of paragraph 30 - sorry, from "Mr Davies" up to "attempts".

PN875

THE SENIOR DEPUTY PRESIDENT: Very well.

PN876

MR JAUNCEY: Paragraph 55 from the words "however" onwards, I mean it is an expression of opinion about Mr O'Shea's state of mind and it is a conclusion and it is also effectively a submission. I would object to that part. The proposition can be put to Mr O'Shea in cross-examination if Mr Lever wishes.

PN877

THE SENIOR DEPUTY PRESIDENT: It's what Mr Lever wants to establish and submit and as an expression of that it can stay in. Mr Jauncey.

PN878

MR JAUNCEY: Paragraph 62, this is just an assertion outside the witness's knowledge. Whether or not Dr Hall ever contacted Dr Peed is a matter that can be put to Dr Hall. In fact Dr Hall's evidence will be that he did. 63 and 64 are just simple hearsay.

PN879

THE SENIOR DEPUTY PRESIDENT: They'll just have the relevant weight, won't they?

PN880

MR JAUNCEY: Well, your Honour, I say they shouldn't be there. I mean one of the fundamental rules here is that it be wished to lead evidence of what was said on a conversation to which the witness wasn't a party, then Mr Lever should lead Dr Peed to give that evidence. We have put him on notice of the issue and we have warned him of it.

PN881

THE SENIOR DEPUTY PRESIDENT: I will think about that. Yes, Mr Lever?

PN882

MR LEVER: That 64 paragraph is in relation to a conversation between me and Dr Peed. I don't think that's hearsay, I think that's just a statement of my recollection of my conversation with Dr Peed, and there was also a file note in
Dr Peed's clinical notes because I gave him a copy of that as well, and that's been produced here to the Commission.

PN883

MR JAUNCEY: Your Honour, I would say that is a definition of hearsay.
Dr Peed told me this and I am now going to rely on what Dr Peed told me to seek to establish - - -

PN884

THE SENIOR DEPUTY PRESIDENT: It can only be evidence that Dr Peed said it, not as to the truth of what was said.

PN885

MR JAUNCEY: Tot eh extent that it is evidence that Dr Peed said it, it's irrelevant, in my submission, your Honour.

PN886

THE SENIOR DEPUTY PRESIDENT: I think I'll leave them in for the moment, it's a matter of weight. Yes, anything else?

PN887

MR JAUNCEY: Yes, your Honour. The same point in relation to 65 but I can't go beyond what your Honour has already said. 74 is in the nature of a submission, I am happy for the same principles to be applied to that as for paragraph 13.

PN888

THE SENIOR DEPUTY PRESIDENT: 74 did you say?

PN889

MR JAUNCEY: Yes.

PN890

THE SENIOR DEPUTY PRESIDENT: And - - -

PN891

MR JAUNCEY: 82, "under Mr Davies instructions", it's an assertion that
Mr Davies did assert things and the witness wasn't present. If the witness wants to make it as a submission, fine, but as to the truth of the assertion it cannot be evidence of that.

PN892

THE SENIOR DEPUTY PRESIDENT: Right.

PN893

MR JAUNCEY: Paragraph 96 to 98, the same as for paragraph 13, it's a submission, indeed it's contentions, if it goes in as a submission or a statement of belief that's fine.

PN894

THE SENIOR DEPUTY PRESIDENT: I think under the heading it's a contention, I think he makes it clear that that is what he is doing.

PN895

MR JAUNCEY: The same with paragraph 103, 106, 107 and 108, these are really just contentions and they can't rise higher than that. The same with 110.

PN896

THE SENIOR DEPUTY PRESIDENT: Yes.

PN897

MR JAUNCEY: The first sentence of 114 and the first sentence of 117 and the first sentence of 118, once again these are just assertions.

PN898

THE SENIOR DEPUTY PRESIDENT: Could you just give me those numbers again? 114 - - -

PN899

MR JAUNCEY: 114, 117, 118, first sentence in each case, and I am again happy for them to go in as just evidence of the witness's belief but not as evidence of the truth of the assertion.

PN900

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jauncey.

PN901

MR JAUNCEY: Yes, your Honour, the first sentence of 126, again just simple hearsay, "Mr Bloom told me." I mean Mr Bloom has been called, he can give this evidence if need be.

PN902

THE SENIOR DEPUTY PRESIDENT: Yes, I think that can come out.

PN903

MR JAUNCEY: 129 and 130.

PN904

THE SENIOR DEPUTY PRESIDENT: They are submissions.

PN905

MR JAUNCEY: Submissions same as for 13, 134 and 135 I think are in the same boat. 140, I mean this is an assertion of what Mr Davies, the witness believes that Mr Davies did back in February 2005. The witness has no direct knowledge of what Mr Davies's advice was or what Mr Davies did in February 2005. The second part of the paragraph is just a submission, it can't be evidence of the truth of what is asserted.

PN906

THE SENIOR DEPUTY PRESIDENT: Yes, it's a submission.

PN907

MR JAUNCEY: 142, the certificate speaks for itself, those are not the words used on the certificate. 142 should just come out and the certificate which is already in evidence can speak for itself.

PN908

THE SENIOR DEPUTY PRESIDENT: Isn't it a submission about what he thinks the submission means. If it's an inaccurate one he can - - -

PN909

MR JAUNCEY: It's no more than that.

PN910

THE SENIOR DEPUTY PRESIDENT: There is some difficulty in removing these matters as submissions from an affidavit or a statement prepared like this one has been, in that it removes the chronology and in this way - I have not done anything about the fact that he material contains submissions as well as evidence about matters of fact he relies on because it makes the document more a coherent chronology for the purposes of understanding what Mr Lever's case is.

PN911

MR JAUNCEY: Your Honour, if it is understood that it is going in simply as a submission and not as evidence of the truth of the fact then I have no further objection.

PN912

THE SENIOR DEPUTY PRESIDENT: I think you can say that on every occasion that is the case.

PN913

MR JAUNCEY: Yes.

PN914

THE SENIOR DEPUTY PRESIDENT: Where you have that general objection you should just give me the numbers and I will write them down.

PN915

MR JAUNCEY: Very well, 143, 144, 149, 165 to 168. The final sentence of 169. 171, 174, 182 to 196, 201, 202, 204.

PN916

THE SENIOR DEPUTY PRESIDENT: One moment. 201, 202.

PN917

MR JAUNCEY: 204, 207 and 208. 213, 214, 216, 217, 220, 223, 228, 230, 234, 240 to 242. The last sentence of 257. 260, 262, 267, 269, 277. The second sentence of 279. 281 to 283. 288. 290. 301. The first sentence of 301 and from the second sentence the part after the semi-colon. I have no objection to the extract from the federal court proceedings, it should probably be tendered separately but if it goes in this way I have no issue. It's just the conclusions that are sought to be drawn from it. 302, 303, 309, 318, 320, 340.

PN918

THE SENIOR DEPUTY PRESIDENT: Wait a second, 318, what was after 318?

PN919

MR JAUNCEY: Sorry, your Honour, 318, 320 and 340. 368 and 370.

PN920

MR LEVER: What was it again?

PN921

MR JAUNCEY: 368 and 370. 434, 436 to 440.

PN922

THE SENIOR DEPUTY PRESIDENT: Wait a moment, it's just that I'm trying to turn the pages and write them down as we turn them. So it's 434.

PN923

MR JAUNCEY: Yes, your Honour, 436 to 440 on the same page. 444 to 447. 454, 461 and 462. 465 to 469. 478 to 484. 486, 491 to 497 and then also 498 to 503. 505, 507 and 513 to 515. 520 and 527 to 529.

PN924

THE SENIOR DEPUTY PRESIDENT: Thank you, and all of those objections are on the basis that they amount to submissions or a representation of Mr Lever's belief.

PN925

MR JAUNCEY: Yes, your Honour.

PN926

THE SENIOR DEPUTY PRESIDENT: And on the basis that that is what they are his conclusion from the facts, his submission or belief you are happy for them to remain.

PN927

MR JAUNCEY: So long as it only goes in for that purpose, yes.

PN928

THE SENIOR DEPUTY PRESIDENT: Mr Lever, all of those matters so far as I can tell, although at the end Mr Jauncey was going a bit fast for me, I think they are, with the exclusion of the one matter I took out, matters where you are making a submission or drawing a conclusion or setting out your own belief about the matters that you put. Is that the case?

PN929

MR LEVER: Yes, your Honour, I think that's acceptable.

PN930

THE SENIOR DEPUTY PRESIDENT: On that basis they can remain but they don't represent evidence of the truth of those matters.

PN931

MR LEVER: Yes, I understand that.

PN932

THE SENIOR DEPUTY PRESIDENT: That has to come from other sources.

PN933

MR LEVER: Yes.

PN934

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN935

MR JAUNCEY: Your Honour, many similar in the second affidavit which was sent to us yesterday.

PN936

THE SENIOR DEPUTY PRESIDENT: I haven't had a chance to look at that affidavit. So what happens with that affidavit I don’t know at the moment, I might get a chance to look at it but I haven't read it. In relation to those matters that you say are matters of - have you got the paragraph numbers that you have that view about?

PN937

MR JAUNCEY: Yes, your Honour.

PN938

THE SENIOR DEPUTY PRESIDENT: Is there an affidavit in reply?

PN939

MR JAUNCEY: Yes, your Honour.

PN940

THE SENIOR DEPUTY PRESIDENT: We might deal with that later. Could you give me the paragraph numbers.

PN941

MR JAUNCEY: The last sentence of paragraph 8. The first sentence of paragraph 13. Paragraph 15, although I press a second objection to paragraph 15. Again this is the witness giving evidence about what Mr Bloom did or didn't say in a conversation in which the witness was not present. 15 is just unsupported hearsay. Mr Bloom's been called. If Mr Bloom wants to give the evidence in 15 he can but it ought to come from Mr Bloom and not from this witness. Paragraph 17 to 18, the second and the third sentences of paragraph 19. The final sentence of paragraph 20. The final sentence of paragraph 26. Paragraph 34. The second last sentence of paragraph 46.

PN942

MR LEVER: Could you just repeat that please?

PN943

THE SENIOR DEPUTY PRESIDENT: What about 34? 34 was the whole paragraph?

PN944

MR JAUNCEY: Yes.

PN945

THE SENIOR DEPUTY PRESIDENT: 46 is the second last sentence.

PN946

MR JAUNCEY: Yes, second last sentence starting "in my case" and finishing "from Human Resources". The fourth and sixth sentences of paragraph 84. The fourth sentence starts, "the federal court proceedings" and ends, "ANSTO staff assistance". The sixth starts "when Mr Lever discovered" and ends "other .....". The paragraph 94, fourth sentence, "Mr Thorburn gained access" to "from Ms Juric's office." Paragraph 95, the first sentence of paragraph 97. The first two sentences of paragraph 98 together with the last sentence in that paragraph. Paragraph 99.

PN947

MR LEVER: Excuse me a minute, I need to catch up, sorry.

PN948

MR JAUNCEY: Sorry. Paragraph 102, first sentence. Paragraph 103, first and second sentences. Paragraph 105, last sentence. Paragraph 108, everything but the first sentence. Paragraph 111, second sentence. Paragraph 112, second sentence. 113 and 114, first and third sentences. 116. 117, part of the second sentence. I am happy with, "The decision always lays with the senior manager, in this case Mr Cubbin," but everything following that and the next sentence in this thread I say applies the same. 118, second sentence - actually I withdraw that, sorry.

PN949

THE SENIOR DEPUTY PRESIDENT: You don't object to 118 at all?

PN950

MR JAUNCEY: No. 119, it's in the second sub-paragraph on page 25, the sentence beginning, "The objectives were known to Mr Davies," and ending,
"Mr Davidson's project leader." As well as the last sub-paragraph in 119 starting, "Mr Davies lied."

PN951

MR LEVER: Which paragraph was that?

PN952

MR JAUNCEY: It's the last sub-paragraph in 119 starting, "Mr Davies lied."

PN953

MR LEVER: Thank you.

PN954

MR JAUNCEY: Paragraph 120, second sub-paragraph, third sentence, the words, "I knew Mr Davies' claims Mr Hart were false." Then also at the very top of page 26, the part of the sentence in paragraph 120 that starts with, "Support of Mr Hart," up to "mislead anyone". 121. Final sentence of 153. First sentence of 154.

PN955

MR LEVER: Excuse me.

PN956

MR JAUNCEY: Final sentence of paragraph 153.

PN957

MR LEVER: Thank you.

PN958

MR JAUNCEY: First sentence of paragraph 154. Second sentence of paragraph 156. And the first, second and final sentences of paragraph 169.

PN959

MR LEVER: First, second and last was it?

PN960

MR JAUNCEY: Yes, of 169. Your Honour, the objection to all of those is simply submissions. I would be happy for all of them to be treated in the same way as we have dealt with the others. I have one separate objection, it is the final sentence of paragraph 120 together with annexure 62.

PN961

THE SENIOR DEPUTY PRESIDENT: I haven't read it yet.

PN962

MR JAUNCEY: No, I understand that, your Honour. It's effectively just an annexure which is an email between two union officials, neither of which have been called to give evidence in the matter and it's a hearsay objection. In my submission, if Mr Lever wants to lead evidence of the beliefs of union officials then he can call them as a witness.

PN963

THE SENIOR DEPUTY PRESIDENT: I can't deal with that objection.
Mr Lever, when did you send this second statement in?

PN964

MR LEVER: Yesterday your Honour.

PN965

THE SENIOR DEPUTY PRESIDENT: I haven't seen it until this morning.

PN966

MR LEVER: I sent a note to Henry Davis York and told them that I would be completing it over the weekend.

PN967

THE SENIOR DEPUTY PRESIDENT: That didn't help me. I didn't get into Chambers or see it until I saw it in Chambers this morning, so we will just have to wait and see what happens about that. I might try and have a look at it in the break or take a break and read it so we can make some progress on your evidence.

PN968

MR LEVER: Thank you, your Honour.

PN969

THE SENIOR DEPUTY PRESIDENT: In relation to this first affidavit is to the matters contained in the affidavit, those matters that are not statements or submissions and which have been dealt with in the way that Mr Jauncey and I have dealt with them, are you happy to have them dealt with as submissions or statements of your view and conclusions on the facts?

PN970

MR LEVER: Yes, your Honour, but I also understand that I would have an opportunity to cross-examine the witnesses so it may come out in - - -

PN971

THE SENIOR DEPUTY PRESIDENT: If you want to put those conclusions to the witnesses you can, but as to what they are in your statement at the moment they are simply statements of your opinion or submissions you want to make about what you say happened.

PN972

MR LEVER: Yes, your Honour.

PN973

THE SENIOR DEPUTY PRESIDENT: So in relation to your affidavit that's what they are. Do you have anything to say about that?

PN974

MR LEVER: No, your Honour, I'm just inexperienced in writing out affidavits and I accept what the ruling has been.

PN975

THE SENIOR DEPUTY PRESIDENT: In that case do you wish to adopt your statement as your examination-in-chief?

PN976

MR LEVER: Yes, your Honour.

PN977

THE SENIOR DEPUTY PRESIDENT: Perhaps you would like to swear to that.

PN978

MR LEVER: Yes, your Honour.

<RONALD LEVER, SWORN [11.13AM]

PN979

THE SENIOR DEPUTY PRESIDENT: Thank you. Now Mr Lever have a seat. Mr Jauncey in relation to the matters that you have put that are submissions, and I have accepted as submissions and Mr Lever has too as expressions of his opinion, then they are matters that I think should not be cross-examined about. Do you have a view about that?

PN980

MR JAUNCEY: Your Honour, I don't generally intend to cross-examine about those matters, but there may be some limited cross-examination simply as to the witnesses beliefs which may touch on those matters, even though I won't be cross-examining the witness about the truth or otherwise.

PN981

THE SENIOR DEPUTY PRESIDENT: Yes, I don't want cross-examination about a submission.

PN982

MR JAUNCEY: I accept that your Honour.

PN983

THE SENIOR DEPUTY PRESIDENT: As to how the beliefs of Mr Lever motivated his activities or affected the things he did, they may be proper matters for cross-examination. I just wanted to make that distinction.

PN984

MR JAUNCEY: I accept that your Honour.

PN985

THE SENIOR DEPUTY PRESIDENT: Mr Lever, do you wish to tender your statement in this matter which is dated 3 June 2008 and these annexures as your evidence-in-chief in this matter?--- Yes, your Honour, I do.

PN986

Do you want to rely on your affidavit in reply?---Yes, your Honour, I do.

PN987

Which was lodged on 24 August by email?---Yes, your Honour.

EXHIBIT #LEVER 1 STATEMENT OF RONALD LEVER DATED 3/06/2008
EXHIBIT #LEVER2 STATEMENT IN REPLY OF RONALD LEVER

PN988

In relation to both documents you rely on the matters that you put as facts and the matters that have been drawn to your attention by Mr Jauncey and confirmed by me, they are predominantly matters that you make by way of submission?---Yes, your Honour.

**** RONALD LEVER XN
PN989

Either now or at the conclusion they are matters that you want to rely on as part of your submissions?---Yes, your Honour.

PN990

I will release you from the box right now, you can go back?---Thank you, your Honour.

<THE WITNESS WITHDREW [11.15AM]

PN991

THE SENIOR DEPUTY PRESIDENT: I think it would be convenient if I read the other affidavit which I've now marked and note on it the paragraphs that you have objected to, I think it's easier for me to see them if I mark them on the statement direct and then allow you to be in a position to cross-examine on both statements, otherwise you will only get to look at half. Ms Juric is here, I think it's not a big deal to have her give her evidence today, to interpose it even if we haven't finished with Mr Lever. I have asked her to come back at 11.30. It's going to take me at least until 12 to I think look through the material in the second statement. I haven't seen it, do you think that's a reasonable estimate Mr Jauncey?

PN992

MR JAUNCEY: Your Honour, I think that probably is. It is a lengthy statement but your Honour will probably not be surprised by a lot of what is in there. In relation to Ms Juric I would make only one submission. We received a copy of her affidavit at about quarter past five yesterday and this is her affidavit in reply, a further affidavit, and as we stand here now I have not been provided with any of the - there are 11 or 12 annexures to that affidavit which I have not seen.

PN993

THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, aren't they the same annexures to the first affidavit, or have you not had an opportunity to look at them?

PN994

MR JAUNCEY: No, apparently they are, in relation to Ms Juric's affidavit I understand that there are some 11 or 12 new annexures to the new affidavit which I have not even seen yet. Mr Lever apparently seems to have a single copy of it. I've not been able to take instructions in relation to it. If I can be provided with the annexures to that affidavit promptly and if I can look through them and have an opportunity to take instructions over lunch, I expect I would be in a position to deal with Ms Juric fairly shortly after lunch, but without actually having all the stuff it's a little bit difficult.

PN995

THE SENIOR DEPUTY PRESIDENT: Yes, can you photocopy those annexures.

PN996

MR LEVER: Yes, your Honour, I have just received them myself this morning, so yes, I can organise them to be copied.

PN997

THE SENIOR DEPUTY PRESIDENT: I think you can tell Ms Juric we will take her evidence at 2.15.

PN998

MR LEVER: 2.15. Thank you your Honour.

PN999

THE SENIOR DEPUTY PRESIDENT: I will retreat to Chambers and have a look at Lever2. If you provide my staff with your mobiles, I won't have you hanging around here, I will call you when I have finished it, I'll give you 10 minutes notice rather than have you loitering. Thank you.

PN1000

MR LEVER: Thank you, your Honour.

<SHORT ADJOURNMENT [11.19AM]
<RESUMED [2.29PM]

PN1001

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lever, when I left this morning I indicated that I intended to read your second statement and that I thought that would take me until about 12, it took me until about 20 past. I don't understand why you weren't available to come back.

PN1002

MR LEVER: I was available, I just was about 10 minutes away and I actually thought that when Mr Jauncey stood up and said he would need to get instructions from ANSTO in relation to Ms Juric's annexures that I then understood that it was being put back to quarter past two.

PN1003

THE SENIOR DEPUTY PRESIDENT: No, you misunderstood the position. We will just have to make sure that the arrangements are better understood because it wasted a great deal of time.

PN1004

MR LEVER: I'm sorry your Honour.

PN1005

THE SENIOR DEPUTY PRESIDENT: Do you wish to call Ms Juric?

CONTINUED IN TRANSCRIPT IN CONFIDENCE

PN1195

THE SENIOR DEPUTY PRESIDENT: The next witness is yourself, unless you intend to interpose anybody else Mr Lever.

PN1196

MR LEVER: I was intending to put Sergeant Cartwright but he's not here today.

PN1197

THE SENIOR DEPUTY PRESIDENT: No, he's not. And who else?

PN1198

MR LEVER: And Mr Bloom is the only other witness that I want to call but I need to speak to him tonight to get an update on his particular circumstances.

PN1199

THE SENIOR DEPUTY PRESIDENT: All right.

PN1200

MR JAUNCEY: Your Honour, perhaps I might just ask one thing for clarification. Mr Lever has just indicated that other than himself he only intends to call Sergeant Cartwright and Mr Bloom. He had informed me that he also wished to call Ms Nerida Savage, I'm wondering if that is still happening.

PN1201

MR LEVER: Sorry, your Honour, thank you Mr Jauncey. Me turning a page that I needed to keep there. Ms Nerida Savage, I have spoken to her office, she has been on leave. I believe she is either returning late this afternoon or tomorrow morning. The summons and documents have been given to Ms Savage and I need to speak to them tomorrow morning probably before the hearing starts here as to what day she can attend.

PN1202

THE SENIOR DEPUTY PRESIDENT: What does she do for a living?

PN1203

MR LEVER: She's a rehabilitation provider for Commonwealth Rehabilitation Services. It will only be a very brief appearance, it's only in answer to
Ms Risby's, I believe, affidavit. There is some evidence in there that I will be challenging, it is a conversation between Ms Savage and Ms Risby.

PN1204

THE SENIOR DEPUTY PRESIDENT: I think you can arrange all of those witnesses for Wednesday.

PN1205

MR LEVER: Wednesday. Thank you your Honour.

PN1206

THE SENIOR DEPUTY PRESIDENT: You can give your evidence tomorrow.

PN1207

MR LEVER: Thank you your Honour.

PN1208

THE SENIOR DEPUTY PRESIDENT: I think we are better off starting
Mr Lever's cross-examination in the morning.

PN1209

MR JAUNCEY: As you wish your Honour.

PN1210

THE SENIOR DEPUTY PRESIDENT: I will have my staff contact the relevant officer in the Australian federal police and tell them to have Sergeant Cartwright here Wednesday morning and then you can have Mr Bloom immediately thereafter, so say by 11 o'clock and Ms Savage can appear on Wednesday at some time convenient to you. If we are not finished your cross-examination by tomorrow we will interpose it around the various witnesses on Wednesday.

PN1211

MR LEVER: Thank you your Honour.

PN1212

MR JAUNCEY: I am content with that course your Honour.

PN1213

THE SENIOR DEPUTY PRESIDENT: That leaves us with Friday up our sleeve, does it not, because most of this week was anticipated to be for Mr Lever's case.

PN1214

MR JAUNCEY: I am still hopeful that we will be through by the end of the day on Wednesday.

PN1215

THE SENIOR DEPUTY PRESIDENT: I am too.

PN1216

MR JAUNCEY: But it's far from a promise your Honour.

PN1217

THE SENIOR DEPUTY PRESIDENT: No, no, I think that it's hopeful. So if you had somebody available who would you call in the first in your witnesses?

PN1218

MR JAUNCEY: I suspect we would probably lead with Mr Glatch and Ms London.

PN1219

THE SENIOR DEPUTY PRESIDENT: Perhaps you should line them up for Friday morning.

PN1220

MR JAUNCEY: I shall seek to do so your Honour.

PN1221

THE SENIOR DEPUTY PRESIDENT: The Commission is adjourned.

<ADJOURNED UNTIL TUESDAY 26 AUGUST 2008 [3.41PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

RONALD LEVER, SWORN PN978
EXHIBIT #LEVER 1 STATEMENT OF RONALD LEVER DATED 3/06/2008 PN987
EXHIBIT #LEVER2 STATEMENT IN REPLY OF RONALD LEVER PN987
THE WITNESS WITHDREW PN990