C2007/3513, Transcript of Proceedings [2008] AIRCTrans 523 (10 September 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19035-1

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, WEDNESDAY, 27 AUGUST 2008

Continued from 26/8/2008

Hearing continuing

PN2119

THE SENIOR DEPUTY PRESIDENT: Good morning. Sorry to keep you waiting, I had to attend to another listing. Is the Federal Police officer here?

PN2120

MR LEVER: Both witnesses are here, your Honour, Ms Savage and Sergeant Cartwright.

PN2121

THE SENIOR DEPUTY PRESIDENT: Right. Well, Ms Savage can wait outside I think.

PN2122

MR LEVER: I'd like to call her first if that's possible. It's a fairly short - - -

PN2123

THE SENIOR DEPUTY PRESIDENT: Well really, I've made an arrangement with Sergeant Cartwright to be here at 10. It depends what other commitments he's made.

PN2124

MR LEVER: She will only be 10/15 minutes.

PN2125

THE SENIOR DEPUTY PRESIDENT: Sergeant, are you happy to wait probably 15 minutes until Ms Savage is finished?

PN2126

SERGEANT CARTWRIGHT: That's fine, yes.

PN2127

THE SENIOR DEPUTY PRESIDENT: Well, would you mind waiting outside, thank you. Are you happy with that, Mr Jauncey?

PN2128

MR JAUNCEY: Yes, subject only to one thing, your Honour, as I foreshadowed yesterday once Ms Savage has given her evidence-in-chief I'd seek a period of time to review her file and the documents.

PN2129

THE SENIOR DEPUTY PRESIDENT: The file has arrived, hasn't it?

PN2130

MR JAUNCEY: Yes, indeed it has. Now, what that means is that if we're doing it this way, Ms Savage may need to give evidence, then we may need to have a break before she comes back so perhaps we could have her - - -

PN2131

THE SENIOR DEPUTY PRESIDENT: How long do you expect the Sergeant to be?

PN2132

MR LEVER: Maybe an hour or so I would think.

PN2133

THE SENIOR DEPUTY PRESIDENT: Are you otherwise employed today, Sergeant?

PN2134

SERGEANT CARTWRIGHT: No, I haven't got a problem.

PN2135

THE SENIOR DEPUTY PRESIDENT: There's great coffee shops in Stanley Street. How about you come back in 45 minutes, buy a newspaper, read it and have a coffee. Thank you. I think it would be inconvenient to do it that way,
Mr Jauncey. I think you should have a look at the file first and then we can proceed. You'll know whether you want to ask her any questions or not so I don't think it will take any longer than 10 minutes to do that, do you, to have a look at the file?

PN2136

MR JAUNCEY: It may take me a little longer than that. I don't anticipate it to be a great deal of time.

PN2137

THE SENIOR DEPUTY PRESIDENT: All right, thank you.

PN2138

MR JAUNCEY: But my recollection was the file was some inches thick and it's not a small file.

PN2139

THE SENIOR DEPUTY PRESIDENT: Will you be assisted by hearing
Ms Savage's evidence before you do that?

PN2140

MR JAUNCEY: I believe that would make it shorter, your Honour.

PN2141

THE SENIOR DEPUTY PRESIDENT: All right, in that case we'll do it that way. Thank you. Call Ms Savage.

<NERIDA MARIA SAVAGE, SWORN [10.15AM]
<EXAMINATION-IN-CHIEF BY MR LEVER

PN2142

THE SENIOR DEPUTY PRESIDENT: Ms Savage, those microphones don't amplify at all, they just record, so if you could just speak up a little bit so that everyone can hear you?---Sure, okay.

PN2143

MR LEVER: Thank you, your Honour.

PN2144

Ms Savage, when was the first time you were contacted by ANSTO?---Okay. I presume it's okay for me to refer to the file?

PN2145

THE SENIOR DEPUTY PRESIDENT: Yes?---Yes, yes, thank you. It would have been a few days prior to 7 February 2006.because that's the first meeting that I had with them.

PN2146

MR LEVER: My next question, you had a meeting with ANSTO, what date was that?---Yes, 7 February 2006, yes.

PN2147

Do you recall who was present at that meeting?---My file notes don't say the names there but there is a reference further in the file to say that Rod Davies, John O'Shea, Karen Wolf, Zlata Risby and myself were present. So I was meeting with human resources about a possible referral to us.

PN2148

What did you have your first meeting with Mr Lever?---That was the same day.

PN2149

The same day?---Yes, it was.

PN2150

After you had your meeting with ANSO?---Yes. I went to ASTO to discuss the referral and then I had a meeting with you.

PN2151

In that meeting was training discussed, the meeting with me?---It was. It was in regards to training being - I recall you asking about training and me replying that it was only necessary if you returned to work in a position that required additional training.

PN2152

Did Mr Lever seem keen to get back to work?

**** NERIDA MARIA SAVAGE XN MR LEVER
PN2153

MR JAUNCEY: I mean this is just impression. I mean, it's evidence but if it's just impression.

PN2154

THE SENIOR DEPUTY PRESIDENT: Well, it's a matter of weight, isn't it,
Mr Jauncey? Mr Jauncey, I think it's just a matter of weight on the basis that that's how I have regard to it. Are you happy to leave it in?

PN2155

MR JAUNCEY: Well, I'm prepared to accept your Honour's ruling if that's what it is.

PN2156

THE SENIOR DEPUTY PRESIDENT: Well, I just wondered if that is what I think if you had anything else to say about it given that's what I think.

PN2157

MR JAUNCEY: If that's your Honour's view then I have nothing further to say.

PN2158

THE SENIOR DEPUTY PRESIDENT: Mr Lever, I will allow you to ask the question and we'll leave Ms Savage's answer where it lies. But in this process you have to be careful about the things you ask her. You know, there's a limited amount she can say about what you were thinking or what your approach was. You can ask her what her impression might have been to some extent but I’m just drawing your attention to the fact that Mr Jauncey has a legitimate objection in relation to the amount of weight you can give to any other person's impression about something else.

PN2159

MR LEVER: I was just trying to provide some context.

PN2160

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. I'm just drawing it to your attention.

PN2161

MR LEVER: Thank you, your Honour.

PN2162

Do you recall if you put the idea of training for Mr Lever forward to ANSTO?
---Following that meeting with you I know that I feedback to Zlata Risby about the request for the training but again we discussed that any additional training in regards to return to work is normally only if the position you return to requires training that you don't already have.

**** NERIDA MARIA SAVAGE XN MR LEVER
PN2163

So that was answered by ASTO or did you have a response from ANSTO?---I don't recall anything other than what I just said which was feeding back that you had specifically asked about training and their response being that it depends on the position that you return to.

PN2164

Thank you. At what time was Mr Lever's file closed?---I was asked to close the file on 24 July 2006 and I was told then that our assistance was no longer required and I advised you the same day about that and then we had no further contact in that regard, so once it was closed.

PN2165

And who was the person from ANSTO that informed you to close the file?---Zlata Risby who was the - actually the only person that I dealt with via email and phoned in regards to the case which is normal.

PN2166

So from that time onwards have you had any further contact with Mr Lever?---No, only yesterday when you contacted me on my return from rec leave and asked me to come today.

PN2167

Have you ever had any further with ANSTO since the file was closed on 24 July 2006?---Not in regards to your case at all but other - because I take referrals from ANSTO for their return to work so just about other cases.

PN2168

Did CRS receive a fax from Mr Lever on 20 August?---That was in regards to coming today?

PN2169

Yes?---Yes.

PN2170

Do you have a copy of that with you?---Actually I think it's in my diary. Can
I - - -

PN2171

THE SENIOR DEPUTY PRESIDENT: Why do you need it?

PN2172

MR LEVER: I just want to take her through some of the contents of it. I'd like to hand up the letter so you can see the letter I sent to CRS.

PN2173

THE SENIOR DEPUTY PRESIDENT: Does she need her letter or can you hand up yours?

**** NERIDA MARIA SAVAGE XN MR LEVER
PN2174

MR LEVER: I only have three copies I think. I have got four copies?---Yes, I got this yesterday when I returned from leave.

PN2175

Do you know a Dr Mayne?---No, I don't know a Dr Mayne.

PN2176

So you've read this letter?---Yes, I did.

PN2177

And it was in relation to part of an affidavit from Ms Zlata Risby?---Right.

PN2178

Page 31, what do you say to the - - -

PN2179

THE SENIOR DEPUTY PRESIDENT: Could you just wait one minute until I read this? I haven't finished reading it.

PN2180

MR LEVER: Sorry.

PN2181

THE SENIOR DEPUTY PRESIDENT: Have a seat. Yes. What is it you want to ask the witness, about the accuracy of the conversation portrayed by Ms Risby?

PN2182

MR LEVER: Yes, your Honour.

PN2183

THE SENIOR DEPUTY PRESIDENT: All right.

PN2184

MR LEVER: If you can turn to the last page and look at paragraph 157,
Ms Risby records that she had contact with CRS and left a message in regards to contacting her?---Mm.

PN2185

Did you receive such a message?---In regards to the content of that page the dates don't match anything that I have because this refers to 2007. I believe that this is actually 2006. I believe the statements on that, the dates aren't right at all. So I believe that the phone call relates to when I was trying to arrange an independent medical between yourself and ANSTO and that was about May 2006, but because that topic doesn't have a date on it I can't confirm that. But talking about it, getting a phone call back, deciding on someone and it actually says HAS, it's Health Services Australia so I think it's just some typos in that, but 2007, definitely not.

**** NERIDA MARIA SAVAGE XN MR LEVER
PN2186

Can I just go through this, so this conversation that Ms Risby has recorded to you, you believe is a mistake and maybe possibly related to May 2006?---Yes, the rest of the sequence here fits with May 2006 with me liaising between ASTO, yourself and Health Services Australia trying to agree on an independent medical doctor, whether that be a psychiatrist or an occupational physician in order to get an independent medical to help determine whether a return to work was suitable and if there was any restrictions.

PN2187

Was that the process ANSTO used generally between Commonwealth Rehabilitation Services and ANSTO, is that the custom that you would engage in that way?---Not just ANSTO but normally an employer would choose an independent medical doctor. In this instance they involved yourself in the process and allowed you to choose the person. So I was asked just to come up with a list of doctors so I just used doctors in Wollongong, presented the same list to both of you and it was Dr Kaplan that was agreed that you would see so I'm not quite sure who Dr Mayne is at all.

PN2188

So that's the other problem with this particular affidavit in 159, if that was a conversation related to 2006 it doesn't fit with Dr Mayne?---Yes, that's correct. I don't know - - -

PN2189

THE SENIOR DEPUTY PRESIDENT: Sorry, May 2006 you had a conversation like this?---Yes.

PN2190

About a doctor who might be on the HSA list?---Yes.

PN2191

And that the result of that process was that it was Dr Kaplan who was selected, not Dr Mayne?---That's correct.

PN2192

You never had anything to do with selecting or presenting for selection
Dr Mayne?---No, and definitely not - - -

PN2193

Is Dr Mayne one of those doctors on the HSA list?---I'll just see if I can find the list that we came up with. I'm not familiar with the name but see, the rest of the information on the page fits. It's the year.

PN2194

Yes, I understand that?---Yes, sorry.

**** NERIDA MARIA SAVAGE XN MR LEVER
PN2195

I just wondered whether Dr Mayne was one of your doctors or not?---I can't see any reference to that doctor's name. I'm not familiar with him.

PN2196

All right, thank you. Yes, go on.

PN2197

MR LEVER: Have you or are you aware if CRS have ever used Dr Mayne?
---I'm not aware of it. I'm not familiar with Dr Mayne.

PN2198

That's all, your Honour, thanks.

PN2199

THE SENIOR DEPUTY PRESIDENT: Do you want to have a look at the file?

PN2200

MR JAUNCEY: Yes, your Honour, if I could perhaps just - - -

PN2201

THE SENIOR DEPUTY PRESIDENT: I'll just retreat to chambers. I have other things to do.

PN2202

MR JAUNCEY: Certainly, your Honour.

PN2203

THE SENIOR DEPUTY PRESIDENT: Ms Savage, if you wouldn't mind waiting?---Sure.

PN2204

Perhaps if you give Mr Jauncey your mobile telephone you could also have a cup of coffee?---Okay, all right. Yes, thank you.

PN2205

You take a break, give him your phone number. Mr Jauncey, you call me when you're ready having looked at the file and you can give the witness a ring too.

PN2206

MR JAUNCEY: Yes, your Honour.

PN2207

THE SENIOR DEPUTY PRESIDENT: Yes, that way no-one is hanging about.

<SHORT ADJOURNMENT [10.30AM]
<RESUMED [11.22AM]

PN2208

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jauncey.

PN2209

MR JAUNCEY: Yes, your Honour, I apologise for taking slightly longer than I thought.

PN2210

THE SENIOR DEPUTY PRESIDENT: That's all right. Yes.

<CROSS-EXAMINATION BY MR JAUNCEY [11.22AM]

PN2211

MR JAUNCEY: Thank you, Ms Savage. Ms Savage, I'm going to show you a document. For the record, your Honour, I'm happy to provide an extract for your Honour but it is actually a page from annexure 2 to the affidavit of Dr Hall and it's at page 36 of Dr Hall's affidavit.

**** NERIDA MARIA SAVAGE XXN MR JAUNCEY
PN2212

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2213

MR JAUNCEY: Ms Savage, can you just look at the top of this document and you'll see that there's annotation there in handwriting saying 25/7/07?---Yes.

PN2214

And then it says:

PN2215

Telecom message left with Nerida Savage, awaiting for to discuss further assessment for Ron.

PN2216

And then it's sign by Zlata Risby?---Yes.

PN2217

Now, having looked at this document and cast your mind back I put it to you that it's quite possible that a message or messages were left with you around about that time but that now over a year later you just don't remember?---Well, that says that she left me a phone message but - and obviously I don't recall getting that message or responding to it because I don't - and there's no other reference I can see on there to me getting involved in the review or anything like that.

PN2218

No, but it's quite possible that she at least left you a message?---Yes, that she left a message.

PN2219

That you just can't remember?---Yes, well, it is possible that that's the case.

PN2220

And it's possible that you may have had some sort of other limited conversation with her around this time that you don't remember?---If I did I think it still would have been in regards to other cases. I don't recall any further involvement in anything to do with Ron.

PN2221

I'm not suggesting that there was any significant further involvement?---Yes.

PN2222

But it certainly is possible that Ms Risby may have spoken to you about Mr Lever at some point around this time?---Well, the way I read that she's left a message for me but there's no further conversation and I don't recall the conversation between Zlata and myself last year about it, yes.

PN2223

But you can't completely rule it out, can you?---No.

**** NERIDA MARIA SAVAGE XXN MR JAUNCEY
PN2224

No further questions, your Honour. Thank you, Ms Savage.

PN2225

THE SENIOR DEPUTY PRESIDENT: Do you wish to mark this as an exhibit or are you happy to leave it like the other documents as attachments?

PN2226

MR JAUNCEY: It's in as an attachment to other affidavits so I don't think we need to be making a long exhibit list.

PN2227

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2228

MR JAUNCEY: Thank you, Ms Savage.

PN2229

MR LEVER: Your Honour, can I - - -

PN2230

THE SENIOR DEPUTY PRESIDENT: Yes.

<RE-EXAMINATION BY MR LEVER [11.26AM]

PN2231

MR LEVER: If Ms Risby had contacted you in relation to Mr Lever's case is there a process once the file is closed to have it reopened before another case can be discussed?---Yes, I would be - once a case is closed or release of information cease so I would have been asking are you wanting us to get involved again or something like that. That's why I - yes. I don't recall having a conversation about it or even the possibility that we were going to get involved again.

PN2232

So you don't have any notes in relation to any conversations or the possibility of reopening Mr Lever's case?---No, no, I don't.

PN2233

Thank you, your Honour.

**** NERIDA MARIA SAVAGE RXN MR LEVER
PN2234

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Savage, you're excused. You may come and go as you please?---Thank you.

<THE WITNESS WITHDREW [11.27AM]

PN2235

THE SENIOR DEPUTY PRESIDENT: Is the Sergeant still outside? Did he come back from coffee?

PN2236

MR JAUNCEY: Yes, he has, your Honour.

PN2237

THE SENIOR DEPUTY PRESIDENT: Yes. We'll have him brought in, thank you.

<WAYNE JEFFERY CARTWRIGHT, SWORN [11.28AM]
<EXAMINATION-IN-CHIEF BY MR LEVER

PN2238

MR LEVER: Mr Cartwright, do I call you Sergeant Cartwright?---That's fine, thank you.

PN2239

How long have you been working with the Australian Federal Police Protective Services?---For about 24 years.

PN2240

How long have you been a Sergeant?---Since 1996.

PN2241

How long have you been involved with ANSTO in relation to the protection of the ANSTO site?---Originally since 1985 and then left there in 1987 and returned back there in 96 and have been there since to date.

PN2242

Thank you. Do Australian Federal Protective Services in ANSTO work closely together?---Yes.

PN2243

Do the Australian Federal Police protect the boundaries of ANSTO 24 hours a day, seven days a week?---That's correct.

PN2244

The Australian Federal Protective Service officers, do they work in shifts?
---That's correct.

PN2245

What are your lines of communication with ANSTO?---Regular liaisons and weekly meetings.

PN2246

And who would that be with?---Our liaison with ANSTO is through Mr Eric Ryan.

PN2247

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I didn't hear that?---Mr Eric Ryan, the agency security adviser.

PN2248

MR LEVER: Is the protection incident report an Australian Federal Police Protective Services document?---Yes, it is used and it's used in conjunction with our duties at ANSTO.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2249

But it's a document that you would probably use in other sites as well as a standard document?---It's not a standard document used on other sites. It's amended in relation to ANSTO.

PN2250

So it's customised for ANSTO?---Customised.

PN2251

Are there procedures and guidelines as to how the Australian Federal Police officers are to identify a protection incident?---Yes, there are.

PN2252

Are there procedures and guidelines informing Australian Federal Police protective officers as to how to complete a protection incident report?---Yes, there is.

PN2253

How many protection incident reports have you written out?---Hundreds.

PN2254

Who decides when a protection incident report needs to be written out?---Usually the sergeant on the day or the officer in charge.

PN2255

Who is involved in generating the protection incident report?---Usually the sergeant of the day.

PN2256

Are any other people involved?---Sometimes an officer can produce an incident report.

PN2257

Anybody else outside the Australian Federal Police?---No.

PN2258

So the decision to write out a protection incident report is solely within the province of the Australian Federal Police Protective Service officer or sergeant?
---That's correct.

PN2259

Sergeant Cartwright, how does an employee gain access to the ANSTO site?---By production of their ANSTO ID access badge.

PN2260

Are the Australian Federal Police officers required to know why the employee is gaining access to the site?---They can only gain access to the site if they've got an approved access card, authorised access card.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2261

Yes. But does the Australian Federal Police officer themselves need to know why the employee is gaining access to their site?---No.

PN2262

With their access card?---No.

PN2263

So if I understand your evidence correctly, the Australian Federal Police officer is not required to know why an employee wishes to access the ANSTO site?---That's correct, as long as they have an authorised access card.

PN2264

So the employee could be going to work?---One would assume that's why they're entering the site.

PN2265

They could be going to the library?---That's also within site.

PN2266

They could be picking somebody up?---As long as they have an authorised access card they can enter the site.

PN2267

If they're just dropping somebody off. So the Australian Federal Police officer is only concerned whether they have a valid access pass and that's all?---That's correct.

PN2268

So does the process of accessing the site vary according to when the employee wishes to access the site?---There's different procedures in relation to accessing the site during business hours and so on of hours, or non business hours.

PN2269

So business hours or core hours?---Mm.

PN2270

What is an employee required to do?---There's still a requirement to identify themselves with their ANSTO ID badge.

PN2271

And core hours is between?---Seven to seven on a business day.

PN2272

Seven to seven. And after that period?---After that period they may be required to, apart from IDing themselves with their badge there may be a requirement for a search to be carried out on the vehicle that they enter.

PN2273

So that's the only additional requirement after hours, they don't have to sign a book or anything?---Previously they did but not at the moment.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2274

So when did the practice of signing the book when coming in on site after hours change?---I'm not sure of the actual year.

PN2275

Approximately?---Some time after 1998 I believe - no. I’m not too sure. I'm sorry, I can't answer that question.

In 2004 do you know if employees were required to sign as they enter site after hours?---No.

PN2276

Sorry?---No.

PN2277

You don't know or they didn't have to?---They did not have to.

PN2278

They did not have to. What about weekends?---Weekends is in silent hours or non core hours.

PN2279

So the process up to a point in time which you can't recall was they had to sign the book but subsequent to that cut off they no longer are required to sign a book?
---Yes.

PN2280

What about public holidays?---It's still on business hours.

PN2281

Can anyone bring somebody else onto site?---As long as both parties have authorised business ID cards.

PN2282

Well, let's assume one person has a card but then they want to bring somebody else on site, what's the process for that?---It would have to be authorised by the ANSTO management after hours.

PN2283

I'm talking about core hours?---Core hours is the same, they have to be authorised. They can come in in business hours they would have to enter through the ANSTO reception area and get a visitor's ID badge.

PN2284

Reception area, ID visitor's badge. Do you know Ms Juric?---I did at the time.

PN2285

Did you know Ms Juric prior to 20 October 2004?---Only as a past member passing through the gate.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2286

Sorry?---Only as a staff member passing through the gate.

PN2287

So your first real introduction to Ms Juric was on 20 October 2004?---That's correct.

PN2288

Do you recall Mr Ryan, ANSTOs security adviser, informing you of Ms Juric's restrictions?---Yes, I do.

PN2289

Do you recall when you were told?---I believe the day before, or the afternoon before.

PN2290

Do you recall how you were informed about Ms Juric's restrictions?---I believe it was by the telephone conversation.

PN2291

Would you have taken a note of that telephone conversation?---I believe I jotted down a note at the time.

PN2292

Do you know if that note still exists?---No, that note does not exist any more.

PN2293

Are you sure about that?---I'm positive.

PN2294

How do you know?---Beg your pardon?

PN2295

How do you know that that note doesn't exist?---Because I was the one that wrote it.

PN2296

So you destroyed it after you wrote it?---I did. After the event, yes.

PN2297

Sorry?---After the event I did, after that date and time. I had no longer use for it.

PN2298

What were the restrictions placed on Ms Juric?---I believe the agency security adviser requested me to alert him if Ms Juric attempted to enter site.

PN2299

So was that a restriction?---Not as such.

PN2300

So there was no restrictions on Ms Juric?---Not at the time.

PN2301

Sorry, there's no restrictions?---There was no restrictions placed on her to my knowledge, at the time of the conversation on the previous afternoon.

PN2302

On 19 October?---That's correct.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2303

So all you were told on the afternoon of the 19th was to contact Mr Ryan and advise him?---That's correct.

PN2304

Do you recall the events of 20 October 2004?---Yes, I do.

PN2305

Ms Juric came on site about 1.30 pm?---No, that's not correct.

PN2306

Were you working at 1.30 pm on that day?---Yes, I was.

PN2307

I put it to you that Ms Juric did come on site at 1.30 pm - - -

PN2308

MR JAUNCEY: I've given a fair bit of leeway but Sergeant Cartwright is
Mr Lever's own witness and he doesn't need to lead him quite like that.

PN2309

THE SENIOR DEPUTY PRESIDENT: No, I don't but I'm sure the Sergeant is used to being cross-examined and isn't likely to be intimidated.

PN2310

MR JAUNCEY: I'm not suggesting that, your Honour.

PN2311

THE SENIOR DEPUTY PRESIDENT: I think that when you call a witness to explain this in lay terms it's not easy, but if you call a witness you don't usually cross-examine your own witness unless that witness is declared hostile and in which case you're given permission to cross-examine the witness. I don't think Sergeant Cartwright in one form or another you can suggest - why don't you just suggest that it might have been 1 o'clock.

PN2312

MR JAUNCEY: I mean, your Honour, if it assists I'm happy to concede that at some time around about 1 o'clock, 2 o'clock, some time around then it is most likely that Ms Juric came onto the site whether or not Sergeant Cartwright saw her or not.

PN2313

THE SENIOR DEPUTY PRESIDENT: All right. Does that concession assist?

PN2314

MR LEVER: Yes, your Honour.

PN2315

THE SENIOR DEPUTY PRESIDENT: All right, well, move on.

PN2316

MR LEVER: I apologise. I realise as soon as I said it that I was cross-examining.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2317

THE SENIOR DEPUTY PRESIDENT: Yes, that's all right. We all watch too much television.

PN2318

MR LEVER: For someone to drive to building 51, the building that Mr Lever worked in, you would have to drive past building 25?---Not necessarily.

PN2319

Well, the most direct route?---Probably, yes, the most direct route would be that.

PN2320

Thank you. You didn't see Ms Juric and Mr Lever drive off site?---Yes, I did.

PN2321

Around that same time?---Not the time that you're discussing, no.

PN2322

So you didn't notice Ms Juric come on site and you didn't notice Ms Juric going off site around one to 2 pm?---No, I didn't say that. I said I did not see Ms Juric come on site at the time you suggest.

PN2323

But you could have seen her separately leave site?---Yes, but not at that time you suggest.

PN2324

So you didn't see her or notice her come in, you didn't notice her leave?---No, I didn't say that either. I said I did not see her come in or off site at the time you suggest.

PN2325

At approximately, and I'll use military time I think it is, 17.45?---Yes.

PN2326

Ms Juric and Mr Lever sitting in the passenger seat was stopped at the main gate?
---That's correct.

PN2327

Mr Lever showed his access card?---I can't attest to that because I was not on the gate at the time. I was in my office.

PN2328

Why don't you just show the Sergeant the exhibit that demonstrates the times in and out?

PN2329

MR LEVER: Because I've got some questions about that and I'm just leading to those, your Honour.

PN2330

THE SENIOR DEPUTY PRESIDENT: All right.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2331

MR LEVER: But for Mr Lever or Ms Juric to get access to the site they would have had to show their access card?---That's correct.

PN2332

To an Australian Federal Police Protective Service officer?---That's correct.

PN2333

Do you know why Ms Juric's car was stopped?---For purpose of identification.

PN2334

And after checking her identification she was allowed through?---I believe there was some hold up in relation to that.

PN2335

Sorry?---I believe she was held for a few minutes or a couple of minutes in relation to that entry.

PN2336

Do you recall why?---Because I was required to - the officers were briefed in relation to her entry on site by me in the morning and that I had a requirement to alert the agency security adviser and they weren't sure whether she was actually allowed on site until they spoke to me and once they spoke to me she was allowed on site.

PN2337

Ms Juric was only stopped there for a minute or so?---Mm.

PN2338

So in that time the officer communicated to another officer in the office area and contacted Mr Ryan and received a response from Mr Ryan at that point in time?
---No, I didn't say that. I said the officer needed to speak with me in relation to her entry.

PN2339

I see. So the officer spoke to you?---Yes.

PN2340

And what did you say back to the officer?---The officer, I said it was fine for her to go on site.

PN2341

So Ms Juric wasn't granted access to the site because Mr Lever was sitting next to her?---Could you repeat the question?

PN2342

So Ms Juric was not granted access to the ANSTO site because Mr Lever was sitting next to her?---No, I didn't say that. I said she was granted access when the officer came in to my office, asked if she was permitted entry and I gave them permission to let her in, regardless of who was sitting in the passenger seat.

PN2343

That was my next question. So to make it perfectly clear, it didn't matter who sat next to Ms Juric?---As long as that person had an authorised access card.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2344

And that would include Mr Ryan?---It would include - - -

PN2345

If Mr Ryan was sitting in her car?---Yes, as long as he had an authorised access card.

PN2346

And if she didn't?---Beg your pardon?

PN2347

Would she be allowed on site if she didn't?---Not at the time, no.

PN2348

Even if Mr Ryan - - -

PN2349

THE SENIOR DEPUTY PRESIDENT: I didn't even know it was in the room, I'm sorry.

PN2350

MR LEVER: I just hope it doesn't happen to me.

PN2351

THE SENIOR DEPUTY PRESIDENT: Yes, it has happened to people before me and on one occasion somebody answered it but not again. I didn't even know it was there, it frightened me. I'm sorry about that.

PN2352

MR LEVER: That's all right.

PN2353

THE SENIOR DEPUTY PRESIDENT: I think Mr Jauncey thought it was in his bag for a minute.

PN2354

MR JAUNCEY: I just thought I ought to check and make sure that mine wasn't still on as well, your Honour.

PN2355

THE SENIOR DEPUTY PRESIDENT: It was tucked inside the file. Yes. Could I just pause there?

PN2356

MR LEVER: Yes, your Honour.

PN2357

THE SENIOR DEPUTY PRESIDENT: I don't want to break your flow, but I've had this morning an industrial dispute which I have been fiddling with in and out and I couldn't get the parties together on the telephone from 11.15 and I was putting them in at one, but I was thinking that it might be more convenient for me if I could list their matter at 12.30. We will have finished this witness might be then and then I'll know what's happening in that dispute. It might only take 20 minutes but I think I'll break at 12.30 and do it rather than do it at one and have no break at all. Is that satisfactory?

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2358

MR JAUNCEY: No objections, your Honour.

PN2359

MR LEVER: No objection, your Honour.

PN2360

THE SENIOR DEPUTY PRESIDENT: Thank you. Sorry, go ahead.

PN2361

MR LEVER: So if Mr Ryan was sitting in her car and Ms Juric did not have a valid access pass she would not have been allowed through?---That's correct.

PN2362

Did you write out the protection incident report on 20 October?---Yes, I did.

PN2363

Did the incident report start at 5.45?---That's correct.

PN2364

So at 5.45 you decided to write out an incident report?---No, sorry, I'll rephrase that. The incident report was written out after that time. That was the time of the incident commencement.

PN2365

Yes, but you must have gone through your mind at that particular point in time that an incident report would be required?---That's correct.

PN2366

So at 5.45 or 17.45 you decided that you were going to write out a protection incident report?---Yes, that's correct.

PN2367

What was the trigger?---I beg your pardon?

PN2368

What triggered you to think that you needed to write out a protection incident report?---Because of the client request or the agency security adviser's request and the fact that the party involved, Ms Juric, had actually entered side.

PN2369

But didn't Mr Ryan tell you just to contact him when Ms Juric entered site?---Yes.

PN2370

So why is that an incident?---Because questions were raised by Ms Juric at the time of her entry and at the time of her departure in relation to our duties.

PN2371

So you made the decision to write a report after Ms Juric's comments?---Yes.

PN2372

And were they the comments as she entered site or the comments as she exited the site?---Both.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2373

Who was the other officer involved?---I'm not sure who the other officer was at the time. It was nearly four years ago.

PN2374

Certainly. Was there anyone else involved?---Apart from myself and the officers on duty at the gate and Mr Ryan, no.

PN2375

The officer at the gate was a female officer?---As I just stated, I'm not sure who the officer was at the time.

PN2376

When you decided that there was going to be an incident report written out was Mr Ryan involved?---Mr Ryan receives a copy of the incident report. That's his only involvement.

PN2377

Do you have a copy of the report there with you?---Yes, I do.

PN2378

Your Honour, I'm not sure what exhibit it was, whether it was 6 or 7.

PN2379

THE SENIOR DEPUTY PRESIDENT: Yes, 6.

PN2380

MR LEVER: Exhibit 6. Do you have that report in front of you, Sergeant Cartwright?---Yes, I do. Yes, I do.

PN2381

According to the report it starts at 17.45?---Yes.

PN2382

And it concludes at 18.22?---That's correct.

PN2383

And the nature of the incident you state, unauthorised entry?---That's correct.

PN2384

But Ms Juric was stopped and you've allowed her access to the site?---Yes, at the time I did, yes.

PN2385

So how can it be an unauthorised entry?---Because in discussion with Mr Ryan during the period that they were on site - - -

PN2386

Sorry?---In discussion with Mr Ryan in the period that the parties were on site he advised me of the circumstances in relation to Ms Juric's entry.

PN2387

So while Ms Juric was on site with Mr Lever you had a telephone conversation with Mr Ryan?---That's correct.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2388

And through that conversation a decision was made to write out a protection incident report?---It's my decision to write out the incident report. It wasn't
Mr Ryan's decision.

PN2389

But it was made after you had that conversation with Mr Ryan?---That's correct.

PN2390

Your Honour, may I approach the witness?

PN2391

THE SENIOR DEPUTY PRESIDENT: Yes, sure.

PN2392

MR LEVER: I think this is exhibit 10. I'd just like to show Sergeant Cartwright exhibit 10.

PN2393

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN2394

MR LEVER: If you could just read that. It's an email between Ms Juric and
Mr Lever and I know you weren't a party to it but it has some content in there that I want to bring to your attention?---Okay.

PN2395

Were you one of the Australian Federal Police Protective Service officers working on 18 September 2004?---I’m not sure. As I said, that was nearly four years ago.

PN2396

Do you have any recollection of this particular occurrence?---No, I don't.

PN2397

I won't say incident because it has a meaning. The Australian Federal Police Protective Services at ANSTO and/or Mr Ryan have the power to confiscate an employee's access pass?---On instruction from the client, yes, we have the authority to.

PN2398

And that client is ANSTO but your communication there would be with
Mr Ryan?---That's correct.

PN2399

And as you can see from that email, Mr Ryan was involved in this conversation?
---Yes.

PN2400

There was no decision to remove Ms Juric's access card?---I'm not aware of this, what occurred on this date, apart from what's in the email.

PN2401

Well, she still had her access pass on 20 October?---That's correct.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2402

Do you know if there was a protection incident report generated by the Australian Federal Police in relation to this access?---No, I'm not.

PN2403

Were you aware if there any restrictions on Mr Lever?---As far as I'm aware at the time, no, there was no restrictions.

PN2404

Do you know what time you worked on 20 October?---Yes, I worked between
6 am to 6 pm. No, correction sorry. I just commenced night shift so I would have been working from half past five to 6 am the following morning.

PN2405

Half past five in the afternoon?---Yes.

PN2406

Till?---6 am the next morning.

PN2407

6 am in the morning. Well, that would explain why you didn't see Ms Juric come on at one or 2 o'clock on the 20th?---Yes.

PN2408

I just want to draw your attention to the protection incident report itself?---Mm.

PN2409

It states there that there's two officers involved?---Mm.

PN2410

And those two officers was yourself?---That's correct.

PN2411

And who was the other officer?---I've already stated that. I'm not sure who the officer was. It was four years ago.

PN2412

Okay. It also says that in the other section that ANSTO ASA was involved?
---That's correct.

PN2413

And that is Mr Ryan?---That's correct.

PN2414

Now, the first sentence in the background:

PN2415

Ms Juric has been on compensation and/or sick leave for some time and apparently on numerous occasions attempted to return to her job without authorisation from her medical practitioner.

PN2416

?---That's correct.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2417

As an Australian Federal Police Protective Services officer how did you come by that information?---That information was passed on to me by Mr Ryan.

PN2418

So Mr Ryan asked you to put this in the report?---No, Mr Ryan doesn't discuss what goes in our reports or doesn't request what goes in our reports.

PN2419

But Mr Ryan does discuss the personal details of an employee with the Australian Federal Police?---In this particular case he did and only with the sergeant on duty.

PN2420

Well, your earlier evidence was that ANSTOs site is patrolled 24 hours a day, seven days a week?---That's correct.

PN2421

And he's only spoken with you in relation to this?---Yes.

PN2422

With Ms Juric?---Well, I'm only aware that he spoke to me. I'm not aware if he spoke to any other sergeant on duty at any other shift.

PN2423

Or any other day?---Or any other day.

PN2424

Can I just have a moment. And in here on your second sentence you say:

PN2425

Ms Juric's building access has been suspended by ANSTO.

PN2426

?---That's correct. That's correct.

PN2427

In your earlier evidence you stated that Mr Ryan simply told you to let him know when Ms Juric entered the site?---That's correct, but I also said that I spoke to
Mr Ryan during the present - while the two parties were on site when he advised me of that information.

PN2428

So he provided additional information to you on that day?---That's correct.

PN2429

Excuse me one moment, your Honour. The information in regards to the background couldn't have been known to the Australian Federal Police Protective Service officers?---It was known to me after contact with Mr Ryan.

PN2430

And Mr Ryan told you that Ms Juric entered site on numerous occasions?---That's what's written in my report.

PN2431

Well, it's written in your report but it didn't come from your own knowledge?
---No, I just disclosed that Mr Ryan advised me of this.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2432

Okay, so Mr Ryan. Ms Juric when she was stopped and you recorded that conversation as:

PN2433

"Is there a problem? Why aren't I allowed on site?"

PN2434

?---That's correct.

PN2435

Where did that information come from?---That was overheard by me when
Ms Juric uttered that statement.

PN2436

Mr Lever recalls Ms Juric saying there was a problem or is there a problem.

PN2437

MR JAUNCEY: Well, now we are just crossing a dam. I mean - - -

PN2438

THE SENIOR DEPUTY PRESIDENT: We are.

PN2439

MR JAUNCEY: I'm happy if you let him lead but - - -

PN2440

THE SENIOR DEPUTY PRESIDENT: All right. Mr Lever, I have to tell you that I understand what your point is about this document and the events but it seems to me that the information supplied on which this officer acted and was supplied by Mr Ryan, this officer is required to act in accordance with his instructions and the relevance of this matter in unlawful termination application or unfair application seems to be not very great and that the differences about which you're cross-examining are not to be very weighty. I don't know what your purpose is here and, you know, perhaps you could identify it for me. Would you rather the witness is outside while you give that?

PN2441

MR LEVER: Yes, your Honour.

PN2442

THE SENIOR DEPUTY PRESIDENT: Thank you. Sergeant, would you might waiting outside. We'll only be a couple of minutes.

<THE WITNESS WITHDREW [12.07PM]

PN2443

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lever, what are you doing here?

PN2444

MR LEVER: These matters relate to my security clearance and it goes to one of the reasons I was terminated. It's referenced in Mr Ryan's affidavit in regards that it influenced him in relation to my security clearance.

PN2445

THE SENIOR DEPUTY PRESIDENT: What did?

PN2446

MR LEVER: This particular report.

PN2447

THE SENIOR DEPUTY PRESIDENT: But this officer doesn't know anything about, so far as I can tell, he's simply asked to do something by Mr Ryan. He's given information by Mr Ryan. You say that information is correct and perhaps the representation of Ms Juric's circumstances are exaggerated, that somehow or other the officer is inspired to act in a more - I hesitate to say aggressive, but diligent fashion than he might otherwise in relation to Ms Juric's exit and entry from the site because of whatever Mr Ryan told him. But his role in this seems to me to be just the ordinary pursuit of his duties and the cross-examination doesn't seem to add anything to it.

PN2448

MR LEVER: Well, some of this material I presume I can put to Mr Ryan in cross-examination of him because the information seems to be coming - - -

PN2449

THE SENIOR DEPUTY PRESIDENT: Yes, you can. Everything that comes here from the Sergeant is a matter that he says all information about Ms Juric's circumstances came to him from Mr Ryan. Insofar as any of that is recorded in this incident it's a reflection of what information he was given by Mr Ryan. If you put that proposition to him and he agreed to it then what you have to then do is put everything Mr Ryan. You don't have to go through everything with this officer. He's simply a cog in the protective wheel.

PN2450

MR LEVER: But I didn't know that until I asked those questions today.

PN2451

THE SENIOR DEPUTY PRESIDENT: Yes, I know but you asked the question about Mr Ryan a little while ago and you seemed to be continuing on. But what I wanted to point out to you without the presence of the officer was that after that it's not necessary.

PN2452

MR LEVER: Yes, I agree with that, your Honour, and in the second paragraph of the issue and event we then get back to information that he provided on the report.

PN2453

THE SENIOR DEPUTY PRESIDENT: Yes, but that information doesn't - when you got to that point that's why I interrupted.

PN2454

MR LEVER: Sorry, yes.

PN2455

THE SENIOR DEPUTY PRESIDENT: I don’t' see why any of that matters.

PN2456

MR LEVER: This second paragraph?

PN2457

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2458

MR LEVER: Well, it goes to the authenticity of this protection incident report. There are some factual things here - - -

PN2459

THE SENIOR DEPUTY PRESIDENT: But what she and he said to each other in pursuit of him pursuing his duties as a result of Mr Ryan's information seems to me by the way in relation to this matter, unless I'm missing the point. What you're saying is Mr Ryan acted in a way that was inappropriate and gave him information which was probably inaccurate. That's your point, isn't it?

PN2460

MR LEVER: That's one of the points but the other point is to, and I'll raise this one with you now, your Honour, is the car. Police officers when they are trained to take note of registration numbers and so forth, he's recorded my car as QEA212. Now, I have a car QEA212 but it's a white Tarago and on the day I was driving a black Peugeot and he's given evidence that he decided to write this report at 1570 - sorry, 17.45 and then he then later changed that to say he - - -

PN2461

THE SENIOR DEPUTY PRESIDENT: Yes, but if all of that is true.

PN2462

MR LEVER: Yes.

PN2463

THE SENIOR DEPUTY PRESIDENT: If the report is entirely inaccurate about your vehicles or the registration or what was said in conversation, how is that relevant to this matter before me?

PN2464

MR LEVER: Because the only way that Mr Cartwright could have got that QEA212 is by looking up my records after the incident occurred.

PN2465

THE SENIOR DEPUTY PRESIDENT: And?

PN2466

MR LEVER: And then recorded this at the end of the time rather than when he says he did.

PN2467

THE SENIOR DEPUTY PRESIDENT: Yes. But my point is and then what? So what? I'm not trying to be rude to you. What flows from that?

PN2468

MR LEVER: Well, it goes to the fact again once I've got that information I was going to then cross-examine Mr Ryan on that.

PN2469

THE SENIOR DEPUTY PRESIDENT: Why don't you just ask him how he got the vehicle registration? But in any event, what does that matter? He gets this, he doesn't have all of the information to fill it in, he rings Mr Ryan and asks him your details. It's probably sloppy policing but so what?

PN2470

MR LEVER: But it also could be that Mr Ryan was told to write the report - sorry, Mr Cartwright was asked to write the report well after the event.

PN2471

THE SENIOR DEPUTY PRESIDENT: And so what? What is the relevance of a protection incident report to me and this matter?

PN2472

MR LEVER: Well, it goes directly to my security clearance and it was also used by Mr Davies and Mr Cullen to access all my emails in secret. So this was the actual report. This is why I was called in to the office with Mr Ryan which is why there was a preliminary investigation and this was the thing that precipitated my injury.

PN2473

THE SENIOR DEPUTY PRESIDENT: But does it matter what vehicle you're in at the time?

PN2474

MR LEVER: Well, it matters how this report came into existence. Well, that's my view.

PN2475

THE SENIOR DEPUTY PRESIDENT: That's why I stopped you when we got to here. It came into existence because Mr Ryan caused some instructions to go to the police officers and they stopped you at the gate. They stopped Ms Juric at the gate and then what?

PN2476

MR LEVER: I said my point is that I don't believe this report was written as he said it was at the time he did and I just wanted to get that evidence out of him before I questioned Mr Ryan. That was my point.

PN2477

THE SENIOR DEPUTY PRESIDENT: Well, it's a long way to it in my view.

PN2478

MR LEVER: I'll skips the parts that I believe come from Mr Ryan and I'll just get onto the parts and I'll get that short, I'll just get onto the parts that he would have had to fill out himself.

PN2479

THE SENIOR DEPUTY PRESIDENT: Yes. I'm still not convinced, Mr Lever, that the matter has any evidentiary value in relation to the points you make at all. The fact that the police report came into existence at the instigation of Mr Ryan really, well, as a consequence of Mr Ryan's actions in relation to Ms Juric is relevant to your argument and the only thing that might be relevant other than that is whether or not the report was written at the request of - the incident report was written at the request of Mr Ryan and you can put that directly to him and you can put the differences, that you say the inaccuracies.

PN2480

MR LEVER: So I can put the inaccuracies to him and I can put the fact that it was written after he originally said it was going to be written?

PN2481

THE SENIOR DEPUTY PRESIDENT: You can ask him that.

PN2482

MR LEVER: I can ask him that, thank you, your Honour.

PN2483

THE SENIOR DEPUTY PRESIDENT: Would you mind getting him back in? I've sent my associate from the room to list that other matter.

<WAYNE JEFFERY CARTWRIGHT, RECALLED ON FORMER OATH [12.14PM]
<EXAMINATION-IN-CHIEF BY MR LEVER, CONTINUING

PN2484

THE SENIOR DEPUTY PRESIDENT: Sergeant, we've had a discussion about some of the matters that concern Mr Lever. The situation is a little bit awkward for Mr Lever, he's not legally qualified?---That's fine.

PN2485

And he wants to ask you about some matters in the report and how they arose and how you came to write it. So we're going to skip some of the other factual matters which I've had discussion with him about and go directly to those issues that concern him?---Thank you, your Honour.

PN2486

MR LEVER: In the second paragraph in issues/events, is that content your content?---Yes, it is.

PN2487

And in relation to the recording of the vehicles that Ms Juric was driving and
Mr Lever was driving?---Yes.

PN2488

And that was your input into this report?---That was information gleaned from my officers at the time.

PN2489

So your officers provided that information?---That's correct.

PN2490

Do you see the registration vehicle for Mr Lever is QEA212?---Yes.

PN2491

That's a vehicle I own and it's a white Tarago. On the day I was driving a black Peugeot?---Okay.

PN2492

Two different cars. The officers - - -

PN2493

THE SENIOR DEPUTY PRESIDENT: You can ask the officer to explain.

PN2494

MR LEVER: Yes, could you explain why there is that discrepancy in this report?---As I said, the information was gleaned from the officer on duty. I can't explain to you why that's incorrect. That is I believe one of your vehicle registrations so I can't - I have no answer for that, I'm sorry.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2495

Do you recall a conversation with Ms Juric and I because we came down to the main gate and asked why she was stopped?---Yes.

PN2496

And you were talking with me and Ms Juric out front of the main gate?---Yes, correct.

PN2497

And you watched me exit the site in my black Peugeot?---I don't remember what vehicle you were driving but I saw you exit the site.

PN2498

Yes. And Ms Juric exited the site and you searched her vehicle according to this report?

PN2499

THE SENIOR DEPUTY PRESIDENT: Last sentence under Intended Action/Outcome?---Sorry, yes. No, I did not. Well according to this it's generalised in relation to the AFPES searched Ms Juric's vehicle.

PN2500

MR LEVER: I stopped my vehicle when Ms Juric's car was stopped and I watched you search her car?---Okay.

PN2501

Are you aware of any summons to produce that was issued on the Australian Federal Police?

PN2502

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2503

MR JAUNCEY: Your Honour, Sergeant Cartwright is an officer of the Australian Federal Police.

PN2504

THE SENIOR DEPUTY PRESIDENT: I know that.

PN2505

MR JAUNCEY: I'm not sure what relevance documents held by ANSTO or summonses directed at ANSTO are to Sergeant Cartwright.

PN2506

THE SENIOR DEPUTY PRESIDENT: I don't think he said ANSTO. I think he said summonses to the Australian Federal Police.

PN2507

MR LEVER: That's right, your Honour.

PN2508

MR JAUNCEY: I'm sorry.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2509

THE SENIOR DEPUTY PRESIDENT: You withdraw, all hands waving.

PN2510

MR JAUNCEY: I'm completely - - -

PN2511

THE SENIOR DEPUTY PRESIDENT: In any event, was that summons a matter directed towards this officer or to the Australian Federal Police generally?

PN2512

MR LEVER: It was in relation to the Australian Federal Police Protective Services staff at ANSTO.

PN2513

THE SENIOR DEPUTY PRESIDENT: And has that summons been answered?

PN2514

MR LEVER: I was just wanting to know if he knew about it because he would have been required to provide some documentation in answer to it.

PN2515

MR JAUNCEY: Well, your Honour, my only question is I'm completely unaware of this. Is this a summons in these proceedings?

PN2516

THE SENIOR DEPUTY PRESIDENT: I don't know. I'll get to that,
Mr Jauncey.

PN2517

MR JAUNCEY: It's in the AAT.

PN2518

THE SENIOR DEPUTY PRESIDENT: In the previous proceedings are you aware of any summons issued?---I am aware of a summons was issued in relation to production of documents but that was directed to AFP, not myself.

PN2519

All right?---AFP in general or AFP management.

PN2520

MR LEVER: So did you see this summons to produce?---No.

PN2521

But someone would have had to see this to be able to produce?---Yes, well, those are the sort of documents that go to my station manager or officer in charge.

PN2522

They would have then had to contact you because you would have had documents in relation to this?---No, I don't - the documentation is held in the office. It's not held by me. It's held by - - -

PN2523

Can I show the witness this?

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2524

THE SENIOR DEPUTY PRESIDENT: Yes, I understand the procedure from previous matters, Mr Lever, if it's of assistance that documents are in a central location and summonses to produce are dealt with in a central location by the AFP, not at local stations.

PN2525

MR LEVER: I understand that. But to actually answer the summons to produce someone from that central body would have - - -

PN2526

THE SENIOR DEPUTY PRESIDENT: Did anyone contact you in relation to that summons?---Yes, they did.

PN2527

And what happened?---It was just a matter of information, your Honour, that was all, because the documents were held by our office.

PN2528

Yes, Mr Lever.

PN2529

MR LEVER: The only document that was produced to the AAT, Administrative Appeals Tribunal, was the protection incident report, are you aware of that?---No, I wasn't aware of what documents were sent.

PN2530

I would just like to show you another document. Now, you'll note in this email, the first sentence it says a minute was sent to the Australian Federal Police at Lucas Heights requesting that the AFP at Lucas Heights advise me if Ms Jasenko Juric entered the Lucas Heights site. Was that minute produced in the AAT?

PN2531

MR JAUNCEY: How can the officer know? He's said that he doesn't know what was produced because he wasn't the one who produced.

PN2532

THE SENIOR DEPUTY PRESIDENT: Yes, I think he's answered that question. I think that he's answered the question.

PN2533

MR LEVER: You said at the beginning of my questions that you had regular meetings with Mr Ryan?---We have standard regular meetings with agency security adviser on a weekly and monthly basis, yes.

PN2534

And what did you call those meetings?---Security meetings.

PN2535

Is it a briefing or something like that?---Sorry?

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2536

I wasn't sure what words you used when I originally asked the question?---I just said meetings at the time but they are what we call security meetings.

PN2537

And Ms Juric wasn't raised to your knowledge in any of these security meetings?
---No, she was not.

PN2538

Are these security meetings minuted?---Yes, I believe they are.

PN2539

Does your office or the main office that store them, would they still have those minutes?---Those minutes are held by ANSTO management.

PN2540

Those minutes are held by ANSTO management. I don't know if I can make a call on those minutes, your Honour?

PN2541

THE SENIOR DEPUTY PRESIDENT: Not unless you can tell me why they matter. I don't intend to be calling on documents unless their relevance is established but we can tell with that after you've finished with Sergeant Cartwright. I have marked that letter LEVER11, Mr Lever.

PN2542

MR LEVER: Thank you. Sorry, what number?

PN2543

THE SENIOR DEPUTY PRESIDENT: 11.

PN2544

MR LEVER: I think it's 12.

PN2545

THE SENIOR DEPUTY PRESIDENT: Is it? So you can't leave me alone without my staff. 12.

PN2546

MR LEVER: I've filled in nicely for you.

PN2547

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN2548

MR JAUNCEY: If this is 12 may I just then ask what is 11?

PN2549

THE SENIOR DEPUTY PRESIDENT: 11 was the document that was provided to Ms Savage this morning which was the highly confidential 20 August 2008.

EXHIBIT #LEVER11 HIGHLY CONFIDENTIAL LETTER DATED 20/08/2008
EXHIBIT #LEVER12 EMAIL FROM MR RYAN TO MR CARR

PN2550

THE SENIOR DEPUTY PRESIDENT: Mr Lever.

**** WAYNE JEFFERY CARTWRIGHT XN MR LEVER
PN2551

MR LEVER: I would like to make a call in relation to all the communications between the Australian Federal Police and ANSTO in relation to Ms Juric and/or myself.

PN2552

THE SENIOR DEPUTY PRESIDENT: Well, we can deal with that after the Sergeant's evidence. Certainly that's a matter that Mr Jauncey can take on board but I'm not going to deal with it now.

PN2553

MR LEVER: Thank you, your Honour. That's all, thank you very much.

PN2554

THE SENIOR DEPUTY PRESIDENT: Thank you. Do you have any cross-examination?

PN2555

MR JAUNCEY: One question, your Honour.

PN2556

THE SENIOR DEPUTY PRESIDENT: Thank you.

<CROSS-EXAMINATION BY MR JAUNCEY [12.25PM]

PN2557

MR JAUNCEY: Sergeant Cartwright, in all your involvement with issues associated with Ms Juric of the incident on 20 October 2004 have you ever had any direction from Mr Rod Davies or indeed any other discussion or communication with Mr Rod Davies?---No.

PN2558

Thank you, Sergeant.

PN2559

THE SENIOR DEPUTY PRESIDENT: Yes, anything else?

PN2560

MR LEVER: No, your Honour.

**** WAYNE JEFFERY CARTWRIGHT XXN MR JAUNCEY
PN2561

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. You're excused, thank you for coming.

<THE WITNESS WITHDREW [12.26PM]

PN2562

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lever, would you like to take your place in the witness box?

PN2563

MR LEVER: I wouldn't like to but yes, I will.

PN2564

THE SENIOR DEPUTY PRESIDENT: We've got 10 minutes. I think it's worthwhile starting, don't you, Mr Jauncey?

PN2565

MR JAUNCEY: We may as well, your Honour.

PN2566

MR LEVER: Is it okay if I take notes, your Honour?

PN2567

THE SENIOR DEPUTY PRESIDENT: Yes, as long as those notes are for the purposes of making notes to assist you in your response.

PN2568

MR LEVER: Yes, your Honour.

<RON LEVER, RECALLED [12.27PM]
<CROSS-EXAMINATION BY MR JAUNCEY

PN2569

MR JAUNCEY: I'm sorry, your Honour.

PN2570

Mr Lever, just one question, LEVER12 which is an email between Eric Ryan and Stuart Carr and Neil Thorburn, did that come from the documents produced by ANSTO in these proceedings?---I can't remember if it's these proceedings but I'm pretty sure that's right, yes.

PN2571

And Mr Lever, just at the end of the day yesterday we were talking about the listening devices and secret recordings used and you I think said that you were aware from discussions with your solicitors that ANSTO had raised listening devices as issues and that ANSTO had raised some concerns about your conduct?
---I don't recall that. I don't recall saying that my solicitors or barrister spoke to me about the Act but I don't recall me saying that they discussed Listening Devices Act.

PN2572

Well you were aware that there were issues involved the Listening Devices Act in relation to the secret recording of conversations generally, whether or not it applied to what you had done you were aware that the Act was there and it was important enough for your solicitor to talk to you about it?---I talked to my solicitor prior to it going in. I don't have any recollection of any discussion after that.

PN2573

Now, in fact in the end neither any recording of 4 November 2004 conversation, nor any transcript of it was ever tendered or otherwise put into evidence in the Federal Court proceedings, was it?---No.

PN2574

So when you say in your statement that the recording was used to discredit the evidence of other people in those proceedings, in fact it was never used at all?
---No, I wrote an affidavit and my recollection of the meeting in those proceedings was different to that of at least - - -

PN2575

Yes. But the tape recording itself was never actually used in the Federal Court proceedings, was it?---No, no.

**** RON LEVER XXN MR JAUNCEY
PN2576

So it was never actually used at all. Now, Mr Lever, over the course of 2004 you continued to press the CPSU to support you in relation to your claim that you should be classified at band 6 or band 7?---That's not the way I'd treat it, no.

PN2577

Well, you continued to speak to the CPSU officials asking them to continue to take steps in relation to your classification issues?---CPSU and I had discussions about classification issues generally and the decision was made between us not to lodge individual disputes in the Commission and that the CPSU would take a broader approach and put a solution forward to ANSTO management to resolve issues like mine without the need of coming to the Australian Industrial Relations Commission.

PN2578

And by the end of 2004 you still regarded yourself as being in dispute with ANSTO about your classification?---Yes, my classification issue had not been resolved by that time.

PN2579

And on 22 December 2004, right before going on annual leave, you sent an email to Dr Ian Smith, the executive director, asking for a meeting?---Correct.

PN2580

And then that meeting was arranged for 17 January 2005 while you were actually on leave?---Correct.

PN2581

And you had compiled and drafted various documents in preparation for the meeting?---There was a document, I can't remember which annexure it is on my statements but there was a document dated 17 January and it alleged that
Mr Davies and Mr Cullen had breached their duty and I provided some attachments to that.

PN2582

And the meeting that you had with Dr Smith was quite lengthy. I think it went for about three hours?---Nowhere near it.

PN2583

During the meeting - well, I'm sorry. The meeting was quite lengthy, wasn't it?
---It depends what you define or I define or anyone else defines as lengthy. It went over an hour, I could say that.

PN2584

And during the - - -

PN2585

THE SENIOR DEPUTY PRESIDENT: I'm sorry.

**** RON LEVER XXN MR JAUNCEY
PN2586

MR JAUNCEY: That's fine, your Honour.

PN2587

THE SENIOR DEPUTY PRESIDENT: 2 o'clock?

PN2588

MR JAUNCEY: Yes, your Honour.

<LUNCHEON ADJOURNMENT [12.34PM]
<RESUMED [2.16PM]

PN2589

THE SENIOR DEPUTY PRESIDENT: Mr Jauncey.

PN2590

MR JAUNCEY: Thank you, your Honour.

<CROSS-EXAMINATION BY MR JAUNCEY, CONTINUING

PN2591

MR JAUNCEY: Mr Lever, before lunch we were talking about the meeting that you had with Dr Smith on 17 January 2005, and during that meeting you showed Dr Smith the matrix document which you have prepared and which is annexure IS4 to the affidavit of Dr Smith; yes?---I’m not a hundred per cent sure but I may have showed him that, yes.

PN2592

Your Honour, I should just say that annexure IS4 to the affidavit of Dr Smith is an extremely unclear photocopy. I don’t think that very much turns on the actual contents of the matrix but if people want, I’m happy to provide better copies of the document.

PN2593

THE SENIOR DEPUTY PRESIDENT: If they need it, I’ll ask.

PN2594

MR JAUNCEY: Thank you, your Honour.

PN2595

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2596

MR JAUNCEY: Yes, and in the AAT hearing you said that you did show him the matrix; so that is probably correct then?---I - I think it is, yes.

PN2597

You told him words to the general effect that you believed that you were being underpaid for the quality of your work and that your work performance assessments did not reflect the real value of your work?---No, I wouldn’t read it that way.

**** RON LEVER XXN MR JAUNCEY
PN2598

But you would have said words to that general effect?---My words would have been that the role that I was performing, the work I was actually doing, wasn’t classified properly.

PN2599

Yes, and in the AAT hearing you said that - let me just get the correct words, yes you gave evidence there that, “I said that the result of the HR role analysis of the work that I was doing indicated Band 6, possibly Band 7”?---Yes.

PN2600

I’m not trying to put words into your mouth but you were effectively telling him that you believed that you were working at Band 6 or Band 7, and that you believed that you should be classified accordingly?---I basically said that the work that I was doing and the role I was performing was of a higher level, and we were having a general discussion about classification systems, and Dr Smith expressed comment on other systems that he was accustomed to in previous employment - places that he’d worked previously.

PN2601

During the meeting you spent a fair bit of time discussing your view that ANSTO management had mistreated you and not classified you correctly, by not promoting you to a higher level?---The purpose of the meeting was to discuss the alleged breach of duty.

PN2602

Well I’m just asking; during the meeting you did spend a fair bit of time discussing your view that you had been mistreated by not being reclassified at a higher level?---I think our discussion was very limited on what I thought. It was more a general discussion on classification systems. I did say, as I have already said, that I felt the work was of a higher level, but that was a small part of the conversation.

PN2603

During the meeting you also spoke about a Band 6 role as a web coordinator in the Government and Public Affairs or GPA division, didn’t you?---I did make some enquiries about the web master’s job. I don’t think I know what classification it was, but I had heard in IT that it was coming up for either internal advertising or external advertising, to be filled.

**** RON LEVER XXN MR JAUNCEY
PN2604

You have no reason to doubt Dr Smith’s statement that that role was at a Band 6 level, do you?---I don’t know if he knew what band level it was. My question commenced with whether that particular role was still within the communications - I think they were called communications division, or whether that role had been transferred over to the information management or corporate division. That was my initial question.

PN2605

Dr Smith told you that the GPA division was being reorganised and that the role would be moved to the executive division?---No, I thought it was the corporate division that he said.

PN2606

I’m not trying to trap you. So there might have been some confusion about which division it was moving to?---Well, I’m almost one hundred per cent certain it was the corporate division, because my purpose of asking that question was I was trying to get out of that division, I was trying to get away from Mr Cullen and Mr Davies. There’s no point in moving into another position in the same division, while they were there.

PN2607

You also discussed working as a computer administrator within the new OPOL reactor?---No.

PN2608

I put it to you that you told Dr Smith that the solution to your issues would be for you to move to a position outside the corporate division which properly reflected the level of your work, or words to that effect?---I did want to get out of the corporate division, certainly.

PN2609

It’s quite likely that you would have told him that you wanted to get out of the corporate division?---Actually no, I don’t think - I didn’t know where Dr Smith stood with what happened to me. I mean, I actually came to that meeting with a letter complaining of two senior managers. So I don’t think I actually said that. I wanted to find out where this position was, and if it was somewhere else I may have applied for it.

PN2610

At the end of the meeting you told Dr Smith words to the effect that you had demonstrated that you were working at a Band 6 or Band 7 level, and that you would be more than happy to accept a job elsewhere within ANSTO at that level
?---No, I don’t recall that either. I mean, part of our conversation with - in relation to my classification, I’ve already said that I thought I was working at Band 6, if not Band 7, in the role I was performing.

**** RON LEVER XXN MR JAUNCEY
PN2611

Yes, so I mean at that stage you did want a job elsewhere in ANSTO at a Band 6 or Band 7 level, so it’s quite possible you may have expressed that view to Dr Smith?---No, I don’t think I actually did say that, because I didn’t indicate I was going to apply for that job, and I didn’t end up saying I was going to apply for that job, because I understood it was still in the corporate division. So I don’t think I would have said that.

PN2612

But one of the things you were asking Dr Smith was whether you could get such a role without having to go through an application process?---No, the only time a transfer of a position was discussed, and I think that was in early 2005, it was after I’d put my claim in to Comcare and it was trying to again get away from the corporate division, and I was seeking to be transferred out of that area, because I considered it hostile to me and my health.

PN2613

I put it to you that Dr Smith told you words to the general effect that if you wanted to be transferred to another role to the corporate division at a higher level, then you needed to apply for, and win, any such role as part of a merit selection process?---No, again that was part of a conversation, I think, with Dr Collins and Ms Risby and my representative at the time, Mr Bloom, and I think I had the conversation with Dr Hall actually first. He was the one that, I think, told me that he had spoken to Dr George Collins and Dr George Collins said that any position I would have to apply for.

PN2614

Yes, and in the AAT proceedings you gave evidence that Dr Smith had said in other meetings, like the staff presentations, that he could not arrange for you to be transferred into another position without merit selection. So you had heard Dr Smith say words to that effect before?---I remember going to one briefing in the Ancy Theatre with Dr Smith. I don’t recall that; and I think I had two meetings with Dr Smith in Peak Council, which was a committee set up of union delegates, staff representatives and management, and that’s not a topic that would have come up in that meeting, because it’s more of a consultative process about changes to organisational structures, and we were having input into what we thought should be promoted and what shouldn’t be.

**** RON LEVER XXN MR JAUNCEY
PN2615

Is that a yes you have heard him say that before, no you haven’t or you can’t remember?---No, I haven’t actually - I can’t recall having heard him say that specifically. No.

PN2616

Okay. By the end of that meeting you certainly had no reason to believe that Dr Smith was about to agree to transferring you to a higher level role elsewhere in ANSTO?---No.

PN2617

Now you were due to return from annual leave on 28 January 2005?---I think that’s right.

PN2618

I think that you telephoned Mr Crackenthorpe on that day and told him that you would not be coming in and that you would send in a medical certificate?---No, I know where Mr Crackenthorpe lives. We used to car pool. I went around and saw him prior to that day, that there was a - I wouldn’t be returning to work and that I would come back to him again with a medical certificate, indicating how long I’d be away. So I went to his home.

PN2619

Yes, and that would have been shortly prior to 28 January?---Yes, that was towards the end of the month. Yes.

PN2620

A few days later you provided two unable to work certificates from Dr Peed?---I think I gave it to - I’m not sure if I gave it to him or sent it to work. I think I may have given it to him. I can’t recall. He certainly knew I wasn’t coming to work.

PN2621

Yes, and the first certificate was dated 24 December 2004 but you had not actually seen Dr Peed on that day, had you?---I couldn’t see him Christmas Eve, no.

PN2622

So that certificate was filled in at some later date and backdated?---Yes.

PN2623

You had certainly been well enough over January 2005 to prepare for a meeting with Dr Smith and to have a substantial discussion with him?---Yes.

PN2624

On 2 February 2005 you went to see Dr Peed again?---Yes.

PN2625

You told Dr Peed that you believed that you were being harassed and denigrated by senior managers and that they were making false allegations against you?---I think that was actually in my previous meeting with Dr Peed, not at that particular point in time. I think that was in December or January. I think both.

**** RON LEVER XXN MR JAUNCEY
PN2626

On 2 February Dr Peed issued a WorkCover medical certificate dated that day, on which he ticked the box saying that you were fit for modified duties with limitations specified in section 2, from 21 February 2005. Some of the limitations were, “Recommend that he be transferred from the hostile environment to another department pending resolution of the matter”?---Yes.

PN2627

As at 2 February you were not saying that you were fit for immediate resumption of work, were you?---No, Dr Peed and I discussed that, you know, give me another two or three weeks and then see how we go.

PN2628

Then on 4 February 2005 you faxed a Workers’ Compensation claim to ANSTO
?---Through Mr Bloom, yes.

PN2629

So it was delivered by Mr Bloom?---The way I understand it, and I wasn’t there, but I had organised for Mr Bloom to get a copy of my Comcare claim file, and the fax number he gave me was an office at a lower level, ground floor, and by the time he had got to the fax machine someone from that lower floor, I think the PA for the division director, had already faxed it to Ms Risby.

PN2630

Sorry, I’ve just misplaced some of my notes. I apologise, Mr Lever.

PN2631

I do apologise, your Honour.

PN2632

THE SENIOR DEPUTY PRESIDENT: It’s all right. Do you need to have them sent to you or something?

PN2633

MR JAUNCEY: Look, I can continue. I’ll get them sent up but I can continue. I’m not prevented from continuing, your Honour.

PN2634

THE SENIOR DEPUTY PRESIDENT: I’m happy to take a couple of minutes and just pause, if you want to have an email that’s - - -

PN2635

MR JAUNCEY: Perhaps if I can just have five minutes. I do apologise.

PN2636

THE SENIOR DEPUTY PRESIDENT: That’s all right.

PN2637

MR JAUNCEY: In all the paper I seem to have mislaid my notes, your Honour.

**** RON LEVER XXN MR JAUNCEY
PN2638

THE SENIOR DEPUTY PRESIDENT: Mr Lever, we will just take a short break. I think it’s better not to interrupt. We will go off the record.

OFF THE RECORD

PN2639

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Jauncey.

PN2640

MR JAUNCEY: I do apologise, your Honour. I found the notes buried within the - - -

PN2641

THE SENIOR DEPUTY PRESIDENT: Don’t worry. She who hides her phone in a file is not to criticise.

PN2642

MR JAUNCEY: Now you then spoke with Ms Risby on 8 February 2005 after she had left some messages for you?---I think that’s right.

PN2643

You say in your affidavit that you told her, amongst other things - I withdraw that. You say in your affidavit that she suggested that you should come into the medical centre to see Dr Hall and that you told her, “I will see Dr Hall on my return to work, which is the normal practice”?---No.

PN2644

Well you do recall Ms Risby suggesting that you see Dr Hall?---I don’t recall it at that particular point in time. I thought it was a little later.

PN2645

Okay, but you can’t rule out the fact that it may have occurred at that time?
---Well I think it was too early. No, I don’t think it was.

PN2646

At that stage you weren’t prepared to see Dr Hall until you were ready to return to work; were you?---I do remember making a comment to Ms Risby that Dr Hall wasn’t my treating practitioner. But as I said, I think that was later. But I understood that if I was returned to work I would have to see Dr Hall.

PN2647

Yes, but as of 8 February, you weren’t prepared to see Dr Hall until you were ready to resume work, were you?---Well there was no discussion of me being returned to work, so I would’ve seen Dr Hall if I had been returned to work. I wouldn’t have forecasted it. There wouldn’t have been any discussion forecasting that, I don’t think.

PN2648

Well Ms Risby says that she told you on that day that, “You will need to be medically assessed by Dr Hall” and I understand your evidence to be that yes, she said that at some point but you believe it was later?---Yes.

**** RON LEVER XXN MR JAUNCEY
PN2649

If Ms Risby had said that then, you would not have been prepared to see Dr Hall until you were ready to return to work?---That’s the process. I mean, once you return to work you go and see Dr Hall.

PN2650

THE SENIOR DEPUTY PRESIDENT: Would you answer the question, Mr Lever. It doesn’t matter if it’s the process. That isn’t what he asked you. If they had asked you to see Dr Hall before you returned to work, would you have agreed to see him?---No.

PN2651

MR JAUNCEY: On Friday 11 February 2005, which was I think a week after you provided the first WorkCover certificate dated 2 February 2005, you had another consultation with Dr Peed. Maybe I’ve loaded too much into that question, in fairness?---Yes, sometimes you do but - - -

PN2652

On 11 February 2005 you had another consultation with Dr Peed?---Yes.

PN2653

That was a week after you had provided the first WorkCover certificate dated 2 February?---Yes.

PN2654

At that time on 11 February Dr Peed issued you with a new medical certificate dated 11 February 2005?---Yes.

PN2655

I think that that certificate is annexure RL6 to your affidavit, and you provided the 11 February certificate to Comcare in support of your Workers’ Compensation claim?---Yes.

PN2656

You would not have provided it to Comcare unless you were certain that it was an accurate and up-to-date reflection of your state of health?---Comcare requested that we place other medical certificates.

PN2657

You would not have provided the certificate to Comcare unless you were asserting that it was an accurate and up-to-date reflection of your state of health?---No.

PN2658

On the 11 February certificate Dr Peed certified you as unfit to work from 24 December 2004 up to 24 March 2005; yes?---From memory that’s correct.

PN2659

This certificate was in different terms to the previous certificate dated 2 February 2005, wasn’t it?---I don’t know what you mean by different terms.

**** RON LEVER XXN MR JAUNCEY
PN2660

Well, your Honour, if one were to look at the 2 February 2005 certificate, a copy of which is - it’s a poor copy. Your Honour, probably the clearest copy of the 2 February 2005 certificate is at annexure 5 to the affidavit of Mr O’Shea, but there is also a copy at the second page of annexure RL4.

PN2661

If you put that next to the 11 February 2005 certificate, Mr Lever, you can see that in the 2 February certificate Dr Peed had ticked the box saying that you were fit for modified duties with limitations as specified in section 2; yes?---Well I can’t see that from here but I accept what you’re saying.

PN2662

Well it’s in your affidavit if you need to - - -?---In my statement? Which statement?

PN2663

It’s RL4 and RL6 in your statement, if you need to look?---Number?

PN2664

RL4 and RL6?---In the statement or the affidavit? Are you talking about these proceedings or - - -

PN2665

In the statement in these proceedings?---They’re RUF. My annexures are RUF, R-U-F.

PN2666

Sorry, RUF.

PN2667

THE SENIOR DEPUTY PRESIDENT: What are you looking for?

PN2668

MR JAUNCEY: I’m sorry, I think Mr Lever has found it now.

PN2669

So in one certificate he has ticked the box saying fit for modified duties with limitations?---Yes.

PN2670

In the next certificate he hasn’t ticked the box unfit to work, and in the next certificate he has ticked the box unfit to work and hasn’t ticked the box about suitable duties?---Sorry, which is the next certificate?

PN2671

The 11 February certificate?---That’s not in here.

PN2672

It’s at RUF6?---Sorry. Yes.

**** RON LEVER XXN MR JAUNCEY
PN2673

Yes, and in the first certificate he had said that you were able to do suitable alternative duties if you were transferred to a different department, but in the next certificate dated 11 February he has made no mention at all of being able to do any other work; has he?---No.

PN2674

You knew, when you saw the 11 February certificate, that what was written on it was something materially different from what Dr Peed had written on the earlier certificate dated 2 February 2005?---As I said, this certificate was to replace the medical certificates that Dr Peed had written out on the 24th of the 12th.

PN2675

When you saw the 11 February certificate you knew that it said something materially different to the 2 February 2005 certificate?---Yes.

PN2676

Yes. The first certificate said you could come back to work in an alternative role on 21 February, but the new certificate certified you as unfit to 24 March, without any mention at all of being able to do other duties?---Yes.

PN2677

On 14 July - I’ll show you a document, Mr Lever?---Thank you.

PN2678

I’ll show you a document?---Sorry. I’m just making a note on the other one. Thank you.

PN2679

Mr Lever, do you recognise this document as some submissions prepared on your behalf by your solicitor, Adrian Barwick, and dated 14 July 2005, and it was a request for a reconsideration of Comcare’s initial decision to decline your claim?
---Yes.

PN2680

The information in here would have been true and correct?---I haven’t read it.

PN2681

Well at the end of it all, in the final page, they say that Comcare’s decision of 13 May 2005 should be reconsidered n your favour, and that a new decision should be made which includes a decision that, number 2:

PN2682

From the 24th of December to date -

PN2683

Being 14 July 2005:

PN2684

Mr Lever has been totally incapacitated for work.

**** RON LEVER XXN MR JAUNCEY
PN2685

?---Yes, I can see that.

PN2686

So that was your position as at July 2005, wasn’t it?---Well obviously my solicitor did it. I didn’t pick it up, but yes.

PN2687

Well your solicitor would have acted on instructions from you, wouldn’t he have?---He would have had copies of medical certificates.

PN2688

Your Honour, I tender the document?---ANSO 3 is it?

PN2689

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

EXHIBIT #ANSTO3 SUBMISSIONS PREPARED BY APPLICANT’S PREVIOUS SOLICITOR, MR BARWICK, DATED 14/07/2005

PN2690

MR JAUNCEY: Despite the fact that Dr Peed gave you a materially different certificate on 11 February 2005, certifying you as unfit for work up until 24 March, and despite what your solicitors told Comcare on 14 July 2005, do you now claim that you have actually been fit to perform work in another role outside the corporate division from 21 February 2005 onwards?---Yes, I do.

PN2691

You just couldn’t work in the IMS group?---I couldn’t work in my hostile environment.

PN2692

You couldn’t work in the IMS group you say?---That’s right.

PN2693

You couldn’t work in corporate division?---When I was at ANSTO at this time, corporate and IMS were the one division. They weren’t separated.

PN2694

But you couldn’t at that time, you say, work in the corporate division?---Correct.

PN2695

I take it you say that you couldn’t have any contact with Russell Tuckwell, as the head of the IMS group, or with Dr Greg Doherty, or with Ian Cullen, or with Rod Davies?---Mr Tuckwell wasn’t the head of the IMS group. He was part of the IT division - section within the corporate division when I was there.

**** RON LEVER XXN MR JAUNCEY
PN2696

Okay, well subject to that, I take it that you say that you couldn’t have any contact with Mr Tuckwell, Dr Doherty, Ian Cullen or Rod Davies?---Dr Doherty? There was Mr Cullen, Mr Davies, Mr Tuckwell and Mr Blades and Mr Davies[sic], that were my hostile environment, if you like.

PN2697

So you actually could see Dr Doherty?---I didn’t have an argument with Dr Doherty.

PN2698

Dr Doherty was the one who had not given you the promotion that you had wanted, wasn’t he?---Correct.

PN2699

When you went to see Ms Esme Nasser in late January and early February 2005, you told her that you had been victimised as a result of ANSTO’s failure to give you that reclassification back in 2002?---No I didn’t.

PN2700

Well I’m going to just show you a document which is a 27 November 2005 report by Ms Esme Nasser, and you can see that I’ve underlined a sentence in paragraph 3, in the third paragraph on that page?---Yes.

PN2701

Can you just read that out?---

PN2702

Mr Lever believes the victimisation commenced around July 2002 when he was expecting promotion which did not occur after six months' negotiations

PN2703

She couldn't have known that unless you told it to her, could she have?---I didn't tell her that.

PN2704

She just realised it?---I can answer this in my response but there are some clinical notes in relation to where Ms Esme produced this report from and it's quite clear in there where the victimisation started.

PN2705

Someone must have told her that you believed that you had been victimised as a result of the failure to get promotion?---I had never ever stated that Dr Doherty had ever victimised or harassed me.

PN2706

Well, the file does state that. Dr Doherty is okay, you can work with him then. As at late February 2005 do you say that you were able to have any contact with Ian Crackenthorpe?---Sorry, which period was that?

**** RON LEVER XXN MR JAUNCEY
PN2707

As at late February 2005 do you say that you were able to have any contact with Ian Crackenthorpe?---You keep using the word "contact". I don't mind contacting Mr Crackenthorpe but I didn't trust him any more because he betrayed my trust.

PN2708

Did your medical condition, which you assert, prevent you in your view from working with Mr Crackenthorpe?---In 2005, no.

PN2709

You could work with him then. What about Dr Ian Smith, were you able to have dealings with him then?---I went to Dr Smith for a complaint early on. I didn't know where he stood. Later on, and it's still in the early part of 2005, it's changed.

PN2710

Over the early part of '05 you say that you could actually deal with Dr Smith?
---At one point I was dealing with Dr Smith, in fact 17 January I was dealing with him but after - - -

PN2711

After 21 February '05 could you still deal with him?---Probably not then because he actually sent an email back on 18 February which I wasn't very happy with.

PN2712

On 18 February he sent an email that you weren't happy with so as a result you couldn't have any dealings with him?---I asked him to do an investigation on my allegation of breach of duty so yes, I didn't trust him after that. He didn't do it.

PN2713

Because you didn't trust him, you weren't prepared to work with him any more?
---I don't work with Ian Smith.

PN2714

You weren't prepared to have any dealings with him any more?---My only restriction with Dr Smith was that he wasn't involved in my return to work. It was only always in the context of my return to work.

I'm just trying to work out what your evidence now is. Do you say now that as at late February, March 2005 you were able to have dealings with Dr Smith?---I don't know what you mean by dealings, I'm sorry.

PN2715

Were you able to have contact with Dr Smith?---I would have talked to Dr Smith.

PN2716

But just so long as he didn't - - -

PN2717

THE SENIOR DEPUTY PRESIDENT: You wouldn't talk to him?---Sorry?

PN2718

Did you say you would not talk to him?---No, I would talk to him.

**** RON LEVER XXN MR JAUNCEY
PN2719

MR JAUNCEY: You would talk to him but what wouldn't he do?---I didn't want him interfering with my return to work. I wanted it done the way it should be done through a rehabilitation body.

PN2720

Do you say that this was something that you thought should happen or do you say that this was a medical prescription?---Sorry, the rehabilitation process is what should happen.

PN2721

Do you just say that you thought Dr Smith should keep out of your case or do you say that Dr Smith had to keep out as a medical issue for you?---At that point in time he should have stayed out of the rehabilitation process. He would gave been intervening if he was involved because he's not normally involved. He doesn't normally form part of that process.

PN2722

Were you able to work in a position which required you to have contact with internal ANSTO clients?---In what context?

PN2723

Were you able to work in a position outside the corporate division which required you to have contact with internal ANSTO clients?---It would depend on what that contact was and whether it was in a situation where I was (1) trying to do what I had to do in that contact and whether it was a situation where those people, clients who were dealing with me expected me to be able to deal with their issues.

PN2724

You were medically able to work in a role which had contact with some clients but not medically able to work in a role which had contact with other clients?---It depended on that particular role. If I needed to interrelate with clients, then I needed to know how to interrelate with those clients and I needed to have training to be able to do that and I needed to be able to provide them with a service and I didn't want to put myself in a position where I didn't know what I as doing and being pressured to get things done when I wasn't trained to actually do that work.

PN2725

You're making this as clear as mud but we'll move on. I put it to you that in fact after getting 11 February 2005 medical certificate, which certified you as unfit for work up until 24 March 2005, you made very little effort at all up until the end of February 2005 to arrange any return to work, even to another position?---No.

PN2726

On 14 February 2005, which was the Monday after the Friday on which you'd got the certificate, you telephoned Basil Ellis, didn't you?---No.

PN2727

You spoke to him on the phone?---I think I rang Dr Kerie Hammerton and he was in the office with her.

**** RON LEVER XXN MR JAUNCEY
PN2728

You phoned Dr Hammerton. Were they on speaker phone, do you know?---I can't remember. I can't remember.

PN2729

You would have told Dr Hammerton that you had another medical certificate which took you up until 24 March 2005?---I don't believe I did.

PN2730

Mr Lever, I'll ask you to look at annexure 48 to your statement. It's annexure 48. It's at the back of your statement in reply in these proceedings. You note that there's copies of Mr Ellis's diary notes which have been produced by ANSTO?
---Well, yes, that's what they've been purported to be, yes.

PN2731

If you can - it's about three or four pages in - - -?---The pages are numbered on the bottom.

PN2732

Page 11?---Page 11 is nothing.

PN2733

It is in my copy and I've just printed it out from what you sent. It may well be 12 then but it's the one dated Mon, 14th Feb '05,16.20, it says?---I don't know why my printed version doesn't have anything but I've three blank pages here. I've got
11 February 2005, five blank pages and then I've got page 13 - well, the top of the page is 13 and the bottom of the page is 15.

PN2734

THE SENIOR DEPUTY PRESIDENT: Do you want to take it from mine?

PN2735

MR JAUNCEY: Yes, your Honour, but your Honour will probably need to get it back because it is something that will be referred to in submissions.

PN2736

THE WITNESS: What page is it supposed to be?

PN2737

MR JAUNCEY: I have it as 11 but my 10 is a blank page.

PN2738

THE SENIOR DEPUTY PRESIDENT: What is this in?

PN2739

MR JAUNCEY: This is in Mr Lever's affidavit in reply. I have just simply printed out the electronic copy forwarded to me on Sunday. I have not reformatted it or modified it in any way.

PN2740

THE SENIOR DEPUTY PRESIDENT: What page?

PN2741

MR JAUNCEY: It is annexure 48 and it is three diary notes in.

**** RON LEVER XXN MR JAUNCEY
PN2742

THE SENIOR DEPUTY PRESIDENT: What does it start with?

PN2743

MR JAUNCEY: It's a handwritten note with the words up the top "Rehab RL".

PN2744

THE SENIOR DEPUTY PRESIDENT: Mon, 14 February.

PN2745

MR JAUNCEY: February '05, 16.20.

PN2746

It refers to a discussion with Dr Kerie Hammerton as your CPSU representative and about three-quarters of the way down the page it says:

PN2747

Ron called while I was there. I can talk to Maurie Bloom. Ron will think about when he is happy to talk to me. His cert to 24 March.

PN2748

Do you see that?---I do.

PN2749

The only way that Mr Ellis could possibly have known that is if you had told Dr Hammerton that you had a certificate which certified you as unfit to 24 March, isn't it?---I have no explanation for that. I can't remember talking to him about that and I don't remember talking to Ms Kerie Hammerton about it either.

PN2750

You didn't provide 11 February certificate to ANSTO, did you, certainly not at that time.?---Well, at no time did I because it was there, a certificate that was to replace Dr Peed's medical certificates and it was specifically for Comcare.

PN2751

Because you certainly hadn't provided that certificate by Monday, 14 February, the only way that Mr Ellis could have found out this information was if you had told Dr Hammerton and she'd told him?---I can't remember what I said to Dr Hammerton but I didn't say - tell her that I wasn't going to be going to ANSTO before 24 March so I don't know why she would have said that to him if I told her about this.

PN2752

THE SENIOR DEPUTY PRESIDENT: I'll have that document back.

PN2753

MR JAUNCEY: You didn't make any notes of your conversation with Dr Hammerton, did you?---No.

**** RON LEVER XXN MR JAUNCEY
PN2754

If Mr Ellis had gained the impression, right or wrong, from what Dr Hammerton had passed onto him, that you were no longer able to return to work on
21 February in any capacity, then you can understand why he might have ceased exploring any immediate return to work options?---There's a lot of assumptions in that and I never said that I wouldn't be able to return to work on the 21st to Dr Hammerton or anybody else.

PN2755

If Dr Hammerton had told Mr Ellis that you have a certificate which certifies you as unfit to 24 March, if she had done that, then you can understand why he might have ceased taking immediate steps to explore possible return to work options?
---I would expect him to speak to me about it if I was on the phone talking to him.

PN2756

From the two weeks, from Monday, 14 February 2005 up until the end of February 2005, you didn't pick up the phone or send an email or make any other direct contact at all with Ms Risby or Mr Ellis or Dr Hall to say, "Hey, what's going on? I'm fit to come back. Why haven't I heard anything from you"?---You missed out one person, Dr Smith.

PN2757

For the two weeks from Monday, 14 February 2005 until Monday, 28 February 2005, so the week before and the week after you now say that you were fit to come back, you didn't pick up the phone or send an email or make any other direct contact at all with Ms Risby or Mr Ellis or Dr Hall to say, "Hey, what's going on? Why haven't I heard anything more from you"?---I think there were some contacts with Ms Risby. I don't know the dates.

PN2758

THE SENIOR DEPUTY PRESIDENT: Mr Lever, do you mean to say that you contacted Ms Risby during that period? Is that what you're saying, but you don't know which date in that period?---I spoke to Ms Risby a couple of times during February. I don't know the exact dates. I didn't take any notes but Ms Risby did.

PN2759

Are you saying you contacted her in that period that Mr - - -?---There was one time when I contacted - I think I contacted her or she contacted me. I think I returned her call.

PN2760

In that period?---I think so, yes.

PN2761

MR JAUNCEY: Ms Risby gives evidence that she had no contact at all with you over that period and that she didn't have any contact with you until 20 April?---I'll have to check that if that's what you're saying. I've got nothing here to contradict that at the moment.

**** RON LEVER XXN MR JAUNCEY
PN2762

You can't say that you definitely did contact her over that period?---I know we had a number of conversations. I thought there was more than one in February and I can't be precise as to when that was. I would be relying on Ms Risby's clinical notes and if you say that she didn't make any calls there, then I would have to accept that, wouldn't I.

PN2763

I think the clinical notes have been made available and we're more than happy to provide you with originals?---I haven't got them here.

PN2764

Over that period you didn't telephone Mr Ellis, did you?---No, I spoke to my representatives Dr Hammerton and Mr Bloom.

PN2765

I understand that there was a telephone call between Mr Ellis and Mr Bloom on 17 February 2005 and there's evidence of that in Mr Ellis's notes dated 17 February '05 and Mr Ellis's notes there say:

PN2766

Call from Maurie, off until 24 March.

PN2767

?---Well, we'd have to ask Mr Bloom.

PN2768

You weren't present during that call, were you?---No.

PN2769

Ms Risby says that she had a discussion with Mr Bloom - - -?---Sorry, could you just wait a moment. I just want to make a note of this, please. You say Mr Basil spoke to Mr Bloom or Mr Bloom spoke to Mr Basil - Mr Ellis?

PN2770

Are you talking about 17 February note?---Yes.

PN2771

No. It's a note by Mr Ellis attached to your statement?---What page is that one?

PN2772

It's page 12 on mine?---That's a blank page for me too, anyway.

PN2773

It says:

PN2774

Call from Maurie, off until 24 March.

PN2775

Ms Risby gives evidence in her affidavit that she had a conversation with Mr Bloom, she says, around late February but she can't remember the exact date where she says Mr Bloom called her:

PN2776

It doesn't seem realistic for him to come back just yet.

**** RON LEVER XXN MR JAUNCEY
PN2777

There is no other evidence of any contact between you or your representatives or anyone at ANSTO over the week before or the week after you say that you were fit to come back. In those circumstances - - -?---Hang on. You've made a statement. Let me answer that, please. You said anyone at ANSTO?

PN2778

Yes?---There was an email that was drafted from Mr Bloom and Dr Hammerton that was sent to Dr Smith on 17 February.

PN2779

Where do you say that evidence is?---Your Honour, I need to have a look at my annexures.

PN2780

THE SENIOR DEPUTY PRESIDENT: Go and have a look

<OFF THE RECORD [3.41PM]

PN2781

MR JAUNCEY: There is nothing in here that says that you were able to return to work in any capacity at all on and from 21 February 2005 or any other date?---It says that I want to move out of this hostile environment. I wanted to move out of the influence, the sphere of the influence of Mr Cullen, I think it says in there somewhere.

PN2782

For these reasons we recommend that the best way forward to resolve these issues would be brought about by the intervention of someone independent of corporate services and human resources and that sphere of the influence.

PN2783

?---Correct.

PN2784

It doesn't say anything about being able to return to work on 21 February 2005 or any other date?---But this, coupled with the medical certificate of 2 February - - -

PN2785

Mr Lever, this email doesn't say anything about returning to work, does it?
---That's fine. I accept that.

PN2786

Your next communication with ANSTO wasn't until 21 March 2005, a month after you say you were able to return to work and that was when you sent an email to Dr Hammerton for forwarding to ANSTO?---No, that's not right.

PN2787

What communication do you say you had with ANSTO between 14 February 2005 and 21 March 2005?---Annexure 24. It's a letter from Dr Peed to Dr Smith.

PN2788

You'll see that that's dated up the top "Received 22/3/05"?---That date is the date human resources received it. It's not the date Dr Smith received it.

**** RON LEVER XXN MR JAUNCEY
PN2789

You don't know that. It says "Received 22/3/05" doesn't it?---I do know that because this question was asked in the Federal Court and Mr O'Shea said that
he - - -

PN2790

You can put it to Mr O'Shea but you don't know. You just know that it says received, doesn't it?---It says "Received by human resources" and I know that.

PN2791

This letter is insisting, amongst other things, on the appointment of an independent arbitrator?---It's the same request I made and the same request the CPSU made.

PN2792

On 21 March, you sent an email to Dr Hammerton which was then forwarded by her to ANSTO and it's at annexure 8 to the affidavit of Mr John O'Shea?---I'm not doubting what you say but I would like to look at it, I suppose, just to make sure.
I'm sorry, your Honour, if I may.

PN2793

THE SENIOR DEPUTY PRESIDENT: Yes.

PN2794

MR JAUNCEY: That email attached a copy of a WorkCover New South Wales medical certificate dated 17 March 2005 signed by your doctor, Dr Peed, yes?
---Well, it says that. Yes, I think that's probably right, yes.

PN2795

That certificate certified you as unfit to work from 25 March '05 up until it appears to be 29 April 2005, yes?---I don't have that certificate here but those dates seem right.

PN2796

It is the second page behind that email of the same annexure?---Second page, yes..

PN2797

In that certificate Dr peed hadn't ticked or crossed the box fit for suitable duties, he had crossed the box unfit to work, hadn't he?---He did.

PN2798

Your email - - -?---Just a moment, please, I'd like to make a note on this. Sorry.

PN2799

Your email - - -?---Sorry, I haven't finished making a note. Sorry, yes.

PN2800

That letter, four paragraphs down, refers to some recreational leave entitlements and it says:

PN2801

I will decide how to deal with this once the claim is determined and I am fit again for work.

PN2802

Then two paragraphs below it, it says:

**** RON LEVER XXN MR JAUNCEY
PN2803

My treating doctor will provide my medical clearances once he considers I am fit for work.

PN2804

?---He does.

PN2805

You were asserting in that letter that you were not yet fit for work, weren't you?
---That's my medical certificate from Dr Peed and I can talk about that but I'll do that later.

PN2806

You were asserting in the medical certificate and the letter that you were not fit for work up until 29 April 2005?---The medical certificate and the letter support each other. The letter was written after the medical certificate.

PN2807

It was written after the letter of 12 March, wasn't it?---That's why the medical certificate was written on the 17th that I was unfit because he didn't receive a response from Dr Smith.

PN2808

You can't say - - -?---Yes, I can.

PN2809

What, you didn't get a response so you said, "I'm unfit"?---Dr Peed was not prepared to put me back into a hostile environment and he said if they're not prepared to put people in that weren't part of my hostile environment and remove me from that he was going to certify me unfit for work. That's exactly what he did.

PN2810

He wasn't certifying you fit for suitable duties, he was certifying you as unfit for any work, wasn't he?---Because he realised what - - -

PN2811

That's what he was doing, wasn't he?---He was - - -

PN2812

That's what he was doing?---Your Honour, when I see a doctor, the doctor and I have a discussion and we make a decision based on our discussion. My doctor made the decision - - -

PN2813

THE SENIOR DEPUTY PRESIDENT: What you're providing right now, Mr Lever, is the reason why the doctor made that decision. Mr Jauncey asked you if that's what he did and the answer to that question is yes?---Yes, okay.

PN2814

Why he did it is what you say in response?---Yes.

**** RON LEVER XXN MR JAUNCEY
PN2815

Make a note?---Yes.

PN2816

MR JAUNCEY: Between 21 March 2005 when you sent in the further certificate certifying yourself as unfit, and 20 April 2005, you did not once pick up the phone or send an email or have any other direct communication with anybody at ANSTO involved in managing your case, did you?---Yes, I did. The period was? Can you just give me - March and what, April?

PN2817

Between 21 March and 20 April?---Yes, I did.

PN2818

Who do you say that was?---Mr Bloom.

PN2819

Mr Bloom wasn't responsible for managing your case, he was your representative, wasn't he?---Yes.

PN2820

Yes, so you did not pick up the phone or send an email or have any other direct contact with any person at ANSTO who was responsible for managing your case on behalf of ANSTO?---No.

PN2821

In fact, Ms Risby telephoned you on 20 April 2005?---I think that's about right.

PN2822

That was your first direct conversation with her for over two months since 8 February 2005?---I have to accept that because I didn't take - keep notes of those conversations with her.

PN2823

During that conversation she said to you that the process for any return to work would be for you to go and see Dr Hall who would be involved in the return to work process and would assess your current health status?---I think that's what she says in her notes. I don't necessarily agree with that.

PN2824

I'm putting it to you that that's what she said or words to that general effect?
---And my response would have been that I'd see Dr Hall on my way back from - actually returning to work.

PN2825

She said those words or words to that effect, didn't she?---I think she did and we also spoke about contacting my doctor, too.

PN2826

She would have said words to the effect of, "As you know you will need medical clearance from Dr Hall before you can return to work"?---That's where I probably said that Dr Hall was not my treating practitioner but Dr Hall was part of the return to work process.

**** RON LEVER XXN MR JAUNCEY
PN2827

You told her, amongst other things, "I have concerns about seeing Dr Hall"?---I can't remember saying that. I can't deny I said it either, not in those terms anyway. It would have only been in terms of him not being my treating practitioner.

PN2828

At that point were you prepared to go and see Dr Hall?---If I was being returned to work, yes, I would have done that.

PN2829

You weren't prepared to see Dr Hall so that he could assess your fitness as part of determining some sort of return to work arrangement?---I think we were talking about me coming up there and I think we were talking about the costs of coming up there.

PN2830

Were you prepared at that stage - - -?---I think I was.

PN2831

On or about 29 April you had a further conversation with Ms Risby?---I think the 29th rings a bell with me.

PN2832

Amongst other things, she would have said words to you - words to the general effect of "However, as we have previously discussed, I will need you to try and see Dr Hall in relation to your involvement in a return to work plan," yes?---I don't think a return to work plan was actually mentioned but we were talking about seeing Dr Hall and the cost of doing so.

PN2833

She said to you that they might be able to give you cab charge vouchers?
---Again, I got cab vouchers and I think I got them in November.

PN2834

We're just talking about 29 April 2005 at the moment. She said that she might be able to get you some cab vouchers. Do you recall that?---It's four years ago and we're talking about a seven month period. I remember talking about cab vouchers. If she says it's there, I've got no reason to dispute that.

PN2835

She says that you said you'd prefer it if you could have some petrol money or some kind of reimbursement for petrol?---No. I would have probably said that there'd be a cost for me coming up, I'd need to either get some money back for the petrol or some sort of way of reimbursing and I think the alternative was, well, what about cab vouchers and I said, "Okay, that's fine."

PN2836

You told her that you wanted to apply for the position of data analysis team leader at the Bragg Institute?---Another employee had told me about a vacant position and I - I don't know what it was called, sorry.

**** RON LEVER XXN MR JAUNCEY
PN2837

You told her that you wanted to apply for an IT systems - or an IT position in the Bragg Institute?---I didn't say I wanted to apply, I said I was considering whether I should apply.

PN2838

She told you that she would speak to people about it but "Being certified as fit to work, even for modified duties, will be a necessary prerequisite for us considering whether you can in fact be considered for another role," yes?---O remember that conversation with Dr Hall, I don't remember that with Zlata.

PN2839

You can't rule out that you said that, or words to that general effect?---I know I was expressing concern that I wouldn't be able to start fulltime straightaway and it would be a graduated return.

PN2840

They were saying that they wanted to have you medically assessed and that you would need to be certified as fit for suitable duties rather than certified as completely unfit for work in order to manage that return?---To apply for a job you had to be fully fit, so I don't remember it in that way at all.

PN2841

That's not what she was saying?---Yes, I know. I don't remember that in that way at all.

PN2842

Later that day Ms Risby spoke to you?---Twice in one day? I don't know.

PN2843

She said that if you wanted to apply for the job at the Bragg Institute, then you'd need to proceed with a job application in the usual way?---No. I had that conversation with Dr Hall. I don't remember that with Ms Risby at all.

PN2844

Up until this time, you hadn't had any conversations with Dr Hall, had you?---No, no. I think the first conversation with Dr Hall was in July.

PN2845

She said that you'd need to make an application and submit your CV and that she had arranged to extend the deadline but that you'd have to get yourself in by the middle of next week?---I remember talking about extending a deadline and I remember talking about that but I don't remember any of the rest of the stuff. I was still concerned about how I was going to apply for a position when I needed a graduated return to work and also training in that because that's another field. That wasn't a field that I had expertise in.

PN2846

You told her, "Can you tell my supervisor that I'm still unfit for work"?---I don't remember that at all. We were trying to work out a way I could get back to work. not the other way round.

**** RON LEVER XXN MR JAUNCEY
PN2847

You were then informed that ANSTO wasn't going to provide cab charge vouchers for you and as a result you informed ANSTO that you weren't prepared to attend a medical assessment with Dr Hall?---That's right.

PN2848

You now say that you should have been paid four hours' pay as well?---We discussed again that if things - we discussed petrol, we discussed being paid for the time I was up there and we discussed cab vouchers and I was happy with any of them.

PN2849

Because ANSTO wasn't giving you money to come in, you chose not to come in?
---I was on Centrelink benefits, I needed the money. Yes, that's right.

PN2850

In fact, in late April 2005 you provided another certificate from Dr Peed again certifying you as unfit to work until 20 May 2005?---Yes.

PN2851

That certificate didn't say anything about being fit for suitable alternative duties, did it?---No, it didn't.

PN2852

You provided the certificate to Comcare?---No, I think that one was - I thought I was giving them to ANSTO. ANSTO may have given it to Comcare.

PN2853

You were also providing your WorkCover medical certificates to Comcare, weren't you?---I actually thought I gave them to ANSTO for Zlata to give them to Comcare. The first one - - -

PN2854

You knew that they were going to Comcare in support of your Comcare claim?
---The first one I sent directly to Comcare, 2 February one, but from then on I think they all went through ANSTO.

PN2855

You knew that it was going to Comcare in support of your claim for compensation?---Yes.

PN2856

You wouldn't have sent that off unless you believed that to be the most accurate and up to date statement of your health?---We were complaining about the hostile environment. That's right.

PN2857

Well, no, the certificate said absolutely nothing at all - - -?---No, the certificate didn't - - -

PN2858

- - - about the hostile environment?---That's correct.

**** RON LEVER XXN MR JAUNCEY
PN2859

The certificate said absolutely nothing at all about being fit for alternative duties?
---No, there were other communications in relation to that.

Mr Lever, you can lead evidence about that but the certificate didn't even tick the box saying suitable duties?---No. Yes, you’re right.

PN2860

If someone picked up the certificate and just read it, they'd say, "Mm, completely unfit for work up until 20 May 2005"?---In isolation and not talking to anyone else, exactly right.

PN2861

THE SENIOR DEPUTY PRESIDENT: I think it's time.

PN2862

MR JAUNCEY: Yes, your Honour.

PN2863

THE SENIOR DEPUTY PRESIDENT: Friday morning 10 o'clock. The Commission is adjourned.

<ADJOURNED UNTIL FRIDAY 29 AUGUST 2008 [4.06PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

NERIDA MARIA SAVAGE, SWORN PN2141
EXAMINATION-IN-CHIEF BY MR LEVER PN2141
CROSS-EXAMINATION BY MR JAUNCEY PN2210
RE-EXAMINATION BY MR LEVER PN2230
THE WITNESS WITHDREW PN2234
WAYNE JEFFERY CARTWRIGHT, SWORN PN2237
EXAMINATION-IN-CHIEF BY MR LEVER PN2237
THE WITNESS WITHDREW PN2442
WAYNE JEFFERY CARTWRIGHT, RECALLED ON FORMER OATH PN2483
EXAMINATION-IN-CHIEF BY MR LEVER, CONTINUING PN2483
EXHIBIT #LEVER11 HIGHLY CONFIDENTIAL LETTER DATED 20/08/2008 PN2549
EXHIBIT #LEVER12 EMAIL FROM MR RYAN TO MR CARR PN2549
CROSS-EXAMINATION BY MR JAUNCEY PN2556
THE WITNESS WITHDREW PN2561
RON LEVER, RECALLED PN2568
CROSS-EXAMINATION BY MR JAUNCEY PN2568
CROSS-EXAMINATION BY MR JAUNCEY, CONTINUING PN2590
EXHIBIT #ANSTO3 SUBMISSIONS PREPARED BY APPLICANT’S PREVIOUS SOLICITOR, MR BARWICK, DATED 14/07/2005 PN2689