C2008/2863, Transcript of Proceedings [2008] AIRCTrans 779 (2 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19386-1

JUSTICE GIUDICE, PRESIDENT
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SPENCER

C2008/2863

s.120 - Appeal to Full Bench

Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division
(C2008/2863)





Melbourne

10.06AM, WEDNESDAY, 19 NOVEMBER 2008

Reserved for Decision

PN1

MR R REITANO: I seek leave to appear for the CEPU.

PN2

MR J BOURKE: I seek leave to appear with my learned friend,
MR M McKENNEY for Australia Post.

PN3

JUSTICE GIUDICE: Yes, leave is granted in each case. Mr Reitano.

PN4

MR REITANO: If it please the Commission. This is an application for leave to appeal on an appeal against a decision of Commissioner Foggo in which the Commissioner refused to recuse herself on the grounds of apprehension of bias. I want to come to very shortly the circumstances of the matter in order to ground an application to adduce some fresh evidence and I will try and do that as briefly as I can. I do intend to return to the facts after I've done so but I think it's probably convenient that the application in respect of fresh evidence be dealt with right at the front end as it were and I think I can do it justice by putting it in context.

PN5

The circumstances of the application were that in March this year Australia Post invited Commissioner Foggo and the CEPU to attend what in the decision below and for all intents and purposes it's not useful to debate the title that's given to it. It is referred to a briefing session about a project, if I can call it that, called Future Delivery Design which involved, again without doing it justice, involved some reorganisation on the way in which work was being done in various areas of Australia Post. The CEPU did not attend the briefing session. for whatever reason, again I will come to that in due course, but the CEPU did not attend the briefing session. Commissioner Foggo did and that was in the early part of March this year.

PN6

The briefing session went for two hours and albeit it a very clever point raised by Australia Post but we didn't challenge what was said during the briefing point, the fact of the matter is we were in no position to challenge it because we weren't there. We have no way of knowing what was said by anyone. It is said by Commissioner Foggo and it is said by Australia Post that the briefing session followed a particular script. It was either the same as a particular script that appears in the appeal book that I'll come to, or was almost the same as, but we have no way of knowing that. Some weeks later in April there was an inspection of a site in Queensland known as Acacia Ridge that involved an aspect of future delivery design.

PN7

Mr Thiele, the Queensland secretary of the CEPU, was present at that inspection. I'll return to that in a moment because that's the topic of the fresh evidence. In June, and I'll come to the evidence as I say, in June Mr Husic wrote to Commissioner Foggo and I'll deal with it, as I say, in more detail later, and said if disputes about Future Delivery Design come before the Commission we want to place you on notice that we're going to ask you to recuse yourself because of the private session over that issue that you had with Australia Post back in March. Subsequently and after that a dispute was notified in respect of Future Delivery Design by the CEPU and it was allocated to Commissioner Foggo.

PN8

At that point I appeared and presented the argument to Commissioner Foggo about why she should recuse herself on the grounds of apprehended bias. The evidence that was placed before Commissioner Foggo did not include anything about Acacia Ridge. It wasn't mentioned. It wasn't even a dot on an "i" about it. No-one mentioned it, despite the fact that contrary to well known practice, as I understand it from another member of this Commission who heard a similar matter, a well known practice that a party on the receiving end, if you like, of an application of apprehended bias, that is, the position in which Australia Post find themselves in this appeal, despite the well known practice that that party is disinterested in the application and certainly does not involve itself in active submissions about, as it were, defending the person from refusing themselves, Australia Post chose to make active submissions to the Commissioner.

PN9

Again I will due with that in due course but for present purposes what is important is that Australia Post led no evidence and put no material to the Commission about Acacia Ridge and what happened at Acacia Ridge in April 2008. In the decision however the Commissioner makes some point, to try and put it neutrally, about what happened at Acacia Ridge and that is found in the appeal book at page 19 and the discussions about Acacia Ridge starts at paragraph 96 at concludes - I think some return to it later on, but concludes for all intent and purposes at 101. Perhaps 104 is relevant as well.

PN10

Now, I don't resile for one moment from the proposition that we did not call any evidence about Acacia Ridge, none at all. That did not mean that the Commissioner was entitled to act upon information about it without at least giving us notice that she would act on that material, and secondly, without giving us an opportunity to (a), call evidence that might differ from the Commissioner's understanding of what occurred, but also (b), make submissions to her about that material. I think at least in the case of your Honour the President, your Honour probably is aware that discretion isn't one of my strongest points. We were very careful to make it clear to Commissioner Foggo that we were not contending in this application anything about actual bias.

PN11

We emphasised that to her a number of times during the argument. The position may well have been very different if we had known that Commissioner Foggo was going to act upon matters to do with what happened at Acacia Ridge and the inspection that was conducted there. It was not something that we thought for various reasons was appropriate to ground - sorry, was appropriate to deal with in the context of an application on the basis of apprehended bias. That is, we confined our application and we confined it very narrowly to a ground of apprehended bias. Had anyone mentioned for one moment that evidence would be led or that the Commission might move on what happened at Acacia Ridge, our case might have been very different.

PN12

We want to call evidence and it's in statement form and Mr Thiele is here if he needs to be cross-examined, from Mr Thiele, the Queensland secretary who is referred to in those paragraphs, about the inspection that occurred at Acacia Ridge and in particular some of the things that were said and done by Commissioner Foggo in respect of that inspection which cast a very different light on the paragraphs of the decision.

PN13

JUSTICE GIUDICE: Are the relevant paragraphs 98 to 101 and 104, is that right?

PN14

MR REITANO: I think there's one other reference, your Honour. If you'll pardon me a moment I'll just make sure that I'm - it may be that the one under 104 was the one other reference that I had in mind. Yes, I think the evidence is confined to those paragraphs, your Honour. Now, could I say this, this is not a situation where it is as though we were on notice that anyone was going to rely upon those things and made a decision, that is a tactical or forensic decision, not to call evidence about it. We had no notice that the Commission was going to rely on it. Far less did we have any notice, at least at the time that the Commissioner was considering the matter, that Australia Post were going to rely on it.

PN15

They rely on it now in their written submissions that we've seen and they rely on it for a number of propositions that we disagree with of course. But we wish to put our version of events forward to the Commission as a matter of procedural fairness. I don't know if it will assist, I have a copy of the statement. In order for the Commission to understand the application it may be appropriate that I tender the evidence so the Commission can have a look at it.

PN16

JUSTICE GIUDICE: Well, I don't know whether we'll have a look at it just yet. I think we'll hear what Mr Bourke has to say about it, but if you want to complete any submissions you - - -

PN17

MR REITANO: Yes. All I need to alert the Commission to is that the matter of adducing fresh evidence is a matter of discretion. The Commission would be well familiar with section 120(6)(a). So the Commission clearly has power on appeal to receive the material if in its discretion it determines to do so.

PN18

JUSTICE GIUDICE: Well, your point is it's relevant and you couldn't have called it because you didn't know it was an issue.

PN19

MR REITANO: We had - - -

PN20

JUSTICE GIUDICE: Is that your position?

PN21

MR REITANO: Yes. We had no idea that anyone - - -

PN22

JUSTICE GIUDICE: I'm just confirming I understand the argument.

PN23

MR REITANO: Yes, that's precisely right. We had no idea that anyone was relying on anything to do with that issue and the whole application we ran may have been different but nonetheless - sorry, the whole application we ran before the Commissioner may have been different but nonetheless had we been alert to the fact that someone was going to move on that material we still would have called this to say, well, you don't put the complexion on it that is found in those paragraphs that I've identified to the Commission. It has a completely different complexion and that needs to be tested by evidence. That's the application.

PN24

JUSTICE GIUDICE: Mr Bourke.

PN25

MR REITANO: I should indicate, Mr Bourke has a copy of the statement that we propose to tender so he knows, as I understand it, what it is.

PN26

MR BOURKE: If the Commission pleases. Could we hand up an outline of submission on this discrete issue and some folder of cases.

PN27

JUSTICE GIUDICE: We have different reading speeds.

PN28

MR BOURKE: Yes. If the Commission pleases.

PN29

JUSTICE GIUDICE: It doesn't necessarily correlate with comprehension.

PN30

MR BOURKE: I'm sure it was all clean. Do I need to say anything else? Can I make these points, firstly, it's clear from the submission of my learned friend they were aware of the visit to the Acacia Delivery Centre and now from the statement, you haven't seen it, but it's material which is attempted to set up a separate round of apprehension of bias and it's flagged it might even be a ground for actual bias. So when this matter came on, on 8 August when they carried the onus on bias or apprehension of bias it was for them to put forward their entire house as to why Commissioner Foggo should disqualify herself and they chose solely to rely upon the briefing on 7 March.

PN31

Commissioner Foggo ruled on that and rejected that as a ground and they are attempting through this statement to set up a completely discrete ground, that is, a complaint about what occurred at the view at the Acadia centre on 3 April.

PN32

JUSTICE GIUDICE: Acacia Ridge wasn't it?

PN33

MR BOURKE: Acacia Ridge. Acacia Ridge on 3 April which is some four months prior to the application being made, so they've simply sat on their rights on that. They made a strategic decision how to put their case below and this purported procedural unfairness is not a basis for reopening their case on a substantive level. The second point is they claim they didn't know Acacia Ridge was coming, otherwise they would have led evidence on this. That doesn't add up because their statement puts forward a discrete basis for what they claim would be apprehension of bias or actual bias as to what occurred at that visit on 3 April.

PN34

That's something they made a forensic decision not to run with and what Commissioner Foggo in her decision The relevance of Acacia was this, not some particular admission or whatever, Acacia Ridge, Commissioner Foggo made the point that at no time from the time, I think it was 29 February that the union was written to saying there's going to be a briefing on 7 March, right through to 7 June when they wrote saying we want to disqualify you from any issue involving future delivery did they say anything about the inappropriateness of Commissioner Foggo dealing with these matters and she made a point in just setting out the history I also had a view at Acacia Ridge on 3 April.

PN35

So it was a relatively subordinate incident observation in relation to her fundamental point which was for three months the CEPU did not say boo about the fact there was a briefing, that I attended on 10 April. In fact the first time they raised it was in the June correspondence which in fact we were not aware of. The first time we became of this matter was being complained about was the first listing on 8 August. So that is just part of the narrative of the fact that that's another opportunity where you could have complained and you didn't. But it's not a basis for reopening the case completely. But the second point about this, and my learned friend has a ground of appeal of procedural unfairness and that's a ground of appeal. That's not a ground for reopening a case, for reopening a basis for putting apprehension of bias.

PN36

It might be relevant as to discretion that they suffered a prejudice but it's not about a ground or a basis for rearguing or setting up a foundation for an apprehension of bias application. What this statement goes is in fact what occurred at Acacia Ridge. Well, all the Commissioner observed was that that inspection occurred and it occurred without complaint and on the statement that is not disputed. What is complained about is what Commissioner Foggo did and said at that inspection. Further to that, it is not correct that no-one mentioned Acacia Ridge and my goodness, it's in the decision, we would have led some evidence on it.

PN37

It was raised below. If I can go to the appeal book page 48, now, at page 47 of the appeal book, the transcript at PN172 you've got the submissions of Mr McKenney for Australia Post commencing, if you turn over the page, one of the very first points made by Mr McKenney is the PN177, the second letter which is the shorter letter of 20 March because there was an earlier letter concerning the briefing, again to the divisional secretary, Mr Husic, this relates to a visit that the Commission was invited to undertake at the Acacia Ridge Delivery Centre to view the V-Sort residue merging process.

PN38

That point is being made that there's been contact subsequent to the briefing between the CEPU and in fact involving Australia Post and Commissioner Foggo. The Commission will note the representative was the Queensland Communication Work Union branch was invited to attend and participate in that site visit on 3 April. The next paragraph:

PN39

The next letter, Commissioner, is 25 March 2008 relating to ergonomic assessment of the V-Sort residue merging process. It's a letter again to ...(reads)... would undertake as part of the review activity.

PN40

So again that is about the Acacia Ridge and then 179:

PN41

Finally, Commissioner, the letter of 8 April 2008 is a further letter from Australia Post to Mr Husic about future delivery update. That deals ...(reads)... to the AIRC visit to Queensland.

PN42

And this was the visit referred to in the earlier correspondence. That visit did occur and the state secretary of the Queensland Communication Workers Union was also in attendance on that day. Now, that's part of the - - -

PN43

DEPUTY PRESIDENT HAMILTON: Is your point essentially this, that the fact of the Acacia Ridge visit was known to all parties and mentioned frequently, that the CEPU was also in attendance and also that the decision doesn't go beyond those two points essentially?

PN44

MR BOURKE: Correct.

PN45

DEPUTY PRESIDENT HAMILTON: There's nothing else really in it, is there?

PN46

MR BOURKE: There's nothing else.

PN47

DEPUTY PRESIDENT HAMILTON: So that's what you're saying, okay. I understand that.

PN48

MR BOURKE: And the documents tendered by Australia Post below you have at appeal book 96 one of the documents they tendered was a letter to Mr Husic of 20 March 2008 referring to the invitation to the Acacia Ridge Delivery Centre and then a further document tendered at appeal book 97 was another letter to the CEPU of 25 March 2008, again on paragraph 2 referring to the visit to the Acacia Ridge Delivery Centre and - - -

PN49

JUSTICE GIUDICE: Page 99.

PN50

MR BOURKE: Appeal book 99, about the third paragraph there's another reference.

PN51

JUSTICE GIUDICE: Well, they're the references that Mr McKenney was taking the Commission too, aren't they?

PN52

MR BOURKE: Correct, correct. So it was all spelt out in oral submissions and through the tender of documents and my learned friend Mr Reitano in his reply simply did not even bother to even deal with Acacia Ridge in reply and now it's a desperate issue for the filing of the statement and I know the Commission hasn't seen it but on any view it's a highly inflammatory statement. We say we've set out the legal principles in our written submission and it simply offends very principle as to why what is really an application for fresh evidence to effectively reopen the case should be refused. (1), it's clear they knew about the evidence and they made a decision not to run with it and they have to live with that.

PN53

The second point is that it completely will change the face of the appeal because the appeal was about whether the attendance at the briefing on 7 March is enough. It is either is enough or not enough to grab an apprehension of bias and the actual content of what actually occurred at Acacia Ridge really can't inform us on the issue. It creates a completely separate front, so completely changes the script of what we're here to deal with and it's contrary to the whole notion of finality of litigation to reopen this completely fresh front. The further thing is not only did they not raise this matter when they were alleging apprehension of bias on 8 August, as a matter of fact the CEPU have appeared before the Commission on a number of other occasions before Commissioner Foggo.

PN54

They've never complained about the Acacia Ridge and what occurred there and Mr Thiele in his statement complains about what was said and done to him at that visit appeared before Commissioner Foggo that very day, that very day in a listing of a matter without complaint and now they're wanting to have that as a further foundation to support disqualification. The other matter is that, well, you've got evidence as to what purportedly Commissioner Foggo has said or done it is appropriate that that be put before Commissioner Foggo first up and not for an Appeal Bench to make a determination whether these matters occurred without the benefit of any observations of the Commissioner herself.

PN55

Now, it's not convenient just to simply say we have Mr Thiele here, we can cross-examine him. The issues that are raised in the statement, a statement we got after the close of business on Friday, will involve taking detailed proofs from our people, us having to call our own witnesses and although from the preliminary instructions we've got the version of events Mr Thiele has put in his statement do not accord with ours. We're not in a position to cross-examine him today. We need to nail down exactly what we say has occurred and what will result is effectively a trial on this issue when this is in fact the very purpose for hearings at first instance, not appeal processes.

PN56

We come back to the ultimate point that they carry the onus at all times in this type of application, chose not to run with it. They can't run with it on appeal and on any view, given that they were aware of the concept, they never raised it, we must be up to seven months now, they have waived their right to even do so. If the Commission pleases.

PN57

JUSTICE GIUDICE: Mr Bourke, just for the purpose of identifying those letters, were they all part of the one exhibit, do you know? Were they tendered as a bundle?

PN58

MR REITANO: All of the Australia Post ones were one bundle.

PN59

JUSTICE GIUDICE: One bundle, yes. Yes, Mr Reitano.

PN60

MR REITANO: Could I deal with several matters but firstly could I say that it might have been appropriate to run material before Commissioner Foggo had we known from anyone that the material was going to be used either generally or specifically against us, can I take the Commission to three propositions. The fact that there was a meeting at Acacia Ridge was obviously referred to twice, once in the letter on the last page of the appeal book, I think page 99, the third paragraph. It refers to the fact of something happening there and once in a sentence I think that Mr McKenney deals with in submissions. But nowhere and it is fanciful to suggest - - -

PN61

JUSTICE GIUDICE: Where's that sentence?

PN62

MR REITANO: I beg your pardon, your Honour?

PN63

JUSTICE GIUDICE: Where's that sentence?

PN64

MR REITANO: I think it was page 48 from recollection of the appeal book.

PN65

JUSTICE GIUDICE: Is this a separate reference to the one that Mr Bourke just took us to?

PN66

MR REITANO: Yes, yes.

PN67

JUSTICE GIUDICE: It's a separate reference?

PN68

MR REITANO: No, no, no. It's the reference he took the Commission to.

PN69

JUSTICE GIUDICE: I see. I'm sorry, I thought you said there was another.

PN70

MR REITANO: No, they are the only two references in the material and they refer to the fact that something happened at Acacia Ridge by way of an inspection or a view, I can't remember how it's described.

PN71

JUSTICE GIUDICE: Yes.

PN72

MR REITANO: But how it is said for one moment that that can possibly be turned against the CEPU to support the foundation for the Commissioner's observation that all parties present were at liberty to advance their views on the system and the equipment or their concerns on these or any related issues, paragraph 101 of the decision, last sentence. Commissioner Foggo, far less Australia Post, didn't say, look, I'm going to hold against you that and had someone said that, had someone said look, this is going to be used against you in my determination of whether there's an apprehension of bias, Mr Thiele would have said to the Commissioner, well, you expressed a view right at the beginning that you're not going to allow this become like some other dispute and it wouldn't drag on for 12 months like some other dispute, so it was hardly useful for me to say anything to you.

PN73

Or alternatively, had we known, for example, that someone was going to rely on the sentence before that one -

PN74

The information regarding the trolleys and the processes was freely given in front of the managers and co-workers present and the state secretary of the union.

PN75

Mr Thiele might have been put in the box to say, well, the information I got was that the whole thing was contrived and that people were hand picked in order to make it look as though there was no complaint about it. Had someone said in paragraph 101 now, the last sentence:

PN76

No issues were raised regarding specific concerns of the CEPU with Australia Post regarding consultation of FDD.

PN77

The CEPU might have led evidence as to why it was not considered appropriate at that time to raise such issues, particularly in circumstances where the Commissioner has tapped Mr Thiele on the side of the face and embarrassed him in front of other people. Now, we were given no opportunity and it is completely unfair for anyone to suggest that the fact that Mr McKenney mentioned in his submissions something about something happening at Acacia Ridge by way of a view or inspection, or the fact that in a letter Australia Post refers to the fact that such a meeting occurred in the presence of the Queensland state secretary can support any of those propositions that the Commissioner advanced against us as apparently grounding some significant point that the CEPU was in some way acquiescing in all of this process.

PN78

It is mind boggling that anyone would suggest to this Commission or any other court or tribunal that we could waive somehow a right to complain about apprehended bias by conduct or otherwise. We were entitled to be heard. We were entitled to bring evidence and had the Commissioner told us she was going to move on those assertions we would have brought the evidence and it is not a matter to say, well, you should have when someone made a passing reference to Acacia Ridge you should have been alert to every distinct possibility about the Commissioner's views about what took place there, somehow getting into her mind and putting forward evidence that we had no idea it was contrary to what the Commissioner thought.

PN79

DEPUTY PRESIDENT HAMILTON: Mr Reitano, I take you if I could to paragraphs 10 to 12 of the submissions filed I think this morning by Australia Post. They deal essentially with the fact of the visit to Acacia Ridge by the Commission and the fact of the participation by the CEPU.

PN80

MR REITANO: Sorry, your Honour, could I just inquire, are you referring to the submissions on further evidence or the submissions on the appeal?

PN81

DEPUTY PRESIDENT HAMILTON: I'm sorry, the respondent's outline of submissions.

PN82

MR REITANO: I'm sorry, yes.

PN83

DEPUTY PRESIDENT HAMILTON: My apologies. Paragraphs 10 to 12.

PN84

MR REITANO: Yes.

PN85

DEPUTY PRESIDENT HAMILTON: As far as I can see they deal essentially with two things. One is the visit to Acacia Ridge took place and secondly, also in attendance was a CEPU branch secretary. Now, the issues you raise, does anything actually turn on them in terms of this present matter? If it's the case that's all that been relied on is simply the fact of the visit and the fact of the CEPU attendance does anything turn on it?

PN86

MR REITANO: I think two things turn on it. Well, turn is probably not the right word but I think two things deal with your Honour's question.

PN87

DEPUTY PRESIDENT HAMILTON: Well, what is the right word?

PN88

MR REITANO: The first is this is an appeal against a decision of Commissioner Foggo, not an appeal against Australia Post's submissions. Now, it appears that this issue in the Commissioner's decision - - -

PN89

JUSTICE GIUDICE: That's a rather disrespectful reference, Mr Reitano.

PN90

MR REITANO: I'm sorry, your Honour, I wasn't intending to be disrespectful. I apologise for that if I was. I certainly was not intending.

PN91

JUSTICE GIUDICE: Yes.

PN92

MR REITANO: Can I withdraw it and rephrase it. This is an appeal against Commissioner Foggo and specifically has to deal with the findings that Commissioner Foggo moved on. So one sees in those three or four paragraphs that I have referred to of the particular findings that the second aspect of it in respect of your Honour asked me does anything turn on it, there is this argument which we disagree with of course about acquiescing or waiving a right to object and it appears that these matters may be said to be relevant to that, that you went to Acacia Ridge and did various things without objecting and so on and so forth. That's as high as I can put it, your Honour. They're the two things that we consider are important about it.

PN93

I can't say anything more in respect of what I've identified in the paragraphs 99 to 101 or thereabouts and the later paragraph 104. They appear to be important enough for the Commissioner to have dealt with and it appears that she has placed some reliance upon them.

PN94

JUSTICE GIUDICE: Yes. Could you just take me to precisely the findings which you say you're prejudiced by?

PN95

MR REITANO: In respect of those paragraphs, your Honour?

PN96

JUSTICE GIUDICE: Yes.

PN97

MR REITANO: I think the three, if it's either two or three. The first is the last sentence of paragraph 100 - sorry, the last two sentences I think is probably the better way of dealing with it -

PN98

The information regarding the trolleys and the processes were freely given in front of managers and co-workers present and the state secretary of the union.

PN99

On the one hand and then:

PN100

All parties present were at liberty to advance their views on the system and the equipment or their concerns, or these or any related issues.

PN101

JUSTICE GIUDICE: Yes.

PN102

MR REITANO: Then the next sentence - - -

PN103

JUSTICE GIUDICE: Yes. Now, just a moment. Now, let's assume the Commissioner was wrong about that.

PN104

MR REITANO: Yes.

PN105

JUSTICE GIUDICE: What implication does that have?

PN106

MR REITANO: It appears that the Commissioner is saying you have never complained about this before, you have never complained about - I was coming to the next sentence, your Honour, and they roll together.

PN107

JUSTICE GIUDICE: Yes.

PN108

MR REITANO: That is no problem regarding the attendance of the Commission, et cetera.

PN109

JUSTICE GIUDICE: Well, was a problem raised?

PN110

MR REITANO: At Acacia Ridge?

PN111

JUSTICE GIUDICE: Anywhere.

PN112

MR REITANO: I'm not being difficulty with your Honour's question,
certainly - - -

PN113

JUSTICE GIUDICE: Well, I think it's reasonably simple. The Commissioner's expressing the view that she's been confronted with a bias application in which presumably everything that's relevant to that application has been put to her and she's observing that no problem has been raised, presumably with her, concerning her attendance at Acacia Ridge.

PN114

MR REITANO: And presumably that is being raised for a reason.

PN115

JUSTICE GIUDICE: Yes, but was a problem raised before the Commissioner?

PN116

MR REITANO: Your Honour, I'm not trying to be difficult with your Honour's question. There are two answers to your Honour's question.

PN117

JUSTICE GIUDICE: Yes.

PN118

MR REITANO: One is that Mr Thiele deposes to a conversation that he had with Commissioner Foggo where he complained about a particular person with whom he was dealing on the issue not being a particularly nice person, I think is the expression used. Now, I don't know - - -

PN119

JUSTICE GIUDICE: No, but isn't this point about the attendance of the Commission at Acacia Ridge?

PN120

MR REITANO: Yes.

PN121

JUSTICE GIUDICE: In the context of a bias application?

PN122

MR REITANO: Yes.

PN123

JUSTICE GIUDICE: She's saying no question was raised that she shouldn't have been there, for example, because it affected the bias issue. Isn't that what she's saying?

PN124

MR REITANO: As I understand the reasons go further, that is, that you didn't complain or raise any concerns about what was being proposed.

PN125

JUSTICE GIUDICE: That might be sentence 2, the second sentence in 101.

PN126

MR REITANO: The second, yes.

PN127

JUSTICE GIUDICE: Yes.

PN128

MR REITANO: Yes.

PN129

JUSTICE GIUDICE: But that doesn't trench on the bias application, does it, or does it?

PN130

MR REITANO: Well, the way in which I understand or the reason why I understand these thing are being put forward is effectively the CEPU has never complained about in effect apprehended bias or the Commission's involvement in the process before and it didn't do so at Acacia Ridge.

PN131

JUSTICE GIUDICE: Yes.

PN132

MR REITANO: No issues were raised regarding that. That's how I understand the materials being advanced.

PN133

JUSTICE GIUDICE: Yes. And do you want to call evidence to say that that is incorrect?

PN134

MR REITANO: I want to call evidence to say that in terms of the finding that people were at liberty to say whatever they wanted to or the suggestion that the Commissioner had not made - I'm trying to put it neutrally, your Honour, observations about - - -

PN135

JUSTICE GIUDICE: Is the answer to my question yes or not?

PN136

MR REITANO: I think the answer frankly is no.

PN137

JUSTICE GIUDICE: Yes.

PN138

MR REITANO: But I'm trying to make sure that I'm dealing with the question properly.

PN139

JUSTICE GIUDICE: Yes, very well.

PN140

MR REITANO: Certainly no-one at Acacia Ridge said to the Commissioner in terms of the last sentence at paragraph 101 we have specific concerns about Australia Post's consultation on Future Delivery Design. I think that deals with your Honour's question. No-one raised that complaint. No-one said anything like that.

PN141

JUSTICE GIUDICE: Yes.

PN142

MR REITANO: But it could not be said by the same - well, I don't want to go any further than what I've gone in answer to your Honour's question.

PN143

JUSTICE GIUDICE: Yes. Well, we declined to look at the material out of an abundance of caution lest somebody suggest we subsequently didn't admit it, we hadn't excluded it from consideration which can be an issue in these cases. If you have any submission to make about that as to whether we should see the material before we adjourn to consider what's been put now is the time to put it.

PN144

MR REITANO: I think I've fairly put everything I can put. If your Honour is inclined to look at the material which I think was what we suggested at the outset then it's a matter for the Commission.

PN145

JUSTICE GIUDICE: Yes, very well. Well, if there's nothing else on this point we might adjourn for a few moments and consider.

<SHORT ADJOURNMENT [10.50AM]
<RESUMED [11.02AM]

PN146

JUSTICE GIUDICE: We have decided not to admit the evidence so the application is refused. We will give our reasons in due course.

PN147

MR BOURKE: If the Commission pleases.

PN148

JUSTICE GIUDICE: Yes, Mr Reitano.

PN149

MR REITANO: If it please the Commission. Could I then return to the facts of the matter as I foreshadowed in order to ground what I want to say in respect of the appeal. I should indicate that in our submission at least the point at which the appeal turned is a finally honed one and I will come to that in due course. But I think in order to put the matter in context I need to return right to the beginning of the decision which starts at appeal book 4 and perhaps relevantly to note that it was an application engaging a dispute resolution provision relying upon section 170LW of the former Act and by reason of what is known as EBA6 which bound Post and CEPU.

PN150

In paragraph 2 the Commissioner refers to or summarises in brief form the notification of dispute and says this:

PN151

The application on 28 July noted that a number of matters were in dispute and the parties had so far followed the dispute resolution process in ...(reads)... refused to maintain the status quo while the dispute is being processed.

PN152

So broadly speaking I think it's fair to describe the dispute at least for present purposes as covering two specific subject matters, perhaps one encompassing the other, first the implementation of Future Delivery Design, FDD, and secondly, Australia Post's failure to consult in respect of that. From paragraph 3 onwards the - - -

PN153

JUSTICE GIUDICE: Mr Reitano, the relevant parts of the agreement that deal with, for example, the obligation to consult and so on, I didn't see them in the appeal book but I think they're attached to the original application, are they not?

PN154

MR REITANO: I think that's right, your Honour, yes. I think the original notification or the Form 37.

PN155

JUSTICE GIUDICE: Yes, yes.

PN156

MR REITANO: Yes, yes. I'll check that, your Honour.

PN157

JUSTICE GIUDICE: Yes. Well, I think they do provide a bit of context for the nature of the task that the Commissioner had before her which is obviously the context of your application that she disqualify herself has to be seen.

PN158

MR REITANO: Yes. They're attached to the Form 37, your Honour.

PN159

JUSTICE GIUDICE: It's probably desirable that we have a look at that.

PN160

MR REITANO: It sets out clause 12 of the agreement.

PN161

JUSTICE GIUDICE: Well, we can get those from the original file.

PN162

MR REITANO: If it please your Honour. The Commissioner goes on from paragraph 3 to deal with some of the facts and I hope that I don't do the Commissioner any injustice and certainly none is intended in terms of not reading large slabs of the decision in this respect but rather perhaps overcoming it by going straight to the actual evidence that the Commissioner was dealing with which I don't think is materially is in different terms. I think the Commissioner fairly quotes from it and refers to it. Could I ask the Commission to go to appeal book 92.was exhibit CEPU2 in the proceedings and it was the letter that I referred to earlier that Mr Husic wrote to on behalf of the CEPU, wrote to Commissioner Foggo on 3 June 2008 and if I could just briefly walk through that. In the second paragraph Mr Husic says:

PN163

I understand from correspondence and various reports that you have been briefed personally by corporation representatives on FDD and that these ...(reads)... contracting out of work and major restructuring of pay rates.

PN164

I emphasise that just to identify that this was obviously a fairly important dispute of having serious ramifications -

PN165

While Australia Post may have you believe that it regularly briefed us on the development of the FDD plan this would be misleading. Much of this discussion has been sporadic, fractured and without context.

PN166

And if I could just skip down to the fourth last paragraph:

PN167

Our ongoing concern about the shortcomings of the consultation process was one of the reasons why we declined the offer to participate in the briefings management ...(reads)... reasonable person looking at all the circumstances -

PN168

I think there's a "b" a missing -

PN169

would be likely to conclude that your dealings with Australia Post without the CEPU present and irrespective of the fact that the CEPU may have been invited ...(reads)... the perception about how this dispute might be adjudicated.

PN170

And that's the relevant background if you like in terms of what the CEPU was, to try and use a neutral word, complaining about.

PN171

JUSTICE GIUDICE: Mr Reitano, I don't understand the reference to ownership, what's that, your ownership of the matter creates such a perception?

PN172

MR REITANO: I think that the concept behind it is that the Commission was being introduced into the process or what I called earlier, the project of FDD, at a very early stage so that the Commission would be, as you were, part of the project and part of the implementation of it and an integral cog in the wheel if you like to the rolling out of FDD. It would not be - - -

PN173

JUSTICE GIUDICE: That's a reference to Australia Post's objectives. This is a reference to some characteristic or some view of the Commission.

PN174

MR REITANO: I'm sorry, yes, and I understand what your Honour says. If your Honour reads that I understand why your Honour reads that, but your Honour will see in the next paragraph at the last - I know it's the next paragraph. I appreciate the infelicity in it, but to the extent it would compromise the perception about how this dispute might be adjudicated, we were at all times eager to point out to the Commissioner when the argument was had that this was a case about apprehended bias and I think the letter raises that earlier. The paragraph that your Honour has referred to really should be qualified by the apprehension of your ownership of the issue and the apprehension that you will be unable to bring a fair and impartial mind to the issue.

PN175

At no time when we were in the Commission and nor do I think it was intended in this letter, to suggest that there was actual bias. It refers to the perceived ownership of the issue.

PN176

JUSTICE GIUDICE: Yes. Well, probably that last sentence doesn't add that much then to - - -

PN177

MR REITANO: That's correct, your Honour.

PN178

JUSTICE GIUDICE: Yes.

PN179

MR REITANO: That's correct. Indeed that is right.

PN180

JUSTICE GIUDICE: Yes.

PN181

MR REITANO: Other than perhaps to try and explain the idea in a different way. So if I then move backwards to CEPU1 which I think commences at appeal book 71, the rather large document that is attached to CEPU1 is the PowerPoint or overhead version of the presentation that was made to Commissioner Foggo that we weren't in attendance at on 7 March.

PN182

JUSTICE GIUDICE: Yes. I'm a bit confused as to why not. You said something about it this morning and there's something in the materials about it, but what was the state of the evidence or submissions before the Commissioner as to the CEPUs response to that invitation?

PN183

MR REITANO: The CEPU did not respond.

PN184

JUSTICE GIUDICE: There's no response at all?

PN185

MR REITANO: No.

PN186

JUSTICE GIUDICE: And was there any - - -

PN187

MR REITANO: Sorry, at the time.

PN188

JUSTICE GIUDICE: At the time, yes. And was there any other evidence or material as to why it didn't respond?

PN189

MR REITANO: No, and nor was there any other evidence or material where anyone sought.

PN190

JUSTICE GIUDICE: I see.

PN191

MR REITANO: I'm not trying to defend the position by responding - - -

PN192

JUSTICE GIUDICE: No, that's all right. I just want to make sure I understand what was before the Commissioner.

PN193

MR REITANO: There was no evidence that, for example, and I don't say this critically and I don't intend it to be understood pejoratively, that the Commissioner rang the CEPU or wrote to the CEPU and said will you be there or what time are we arriving there, or that Australia Post did that. They simply said this is the time, it's been arranged, see you there, and that was it.

PN194

JUSTICE GIUDICE: Yes.

PN195

MR REITANO: No-one went further than that.

PN196

JUSTICE GIUDICE: Yes.

PN197

MR REITANO: After the briefing I think the Commissioner insisted that Australia Post report various matters to the CEPU about what happened, but in terms of arranging the CEPU involvement there was no evidence before the Commissioner that the CEPU told anyone they wouldn't be there or that anyone made any inquiry. I don't want to labour this document other than to just perhaps point out to the Commission some of the salient points in terms of the whole document pertains to Future Delivery Design and its implementation, that's fairly obvious. At pages 89, 90 and 91 there are some particular observations about what I think at one point is referred to as discussions with the CEPU state branches that are to occur in March and April 2008 and at other points there is references as to what is I think is squarely described as consultation with the CEPU and the relevant branches.

PN198

I think that in particular is found on page 91. By way of example, on 91 in terms of next steps, continued national consultation with CEPU on specific issues and the next point after that, commenced parallel state local consultation processes in March 2008 and then there's a number of other dot points about consultation specifically. As I say, it generally touches - well, I withdraw that. It generally and specifically touches the issues identified, rolling out implementation of FDD and more specifically, the issue of consultation about it. The meeting according to the Commissioner and I think according to Australia Post, not in terms of any evidentiary material but we don't cavil with it, went for about two hours we're told and there was, again trying to put it fairly, there was said to be adherence or at one time there was - it's put alternatively by both the Commissioner and Australia Post that it followed the script or nearly followed the script.

PN199

I think Australia Post says almost. I can't remember the word the Commissioner uses. But in two hours this presentation was gone through as though it were a script as we understand. Could I then take the Commission back to the decision, I don't want to trouble the Commission by reading again the submissions that were made on behalf of the CEPU other than to remind the Commission and I don't think there's a huge distance between Australia Post submissions that I've seen an outline of and mine that I'm making now in respect of the principles that apply in respect of apprehension of bias. I think where we differ is the application of the principles in the circumstances.

PN200

JUSTICE GIUDICE: Yes. There was a case that I came across this morning that might be relevant and I don't know that anybody's referred to it. I might be wrong about that. It's the Finance Sector Union of Australian and Another ex parte Illation. I'm not sure if it's reported in the CLRs but is in volume 107 of the ALR 581. Is it in your list, Mr Reitano?

PN201

MR REITANO: No, your Honour. I don't think it's in my learned friend's either.

PN202

JUSTICE GIUDICE: It's potentially relevant because it discusses the perhaps specialised nature of the functions of the Industrial Relations Commission and contrasts that context with the context of a court for example. There are similar issues dealt with in the other case that have been referred to.

PN203

MR REITANO: I wonder if perhaps depending on whether your Honours observe or not, it might be appropriate to give us leave to put in a short note if there's anything - - -

PN204

JUSTICE GIUDICE: Yes. Well it may be that there will be time for you to have a look at it before we finish.

PN205

MR REITANO: Yes.

PN206

JUSTICE GIUDICE: But as I say, I don't think it adds much but it is potentially relevant so I thought I should draw it to your attention.

PN207

MR REITANO: If it please your Honour. As I was saying, I don't think that there is much difference in terms of what is said by both sides in respect of the legal principle that applies. I do want to highlight two things about the submissions that were made without specifically taking the Commission to the references. They become relevant perhaps more vitally when I come to the Commissioner's reasons for rejecting the application, but there are two things that are relevant. There is a case that was referred to in argument before her Honour that concerned Commissioner O'Connor and I'll hand a copy of that to the members of the Commission in due course.

PN208

But in that case the obvious thing that is different from this case is that Commissioner O'Connor discussed with a party - or probably two things that are different, immediately prior to a hearing a procedural matter and only a procedural matter. It didn't descend to anything other than that. It was about I think whether application should be joined or not. The second matter that may be thought to be relevant or different, and it's hard to describe it in the context of the Commission, but the proceedings were on foot. That is, at the time the conversation occurred there had actually been I think a notification or an application filed by someone. So they are the two possible points of difference.

PN209

But the principles that are discussed in O'Connor would seem to imply a result that if there'd been a discussion about the substantive merits of the matter with Commissioner O'Connor the court would have decided the matter differently, or if it descended into anything to do with the merits of the matter. The second authority that's referred to is JRL and JRL is I think the most - well, I maybe wrong, but is the most relevant case to what's considered here. Again it's slightly different, the proceedings were on foot again, custody proceedings in the Family Court, and secondly, the judge had a conversation with an expert witness who was giving evidence or who was proposed to be giving evidence in the course of the case about things to do with the conduct of the case.

PN210

What we put to Commissioner Foggo was that you could lift the words, and I know it's not necessarily always going to give you a proper reflection, but you could lift the words of the principle in JRL here and apply them relevantly where what happened here was the Commissioner had a private conversation with a party whose opinion was to be challenged. That is, we didn't agree with Australia Post and it might reasonably be thought that the conversation enhanced Australia Post's credibility in the Commissioner's eyes. That's found at paragraph 20 where we applied the principle in JRL to these circumstances. I'll come to some matters to do with why Australia Post might be said and why it might be inferred that it was doing what it was doing in March having the briefing session.

PN211

But in respect of those principles and the principles that were articulated, as I've said many times now, hopefully the last time, we don't depart from Australia Post a great deal in respect of what the principles are that apply, but rather we depart from Australia Post in respect of the application of those principles. Could I then go to the Commissioner's consideration of the issue and I want to in due course come to hopefully a series of factors, I think there's nine or 10 that we say are the factors that the Commissioner should have been influenced or should have been persuaded that would reasonably affect the position of a fair minded observer.

PN212

Before I do that and necessarily there'll be some repetition in this, but before I do that could I go to three paragraphs in particular because in my submission they are particularly telling. Can I preface those comments by saying this is not about whose fault it was and when one reads Australia Post's submissions it reads like, well, the CEPU should have done something in March, or the CEPU should have raised objection somehow earlier, or alternatively on the other side if it were said that the CEPU is saying that Australia Post should have known better than to conduct a briefing in March, or that the Commissioner should have known better not to attend or anything like that. It's not about fault finding. That's not what this task is about.

PN213

This task is about what a reasonably fair minded observer might think about what's going on and there are three references in the Commissioner's decision that clearly in my submission if one takes out the question of fault finding, clearly point in the direction as to what the appropriate course that should have been taken should have been and underlie the principle behind why members of the Commission where confronted with important issues like this should not be moving with one party or the other without either the express agreement of the other party or the presence of the other party. The first is in paragraph 87 on page 18 where the Commissioner says:

PN214

When the issue of a briefing of FDD was first raised with the Commission early in 2008 and the possibility of a briefing raised it was agreed to by the Commission on the clear understanding that the CEPU would also be at the briefing.

PN215

Now, I don't criticise the Commissioner when I say I don't know why the Commissioner had that understanding. It's not important for my submission. What is important for my submission is that the Commission only agreed to it because the Commissioner thought the other side would be present. That underlies in my submission not only the practice of legal practitioners in respect of communications with judges or tribunal members, but also underlies the practice of this Commission in terms of the prospect of - sorry, the terms of eliminating any prospect of apprehended bias.

PN216

So that's the first reference. The second reference to a similar point arises I think at paragraph 92 and the Commissioner says:

PN217

The Commission proceeded to the briefing on 7 March 2008 on the understanding that the union would be in attendance.

PN218

Reflective of the same philosophy about the need for both parties to be present. And finally, it is referred to again in a third reference, paragraph 96 where the Commissioner says this:

PN219

If the Commission had been aware of the dispute, even if it was not at the stage of an application before the Commission, it would not participate in briefings by either party unless the other ...(reads)... but probably actual bias.

PN220

I'm not sure about the last part of the sentence but in any event it matters not. These are not the circumstances of this case. Certainly the Commissioner was correct about one thing, there had been no dispute notified and no application made. But what is important is that irrespective of whether there was an application made or not, if the Commission was aware, even if there'd been no process issue, the Commission would not participate in briefings by either party unless the other was present. That's the practice the Commissioner refers to. And again I'm not saying it pejoratively, I'm talking from the objective view of the reasonable person looking in, it can't be affected in my submission by whether or not one way or the other a party is able to conceal from the Commission member whether or not there is any dispute about the matter.

PN221

The matter must be determined objectively, informed of all the relevant facts and here objectively the CEPU was not present at the briefing. The briefing was presumably being conducted for a purpose. And thirdly, the Commissioner was being placed in a position of meeting with one party and one party alone when the Commissioner turned up. Now, objective - - -

PN222

JUSTICE GIUDICE: When you talk about meeting with a party, this is really a very general observation but I'm trying to see this case in the context of inspections and site visits which are a long tradition in the Commission, probably not as frequent these days but at one stage they were extremely frequent.

PN223

MR REITANO: Certainly.

PN224

JUSTICE GIUDICE: And I'm just trying to see it in that broader context and the implications of the submissions you're making for the Commission's activities in that area, I just want to ask you to respond to this. I don't know what the precise format of the briefing was in this case, we've got some indications in the evidence, but often site inspections involve large numbers of people - - -

PN225

MR REITANO: Could I just - I apologise for interrupting, your Honour.

PN226

JUSTICE GIUDICE: Yes.

PN227

MR REITANO: I don't think this was a site inspection.

PN228

JUSTICE GIUDICE: No, no, I understand that, but it was attendance at a - - -

PN229

MR REITANO: Presentation.

PN230

JUSTICE GIUDICE: Presentation, yes. It was attending presumably for the purpose of doing some things that mightn't have conveniently been done elsewhere. But I think some of the same issues arise. Where the Commission attends premises in the course of proceedings there are often large numbers of people. In my experience there are often refreshments of one kind or another offered. People talk in small groups. It's not a formal proceeding so for example, if you're walking around a plant you might find yourself at one stage walking with an employer representative, at another stage with a union representative. There are all sorts of opportunities for interchange.

PN231

I'm just wondering in that broader context whether it's right to put that sort of activity into the category of a private communication with one party, if both parties aren't there?

PN232

MR REITANO: That was indeed going to be my answer to your Honour's question.

PN233

JUSTICE GIUDICE: Yes.

PN234

MR REITANO: That if both parties are there it would be difficult for me to make good the submission that it was a private communication. I think only the other day I was by the side of the road on a freeway outside of Sydney participating in an inspection of something and a number of people were told that they couldn't get out of the bus, they had to listen what was going on while other people were out of the bus and they complained and said I can't hear and I’m entitled to hear. That has the opportunity of happening in the kind of context that your Honour is talking. If I want to hear what the union official is saying to the judge I can move myself and position myself so that I can. If I trust the process I’m there to observe it, I have the opportunity.

PN235

JUSTICE GIUDICE: But in a case where both parties are there, are there not still opportunities for influence of one kind or another and isn't it just one of the things that the Commission traditionally learnt to deal with?

PN236

MR REITANO: In many cases the Commission will make clear what it intends to do. I mean each Commission member's practice is probably as different as how many Commission members there are.

PN237

JUSTICE GIUDICE: There are different practices, yes.

PN238

MR REITANO: Some members lay down strict rules and some tribunals and other courts may lay down strict rules, I will not be listening to anyone, I will be listening to the guide we have and I won't talk to anyone.

PN239

JUSTICE GIUDICE: Yes.

PN240

MR REITANO: Others are more relaxed about that. Often the Commission members will hear the parties on what role they respectively want to play and the like. But the fact is that where both parties are there you have the ability to say don't do that, or I don't agree with the way in which this is going forward. We weren't there, that's different. We didn't have the opportunity to either listen to what was said, and presumably this is something like a classroom type presentation one would anticipate where questions might be asked and the like, or to object to what was being said, or to indeed have any input into the way in which the process was going to go forward at all, which is a long way from in my submission the type of inspection that your Honour envisages.

PN241

JUSTICE GIUDICE: I understand that but the question really is whether the reasonable observer be it party or a member of the public might think that that was going to lead to bias. That's the questions, isn't it?

PN242

MR REITANO: No. With respect, no. Whether he would apprehend - sorry, whether the reasonable observer would have a reasonable apprehension about bias.

PN243

JUSTICE GIUDICE: Yes. Well, that's what I mean.

PN244

COMMISSIONER SPENCER: The union did have the opportunity, didn't they, to attend?

PN245

MR REITANO: Yes, and we chose not to. Well, chose is probably - we did not. I'm not suggesting anything about why we were or weren't there. We did not attend.

PN246

COMMISSIONER SPENCER: And the Commissioner didn't have any knowledge of why you failed to attend, did she?

PN247

MR REITANO: No, no. But the Commissioner said had I known that there was an agreement or had I known they weren't going to be there I wouldn't have gone ahead. I don't wish to verbal the Commissioner at all but that's the substance I think of what the Commissioner says. The reasonable fair minded observer looking in would say, presumably informed of all the facts as the authorities tell us, would say, and again not casting blame, that there is something going on between Australia Post and the CEPU about Future Delivery Design. It appears, because I'm informed, that they disagree on some things and what's the Commissioner doing meeting with one side when Australia Post aren't there?

PN248

It is the whole juridical basis for the practice and I don't raise this in any way to make it out to be a more important issue. It is of equal importance. It is the entire basis for the practice as to why counsel or solicitor don't communicate with the judge during the course of the case without either the consent of the other side or with the other side being present and the whole basis of that is because a person might think that something is being said to curry favour or to influence in some way.

PN249

DEPUTY PRESIDENT HAMILTON: Could I take you to paragraph 96 of the decision that you've just pointed to, there was no dispute lodged at the time.

PN250

MR REITANO: That's correct.

PN251

DEPUTY PRESIDENT HAMILTON: The Commission wasn't aware there would be a dispute lodged by the CEPU.

PN252

MR REITANO: I think that's correct, your Honour.

PN253

DEPUTY PRESIDENT HAMILTON: Is there a difference arising from that? I mean if there had been a dispute on foot would there have been a difference in your submissions?

PN254

MR REITANO: No, save for this, that I went earlier to O'Connor and the two points of departure and I said in respect of O'Connor that one of the points of difference is the fact there was an application or a notification. It was an application I think that had been filed. That was one of the points of difference. The other point of difference was that there it was only procedural matters, there were no substantive merits, discussions. That doesn't apply to your Honour's question. Your Honour has put that to one side. But in respect of the issue about whether there was an application or a notification of dispute or whether the Commissioner was aware that a notification or an application was coming, other than point out the fact that it is a point of departure the one fact that is common to both cases is that by the time the application for apprehended bias came there was certainly proceedings on foot and it was certainly known that there had been participation.

PN255

But other than that it is in my submission a mere technicality as to whether the proceedings had in fact been filed or the proceedings had in fact been commenced because the Commissioner - the one thing that jumps out at the three paragraphs that I've taken your Honours, Commissioner to is the Commissioner was right on top of what the appropriate course should have been, that is, don't do this unless both parties are there. The Commissioner says she wouldn't have done it had she known that the CEPU weren't agreeable to being there. But again, I don't know that they're precisely the words but in paragraph 87, the Commissioner agreed to it on the clear understanding that the CEPU would be there and I referred to the other two passages.

PN256

DEPUTY PRESIDENT HAMILTON: And there are of course other cases where properly the Commission discusses matters with one party only. For example, in a conciliation the Commission may have separate discussions with each side. I'm sorry, would you like me to repeat that?

PN257

MR REITANO: No, no, I heard what your Honour said.

PN258

DEPUTY PRESIDENT HAMILTON: Yes. So there is that sort of situation that does arise as well.

PN259

MR REITANO: And usually, as I understand the practice of the Commission again, multiple members have often different practices. But usually in the conciliation phase of the matter there are two, the practice or the procedure that usually you are on notice, I might just meet with Australia Post first, could you go outside, so you're consenting. You have the opportunity of saying look, I don't think you should do that, that's not the way I want the conciliation to go. But there's a general rule people will do that. The other thing of course is that you have the right to object at the end of the conciliation and have an arbitration on foot, in which case I can't conceive of a case where an arbitration would occur with evidence being taken and matters being dealt with, with one party not being present. But certainly in conciliation the usual course is it happens with consent.

PN260

COMMISSIONER SPENCER: Similarly you had the right to object here to that briefing. You were offered an invitation.

PN261

MR REITANO: We could have written a letter saying, well, we don't think it should happen.

PN262

COMMISSIONER SPENCER: Without both parties present.

PN263

MR REITANO: Being present, yes. We don't know why anyone would have assumed we would have been there. That's the corollary to the proposition that we put to the Commissioner but I agree. Certainly there was nothing that prevented us from - - -

PN264

COMMISSIONER SPENCER: There was an invitation sent and the Commissioner was copied in on that invitation, is that correct?

PN265

MR REITANO: I don't think a lot turns on it but I think the Commissioner was invited separately. She was told we're organising this briefing with the CEPU, I think, but nothing turns on it. Certainly the Commissioner was invited knowing that we were invited. Whether it was done in the way that you've described or whether it was done in the way that - - -

PN266

COMMISSIONER SPENCER: Well, is it fair to say she attended on the basis that she assumed you would be present given that invitation?

PN267

MR REITANO: She says so much in paragraph 87.

PN268

COMMISSIONER SPENCER: Yes. And she didn't have any knowledge that there was any objection? There was no noted dispute on foot at the time as I understand.

PN269

MR REITANO: Yes.

PN270

COMMISSIONER SPENCER: And there was no objection of the CEPU recorded with her to that briefing.

PN271

MR REITANO: I think that's absolutely right. But taking it a step further and trying to balance the considerations, when the Commissioner arrived the one thing that I think we get from the judgment or the decision below is that she was well aware the CEPU weren't there.

PN272

DEPUTY PRESIDENT HAMILTON: And on 29 February 2008 Australia Post wrote a letter to Mr Ed Husic, I don't know what attachment it is, it's page 94 of the appeal book and in paragraph 1 Australia Post advises the CEPU that the discussion will be held and that Commissioner Foggo will be there as well.

PN273

MR REITANO: Yes.

PN274

DEPUTY PRESIDENT HAMILTON: So you were well aware that Commissioner Foggo was going to attend.

PN275

MR REITANO: There is no issue we were put on notice. That was what Australia Post were proposing to do. I suppose similarly and it's a natural tendency to take that silence is consent, but similarly Australia Post had nothing from us that indicate we would be there at all. Now, in those circumstances - - -

PN276

JUSTICE GIUDICE: Nor did the Commission.

PN277

MR REITANO: As I say, we can play the blame game, you just run around in circles.

PN278

JUSTICE GIUDICE: Yes.

PN279

MR REITANO: But with respect to Australia Post, if we want to play the blame game they should have made sure. They should have made sure that we were agreeable either to the briefing going ahead without us present or alternatively, that we were bringing someone. They weren't entitled to assume that we were on their agenda because the one thing they hadn't heard from us, yes, see you there.

PN280

DEPUTY PRESIDENT HAMILTON: I'm sorry, Mr Reitano, I wasn't playing the blame game.

PN281

MR REITANO: No, no.

PN282

DEPUTY PRESIDENT HAMILTON: All I was doing was picking up on your point.

PN283

MR REITANO: I understand that, your Honour.

PN284

DEPUTY PRESIDENT HAMILTON: Opportunity to object.

PN285

MR REITANO: Yes, yes.

PN286

DEPUTY PRESIDENT HAMILTON: I'm not playing the blame game.

PN287

MR REITANO: I'm not suggesting that, your Honour, and I'm rather dealing with my friend's submissions as I deal with your Honour's questions.

PN288

DEPUTY PRESIDENT HAMILTON: Thank you.

PN289

MR REITANO: It doesn't assist in my submission, and your Honour has picked it up, it doesn't assist to see who's at fault in this process but if fault lay anywhere, and as I say this is of no assistance at all, if fault lay anywhere it probably lays with Australia Post proceeding to engage in this process without us present, or without making sure we would be there, or without making sure that we had no objection to it going ahead without our presence, without our being there. At the very worst it's equal in my submission. We didn't tell them that we wouldn't be there. We didn't give them any indication that we consented to it going ahead and they made no inquiries of us.

PN290

They told us it's happening, you're invited and as I say, they weren't entitled to assume that we were on their agenda.

PN291

DEPUTY PRESIDENT HAMILTON: One more question if I could. The objection was taken to a conciliation by Commissioner Foggo, not an arbitration.

PN292

MR REITANO: Yes.

PN293

DEPUTY PRESIDENT HAMILTON: Is that a relevant factor or not?

PN294

MR REITANO: We say in the context of this Commission, yes. I think again there are a range of ways in which the submission can be put. I've put it in two ways. Firstly, one should not deprecate the importance of conciliation. There is prospectively an argument that Australia Post have taken in other cases that's available here that the most the Commission can do under this dispute resolution procedure is conciliation which in my submission makes it even more important if that's right. That makes it an even more important process than it might otherwise be, as I say, not to deprecate it.

PN295

Secondly, one can well imagine and I don't by any means suggest that this is going to happen in this case, but one can well imagine where for example the Commission might be able to issue a recommendation, for example, and issue a recommendation says - again I'm not suggesting for one moment it would happen, which says that everything that Australia Post - well, it would never happen actually, Australia Post is proposing to do is perfect and no-one should interfere with it and we're entitled to protect ourselves against the apprehension that people might see such a - particularly our members, might see such a recommendation and say, well, that's because the Commissioner was in Australia Post's pocket because of the briefing that was had in March.

PN296

DEPUTY PRESIDENT HAMILTON: But the only power in effect that would be exercised other than moral suasion would be some sort of stay of any change that Australia Post might wish to introduce, that would be the only direction or order or whatever, is that correct?

PN297

MR REITANO: Well, in terms of conciliation, probably.

PN298

DEPUTY PRESIDENT HAMILTON: Yes.

PN299

MR REITANO: But there are lesser forms of that that are less drastic but still would in my submission impact.

PN300

DEPUTY PRESIDENT HAMILTON: Impact on your mind.

PN301

MR REITANO: Yes.

PN302

COMMISSIONER SPENCER: Mr Reitano, I read the disputes procedure that if the Commissioner had conciliated the matter there would have been the power to arbitrate as well.

PN303

MR REITANO: Yes. I'm sorry, your Honour, I should have dealt with that more fully. There's a provision in there from recollection that says until a notice initiating a bargaining period has been filed. I can't remember, I think it's 12.5, if your Honour has that.

PN304

COMMISSIONER SPENCER: I just have the procedure attached to the - - -

PN305

MR REITANO: Is there a 12.5?

PN306

DEPUTY PRESIDENT HAMILTON: Yes, there is and it provides as you suggested.

PN307

MR REITANO: And Australia Post, as I understand it, contend or will contend that a notice initiating a bargaining period has in fact - - -

PN308

DEPUTY PRESIDENT HAMILTON: I see. So there would be no
arbitration - - -

PN309

MR REITANO: Well, that's the argument. I haven't come up with the argument against it yet but that's the contention.

PN310

COMMISSIONER SPENCER: Thank you.

PN311

MR REITANO: Could I just before I leave what I wanted to say about the decision on the point that I was dealing with about the Commissioner being well seized of the fact that no meeting should have occurred without the CEPU being present referred to paragraph 92 which I think deals with a question that Commissioner Spencer asked of me in the - I think it's the third sentence:

PN312

The Commission had no knowledge until arrival at the information centre that Australia Post did not know for sure whether the CEPU was attending because they have not been advised of their representatives and had not apparently had several phone as recently -

PN313

I think calls is missing -

PN314

as recently as the morning of the meeting returned the CEPU did not attend.

PN315

So the first time that the Commissioner knew that Australia Post weren't sure about our presence was when the Commissioner arrived and the first time the Commissioner knew we weren't being there was when the Commissioner arrived. So when the Commissioner was told or was led to believe that the CEPU was going to be there, Australia Post weren't sure about that. I think that's a fair reading of 92. Could I then deal with one matter before I come to what I've said were I think the almost list of nine or 10 points that I wanted to put about hopefully they fall into the category of why a reasonable bystander might apprehend bias, could I just deal with one point straight off the top and that deals with what's said about section 78 of the Act.

PN316

It's found in 109 of the decision. I can only restate I think what I put to the Commissioner and what I want to put in answer to my learned friend in terms of his submissions about it, section 78 cannot overcome the obligation to accord procedural fairness to parties and certainly cannot overcome the obligation in respect of conducting a proceeding in a manner that will not attract the attention of a reasonably well informed bystander, in terms of apprehension of bias. Finally - and I apologise for this - finally, before I leave the decision could I just go to 115? I want to make one specific point about paragraph 115, and this is where the Commissioner says:

PN317

The assertion that the Commission might decide the application regarding FDD other than on its legal or factual merits is not substantiated on the case it has put.

PN318

With respect to the Commissioner, we made it absolutely clear that there was no allegation of actual bias. We were at no time suggesting that the Commission might not decide the application on its legal or factual merits. Then the Commissioner goes on:

PN319

A fair minded observer would not, in my view, believe so and that is the test. Lest there be any confusion concerning the attributes of a fair minded observer I refer to British American Tobacco…

PN320

We commend the authority to your Honours; it’s apposite and on point:

PN321

The hypothetical fair minded observer is a lay person informed as to the relevant facts of the case, sufficiently knowledgeable to bring a rational and reasonable assessment to bear on the question of whether the judge might be biased, and having a basic knowledge of the nature of practices at the bar.

PN322

The quote finishes there. I’ve referred to one practice at the bar already and I appreciate that practices at the bar isn’t a neat and tidy category in which to pigeonhole proceedings before this Commission; but that is not to meet with a judge or tribunal member without the presence or consent of the other side. Could I refer to another practice and that is the practice I referred to earlier. My understanding is that throughout Australia the practice is that where there is an application that someone disqualify themselves on the ground of apprehended bias, that the other party is disinterested in that application. The juridical basis for that seems to be that it is not thought that it is appropriate for a party, as it were, to do the bidding for someone who is subject to challenge for apprehended bias, because that would in itself alert the reasonable fair-minded observer as to the prospect that a party thought that there was a real advantage in a particular tribunal member. In particular that that person who is apprehended to be biased might be apprehended to be even more biased because that party wants them deciding their case. Here that did not happen.

PN323

JUSTICE GIUDICE: But has that practice been observed in the Commission?

PN324

MR REITANO: Certainly by myself it has. I can’t speak of any other case that I’ve been involved in directly. I understand from enquiries I’ve made, and I understand from an observation that Deputy President Lacy made, in a case on a stay application involving Australia Post, that at least his Honour’s observation tended to suggest the answer was yes.

PN325

JUSTICE GIUDICE: It has not been my experience.

PN326

MR REITANO: But I don’t anyway deal in apprehended bias every day of the week in this Commission. I know from, I think, the one or two that I’ve had that that’s the practice that I’ve come across. As I say, Deputy President Lacy seemed to make an observation on a stay application, when I put to him the practice in New South Wales, and he came back with the practice throughout Australia. Then there are the enquiries that I’ve made of other people, but I cannot find an authority that enshrines that practice in either this Commission or elsewhere.

PN327

JUSTICE GIUDICE: Right.

PN328

MR REITANO: But it is readily understood as to why someone might have thought that was an appropriate practice. It certainly was not followed here. It’s certainly not followed on appeal, but it certainly was not followed before Commissioner Foggo.

PN329

JUSTICE GIUDICE: Well I think if you look at the High Court decisions dealing with the Commission there is no evidence of such a practice.

PN330

MR REITANO: I don’t think there is - - -

PN331

JUSTICE GIUDICE: No evidence of such a practice, yes.

PN332

MR REITANO: I couldn’t comment, your Honour.

PN333

JUSTICE GIUDICE: Yes.

PN334

MR REITANO: I haven’t looked at those decisions for that purpose.

PN335

JUSTICE GIUDICE: I only pulled you up on it because I’ve not really come across it before in this jurisdiction. But there you are; we have different experiences.

PN336

MR REITANO: Could I summarise by dealing with what are the matters that we say - as I say, I’ve referred to some of them and I’m going to just, as it were, in summary form repeat them again - are matters that would be relevant to a reasonable apprehension of bias by a reasonably informed fair minded observer. Firstly, at the invitation of one party, the Commission participated in a two-hour briefing about the very subject matter of a dispute in the absence of the other party, in circumstances where the other party did not consent to that course.

PN337

Secondly, the briefing session itself that the Commissioner participated in was presumably conducted for a reason. Given that the CEPU was not present, it is difficult to know what that reason was but it occurred at a time when it was appropriate for Australia Post at least to know that the parties were not in agreement under the matters that concerned that briefing session. That does not in any way reflect upon the Commissioner, having the view that she was not aware that they were in dispute. Australia Post was in a position where they should have known that.

PN338

Thirdly, the briefing session dealt with matters that were directly in dispute in the proceedings before the Commissioner. Fourthly, the normal practice or the view adopted by the Commissioner in the paragraphs that I’ve referred to, 87, 92 and I think 95, was that had the Commissioner been aware that the CEPU were not going to be in attendance, the Commissioner would not have participated. Fifthly - I’ve just run three of the points together - there was no clear communication - sorry, I withdraw that. There was no communication by Australia Post that made clear at any time that the CEPU would in fact be present at the presentation, and that was not known to the Commissioner.

PN339

Finally in the last matter, the sixth matter that I raised with your Honour, and that is that the active submissions of Australia Post in the proceedings before the Commissioner would lead a reasonable person to conclude that Australia Post saw some advantage in retaining the Commissioner in hearing the matter. Those are the matters that I wanted to deal with. I wanted to hand to the Commission a copy of O’Connor. I think it’s a little hard to find. I found it a little hard to find. The other authorities to which reference is made are conveniently in my learned friend’s bundle. I don’t intend to read it to the Commission. It picks up the passages or the relevant passages from JRL and I think the summary that I provided to the Commission in terms of what was put forward as putting the basis of the apprehension of bias, a communication on a procedural matter between a solicitor and Commissioner O’Connor, was rejected as being a basis upon which there could be said to be an apprehension of bias. That is a far cry from a two-hour presentation about the merits of a matter, in my submission, which is what occurred in this case.

PN340

Before I conclude my submissions could I say this. That my submissions don’t mean that the world is going to end and don’t mean that the Commission, as a matter of course, would not have regard to section 78 of the Act. Indeed had the Commissioner known - and I’m putting it as highly as I possibly can - that the CEPU were not going to be present, it’s clear from the Commissioner’s own practice, and from what she says in those paragraphs in the decision that I’ve referred to, that she would not have attended.

PN341

COMMISSIONER SPENCER: Well she says in 96 - the preface is that had she been aware of a dispute, and that the CEPU was not going to be present; do you say she was aware of a dispute?

PN342

MR REITANO: I can’t put that, Commissioner, but if I can go back to it. 96 is one of the references.

PN343

COMMISSIONER SPENCER: Yes, I agree with you. I understand that. It’s only one of the references. I take your point.

PN344

MR REITANO: The other two tend to say - and the one that I fastened on, I think, was 87. It was agreed by the Commission on the clear understanding that the CEPU would be there. It’s also in some of the other paragraphs. It seems that the Commissioner’s practice (and not surprisingly) was that if the other party wasn’t going to be there she doesn’t refer to the other exception I’ve created, and that’s about consent. That is, “Yes, go and have your presentation with Australia Post. We don’t care”. She doesn’t refer to that one, but certainly the Commissioner seems to be saying that “I wouldn’t have done this. I wouldn’t have gone unless I was satisfied that the CEPU were there”. By 96, the Commissioner has arrived thinking, at 11 o’clock or thereabouts, that the CEPU are going to be there.

PN345

COMMISSIONER SPENCER: Yes, because you said in your points that the CEPU did not consent to the course of the briefing.

PN346

MR REITANO: Yes.

PN347

COMMISSIONER SPENCER: Where is the evidence that the Commissioner was aware of that?

PN348

MR REITANO: Well there’s no evidence.

PN349

COMMISSIONER SPENCER: Or communication, really. Any communication to her that (A) she wasn’t aware that you were not going be there, the CEPU wasn’t going to be there and (B) that you objected to the course.

PN350

MR REITANO: There is no evidence that we communicated our not being there and our non-consent.

PN351

COMMISSIONER SPENCER: Yes.

PN352

MR REITANO: But it does not, in my respectful submission, follow from that that it was open for the Commissioner to conclude from anything we had done that we would be there, or that we did consent.

PN353

COMMISSIONER SPENCER: You see Mr Reitano, I know you have used this term of the blame game and I’m not wanting to enter into that.

PN354

MR REITANO: Yes.

PN355

COMMISSIONER SPENCER: But there has also been this reasonable practice before the Commission that parties will actively represent their constituent’s interests, and communicate to a member of the Commission if they think some sort of course that they’re aware that’s going to occur would be one that industrially they have some sort of objection to course, in terms of representing their members’ interests at that stage or in the future. That’s normally be the course, that if they’re aware that a briefing or an inspection is going to occur, that it has been in my experience a reasonable practice that that party would communicate to the Commissioner that they have a concern about that practice occurring.

PN356

MR REITANO: Firstly, I don’t want to mislead the Commission by suggesting any answers to the question that the Commission is asking me. I don’t know why there was no communication in this case. I do know or I can make general observations that relations are fairly strained and people setting agendas for other people generally does not create good faith relationships with people, and things like that. But I don’t know why that didn’t occur here. What I do know is what I put to the Commission. We didn’t agree to it and we didn’t do anything to lead Australia Post or Commissioner Foggo to believe that we did.

PN357

The Commissioner says in paragraph 92 that the Commissioner didn’t know - sorry, Australia Post didn’t know for sure whether the CEPU were coming, and yet the Commissioner was acting on the clear understanding referred to earlier in AB 7, which she could only have gained from Australia Post, that the CEPU was there or were going to be there. But certainly in paragraph 92 the Commissioner says, “When I arrived, for the first time I found out that Australia Post weren’t sure about whether the CEPU would be present or not”. Now as unfortunate as it may seem, the appropriate course at that point was to get back in the cab and not participate in a two-hour briefing session that descended into the merits of something that the Commissioner had no idea whether it was going to lead to a dispute or not. The one thing the Commissioner was aware of was that the CEPU were not there, and perhaps that, if nothing else, should have sent alarm bells ringing. Again, it descends into, as you have fairly predicate the question, into the blame game.

PN358

COMMISSIONER SPENCER: Well it didn’t send alarm bells ringing to the CEPU for that course to go on with the Commissioner in attendance and one party, did it?

PN359

MR REITANO: At the time. Well alternatively, again I don’t want to mislead the Commission, but knowing that the CEPU had not said it was coming, it was a matter for Australia Post to, as it were, determine whether that was because they didn’t care, that is they consented; or alternatively, because there was some violent opposition to it. But you could not assume from anything the CEPU did that we were agreeing to a course over this matter that was known to be in dispute as between the parties; the Commissioner was not aware of that and I don’t suggest that. But as between the parties, Australia Post were in no position to assume that the CEPU were saying “Yeah, go ahead”. It was simply not appropriate in those circumstances, and the reasonably well informed hypothetical observer, knowing those facts and knowing that the Commissioner did then meet with one party, would have a fair apprehension of bias.

PN360

I said to the Commissioner, when I made the submissions to her, that the two principles in the cases, that is reasonable apprehension of bias and justice being not only done, but being seen to be done, seemed to sharply merge here. That is the foundation for our concern, that our members are entitled to see that justice is done through perhaps the limited resources of conciliation that might be the only resources available to us, but that’s why it’s so important. If it please the Commission, those are my submissions.

PN361

JUSTICE GIUDICE: Thanks Mr Reitano.

PN362

Mr Bourke.

PN363

MR BOURKE: If the Commission pleases. Can I go to the outline of submissions and can I also start by handing up a folder of cases, which I’ve already provided to my learned friend. As my learned friend has said there is effectively no debate over what is the correct test of apprehension of bias. The question is application, and in our submission when one looks at all the facts and circumstances, and that’s what is required of the lay observer, to be fully informed, that the application of those applications of those principles by Commissioner Foggo was correct.

PN364

Can I just start from a number of fundamental propositions. One, the fact that a briefing occurred without another party being present, and when I use the word party there was in fact no dispute at the time, one needs to look at all the circumstances. One can’t merely assert that that is enough, and my learned friend said the reason that was objectionable was because it was not consented to. Now there is a very fine line between consent and not object, and we all know in relation to proceedings when evidence goes forward if it’s without objection it will go forward and effectively have full effect. If it’s consent, it will effectively have the same effect. But we are an industrial setting where a very experienced industrial player, the CEPU, if they are aware of the facts and choose not to object, they can’t turn around and say “Well, we didn’t consent so we are in fact” - what are they doing? “We will object to the attendance proceeding by way of apprehension of bias”.

PN365

If one looks at the authorities one simply does not look at the conduct of the particular member of the court or the Commission. One looks at it in the context of the conduct of the relevant participants and what comes up time and time again is “Did you object?” Can I firstly say my learned friend said “Look, we have to effectively make this application because if there’s an unfortunate outcome at the conciliation our members may think well they haven’t got a proper process. It may be have been an apprehension of bias. We can’t rely on the process”. That’s not what their members will think. Once their members are fully informed that they were invited, their union was invited to participate in that very briefing and chose not to attend and not to voice objection, their members will think surely they weren’t concerned about the briefing?

PN366

DEPUTY PRESIDENT HAMILTON: But is it the case that they took the first opportunity they could to object, namely when the proceedings were lodged?

PN367

MR BOURKE: Sorry.

PN368

DEPUTY PRESIDENT HAMILTON: I take your point, but when a proceeding was initiated they then took the first opportunity to them to object, didn’t they?

PN369

MR BOURKE: Correct.

PN370

DEPUTY PRESIDENT HAMILTON: So is that the answer perhaps to what you’re saying, or not?

PN371

MR BOURKE: No, because that’s too late.

PN372

DEPUTY PRESIDENT HAMILTON: It’s too late.

PN373

MR BOURKE: They were objecting to the briefing occurring in their absence, when they never voiced any objection at the time, in circumstances where they knew the briefing was occurring and was going to involve Commissioner Foggo. That’s the very point that the cases I will take you to quickly make. You can’t sit back and allow either a member of the court or the Commission to do something and then turn around and say “Well that’s a basis for apprehension of bias. We’re not going to say anything about you walking through that door but once you have, that’s it”. My learned friend gave the example of one is going around in a view and you see someone talking with someone else on the other side; is that a grounds for objection? No, because you got the opportunity of going over and listening in or going over and saying “I don’t want that to occur”. That’s exactly what they had. They had an opportunity of either saying “We don’t want this briefing to occur” or they had the opportunity to send their people to the briefing. Not just to attend. To participate; they were invited to participate.

PN374

There’s a fundamental thing here that a union, as with any party coming before the Commission, has to be accountable for their conduct whether it’s during a case where they fail to object to a particular point or particular evidence or submission, or prior to the case, and where there was simply no objection. We have set out the history, but frequently between the briefing and the first complaint in June the mention of the briefing having occurred was raised a number of times and simply no objection was taken. In fact there was another view occurring in relation to this technology, future delivery design in relation to the Acacia, and no objection as well. In fact they participated and then after all that, three months later, they say “You shouldn’t have attended the briefing when we weren’t there”. They’ve ignored the fact that they had the opportunity to be there.

PN375

My learned friend couches this like “Well if there was a hearing of a case and there was a dispute, the hearing wouldn’t go forward if the other the party wasn’t there”. That’s not correct. Natural justice or procedural fairness contemplates that a party have the opportunity to come, and if the dispute notice is issued and the other party does not attend you might as a courtesy get on the phone and ask “Well, why aren’t you attending?” But there’s no requirement to do so. They had the opportunity to attend and the opportunity to be heard. They chose not to do that. That’s not even this case; this was simply a background briefing that they were told was an information briefing. There’s no suggestion that it was anything else; and it was. This is not an example of a behind closed doors ex parte communication. This was completely transparent, where we told the CEPU this was happening. We told them “In fact we want you to come and to participate” and that in numerous correspondence we in fact refer to the fact that it occurs. They don’t say “We’ve got a problem with this”.

PN376

They take the issue that we seem to have assumed that they will turn up. The evidence is - and can I just give you the references - we made attempts to contact them, left messages “Are you coming? Why aren’t you coming?” We just couldn’t get to the bottom of it, and they never simply even picked up the phone and returned the call. The evidence on that is a decision at paragraph 92 appeal book 49 transcript PN185, and it’s also referred to in one of our letters of 12 March 2008 at appeal book 71, that we tried to contact them. Now you then have my learned friend saying - - -

PN377

DEPUTY PRESIDENT HAMILTON: Sorry, where is that second reference? The transcript what?

PN378

MR BOURKE: The transcript is appeal book 49 PN185.

PN379

DEPUTY PRESIDENT HAMILTON: Thanks.

PN380

MR BOURKE: And there’s the letter, second paragraph, of 12 March 2008 that “We tried to contact you. You wouldn’t speak to us”, at appeal book 71. So we then have what is a very serious application built on the foundation that “We did not consent. We only did not object and we only chose not to turn up”. So then what my learned friend has attempted to do is not then in a sense apply the test of reasonable apprehension of bias, but apply what Commissioner Foggo’s practice is, and say she didn’t follow that therefore she should have disqualified herself. Now that’s one, not the test if one looks at all the circumstances. But she said, as a matter of her practice, she would not attend a briefing if she knew the other side was not in attendance. That’s fine, and it seems everyone assumed that the CEPU would attend and when they didn’t, they were ringing around and no one was speaking to them.

PN381

But the issue then is that she has arrived - sorry, you can understand that there is a level of communication if she knows that a union has refused to attend a briefing. That says something about the fact that that briefing is in a sense being objected to. But that is not what has occurred. They have never even said “We are not attending” or communicated that level of communication. And the invitation, if you look at the invitation, is copied in to Commissioner Foggo, so the union can assume that Commissioner Foggo knows that Australia Post are telling the union “You are programmed to attend”.

PN382

DEPUTY PRESIDENT HAMILTON: But there was no actual consent to her attending without CEPU involvement. There was no indication anywhere that from a point of view of the CEPU it was an acceptable practice, is there?

PN383

MR BOURKE: Well that’s the thing.

PN384

DEPUTY PRESIDENT HAMILTON: Right.

PN385

MR BOURKE: By their - - -

PN386

DEPUTY PRESIDENT HAMILTON: Silence.

PN387

MR BOURKE: Silence. Silence can amount to conduct and that’s well recognised at law.

PN388

DEPUTY PRESIDENT HAMILTON: Acquiescence.

PN389

MR BOURKE: Acquiescence. At the very least they should have said “We object to the briefing. You attend the briefing and we’ll make an application for apprehension of bias”. If they didn’t do that they should have, at the very least, said “We want to let you know we will not be attending the briefing. Then you make up your mind whether you think it’s appropriate. We’ll reserve our position”. But this is a major industrial player. They have to be held responsible for the fact that they in fact said nothing, and in fact you couldn’t track them down and communicate with them. We’ve tried to telephone them and we can’t get in touch with them.

PN390

DEPUTY PRESIDENT HAMILTON: All right. Even if all of that is correct, nevertheless isn’t it the case that there is a clear overlap between the 2R presentation and then the subsequent proceedings, and that the Commissioner had received a point of view at some length, and that a body such as the CEPU might have an apprehension reasonably that that lengthy presentation might in some way influence what was done during conciliation? Is that a fair comment or not?

PN391

MR BOURKE: The evidence is that it was simply a background briefing and there is no finding and no evidence to suggest that anything said at that briefing would prejudice the conciliation. There is simply no evidence, and the evidence is it would have been so prejudicial you would have heard about it because effectively it’s the same or near the same as a briefing that had earlier occurred by the CEPU - where Australia Post gave it to the CEPU I think a week or so beforehand. So that there is in fact no suggestion that somehow the well has been poisoned or that in dealing with the conciliation the Commissioner will not confine herself to the submissions in evidence before her.

PN392

DEPUTY PRESIDENT HAMILTON: Do you distinguish between the fact that it’s a conciliation and then arbitration? We are, after all, dealing with a certain type of proceeding and a certain type of powers which are, I suppose by their very nature, pretty limited.

PN393

MR BOURKE: We don’t advance that point.

PN394

DEPUTY PRESIDENT HAMILTON: All right.

PN395

MR BOURKE: We recognise that conciliations are an important aspect of the Commission’s function and if there is a finding that the Commissioner should have disqualified herself, that ground should be upheld whether it’s a conciliation or arbitration.

PN396

JUSTICE GIUDICE: But there is nevertheless a paradox in applying the rules of natural justice to a proceeding which is not an arbitral one, or which is not going to determine any right. I understand the position your client takes and I think it’s probably an appropriate one, but nevertheless if you look at it purely in terms of the legal considerations, it may be a bit difficult to apply the rules of natural justice where there is no determination in prospect.

PN397

MR BOURKE: There is a tension there.

PN398

JUSTICE GIUDICE: Yes.

PN399

MR BOURKE: Can I just come back to that Commissioner Foggo’s normal practice is not the test, but what Commissioner Foggo did - and this is also relevant for the overall factual matrix. When attempts were made to contact the CEPU and they were unsuccessful, she chose to extract and undertaking from Australia Post that a copy of the briefing would be provided to the CEPU and that occurred. So that’s just another ingredient of what occurred. But at the end of the day what you cannot get away from is the fact that at that briefing Australia Post and Commissioner Foggo were entitled to proceed on 7 March on the basis that the CEPU did not object to the briefing.

PN400

The second thing is the only prejudice that can really be identified is that my learned friend says “Well, we weren’t there”. That falls to the ground because they not only had the opportunity to attend, they had the opportunity to participate. So if they really feel that - and let’s just step back a bit. Commissioner Foggo was on a panel that deals with postal services. There was, realistically, the possibility of a future dispute over any matter including FTD. But they clearly recognised it was not significant enough for them to be a concern that they should attend what they had been told was an information briefing, and there’s no suggestion it wasn’t anything but an information briefing, on the findings. It was at a time when there simply was no dispute between the parties and that’s a finding below.

PN401

One of the complaints is “If we had of attended, if something had of occurred, we could say ‘Don’t do that’”. That again, a bit like the analogy of being given a listing but you don’t bother turning up, they had that opportunity to come. It’s not as if they don’t have people that can turn up to these things. Then we first hear their complaint three months after. All the correspondence you have seen refers to that briefing effectively; numerous references to it. There’s a recognition with a union that is registered, that as a registered union it gives them rights before the Commission that people don’t have to hold their hand and you have to actually say “That’s okay to do something:” When they’re put on notice that something has occurred and they simply don’t tell anyone they’ve got an issue with it, that is simply not how the system works, that is simply not how proceedings work.

PN402

DEPUTY PRESIDENT HAMILTON: Is there any evidence about these briefings being a regular practice? I mean, is this the way things are done in that industry?

PN403

MR BOURKE: My instructions are that - I don’t think there was any evidence in it.

PN404

DEPUTY PRESIDENT HAMILTON: All right.

PN405

MR BOURKE: But my instructions are that it’s unremarkable.

PN406

DEPUTY PRESIDENT HAMILTON: Right.

PN407

MR BOURKE: There was no suggestion otherwise below. Can I just at that opportunity come to section 78. there was no submission that these types of briefings are inconsistent with a member of the Commission’s duties under section 78 to be keeping informed. A type of duty that’s not put at the feet of any judicial member of a court. The only objection was not in principle to a briefing, but the fact it was not done in their presence.

PN408

JUSTICE GIUDICE: Well it might be said the implication of the panel system is that knowledge that is learned generally or through other proceedings will be applied in future proceedings.

PN409

MR BOURKE: Correct, and that’s consistent with the scope of the panel. We have quickly had a look at the FSU decision and that appears to be consistent with that. So the only complaint was “It wasn’t with our consent”, but as we have shown, a vast amount of opportunity to object or voice some level of objection or at least say to someone “We’re not turning up. We’ll let Commissioner Foggo know we’re not turning up”. So there’s no difficulty there. It was part and parcel of the way you would pursue your role under section 78.

PN410

Coming back to the fact that it’s not the fact that you failed to consent, it’s you failed to object, is being persistently seen as absolutely critical in apprehension of bias applications. Can we take the court to the Bacalter decision in Calley which is at tab 3 of our folder, because on one level there was no apprehension of bias by the fact that this occurred without objection. The Commissioner below emphasises the fact that there was no objection, one prior or after, until she got the letter of 3 June. But on the other side of the coin it was in fact disentitling conduct from advancing the argument, because it was a clear waiver to, with knowledge, know this briefing is occurring, allow it to occur without objection and then object to the briefing occurring. If one goes to tab 3 - - -

PN411

JUSTICE GIUDICE: It’s a different case, isn’t it, the Bacalter and Calley? Are you referring to the fact that there were comments made by the judge during the hearing which were not objected to, and it was held that they couldn’t be the subject of later objections.

MR BOURKE: Correct.

PN412

JUSTICE GIUDICE: But it’s a different context, really.

PN413

MR BOURKE: It’s a different context.

PN414

JUSTICE GIUDICE: Yes.

PN415

MR BOURKE: But the principle is the same and your Honour is familiar with the judgments but the principle is the same. If you have an objection you have got to make it as soon as possible, and that is consistent narrative in the decisions; and you simply can’t sit on your hands. But in Bacalter there was no objection taken during the running and that of course in a sense of estoppels as well because the parties were involving in the litigation and[sic] and it was only after that, they’ve incurred the expense, they’ve said “Well we object to that particular comment”. But throughout the judgment each of the judges also said there is a clear waiver where there didn’t need to be demonstrated detriment. At that point of time you need to lodge your objection, as soon as possible, and communicate it, and that was not done.

PN416

JUSTICE GIUDICE: Well I think the point made by the Deputy President a few moments ago was that the objection was taken once the proceedings were initiated.

PN417

MR BOURKE: Correct.

PN418

JUSTICE GIUDICE: Yes, so it’s not on all fours with Bacalter at all, is it?

PN419

MR BOURKE: Well there’s objection going to be taken at some stage.

PN420

JUSTICE GIUDICE: Yes.

PN421

MR BOURKE: Even in Bacalter.

PN422

JUSTICE GIUDICE: Yes.

PN423

MR BOURKE: It was taken on appeal, but the objection here should have been taken at the earliest possible opportunity and that is before the briefing occurred. Now there’s no argument with the principles we have set out as to what constitutes apprehension of bias and one of those matters is that the ground must be firmly established. That’s the point we made at paragraph 25. In our submission once you put in a proper context that this was a briefing that occurred with the union on notice, invited to it, and did not object to it, it takes away the mischief of the fact that this was like some ex parte communication to a party; and the fact there’s a finding that it was a factual briefing, effectively the same or similar to something that occurred with the union some weeks before. We have set out in paragraph 31 the various matters that the Commissioner took into account, the entire matrix as to why this briefing was not objectionable and not a foundation for apprehension of bias.

PN424

It’s then said that the Commissioner treated the case as actual bias and there’s a reliance on paragraph 115. Now that paragraph is simply a reference to the fact that the logical connection has not been met in terms of the fair minded observer, and in the next sentence in fact the Commissioner is referring to the fair minded observer, not actual bias. The Commissioner recorded at paragraph 115 that she was well aware actual bias was not being levelled against her. But if in the alternative the Commission take the view that she did assess the case in terms of actual bias, she also clearly assessed the case in terms of apprehension of bias. So there’s no prejudice. It doesn’t establish a ground of appeal.

PN425

We put in paragraph 48 of our submissions the fact that the very nature of apprehension of bias must involve some exercise of discretion, because it cannot be that there are a particular matter, or particular considerations, or a combination of considerations that are definitive one way or the other.

PN426

JUSTICE GIUDICE: Yes, I noticed that Mr Bourke. I was a little bit surprised by it. I would have thought that as an Appeal Bench we would be required to make up our own minds on the point because it is a fundamental issue of jurisdiction. There probably isn’t room for a decision along the lines of we may not have reached the same conclusion but it was open to her, as you might get in other discretionary decisions. What is your submission about that?

PN427

MR BOURKE: Well your Honour, we provided the reference to a comment of Kirby J at paragraph 97 in Smitson Roach, that reasonable minds may differ. That in our submission seems to be a reflection of the fact that there must be some latitude as to when apprehension of bias has occurred before one necessarily falls into error. It’s a question of latitude. It may be narrow latitude.

PN428

JUSTICE GIUDICE: What was the paragraph?

PN429

MR BOURKE: Paragraph 97.

PN430

DEPUTY PRESIDENT HAMILTON: Of which?

PN431

MR BOURKE: Of Smitson Roach.

PN432

JUSTICE GIUDICE: Smitson Roach.

PN433

MR BOURKE: Tab 4.

PN434

JUSTICE GIUDICE: You see his Honour remarks that:

PN435

Fictitious postulates means stretched virtually to snapping point.

PN436

In the previous paragraph.

PN437

MR BOURKE: About the third down it says:

PN438

As cases show, in such decisions different judges can reflect different assessments and reach different conclusions. The fact that this is so should make contemporary judgments whether ultimately they themselves may shoulder the responsibility of reaching ultimate -

PN439

Just excuse me. Yes, the passage is the third down:

PN440

As cases show, in such decisions different judges can reflect different assessments and reach different conclusions.

PN441

JUSTICE GIUDICE: Yes.

PN442

MR BOURKE: You read from that, that that does not necessarily mean that only one judge - that if you reach a different conclusion you necessarily have fallen into error. I don’t think it really needs to be dealt with by way of the appeal but we don’t accept that there’s a practice. We don’t find that in the cases. The cases seem to have a clear contradictor in terms of whether bias occurs or not. In our submission it’s always helpful if an application is being put to the Commission that there is a contradictor.

PN443

Unless there are any other matters, if the Commission pleases.

PN444

JUSTICE GIUDICE: Thanks Mr Bourke.

PN445

Mr Reitano.

PN446

MR REITANO: Could I deal firstly with Illaton, because since I sat down I’ve had an opportunity to read it.

PN447

JUSTICE GIUDICE: Yes, well if you want to put a note in about that it’s - - -

PN448

MR REITANO: I think I can deal with it, your Honour.

PN449

JUSTICE GIUDICE: Yes.

PN450

MR REITANO: It’s only a short judgment, as your Honour is probably aware.

PN451

JUSTICE GIUDICE: Yes.

PN452

MR REITANO: Illaton probably doesn’t bear - well sorry, not probably, does not bear directly on this case. The comments in the ALR report or the observations at 583 line 5 to about line 12 and 583 line 25 to line 30 do not directly deal with a circumstance where there is what we would call a presentation, briefing or private communication, or anything like that. It deals more generally with the kind of - and I’m not saying it’s the same - issue that arose in Polites. That is, where a member of the Commission has dealt with, say for example Australia Post, over and over and over again, and then someone says “Oh well, because of all your decisions you keep getting them up. We’re now objecting to you”. It deals more with that type of circumstance than it does with what might be referred to as the particular circumstance that is of concern here.

PN453

JUSTICE GIUDICE: What about the last sentence in that paragraph? You referred to it, it’s lines 28 to 31 on page 583.

PN454

MR REITANO: “Nor is it that she or he has had previous contact or experience as a member of the Commission with the facts involved in the particular matter”. With the context in which the particular matter arises, as with one or more of the parties involved in the particular matter, to that extent yes. To that extent it bears on the question.

PN455

JUSTICE GIUDICE: Yes.

PN456

MR REITANO: Can I deal with that in tandem with what I was going to say about your Honour asked a question, I think, about other proceedings?

PN457

JUSTICE GIUDICE: Yes.

PN458

MR REITANO: And the panel system.

PN459

JUSTICE GIUDICE: Yes.

PN460

MR REITANO: Can I deal with both of those points together?

PN461

JUSTICE GIUDICE: Yes.

PN462

MR REITANO: It can’t be right, firstly. One would be flabbergasted if Illaton stood for an authority that one could regularly turn up with a member of the Commission and have a private conversation about matters, whether it be matters such as FDD or any other dispute, without the other party even knowing about it, without the other party being present. It just offends, I think, ordinary senses of justice that that could be the proposition. It is a different thing, for example, where - - -

PN463

JUSTICE GIUDICE: Just a second. There’s a little reference there to dealing with one party.

PN464

MR REITANO: Yes, I was going to come to it.

PN465

JUSTICE GIUDICE: Yes.

PN466

MR REITANO: It is a different thing where, take for example the decision of Heath, Senior Deputy President Drake - only because it’s on the record and for no other reason.

PN467

DEPUTY PRESIDENT HAMILTON: Heap. You said Heath, I think you mean Heap, do you?

PN468

MR REITANO: Yes, Heap.

PN469

DEPUTY PRESIDENT HAMILTON: Heap, yes.

PN470

MR REITANO: Where the Commissioner separated the parties, I think, and conciliated with the Commonwealth Bank and with Mr Heap separately. As I say, I’m only using it because it’s on the record, but that would be countenanced or condoned or consented to dealing with a separate party. That would, in my submission, be the kind of thing that is caught by the observation in paragraph 30. It can’t be that every meeting alone with a party for two hours would attract some immunity from an apprehension of bias. It is noteworthy that “With one or more of the parties involved in the particular matter” is what the actual sentence says. So we’re talking about one or more of the parties involved in the particular matter.

PN471

It is commonsense, as it is going back to practice of the bar, that a particular counsel or a particular party might regularly in this Commission or elsewhere be acquainted with members of the Commission. It follows and it is commonsense that people deal with each other in all sorts of walks of life, and that your Honour would be aware of particular people in particular industries and so on. That is on one side of the equation. On the other, as I say it offends justice that your Honour might, because of your Honour’s acquaintance with one party or another, go and have a two-hour briefing session with them without the other known party - the CEPU here - being present or agreeing to that course. They are completely in different universes, in my submission. Illaton also says -finally, I need to say one other thing, but Illaton also says that it needs to be assessed in all the circumstances in each case, and it makes that absolutely clear.

PN472

JUSTICE GIUDICE: Yes.

PN473

MR REITANO: Your Honour raised another issue that related to the same subset and that is the question about the implications for the panel system. Commissioner Foggo raised that issue too, from recollection. I don’t recall whether it’s dealt with in the decision but it certainly was dealt with in argument about the implications for the panel system. There are two things that are important and the first comes from your Honour’s reference to knowledge of other proceedings. The knowledge of other proceedings will be knowledge that a judge or a member of the Commission obtains when the other party is there. So here Commissioner Foggo generally would attain most of her knowledge about Australia Post because the CEPU is present listening to what Australia Post have to say. I’ve already put the other thing, that is when one might separate parties in given conciliation with consent.

PN474

JUSTICE GIUDICE: That wouldn’t necessarily be the case, would it Mr Reitano? There would be many industries in which similar issues might arise with different employers and even different unions, and the panel member would have knowledge of those issues affecting different parties, completely different parties.

PN475

MR REITANO: Well taking that for example, it would still be in the context of, as it were, the other side being present. The union, if I can call it the union and the employer for the time being. That if, for example, someone in the electrical industry, some employer, invited her Honour out to conduct an inspection or to conduct a presentation like here.

PN476

JUSTICE GIUDICE: Yes.

PN477

MR REITANO: Invariably that would be in the presence of the other side, whether it be all unions or one union. But it would be in the presence of all those who had an interest unless my rule applies. That is, they positively agree to one party being there without the others present, or alternatively they are present. But it creates the apprehension of bias for either of those preconditions not to be met. As I say, the world does not end with that. It’s not a large submission that runs away from the present practice, and I disagree with my learned friend where he says that that’s Commissioner Foggo’s practice. It is a practice that is enshrined in lots of places and it’s designed to avoid this very argument. I think that’s all I can say about that. Could I just deal with a couple of other points.

PN478

Commissioner Spencer, I think I answered a question about the letter that the CEPU was copied in on and I said I think there was another communication with Commissioner Foggo. I was wrong in terms of it being a letter, but I think I was right that there was a separate invitation of sorts, and nothing is to be made of this other than to just make sure that what I said was correct. I think in paragraph 87 the Commissioner says:

PN479

When the issue of a briefing on FDD was first raised with the Commission early in 2008 and the possibility of briefing it was raised, it was agreed to by the Commission on the clear understanding -

PN480

That appears to be separate from what follows in the next paragraph which is the letter that was copied in. So it appears to have been raised with the Commission separately. I thought that was in a letter. I was wrong about that.

PN481

COMMISSIONER SPENCER: Thank you Mr Reitano.

PN482

MR REITANO: The Commission should be very careful with my learned friend’s submission, and he said it a number of times, and with respect to him it does not reflect the evidence, I don’t think. It is not true to say that the CEPU chose not to attend. There is no evidence of a choice not to attend. The fact is the CEPU did not attend and the evidence about that, in particular - - -

PN483

JUSTICE GIUDICE: I think he was inviting us to draw that conclusion really, wasn’t he? Perhaps he wasn’t, but I certainly took it in that vein because the evidence is fairly clear as to what happened; simply no response.

PN484

MR REITANO: The CEPU did not respond.

PN485

JUSTICE GIUDICE: Yes.

PN486

MR REITANO: Yes. Sorry, choice implies a deliberate tactical or forensic decision.

PN487

JUSTICE GIUDICE: Yes.

PN488

MR REITANO: That’s what I was trying to - - -

PN489

JUSTICE GIUDICE: Yes.

PN490

MR REITANO: Thirdly, the test is not whether there is prejudice, and my friend said that on one occasion. The test is not whether there is prejudice. The test is whether a reasonable bystander, informed of all the circumstances, would apprehend. It does not look to whether there is actually any downside. Fourthly we raised objection - and this is picking up the Deputy President’s proposition - in proceedings at the first available opportunity. Australia Post might want things to be different, but it does not tell the CEPU what it can and can’t do. It does not set an agenda for a meeting to occur and expect us, for whatever reason, to obey or to communicate with it. Australia Post does not do that. This Commission, when it lists a matter for hearing and we turn up, is an authority over which we turn up for; and we say we object to the Commission determining this matter because we apprehend bias, because there was a meeting at which we weren’t present that went for two hours about the very subject matter of this. The first available opportunity we raise it. The first time we get an opportunity to say we think there’s an apprehension that we might not get an unbiased hearing, we object.

PN491

Finally can I say - and obviously there is some debate about this - my friend says “Well we don’t accept that there’s an authority about the contradictor point or not”. I simply say what I said before. The one authority that I’m aware of is in argument, and I’m now aware of two because your Honour, the President, has expressed a view. The one authority that I was aware of before I got here, in argument, was with Deputy President Lacy. Those are our submissions.

PN492

JUSTICE GIUDICE: Yes. The point that I raised with Mr Bourke about the discretionary element of a decision.

PN493

MR REITANO: Yes.

PN494

JUSTICE GIUDICE: Do you have any submission to make about that?

PN495

MR REITANO: Two.

PN496

JUSTICE GIUDICE: Yes.

PN497

MR REITANO: Again, I should have dealt with it. I don’t understand his Honour Kirby J to be saying that there are reasonable bounds within which there is a discretion, if you like, in the sense that there’s this big area of uncertainty where it might go one way or the other. Rather, I apprehend on my quick reading of the passage that Mr Bourke pointed to, his Honour saying that the court has to come to an objective view, but people who are deciding whether the objective view below taken is correct or not need to bear in mind their own circumstance, when confronted with that. I don’t understand his Honour to be saying that there is some discretionary basis on which there might or might not be a reasonable tolerance, if you like, of apprehended bias.

PN498

JUSTICE GIUDICE: Yes.

PN499

MR REITANO: It either must be objectively viewed there is a reasonable apprehension of bias or there is not. An objective test can’t have two results.

PN500

JUSTICE GIUDICE: No.

PN501

MR REITANO: I think his Honour really is looking at the nuance as in - I don’t want to in any way verbal a High Court judge, but in what might be described as the allure, I think is the word his Honour uses, of some sort of appearance of a council of perfection. One has to be careful with that.

PN502

JUSTICE GIUDICE: Yes. All right, thank you.

PN503

Thank you gentlemen for your submissions. We shall reserve our decision. We will adjourn.

<ADJOURNED INDEFINITELY [12.53PM]