D2006/76, Transcript of Proceedings [2008] AIRCTrans 78 (29 February 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18154-1

VICE PRESIDENT WATSON

D2006/76

s.278(1) RAO Schedule - Commission to be advised of breaches of Part or rules
Application/Notification by Australian Hotels Association-New South Wales Branch
(D2006/76)

SYDNEY

3.57PM, FRIDAY, 15 FEBRUARY 2008

Continued from 19/12/2007

PN4015

THE VICE PRESIDENT: Any changes in appearances?

PN4016

MR A SEARLE: Your Honour, I appear alone and without my leader for the notifier today.

PN4017

THE VICE PRESIDENT: Yes, Mr Searle. The matter has been listed at your client's request, Mr Searle.

PN4018

MR SEARLE: It has been, Your Honour. It's been listed for the reasons contained in the communications from my instructing solicitor to your Honour's associate dated 13 February 2008. That is, to seek that the non publication orders made in this case be discharged, or alternatively varied. I'll leave aside the further request because I think it certainly may be beyond power to extend the time limit for the lodging of an appeal anyway. But in brief discussion with my learned friend just before your Honour came on there is a question as to whether or not your Honour is of the view as to whether your Honour can vary or discharge the non publication order made in relation to the evidentiary matters in this matter.

PN4019

The orders that we seek to have discharged, there was on 22 May 2007 which was an amendment of an earlier order and I think your Honour made a further order on 6 December in relation to the transcript. For my part, your Honour made the order and the order was expressly subject to further order of the Commission. So on my reading, the orders remain in force and effect until varied or discharged by the Commission and your Honour constituting the Commission would in my view have the power to discharge or vary those orders, but I'm happy for my friend to put whether - we might as well dispose of the issue about whether you can do as we seek to move the Commission today to do as a preliminary matter.

PN4020

THE VICE PRESIDENT: Mr Hatcher.

PN4021

MR HATCHER: I see I get an early Guernsey today, your Honour.

PN4022

THE VICE PRESIDENT: Preliminary matters. We're at that stage for preliminary matters.

PN4023

MR HATCHER: Your Honour, in our submission the Commission had dismissed the proceedings before it that concludes proceedings before it and in the normal approach one would take to such matters the Commission as presently constituted is functus in relation to the matter. Now, the Commission has its own jurisprudence in relation to functus and I think your Honour is responsible for the most recent exposition of that jurisprudence. On our reading of it, applying that for the principles annunciated there the Commission would be functus. I should say that that would on our approach apply notwithstanding the fact that I think in the last emanation of your Honour's order in relation to non publication your Honour, dare I say, purported to expressly reserve the right to apply after decision.

PN4024

We say that that's not available. But your Honour, what I put to my friend and what appears to us to be a compellingly logical proposition is that on no view can the Commission as presently constituted extend the time in which an appeal might be brought. That can only be done by a Full Bench and if the matter has to go to a Full Bench in any event that the relief our friends seek seems unnecessary to be complicating the matter by questions of the jurisdiction of the Commission as presently constituted to deal with other relief that's sought. I should say, your Honour, that the matter isn't even as simple as the straight functus argument because one of the many variations wrought in the Workplace Relations Act was the change from section 113 of the old Act to section 119 of the new Act.

PN4025

Section 113 was an express power to revoke or vary any order or award. It sat alongside section 111(1)(f) and was the most common vehicle for the variation of awards. It was a power that was unrestricted in however the Commission might exercise it. Section 119 which appears to be the present equivalent expressly refers to matters brought under the schedule that these proceedings are under, contemplates to revoke or vary being exercised by a Full Bench. Now, I understand that our friends rely on the modern equivalent of 111(1)(f), but one needs at some point deal with the apparent restriction on the power to revoke or vary to be found in 119, and again, your Honour, it's another reason why the Commission as presently constituted in our respectful submission wouldn't embark on the exercise, particularly in view of the fact that part of the relief that's sought can only be granted by a Full Bench.

PN4026

THE VICE PRESIDENT: Why isn't 111(1)(d) relevant?

PN4027

MR HATCHER: Well, your Honour, as I said, it wasn't equivalent 111(1)(d). It was I think 111(1)(f) under the old Act and nonetheless variations proceeded under 113. The fact that the legislature has seen fit to impose the restrictions it has in 119 from that in 113, which is an express power to revoke, and it might be contended that that's a provision that's in there to deal with the functus position to grant an express statutory facility to overcome the functus position, but there's very little jurisprudence on it, your Honour.

PN4028

THE VICE PRESIDENT: And isn't the jurisprudence that you refer to within the Commission relevant to the substantive matter rather than ancillary procedural matter that this order be directed, might be described?

PN4029

MR HATCHER: Well, that's so, your Honour, but whether it's substantive, or as your Honour says, ancillary or procedural, it nonetheless comes back to the basic principle of finality of litigation and once the Commission dismisses the proceeding its order has discharged the proceedings. The proceedings are at an end. It's not a continuing, ongoing matter.

PN4030

THE VICE PRESIDENT: Is the order at an end?

PN4031

MR HATCHER: I'm sorry, your Honour?

PN4032

THE VICE PRESIDENT: Is the order at an end?

PN4033

MR HATCHER: No, because the order is not expressed to have a particular cessation. The order has been made. We're not suggesting that the matter can't be revisited in the Commission. There's express statutory power to revisit it. It's just a question of how it might be done.

PN4034

THE VICE PRESIDENT: So your submission is that I don't have the power to entertain the application to vary the orders in either of the ways described in paragraphs 1 or 2 or 3?

PN4035

MR HATCHER: Well, certainly as to 3, your Honour.

PN4036

THE VICE PRESIDENT: Yes.

PN4037

MR HATCHER: As to 1 and 2 we put that there is a significant question where in this position, the matter having been called on relatively urgently and about which we make no complaint, we can find no compelling authority that supports our position or that supports our friend's position. That is, there's nothing that we've been able to turn to in the short time available that answers the question but we say there is a very real question about the Commission's jurisdiction and the Commission in circumstances where it can't grant the relief in 3 and where it's conceded that section 119 affords to a Full Bench the power to grant the relief that our friends seek, it would be appropriate that the matter go to the Full Bench and all the relief can be dealt with in the one proceeding.

PN4038

THE VICE PRESIDENT: So what is your application or what is your position?

PN4039

MR HATCHER: The submission we put, your Honour, is that the most appropriate course for the Commission is to terminate this matter and allow our friends to bring such application as they would before a Full Bench of the Commission.

PN4040

THE VICE PRESIDENT: Thank you. Does anyone else wish to be heard in relation to that preliminary point?

PN4041

MR ANGELOPOULOS: Your Honour, just briefly, I'd like to support my learned friend's submission that the matter is functus and just expand briefly. The Commission has in the past identified that the general principle of functus officio doesn't apply in this tradition or in award making because awards have officially came to an end. However, this is a different type of matter which it has a clear beginning and an end. It's not in the nature of an award matter and hearing an award variation. You have dismissed the matter and in my submission, your Honour, the matter has come to an end. You don't have the power to entertain this application today. However, if your Honour was mindful to consider this I would like to make further submissions on the actual application that is brought before your Honour.

PN4042

THE VICE PRESIDENT: Mr Searle.

PN4043

MR SEARLE: Thank you, your Honour. As I read 119, that really relates to awards and orders that are consequential in relation to such awards and wouldn’t necessarily entire govern a matter such as this and we would rely, as my friend had foreshadowed, what is currently 111(1)(d), that's the power of the Commission to vary or revoke an order, direction or decision of the Commission. The order that we're seeking to have discharged or varied doesn't go to the substantive matter which I would concede your Honour has discharged the jurisdiction reposed on the Commission in relation to that. But we're dealing with ancillary or procedural matter and I would submit the position is either this, if the Commission - first of all, the order that was made was subject to further order of the Commission, so in terms it would appear to apply indefinitely unless or a term revisit it. But if the Commission as constituted by your Honour is entirely functus, then that would have the effect of discharging that order so that any interlocutory ancillary orders made that were in force or effect would disappear along with the rest of the proceedings and I don't think that is the case given the terms in which the order was made.

PN4044

So I would submit that your Honour does have the power to revisit this particular issue, but if your Honour declines they're obviously matters something we'd have to consider as to how best to address it. It's not a question of discretion. I guess it's a question of your Honour forming the view about whether or not the jurisdiction exists and I can't say anything further about that now, other than to suggest that on the wording of 111(1)(d), which I think used to be 111(1)(f), the terms are pretty clear and we've not here dealing with the substantive matter that has been discharged. We're dealing with an ancillary and interlocutory matter, which according to the terms on which your Honour made the order, would have continuing force and effect and that being so there is no prohibition on the Commission in the form of ...... That's all I wish to say.

PN4045

THE VICE PRESIDENT: Do you wish to press the request for an order in terms of item 3?

PN4046

MR SEARLE: No, your Honour.

PN4047

THE VICE PRESIDENT: I consider I have the power to make orders relating to non publication orders that were previously made and I'm prepared to hear from the parties as to whether in the circumstances I should make any variation. Yes, Mr Searle.

PN4048

MR SEARLE: Thank you, your Honour. I won't revisit all the history. Does your Honour have handy the submissions that were made when this matter was last before your Honour? When I say last, I mean the issue of the non publication orders. If not, I do have a copy for my friends and - - -

PN4049

THE VICE PRESIDENT: Yes, thanks.

PN4050

MR SEARLE: I don't intend to revisit them because they were the subject of reasonably extensive coverage, both in writing and orally before your Honour on 18 September last year. In support also, an affidavit of Mr Brian Ross has been provided to the intervener and the other party. I've got with me the original copy of his email to your Honour's associate. Does your Honour wish me to tender the original?

PN4051

THE VICE PRESIDENT: Yes, I will have the original on the file I think,
Mr Searle, and I'll mark that affidavit.

EXHIBIT #S1 AFFIDAVIT OF MR ROSS

PN4052

MR SEARLE: Your Honour, the original non publication order was made on
23 November in these terms:

PN4053

Subject to further order issued by the Commission, the attachments to the correspondence dated 15 November 2006 will not be available for publication and/or inspection to any person who is not a party or intervener to the proceeding pursuant to section 356(5) of the RAO schedule.

PN4054

Your Honour remade those orders on 22 May in these terms:

PN4055

Pursuant to section 356(5) of the schedule 1 to the Workplace Relations Act and subject to further order of the Commission, the submission and material filed pursuant to the directions dated 24 April 2007 will not be available for publication and/or inspection to any person who is not a party or intervener to the proceeding and must not be published.

PN4056

There was an application made earlier last year or later last year to seek to have the orders discharged or varied and that was heard by your Honour on
18 September and in your Honour's decision on 19 September 2007 the Commission did not vacate or vary the orders at this stage. Now, it's the notifier's submission that the non publication order, both originally and as revised, was made at a time when the notification had been made that other persons had not been afforded the opportunity of filing material being heard and that is simply no longer the case. Your Honour made directions that persons who were named in the material be notified and given an opportunity to be heard before your Honour and that did take place and the proceedings obviously unfolded as they did last year and such persons who wished to be heard were heard at length on both the substantive matters but also preliminary matters or the jurisdictional matters.

PN4057

The power of the Commission to make the orders are not challenged. The question is now that the Commission has discharged its jurisdiction in relation to the reasonable grounds issue, the question is whether the order should remain in force in its present form or at all. Now, in those submissions which I think are dated 31 August 2007, paragraphs 40 to 53, the principles that the notifier submits apply to the making of orders in this nature are there set out. It is the case that by statutory provision the Commission has been given the power to make orders of this kind. However, it is submitted that whether or not to make them and the terms in which they are made are matters for the discretion of the Commission and in our submission that discretion should be discharged to apply in accordance with the principles that have grown up over the years relating to open justice being presumptive.

PN4058

Now, in relation to that issue in paragraph 41 of those earlier submissions, the principles that are there set out indicate that proceedings should be conducted publicly and in open view and it's important that courts are fully exposed to public and professional scrutiny and criticism in order that abuses may not flourish undetected and the fact that courts of law are held openly and non secret is an essential part of their character. And over the page at paragraph 43 it's there submitted that:

PN4059

A departure from this general rule can occur only where it be strictly necessary for the obtainment of justice and the parties seeking such a departure must make out their case strictly.

PN4060

Again over the following page at paragraph 48

PN4061

It's clear that where courts had an inherent or implied power -

PN4062

We would say even where there's an express power to make such orders -

PN4063

It must be done only where it's necessary that the public be excluded to ensure that justice is done in a particular case.

PN4064

And in the second last paragraph on that page that authority sets out that:

PN4065

In the ordinary course court proceedings are conducted in publicly and exposed to -

PN4066

Well, conducted publicly because this is one of the great protections against the exercise of arbitrary power. The final paragraph states that:

PN4067

The courts should be an open door so that anyone who wishes to see how justice is done can see.

PN4068

Again over the page at paragraph 49, we submit that the authorities demonstrate that the presumption, or the principle of open justice is presumptive, although obviously it can be departed from in an appropriate case. Now, paragraph 50 it's clear that where we were dealing with the superior court the test is whether or not such a departure is necessary for the administration of justice, which is, we would submit, is a very high standard. The issue of what is meant by necessary is dealt with in a previous paragraph, paragraph 20 -

PN4069

Necessary has been interpreted not as essential but ...(reads)... to the accomplishment of the specific remedies.

PN4070

And in paragraph 21 McHugh J in John Fairfax & Sons v The Police Tribunal states that:

PN4071

In relation to inferior courts and tribunals the issue is not what is necessary for the administration of justice but what is necessary for that inferior court or tribunal to properly exercise its jurisdiction.

PN4072

So it's again a different and lower test. At paragraph 51:

PN4073

Non disclosure orders merely to protect persons from injury, hurt, embarrassment or distress are never reasons for departure from the usual rule or presumption.

PN4074

And in paragraph 52, the top of page 13 there are some observations by Kirby J to the effect that these considerations are never ones that support departure from that presumption. There has to be something else. And we would submit in relation to the present matter, on the material that was put before this tribunal the highest it could be put is that persons who have been named in material might suffer some embarrassment and that's certainly no reason for the non publication of orders at this point to be maintained. Even in proceedings involving the most serious allegations of criminal conduct affected persons are named in open court and where names and images are published in the media and whether or not that is desirable it is the case and even in those very serious circumstances those are never reasons for why material should not be publicly available.

PN4075

So we say the presumption in favour of the open administration of justice should apply here. The arguments that were brought in the interlocutory stage against our then application to have the orders discharged or varied were threefold. One was that the nature of the matter before the Commission was necessarily a preliminary one therefore it was not appropriate for the order to be lifted and there was also reliance on the nature of the previous consent orders and it was submitted I think by the intervener that extraordinary circumstances would be needed to be demonstrated to depart from that consent order in the nature I guess of reopening an award.

PN4076

Now, it was explained in the previous written submissions that the orders were originally consented to because while the notification had been made, people hadn't been given the chance to respond and that is simply not the case here. We've had extensive hearings both on preliminary matters and also on the substantive issue and anybody affected who had been notified had the opportunity to participate. So that, with respect, should not be a consideration now and the other grounds relied upon at that time, the stage of the proceedings and the nature of the task before the Commission are also no longer applicable in that the substantive matter or the substantive jurisdiction proposed in the Commission has now been discharged and so in our respectful submission so should the interlocutory orders.

PN4077

Now, that's our primary submission was that the order should be discharged in total. The secondary or the alternative proposition is that they be varied to permit access to the material by the council of the AHA New South Wales to ensure that it's fully and properly informed of the matters. The notifier, I think the parties may disagree as to who the notifier is in this matter, but in my submission the notifier is Mr Thorpe and the AHA New South Wales branch. The evidence in the proceedings before your Honour was that it was the New South Wales registered body that had provided the funds traditionally which are the funds for the activities following the investigations and also the affidavit of Mr Ross indicates that it is the state body that would be considering whether or not providing funding for any appeal.

PN4078

In any case the council needs to - in my respectful submission it's going to receive some legal advice about the issues of the appeal which I obviously can't go into. But while it has access to the decision, it doesn't have access to the material that is the subject of non publication orders and obviously in exploring the issues that are given rise to in the decision of exploring what grounds if any there might for an appeal, it would be in my submission very difficult to do that and for the members of that council to make a fully informed decision if they're not able to see at least some of that material. I think this has been provided. Albeit very late in the piece, there is a proposal as to what material might be accessed by the members of that council and on what basis.

PN4079

In my submission if your Honour is against us on the primary submission of discharging the non publication orders this proposal would represent a fair and reasonable departure or variation of the orders so that the notifier and the body considering whether or not to pursue any appeal proceeding may do so informed more fully than it is able to be done at present.

PN4080

THE VICE PRESIDENT: And I understand the purpose that you've described, but what purpose would order number 1 serve or what purpose do you seek order number 1 that order number 2 cannot achieve?

PN4081

MR SEARLE: As I understand the principles related to the open administration of justice generally, it's simply our submission or my submission that there is simply no legal basis for the orders continue.

PN4082

THE VICE PRESIDENT: Yes, and I understand that submission.

PN4083

MR SEARLE: And so it's not so much motivated by any particular purpose, it's just observation that there is no legal basis for those orders and so they should be vacated. But the real purpose is that which is encapsulated as the alternative in 2 in order for the organisation and the members of its council can be properly informed as to what are the matters at issue so they can explore more fully than they would be able to otherwise what basis, if any, there may be for any proceeding.

PN4084

THE VICE PRESIDENT: So what you say are the proper application of relevant principles should lead to making the order in 1?

PN4085

MR SEARLE: That is correct.

PN4086

THE VICE PRESIDENT: And as far as the practical purposes which you seek a variation for orders, they would be achieved by the order in 2?

PN4087

MR SEARLE: That is so, your Honour.

PN4088

THE VICE PRESIDENT: Yes. Thank you, Mr Searle. Mr Hatcher.

PN4089

MR HATCHER: If it please your Honour. We rely on the written submissions prepared by my learned junior that are dated 4 September 2007. Does your Honour have a copy available? Does it assist if I hand up a copy? There doesn't appear to be a clean copy. Perhaps, your Honour, if we can make it available in due course.

PN4090

THE VICE PRESIDENT: Document number 17 I think. Yes, please proceed, Mr Hatcher.

PN4091

MR HATCHER: If it please your Honour. The principal point we draw from that is that the proceedings went forward on the basis that the parties had the protection of a non publication order and it would be wrong in our respectful submission to having allowed the proceedings to go forward on that basis to change that basis ex post facto and so we oppose the orders that are sought. We say that the non publication orders were made for appropriate reasons and ought to stay in place. Your Honour's decision carefully, you might respectfully observe, determines the matter without any reference to nor reliance upon the materials. The legal issues that arise and any consideration of your Honour's decision cannot therefore turn on any of those matters contained in those materials.

PN4092

What particularly concerns us though, your Honour, in terms of the administration of justice upon our learned friends makes .....is the notion that the court should make - that the Commission should make some order which protects a disclosure. In our respectful submission if the Commission is minded to do anything it ought not be. It would simply vacate the order rather than afford to the applicants some protection from that which was clearly on their minds when they commenced these proceedings, apparently without the benefit of having disclosed the material to the relevant governing body of the association funding litigation. I think as the author of the Riordan report expressly said, the material is defamatory and if it's to be published, let them publish at their peril.

PN4093

In my respectful submission the alternative proposed was designed to achieve a situation where there would be qualified privilege in relation to the publication of material and that ought not be permitted. So our primary position is the Commission conducted the proceedings on a particular basis, the parties moved forward on that basis and there is no warrant now for removing that basis. That is, that there was a known publication order in place which would continue. If the Commission is against us on that, the appropriate step to take is to discharge the order so that anyone publishing the material stands at risk in the same way they would have done were the non publication order not in place at the outset. They stand at risk with the damages that flow from the publication of defamatory material.

PN4094

THE VICE PRESIDENT: Why wouldn't that risk still exist if the order was varied in line with paragraph 2?

PN4095

MR HATCHER: Your Honour, it may but why present an issue of the question of qualified privilege? What no doubt would arise in any proceedings for defamation would be this material was published in accordance with an order of the Australian Industrial Relations Commission expressly permitting publication for this purpose.

PN4096

THE VICE PRESIDENT: I thought it's expressed as a variation to the general non publication order exclusion, so if the non publication order was limited in its effect then why would that be providing authority for anything?

PN4097

MR HATCHER: Well, your Honour, the submission we put is that it's an argument that just not and ought not arise. I'm not suggesting that there's not two sides to the argument that qualified privileged, but why should this Commission be seen to be embracing a notion that this publication is authorised?

PN4098

THE VICE PRESIDENT: Yes, thank you, Mr Hatcher. Mr Angelopoulos.

PN4099

MR ANGELOPOULOS: Your Honour, I also rely on my earlier submissions. I've brought a copy with me but I realised that the copy I brought with me was not the final ones I actually handed up to your Honour so I don't actually have a date on them but I do rely on my earlier submissions. Your Honour, firstly if I might deal with the general application to vacate the orders. What is essential to fathom in this case is that the documents which were filed were far more reaching than the application of what the Commission's power was in respect to determining a reasonable belief. It was both far more reaching in terms of the time period. It was also far more reaching in terms of the masses which the Commission was required to address and therefore it has a lot of inflammatory material which really was not a matter which the Commission was required to determine and it's that inflammatory material which if it gets published will create difficulties, particularly for my client.

PN4100

Your Honour, if I may hand up an article which appeared in the Canberra Times on 6 February which was two days after your decision was handed down. I don't want to take your Honour to the detail of it but it's not a very long article. But this case and the report and what was actually filed in the Commission is a very alive issue in Canberra. My client, as you're probably aware, is a member of the ACT Parliament. Because the transcript at one stage became available online which there was an order subsequent to make it clear that the non publication order ought to extend to the transcript, he actually was sacked from the Liberal Party because people saw parts of what was in the transcript.

PN4101

He's still a member of parliament but it still is a very live issue in Canberra where my client is a member of the ACT Parliament. Your Honour, as to the more specific issues, the specific variation rather than just setting it aside, perhaps if we look at who has the application - certainly as Mr Searle said, there is a dispute as to who the notifier is. We say that the notifier was Mr John Thorpe. He says he files it on behalf of himself and the New South Wales branch. Yet from the affidavit of Mr Ross there seems to be an issue of what the New South Wales branch did know about the documentation and anything else. So did he really file something on their behalf or not, he just presumed to file it on their behalf? So certainly he did file it on his own behalf but there's a question of whether he just filed it on anybody else's behalf.

PN4102

The other issue is Mr Ross is the CEO of the state union of the New South Wales AHA and of the branch of the New South - sorry, the AHA New South Wales branch, files an affidavit about things that were said in council. The people that were actually concerned, the council members, none of them had filed an affidavit saying I want to have access to these documents so I can determine whether I should agree to having this matter appealed, which is what the core of this application. It is really those people, at least some of them if not all of them, he should have been filing the affidavits to say I have an interest in this matter, I want to decide because I'll take some money, or the branch has on our behalf and we want to know what the outcome is.

PN4103

What's even more important is that there's no detail of what went on in that council meeting. We have these vagaries of, you know, people making the comments of, it didn't say who made the comments that, you know, why have we already spent so much money on this matter, why should we basically be spending any more money on this matter. None of that detail is there. When none of that detail is there, your Honour, and presented, in my submission there's no basis to vary the order. We note that there was a heated debate but we don't know what it's about. Perhaps I understand - my instructions are, your Honour, that that council meeting is recorded onto a CD, if that council meeting, that meeting is actually, the copy of it, is given to the parties to the proceedings and to your Honour perhaps we are in a better position to actually determine what was actually said.

PN4104

The other issue goes back to the first issues and that is we're talking about a branch which is a non profit body. As I said in my much earlier submissions, the whole Williams &4:36:30) arguments still arises. You can't bind the New South Wales council branch members to some form of an order, even as proposed by the draft which has been forwarded by Mr Searle, because what it does is it leaves it in their respective control about organising it. What appears to be the case is they want access to the Riordan report and the Crawford report. As I said earlier on, there's a lot in the Riordan report which is, from a time frame, unrelated to the Commission's consideration and also the matters raised in it a large part of it, as determined by the Commission, was simply irrelevant to what you have to determine in determining whether there was a breach of rule 30, which is fundamentally what you came down to.

PN4105

To do that effectively, your Honour, we are talking on the affidavit of Mr Ross there, potentially 57 members, although I understand there's only 31 actual council members at present, you would have to bind each of them individually to the confidentiality order because you can't bind the core body because there isn't one in terms of the New South Wales - the council of the New South Wales branch. You don't want to be binding the New South Wales union because that's an outsider which effectively is a litigation funder and nothing more. Perhaps if I could just turn to that issue, your Honour. What this case or what this application is really about is about litigation funding. It's about whether third party, as acknowledged by my learned friend, Mr Searle, in this case the New South Wales AHA union, should litigation fund or support an appeal. It's about what a third party should be doing.

PN4106

The third party has no direct interest in these proceedings. Yes, the membership may be the same but from a legal point of view it's a separate body. Why should the separate body now have access towards these documents for the purpose of determining whether it should fund an appeal? The answer is there is no legal justification for it.

PN4107

THE VICE PRESIDENT: You say it can't make an appeal, it can't lodge an appeal in its own name?

PN4108

MR ANGELOPOULOS: Sorry, your Honour?

PN4109

THE VICE PRESIDENT: Do you say that the New South Wales AHA cannot make an appeal in its own name?

PN4110

MR ANGELOPOULOS: What I'm saying, your Honour, is the state registered union cannot lodge an appeal and that is who is going to be funding this appeal and what is apparent has been funding the case so far, as was evident in the substantive hearing in this matter. It is not about the New South Wales AHA branch funding the appeal.

PN4111

THE VICE PRESIDENT: No.

PN4112

MR ANGELOPOULOS: It's about a separate body.

PN4113

THE VICE PRESIDENT: The New South Wales union.

PN4114

MR ANGELOPOULOS: Yes. Your Honour, also if the council members of the New South Wales branch or the New South Wales union, as the case may be, were really interested in this case, for a significant period of time until your Honour made the order that transcript not be published, transcript was accessible. If they really had an interest in this case as it was developing they would have had access to the transcript to see what was being said. They showed no interest and now they come back and say effectively, I understand - they may or may not want the transcript. They certainly want the Riordan report. So really if they don't want the transcript they're really not interested in what went on in the hearing. All they're interested in is the documents that were filed.

PN4115

Finally, your Honour, you've determined that you've dismissed the matter because you did not form the requisite belief to have the matter referred. In the circumstances, your Honour, there's no basis to vary the order to allow everything that's gone in, which I've described as a mish- mash or holus bolus of every possible allegation under the sun which in here we've attempted to narrow down to what are the core substantive issues but there's a lot more in the documentation than just that. Your Honour, if I could just turn to the issue of what my learned friend, Mr Searle said about the administration of justice. The parties to the proceedings, which is really what the administration of justice really turns upon, have had access to all the documentation and this ties into the argument about the litigation functus about whether a third party or persons other than the third party, the New South Wales state union, or the public at large should have access to the documents in light of the fact that you've made a decision that they didn't even cross the bar, that you could not form a reasonable belief, there is in my submission no basis to allow either of the proposed orders to stand.

PN4116

My learned friend also says that at most it would cause some embarrassment. What you also have to realise, your Honour, is the embarrassment in the context of what are properly brought proceedings and this turns again on the proceeding as the issue that you have to determine under section 278 was a much narrower issue than all the information that was filed. The final matter, your Honour, is if you decide in any form to vary or set aside the order, we would like the opportunity actually to put some evidence other than the newspaper articles which I forwarded to your Honour as to why you should not either vary or discharge the order. Having regard to the short time frame in which this matter is brought on we have not had the opportunity to do that. Thank you, your Honour.

PN4117

THE VICE PRESIDENT: Is your case directed at that part of the order relating to the availability of documents from the Commission's file?

PN4118

MR ANGELOPOULOS: Yes.

PN4119

THE VICE PRESIDENT: Publication and/or inspection, or that part of the orders that the documents filed not be published?

PN4120

MR ANGELOPOULOS: Both, your Honour, because if you set aside the order then it's basically that effectively you can publish everything. If there's just - my case is really a response to what my learned friend has said and in his case he actually hasn't put it in the divisions you've identified for has been put in those alternative - those divisions have been identified on the basis of the variation of orders setting aside. But in my submission, your Honour, whether it's just publication, also whether it's access to the documents, we say there's no reason for that to be lifted in any form because as I said in the opening part, this issue or what was filed particularly in the Commission is a very live issue in Canberra where my client is a member of the ACT Parliament.

PN4121

Whilst it might not be an Australia wide issue it's a very significant issue for the ACT and in terms of - sorry, your Honour, I've just remembered about the division of the order, so the inspection and what was - apologies.

PN4122

THE VICE PRESIDENT: Well, if you look at the variation of the order dated
22 May it says that the submissions and the material filed will not be available for publication and/or inspection to any person.

PN4123

MR ANGELOPOULOS: Your Honour, I'm just trying to bring up a copy of it.

PN4124

THE VICE PRESIDENT: And this is reflected in paragraph 6 of the notifier's submissions.

PN4125

MR ANGELOPOULOS: Yes.

PN4126

THE VICE PRESIDENT: Earlier submissions, for convenience.

PN4127

MR ANGELOPOULOS: Yes.

PN4128

THE VICE PRESIDENT: And so that part of the order appears to be availability of the Commission's files to the parties.

PN4129

MR ANGELOPOULOS: Yes.

PN4130

THE VICE PRESIDENT: Or people who are not parties, because the parties have the material already.

PN4131

MR ANGELOPOULOS: Yes.

PN4132

THE VICE PRESIDENT: But the order goes on to say:

PN4133

And must not be published.

PN4134

MR ANGELOPOULOS: Yes.

PN4135

THE VICE PRESIDENT: That appears to be a separate matter that goes beyond the access to the files.

PN4136

MR ANGELOPOULOS: Yes.

PN4137

THE VICE PRESIDENT: But what should happen to those documents, regardless of who holds them - - -

PN4138

MR ANGELOPOULOS: Yes. Your Honour, my submissions go to both of those but certainly the second limb of the order is significant ..... publication, meaning with its publication by any person, whether it is from the Commission, from an individual who is a party to the proceeding. Certainly we submit that whilst it is proposed by the notifier it is really designed to cover the latter category, but we also submit that there's no reason why they should be available for publication or inspection, so it should be available for inspection by any person from the Commission, but we maintain that the Commission file in terms of all the documents that we filed should be sealed and that seal should be maintained.

PN4139

THE VICE PRESIDENT: What's the nature of the evidence you'd seek to lead and what is directed to - - -

PN4140

MR ANGELOPOULOS: At this stage - apologies. At this stage I have been given very limited instructions about the evidence but I've been instructed that there would be some limited evidence that would be sought to forwarded to the Commission, whether it's by affidavit or orally, but it won't be lengthy.

PN4141

THE VICE PRESIDENT: And is the effect of that evidence covered by the submissions that you've made in relation to the matter generally?

PN4142

MR ANGELOPOULOS: Yes. Just any evidence will be supported by - or basically tied to the submission I've already made, your Honour.

PN4143

THE VICE PRESIDENT: Yes, thank you, Mr Angelopoulos. Mr Searle.

PN4144

MR SEARLE: Thank you, your Honour. For the avoidance of any doubt, the orders that we seek to have set aside are those made by your Honour on 22 May 2007 which related to submissions and material filed and also prohibited not only inspection but it was an obligation of that material and your Honour made a counterpart order on 7 December 2007 which similarly prohibited the publication or access to the transcript. So just so everyone understands that those are the orders that we seek to have set aside or varied.

PN4145

THE VICE PRESIDENT: And I understand your submission about the totality of the order and the appropriateness of any such orders, but is there not a difference in relation to access to the Commission's files compared to publication of material that might have been filed which would appear to be more directly affected by the open justice submissions, given that many of the documents that we've referred to already are in the possession of parties and indeed have separate existence prior to being filed in the proceedings?

PN4146

MR SEARLE: Your Honour, the simple is this, the non publication orders - our primary proposition is there's no basis for ..... vacated on that ground. Secondly, it would be my submission the same considerations would apply to the Commission's files as to the issue of publication and that is, they're either generally available to the public or to limited categories of persons or they're not. In relation to the submissions made by my learned friend about the orders were made and it was on the basis of those orders that the parties conducted the matter in the way that they did, we say that should not be accepted for this reason, that the orders, as I understood them, could always be revisited. There was no sense that they were final and stand in stone for all time and I don't think that would be appropriate or a relevant consideration for your Honour.

PN4147

In the written submissions of the AHA at paragraph 11 their real case appears to be that the notifier was seeking to cause "improper publicity and mischief" by seeking to have the orders set aside or varied and my recollection anyway was that that was never canvassed with Mr Thorpe when he gave evidence and to the extent that that is the basis that they maintain here today, that also should not be accepted by your Honour. There is no suggestion - well, it's my submission that your Honour couldn't read into the alternative order 2 some kind of surreptitious or calculated approach. Primarily we do seek to have the orders discharged in toto and whatever effect that has about qualified privilege or otherwise would be the case as would occur in any proceeding, whatever effect that might be and I haven't turned my mind to it.

PN4148

The second order that seeks the limited access of the kind set out in the document, your Honour, I've handed up is very much a second or alternative proposition if your Honour is against our primary proposition and it's not, as it were, the real application that we're making for some purpose of the kind that my friend has suggested. We do seek the discharge of the orders in total. The second order - not the second, the alternative proposition that we put is very much a practical one to enable those who will ultimately decide whether or not an appeal goes forward can be properly informed. True it is that Mr Thorpe is the individual or the person, but he was not like some lone element acting only on his own behalf.

PN4149

He obviously being the president of the AHA New South Wales purported to in his evidence and that was never suggested to him it was not correct, acted not only on his own behalf but also for the applicant organisation and in a practical and real sense it is the members of that council who will make that decision about whether any appeal rights are exercised. Whether it's their appeal right or
Mr Thorpe's is immaterial. They will be the decision maker and it would be unreasonable and unfair if they were not permitted even the limited access to the material that is proposed in that memo.

PN4150

THE VICE PRESIDENT: What about the practical matter of the request by
Mr Angelopoulos to file evidence relevant to his submissions in circumstances where this matter has been brought on urgently and you have filed evidence today?

PN4151

MR ANGELOPOULOS: I can't for the life of me begin to think what evidence Mr Angelopoulos would seek to lead on this application because without seeking to be unfair to him or even to my learned friends who appeared here for the national office of the AHA, putting their case at the highest, collectively it seems to be on the basis that the material is somehow disadvantageous to people, to certain people and that is the real reason why it should be kept under wraps and we just say that simply is not a proper proposition for these orders to be continued on given that the usual categories that the law has recognised to protect by the making of such orders, these matters simply do not arise.

PN4152

It's usually victims of blackmail, whether we're dealing with confidential or trade secrets, or whether we're dealing with criminal informants or other matters where issues of security either collectively or of individual persons are really at risk. What we are talking about here is the classical embarrassment or publicity which not be welcome which has simply never been a basis for any court to make or continue orders of this kind. So I don't understand what evidence that
Mr Angelopoulos would be seeking to lead that could have any bearing on this question.

PN4153

THE VICE PRESIDENT: Do you say that my obligations to provide natural justice to Mr Angelopoulos and his client would not be offended if I denied him the opportunity to file evidence within a short compass?

PN4154

MR SEARLE: In my submission it's a matter for the Commission as to whether or not that opportunity should be afford to Mr Angelopoulos's client. But I don't understand what material would be brought, but if that opportunity is to be provided given that the appeal period will soon expire, any such opportunity should be given fairly brief compass.

PN4155

THE VICE PRESIDENT: If I were to give Mr Angelopoulos's client an opportunity to bring affidavit evidence, bearing in mind the urgency that your client wants the order vacated, what process do you say would be necessary to hear from the parties in relation to any such further material filed?

PN4156

MR SEARLE: It would be my submission that if Mr Angelopoulos's client had, for example, until close of business Monday to file any material or further written submissions that they wish to on the matter, that could meet the natural justice point but also the expedition point and with any other party wish to say anything to reply within 24 hours thereafter. Of course that doesn't take into account the position of the national office of the AHA.

PN4157

MR HATCHER: I should correct my friend. We don't appear for the national office.

PN4158

MR SEARLE: Sorry, the AHA.

PN4159

MR HATCHER: We appear for the AHA, your Honour.

PN4160

MR SEARLE: I stand corrected. But I think that given the different time pressures that we're operating under that might be a possible solution.

PN4161

THE VICE PRESIDENT: Yes, thank you. Mr Hatcher.

PN4162

MR HATCHER: Your Honour, a further matters that have emanated from your Honour. Firstly on the question of natural justice, in my submission the Commission must afford Mr Angelopoulos's client an opportunity to put on evidence. The matter's been brought on quite urgently. There's no explanation from the notifier why it's taken so long for them to bring this application. They've had some two weeks, I think it is, to consider their position and
Mr Angelopoulos's client's had something like one day to consider his position and he ought be afforded some reasonable time and we'd suggest that in reality 24 hours, which is what's proposed from our friend, doesn't constitute reasonable time.

PN4163

Putting that to one side can I deal with the other matter that fell from your Honour and that is the question of the division of the orders between publication and access to the Commission's file. It occurs to us that that division does conveniently deal with the matters of concern that we raised in the sense that the material that was put before the Commission was expressly said to be defamatory when it was put before the Commission. In proceedings before the Commission it attracts privilege in order to ensure that defamatory material or that the privilege is not - I wouldn't wish to put abused, your Honour, but that the privilege is not perhaps a vehicle for other matters. The Commission has protected the proceedings with a non disclosure order.

PN4164

If the Commission's non disclosure order didn't deal with publication at all then the parties would revert to the position they were in right at the filing of the material. That is, if they publish they bear the consequences, but the publication can't emanate from the Commission's file and the Commission's proceedings then don't become a vehicle for any publication of material thought to be inappropriate. So in short, your Honour, we're embracing the distinction that your Honour made in the order and in our respectful submission that's a distinction that warrants attention if the Commission is minded to amend the order at all.

PN4165

THE VICE PRESIDENT: Warranting attention in what way, with what consequence?

PN4166

MR HATCHER: Well, your Honour, simply excising the prohibition on publication, so that publication becomes a matter for the parties and if they publish material that's in their position that's defamatory everyone has their legal rights and remedies as they would otherwise. Our concern, your Honour, is very straight forward. We don't want there to be any position achieved where anyone either achieves or thinks they've achieved a situation where they can, with the benefit of the protection of orders of the Commission, publish defamatory material. They will do what they will do and the parties have their remedies, but those remedies should be unaffected by any order of the Commission. May it please.

PN4167

MR ANGELOPOULOS: Your Honour, if I may just say just in terms of timing, I can certainly get my instructor to try and work on something on Monday. I'm actually in court on Tuesday and Wednesday of next week which makes it - if I'm given more time I'd have to be - it would have to be Monday or after Tuesday because I'm in Tuesday and Wednesday of next week as well. But as Mr Hatcher has said, the application has been brought a considerable afterwards and if the notifier, if I may say, if we had to have a council meeting there was no reason why they couldn't have tried to call a council meeting to discuss ..... and not waiting for the council's meeting to happen, was due to happen. If this matter was so urgent then they could have actually sought an urgent council meeting of some sort to actually try and deal with these matters expeditiously. I don't intend to actually make an extra submission, it will only be by way of evidence on the affidavit.

PN4168

THE VICE PRESIDENT: Mr Searle.

PN4169

MR SEARLE: Just in relation to that point, I think in the affidavit of Mr Ross in the final paragraph, paragraph 13, he says:

PN4170

At least seven days notice needs to be given of a special meeting.

PN4171

And given what emanated from the meeting that took place and the issues that are still unresolved, there is no suggestion that it's impossible to recall the council, it's just that it has to be done with seven days notice and given the time situation the notifier has moved as quickly as it can. There is one last thing I should raise. Your Honour made a counterpart order on 2 August 2007 which was in the same terms but which related to material expressed to be in relation to the earlier time period, that is, the period prior to 12 May 2003. It is largely the same material, although the submissions I think obviously focus or highlight different matters and anomaly would be created if your Honour vacated or varied the 22 May and
7 December 2007 order but left the 2 August 2007 order in place unchanged.

PN4172

I don't wish to say anything further on it because the orders are in the same terms and in my respectful submission, the same considerations as I have outlined and which all of the parties here have canvassed would apply to that order as well.

PN4173

THE VICE PRESIDENT: Yes, thank you, Mr Searle.

PN4174

MR SEARLE: Thank you, your Honour.

PN4175

THE VICE PRESIDENT: I propose to allow Mr Angelopoulos and his client to file any evidence they wish to in relation to the application before me. I would direct that any evidence sought to be relied on be filed and served by close of business on Tuesday, 19 February. Any submissions of any party in relation to that evidence should be in writing and filed and served by close of business on
20 February and I can indicate that I would intend to issue my decision in relation to this matter by the end of next week at the latest and if that assists in terms of any preparation or otherwise, then that's something for the parties. The Commission will now adjourn and we won't formally issue those directions but they're made orally arising from these proceedings. The Commission is adjourned.

<ADJOURNED ACCORDINGLY [5.05PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 AFFIDAVIT OF MR ROSS PN4051