C2008/2768, Transcript of Proceedings [2008] AIRCTrans 796 (8 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19437-1

SENIOR DEPUTY PRESIDENT HARRISON
DEPUTY PRESIDENT IVES
COMMISSIONER BACON

C2008/2768

s.120 - Appeal to Full Bench

Appeal by Samara, Effie
(C2008/2768)





Sydney

10.08AM, TUESDAY, 25 NOVEMBER 2008

PN1

MR A DLAKIC: I am a solicitor.

PN2

SENIOR DEPUTY PRESIDENT HARRISON: It's pronounced Mr Dlakic, is it?

PN3

MR DLAKIC: Dlakic, yes, ma'am.

PN4

MR R WARREN: I appear by leave for the respondent.

PN5

SENIOR DEPUTY PRESIDENT HARRISON: Any difficulty with leave being granted to each of you?

PN6

MR WARREN: No.

PN7

MR DLAKIC: No.

PN8

SENIOR DEPUTY PRESIDENT HARRISON: Leave is granted. Mr Dlakic, we had no previous advice that you had been instructed.

PN9

MR DLAKIC: No, instructions were quite recently received in the matter, as we've confirmed only a few days ago and that is the reason why we have not been able to formally notify the Commission.

PN10

SENIOR DEPUTY PRESIDENT HARRISON: All right. You've had an opportunity to peruse what your client has filed in relation to this matter and in particular the appeal book?

PN11

MR DLAKIC: I have perused the matters. As I understand it the appeal consists of a notice of appeal and that is - - -

PN12

SENIOR DEPUTY PRESIDENT HARRISON: I’m showing you a book that has been filed.

PN13

MR DLAKIC: I have not seen that.

PN14

SENIOR DEPUTY PRESIDENT HARRISON: Just bear with me a moment.

PN15

MR DLAKIC: My apologies. The book, I'm instructed that the material I have been provided is in fact a copy from the appeal book.

PN16

SENIOR DEPUTY PRESIDENT HARRISON: Well, that's all very well but you know that proper compliance with the rules requires that a book in a form that each of us can follow the arguments and that the Full Bench knows when you're taking us to a document where the document is.

PN17

MR DLAKIC: Yes.

PN18

SENIOR DEPUTY PRESIDENT HARRISON: Now, unless you have something in the same form that we have, which in any event isn't paginated, we have some difficulties but we'll return to that. Actually before I go off that,
Mr Warren, do you have a copy of the folder of documents.

PN19

MR WARREN: I have a folder which I understand was sent by your associate to those instructing.

PN20

SENIOR DEPUTY PRESIDENT HARRISON: All right.

PN21

MR WARREN: It's a bundle of documents. I might add, your Honour, just whilst we're on that bundle of documents, it contains a statement, among other things of a Angela Caldarola. That statement was being served on the respondent at first instance.

PN22

DEPUTY PRESIDENT IVES: Sorry, where approximately - - -

PN23

MR WARREN: Yes, sorry, your Honour. I'm sorry, your Honour. It's clipped together in some material under the heading of Name of Witnesses to be Called in this Matter and there is then a list of witnesses, Chapman, Singh, Barham, Osman and Cabibil and that's clipped together. It's about the fourth bundle of documents put together coming from the front. I'm sorry, I haven't paginated it either, your Honour. It's probably about 20 pages in.

PN24

SENIOR DEPUTY PRESIDENT HARRISON: It was the statement again of?

PN25

MR WARREN: There's a cover page. I might just hold it up.

PN26

SENIOR DEPUTY PRESIDENT HARRISON: It might help them but it won't help me.

PN27

MR WARREN: I'm sorry, your Honour.

PN28

SENIOR DEPUTY PRESIDENT HARRISON: Not from this distance.

PN29

MR WARREN: It's a cover page that says Name of Witnesses to be Called in this Matter.

PN30

SENIOR DEPUTY PRESIDENT HARRISON: Yes, yes, I have the cover page. Where in that bundle is it?

PN31

MR WARREN: It is in that bundle, although those witnesses outlined there were witnesses called or statements tendered on behalf of the respondent.

PN32

SENIOR DEPUTY PRESIDENT HARRISON: Yes, yes.

PN33

MR WARREN: Now, into that, about halfway through that bundle of documents there is a supplementary statement of Myrna Osman which was marked as exhibit W5 in the proceedings.

PN34

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN35

MR WARREN: And the next page is a very short statement of Angela Caldarola dated 22 April 2008.

PN36

SENIOR DEPUTY PRESIDENT HARRISON: Some four paragraphs?

PN37

MR WARREN: Yes, indeed, your Honour. Now, that statement was not relied upon and was not tendered.

PN38

SENIOR DEPUTY PRESIDENT HARRISON: All right.

PN39

MR WARREN: And we would obviously object to that being in - - -

PN40

SENIOR DEPUTY PRESIDENT HARRISON: We might take that out of this folder of documents and let Mr Dlakic address it at some stage.

PN41

MR WARREN: Thank you, your Honour.

PN42

SENIOR DEPUTY PRESIDENT HARRISON: But in any event, have you been able to check through the remainder of the documents in that folder we have provided to you, Mr Warren?

PN43

MR WARREN: Yes. The remainder of the documents appear to be, although not necessarily in any particular order, appear to be complete, although I might add there was a disk of closed circuit television footage tendered before Commissioner Lawson and that is not contained within the bundle of documents. I'm not quite sure what happened to that. The Commission will see at - once again the transcript isn't paginated, but it's at PN159 CCTV footage was tendered. I might add that there was difficulty copying that and the Commission will see at PN124 and following it was indicated to Commissioner Lawson that the respondent was unable to download the CCTV footage or DVD.

PN44

What it was, we had one DVD but we couldn't copy it and so it was downloaded as a file. It was made a file on three or four laptop computers and it was then played during the proceedings with the various parties looking at their laptop and noting the time account on the bottom. Now, I am certain, well, as certain as I can be, that the one disk that we did have was tendered to Commissioner Lawson.

PN45

SENIOR DEPUTY PRESIDENT HARRISON: Just bear with a moment would you.

PN46

MR WARREN: And it doesn't appear to be in the bundle of documents.

PN47

SENIOR DEPUTY PRESIDENT HARRISON: No, we don't think we've seen it.

PN48

MR WARREN: Yes. I must say my memory was I'm almost certain. That's the best memory I've got.

PN49

SENIOR DEPUTY PRESIDENT HARRISON: Yes. It's certainly in the folder of exhibits prepared for the Commissioner by his own chambers, no doubt for his own purposes, and as you say, it's noted in the transcript it was tendered.

PN50

MR WARREN: Yes. And it's noted in the listing.

PN51

SENIOR DEPUTY PRESIDENT HARRISON: Yes, look no further. We might know where one is.

PN52

MR WARREN: Thank you.

PN53

SENIOR DEPUTY PRESIDENT HARRISON: Now, that may or may not become an issue that we need to revisit during this hearing.

PN54

MR WARREN: I merely note that.

PN55

SENIOR DEPUTY PRESIDENT HARRISON: Very good.

PN56

MR WARREN: Thank you.

PN57

SENIOR DEPUTY PRESIDENT HARRISON: Now, Mr Dlakic, a few things, directions were issued in this matter on 18 September for the appellant to file and serve an outline of submissions and the respondent to do also. That was not complied with. Do you wish to address that matter now?

PN58

MR DLAKIC: Your Honour, I was not privy to that until about Friday when I saw that document. In saying that I have been best trying to prepare from the evidence in the file and I can't say that one is prepared but I can address my friend's submissions that he has prepared on behalf of the respondent.

PN59

SENIOR DEPUTY PRESIDENT HARRISON: You're the appellant.

PN60

MR DLAKIC: Yes.

PN61

SENIOR DEPUTY PRESIDENT HARRISON: Normally you would go first.

PN62

MR DLAKIC: Yes.

PN63

SENIOR DEPUTY PRESIDENT HARRISON: And you have not complied with the directions.

PN64

MR DLAKIC: Yes. As I have - - -

PN65

SENIOR DEPUTY PRESIDENT HARRISON: So what would you be proposing to do today, just make oral submissions?

PN66

MR DLAKIC: Yes, if I were permitted to do so.

PN67

SENIOR DEPUTY PRESIDENT HARRISON: All right. We can return to that. The appeal was out of time, did you realise that?

PN68

MR DLAKIC: I can see the appeal is out of time but as I understand it from the application filed on the Form R2, the application for an extension of time for instituting the appeal, Ms Samara, the applicant, has sworn to say that she understood the appeal to be only a period of 29 days where in fact she obviously later discovers it was 21 days. We'd say that that would not create such harsh prejudice to the other party if the appeal were to be allowed to proceed given the small number of days in question.

PN69

SENIOR DEPUTY PRESIDENT HARRISON: So you understand it to be how many days out of time?

PN70

MR DLAKIC: We understand it to be 29 days out of time.

PN71

SENIOR DEPUTY PRESIDENT HARRISON: I think you need to take just a short time to address a number of matters.

PN72

MR DLAKIC: Yes, your Honour.

PN73

SENIOR DEPUTY PRESIDENT HARRISON: And perhaps, Mr Warren, we might adjourn so that you can have a discussion with Mr Dlakic about some matters that you might concede or at least not oppose.

PN74

MR WARREN: Thank you.

PN75

SENIOR DEPUTY PRESIDENT HARRISON: And some discussion about, well, for example, the statement of Ms Caldarola. Perhaps let Mr Dlakic view your bundle of documents, your folder of documents, would you?

PN76

MR WARREN: Yes, sure.

PN77

SENIOR DEPUTY PRESIDENT HARRISON: And also perhaps have a discussion with him about what if anything will be your attitude to non compliance with the directions. Obviously there's no application for an adjournment. We're not inviting one. The matter is listed, it should proceed, but there are a few procedural issues perhaps to make this matter proceed as efficiently as possible. Just check your instructions, Mr Dlakic as to how long the appeal is out of time.

PN78

MR DLAKIC: Yes, your Honour.

PN79

SENIOR DEPUTY PRESIDENT HARRISON: Speak to Mr Warren about whether you're going to be facing any opposition on that, speak about the non compliance with the directions, have a look at the folder of documents and take some instructions whether in fact the statement of Ms Caldarola should not have been in those folders and that we can hand that back to you. There's non compliance also with the requirement to lodge a list of authorities. If you have in your notes to assist you with your oral submissions today authorities you're going to rely on, tell Mr Warren they are.

PN80

MR DLAKIC: Thank you, your Honour.

PN81

SENIOR DEPUTY PRESIDENT HARRISON: We'll adjourn for 15 minutes.

<SHORT ADJOURNMENT [10.19AM]
<RESUMED [10.39AM]

PN82

SENIOR DEPUTY PRESIDENT HARRISON: Mr Dlakic.

PN83

MR DLAKIC: Thank you. By consent I can say this on behalf of the parties, the appeal is withdrawn, leave to appeal is withdrawn and no order as to costs.

PN84

SENIOR DEPUTY PRESIDENT HARRISON: Mr Warren.

PN85

MR WARREN: I have nothing to add.

PN86

SENIOR DEPUTY PRESIDENT HARRISON: The Commission now adjourns.

<ADJOURNED INDEFINITELY [10.40AM]