D2006/76, Transcript of Proceedings [2008] AIRCTrans 94 (13 March 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16184-1

VICE PRESIDENT WATSON

D2006/76

APPLICATION/NOTIFICATION BY AUSTRALIAN HOTELS ASSOCIATION-NEW SOUTH WALES BRANCH
s.278(1) RAO Schedule - Commission to be advised of breaches of Part or rules
(D2006/76)

MELBOURNE

10.12AM, THURSDAY, 23 NOVEMBER 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

MR J NOLAN: I appear for the applicant, Mr Thorpe, who submitted his application on his own behalf but also on behalf of members of the New South Wales Executive Committee of the AHA and with me here I have
MR J RIORDAN and my instructor solicitor MS H MACALISTER.

PN2

MR M EASTON: I appear for the AHA. With me is MR M DAVIS.

PN3

THE VICE PRESIDENT: Thank you, Mr Easton. And in Melbourne?

PN4

MR T ANGELOPOULOS: I seek leave to intervene on behalf of Mr Richard Mulcahy who is the former national executive director of AHA and he is one of the persons subject to the report. I also seek leave to appear as counsel.

PN5

THE VICE PRESIDENT: Yes. Is there any objection to the application for leave to intervene?

PN6

MR NOLAN: None so far as we’re concerned, your Honour. There’s no video if ever it was when he made that application. Might we ask who it was who made the application and I didn’t catch the name of the counsel.

PN7

MR ANGELOPOULOS: My name’s Angelopoulos.

PN8

MR NOLAN: All right, thanks.

PN9

MR EASTON: No objection, your Honour.

PN10

THE VICE PRESIDENT: Yes. Leave is granted for counsel to appear in all cases and leave is granted to intervene, Mr Angelopoulos, on behalf of
Mr Mulcahy.

PN11

MR ANGELOPOULOS: Thank you.

PN12

THE VICE PRESIDENT: Well, the matter has been listed for mention and programming today. There does seem to be a number of preliminary issues that need to be considered in terms of the processing of this matter and I’m aware also that there is an outline of submissions filed on behalf of Mr Mulcahy foreshadowing arguments of various kinds. The initial question I have for the parties is whether there are any other persons who should be notified of these proceedings in the event that they may have an interest or may wish to make submissions. It does appear that if the federally registered organisation is aware and is represented that that would be sufficient.

PN13

MR EASTON: Well, that’s a matter that the association is still considering, whether it needs to inform those named in some of the documentation and they may take a decision like Mr Mulcahy and obtain some separate representation.

PN14

THE VICE PRESIDENT: Yes. Well, does anyone believe that there’s anyone in particular that should be notified of the proceedings that isn’t otherwise aware of them?

PN15

MR ANGELOPOULOS: Your Honour, without going into the detail the allegations are directed to a number of officers of the association who were presidents, vice presidents and treasurers at the relevant time, my client plus another senior employee of the association at the relevant time. I assume that that person should probably also be notified at the very least or I would have thought it would be appropriate that although the association is represented the individual officers should have an individual right to be notified of the matter because the allegations are directed against them in the capacity as officers of the association and against employees in their capacity as employees of the association.

PN16

THE VICE PRESIDENT: Who was that person?

PN17

MR ANGELOPOULOS: The other person who was named in the report is a fellow by the name of Andrew Wilsmore, W-i-l-s-m-o-r-e.

PN18

THE VICE PRESIDENT: Yes. And he’s no longer involved with the association?

PN19

MR ANGELOPOULOS: No. He does reside in Canberra however. Your Honour, I probably am in a position if you would like later on to give you some details to contact him. I don’t have them at my disposal right now, but I probably can obtain them.

PN20

THE VICE PRESIDENT: Would it be appropriate, Mr Nolan, that once
Mr Wilsmore’s details are ascertained that you serve a copy of the documents that have been filed in this matter on him?

PN21

MR NOLAN: Yes. We have no difficulty with that, your Honour.

PN22

THE VICE PRESIDENT: Yes, thank you. The next issue is really the future processing of the matter and I note that Mr Angelopoulos on behalf of
Mr Mulcahy is foreshadowing arguments which include jurisdictional arguments. Are you aware of that outline of submissions Mr Nolan and Mr Easton?

PN23

MR NOLAN: No, your Honour. We haven’t seen any outline of submissions.

PN24

MR EASTON: I was provided with one this morning. We’re still looking at some of those issues that are raised. Yes I was provided with one this morning.

PN25

THE VICE PRESIDENT: Yes. What do you say should be the process in relation to those arguments at least, Mr Angelopoulos?

PN26

MR ANGELOPOULOS: Your Honour, my instructions are that I am to push the applications or the matters raised in my submissions. I understand that the other parties may not have had a full opportunity to read and consider them. I would foreshadow that perhaps the best way to do it is enable me to make the submissions on this, if the parties feel that they are not in a position to respond to any or all of those submissions today then they be given an opportunity either to respond to those submissions in writing within a short period of time or if necessary have another hearing. I would have thought that the submissions, although they’re of the most part are substantial submissions I will elaborate on aspects of them, however I would have thought that it’s something which if a response is necessary it can be done in writing.

PN27

THE VICE PRESIDENT: Yes. I wondered whether the jurisdictional matters at least could be entirely done by way of written submissions. That would be a course that would be acceptable to you?

PN28

MR ANGELOPOULOS: That would be a course acceptable to me.

PN29

THE VICE PRESIDENT: Mr Nolan and Mr Easton?

PN30

MR NOLAN: Well, for our part I think that’s a sensible course, your Honour. We didn’t come along obviously today prepared to meet jurisdictional arguments let alone jurisdictional arguments that we are yet to see. So it would seem to us having a look at the section the task that you confront us, one that really obliges you to reach some sort of prima facie view about whether or not a rule has been breached, we would have thought in those circumstances it would add too much to the scheme of things if each of the parties was to address all of the issues so far as your task is concerned in writing and that would allow us to address issues of substance regarding your reaching that satisfaction regarding whether or not the rule had been breached.

PN31

And at the same time we could also deal with these jurisdictional issues and that would prevent us on a permutation of the process at this stage as we understand the section. There will still be ample opportunity for people to address the merits of the issue in a thorough going way and more substantial way for the matters referred to the Registrar because the Registrar himself has to conduct an investigation and satisfy himself about the matters that the Commission seems to us it reaches a prima facie view of. So it occurs to us that all of those issues could be addressed at this stage of the proceedings in writing and that would oblige
Mr Mulcahy’s representatives to serve the material on us and any additional material that they wanted to serve by way of amplification of the outline that we received today, allow us to put in our material as well and then perhaps provide some further opportunity for each of the parties to exchange material in reply.

PN32

Either you have a full picture of the position at least at this stage in the proceedings, that is to say the stage that you’re concerned with. You can make a decision on that and if your decision is favourable to the applicant well then the matter goes forwarded to the Registrar.

PN33

THE VICE PRESIDENT: Yes. Mr Easton?

PN34

MR EASTON: Your Honour, mine is slightly different to Mr Nolan’s. I think written submissions is helpful to lay the matter out, but our preliminary view is there’s no proper notification or application before you and we’ve taken some preliminary views as to how that’s so. There seems to be two separate issues, one being whether there’s a proper notification before you and then the second issue is whether there’s any basis for you to form the views that you’re required to form under section 278. At this stage I think it’s appropriate only to be dealing with the first kinds of issues and that is whether there’s a proper notification before you because that’s a matter that can be conveniently separated from any of the kind of issues that are actually contained in the documentation that are attached.

PN35

THE VICE PRESIDENT: Is that separate issue as you describe it distinguishable from any other jurisdictional arguments that might be raised?

PN36

MR EASTON: Well, I suppose it’s the difference between a jurisdictional issue and a merits issue. I suppose that’s what I’ve suggested be separated at this point. The merits and whether there are any grounds for believing there’s a breach of the particular parts in subsection (2). Those matters I think are of a substantially different nature to a question of whether or not the notifier can actually have made the notification that gives you the power to refer the matter to the Registrar. We don’t say that the notifier does and that matter can be dealt with without getting to the particular issues that apparently are in the allegations.

PN37

THE VICE PRESIDENT: Mr Angelopoulos, do you wish to make submissions as to the procedure?

PN38

MR ANGELOPOULOS: Your Honour, as I said earlier the matters which
Mr Easton raise is two aspects. One is that there’s why I identify as the first aspect of what he raised whether the applicant had the ability to notify the matter and that is one aspect of the jurisdiction. The second aspect of jurisdiction is what I refer to as refrain from hearing type arguments which certainly tie in with the first aspects, but certainly tie in with the procedural steps as part of the process of notification more than anything as the matter surrounding is. So they both concern jurisdictional aspects.

PN39

Tied in with all of this on these it is matters which do not go in any respect into the detail of the report as it’s been lodged and in that respect I would certainly seek that the file be a sealed file which is one of my submissions because that is a report where there’s been judgment on persons without them even been given the opportunity to respond to any of the allegations and therefore the other aspect is the best way to perhaps I could describe the Commission’s function is if it determines that it does have jurisdiction is it a bit of a committal process, a committal type hearing and in the circumstances we would say that because of that factor, because whatever is being lodged by way of evidence, whatever is perhaps even stated by way of oral evidence, the Commission is not required to come to a definitive view as to the merits of each of those arguments.

PN40

It is required to determine a preliminary issue of whether it should refer the matter to the Registrar and in those circumstances it would be my submission that it is not appropriate to have an open hearing of this matter, that it should be closed and because it’s not the simple traditional case where all evidence is given in this matter because that’s not the Commission’s function. But I would seek at least I am prepare to perhaps in open court make the submissions on the jurisdictional issues which I’ve raised which I’ve put in my written submissions and which I do seek to amplify in this hearing today.

PN41

THE VICE PRESIDENT: Well, the first issue is what order the matters are dealt with and I consider that it would be appropriate to deal with jurisdictional issues on a preliminary basis and it would be appropriate therefore to make directions in relation to the parties’ submissions on those matters. And I take it from what’s been said that what would be put would be in the nature of submissions and there would be no evidence as such in relation to those matters beyond perhaps the formal documents that are on the file that lead to the commencement of this matter. Mr Angelopoulos and Mr Easton, if you wish to make submissions that there is no jurisdiction to proceed and we do proceed by way of written submissions on that matter how long would you require in order to file your submissions?

PN42

MR ANGELOPOULOS: Your Honour, I won’t require much more. What I would really be doing is possibly extracting the relevant parts of the case as I refer to in my submissions. So there won’t be much more. I mean, I could effectively probably get them to you by the end of this week if necessary.

PN43

THE VICE PRESIDENT: Yes. Mr Easton?

PN44

MR EASTON: I think just a matter before that step ought be that anyone who wants to be notified of the proceedings be so notified and that process I think can reasonably take, say, three weeks and because whoever those people are they may have jurisdictional matters to raise as well and then perhaps a time table that has those making the objections putting on submissions and I think that timing puts us into the new year in any event and then Mr Nolan’s clients in reply and then a further reply from I guess the promoters of the jurisdictional objections.

PN45

THE VICE PRESIDENT: Mr Nolan?

PN46

MR NOLAN: I would have thought that three weeks to notify someone whose rather generous allowance since doing the best we can it seems only one name can be come up with in terms of persons who want to be notified. It would be a fairly easy matter for us to write to that person almost immediately virtually to inform the person of any directions that you make today and indicate that he was able to fall in with those directions if he was minded to do so.

PN47

THE VICE PRESIDENT: Yes and you should be able to get that material to him by the middle of next week I would have assumed?

PN48

MR NOLAN: Well, I would have thought so, yes.

PN49

MR EASTON: It may well be wider than simply one name. In respect of my friend it’s probably more the reason for the delay is that consideration of the implications upon individuals rather than necessarily start a list of who might be involved in the process. That’s the reason for the suggestion of three weeks. Theoretically there’s a counsel of 44 at that point.

PN50

THE VICE PRESIDENT: Sorry, Mr Angelopoulos?

PN51

MR ANGELOPOULOS: Yes. I made the comment earlier about there were a number of officers as well as two employees named in the report and I would have thought that simply in the interests of natural justice that each person, although the association at the moment is representing the officers, each of those persons individually have the right to be notified of this matter. I mean, one of the biggest problems with this process as far as it’s developed so far is that a report has been lodged, none of these people not only as part of the report writing were ever given an opportunity to present a view as to the correctness or otherwise of the allegations as made.

PN52

Leaving that aside they didn’t even have the decency to notify them prior to lodgement that they were going to lodge it and that they were being named in this report. I mean these are quite serious issues of natural justice, your Honour.

PN53

MR NOLAN: But can I just say something about that, your Honour? It’s not as though you’re going to make some decision on a final basis. The whole idea of this process is to allow the Registrar to investigate the matter thoroughly. If the Registrar would be expected to make his or her mind up about who ought to be notified in the ultimate sense and see to it that those matters are attended to. Nothing on a final basis will occur unless and until the Registrar’s proceeding reaches its conclusion and takes its course.

PN54

THE VICE PRESIDENT: Yes?

PN55

MR ANGELOPOULOS: Your Honour, with greatest respect the Registrar may decide who he wants to perhaps summons for him to give evidence, however there may be persons who he does not summons that wish to give evidence on their own behalf and in the circumstances it would be a complete null of natural justice if those people aren’t given an opportunity (a) to be notified and (b) to read the report and make decisions of their own accord whether they want to make submissions to the Registrar whether he or she calls them to give evidence or not. Now, it’s a two prong process - - -

PN56

THE VICE PRESIDENT: Isn’t that a process that related more to the merits rather than the jurisdictional issues?

PN57

MR ANGELOPOULOS: Well certainly it will, but ultimately these people have the right as well to know that they actually have been named in the report, what the specific allegations are against them, secondly they have the right to either join us in the jurisdictional arguments or simply agree that they agree with what we say or disagree with us. Now, we’re not giving them any of those opportunities. I think as a matter of natural justice if you deny that process you’ve actually flawed the hearing before it even starts even at this preliminary level.

PN58

THE VICE PRESIDENT: Mr Nolan, if I required full written submissions in relation to jurisdiction to be filed by those who are submitting that there is no jurisdiction by 15 December how long would you require to file written submissions in response?

PN59

MR NOLAN: Well, having regard to the time of year we could certainly do it by the middle of February I would have thought comfortably.

PN60

THE VICE PRESIDENT: That’s giving you considerably more period that I am giving the others.

PN61

MR NOLAN: I appreciate that, but there is that dilemma of the Christmas break. I mean, if you wanted to truncate that we can certainly live with it, we’d just need to make sure that we got the submissions from the others at a timely fashion.

PN62

MR EASTON: Yes. I think my friend’s suggested time supports my concern that we would like for more time than 15 December. I’m sorry to backtrack slightly, but in terms of the issue of other people that might be notified as I read the provisions of the Act your Honour’s decision at the moment is somewhat of a gateway where if the application goes through the gateway those individuals are compelled then to provide documents and answer questions and the like. If those individuals have particular matters of jurisdiction to be put into the Commission then they’ll be doing that before the matter goes through the gateway, if you like.

PN63

So that’s the concern about the timing issue for those kinds of people, whether they can properly get advice and the other element is advice from insurers. There are insurance policies which may be helpful or not and those matters need to be sorted. If your Honour’s of the mind to have a time table that has for want of a better term the respondent’s material due in late January then that moving backwards would give sufficient time to have the other matters attended to with other possibly interested parties.

PN64

THE VICE PRESIDENT: How late in January?

PN65

MR EASTON: As late as possible.

PN66

THE VICE PRESIDENT: Yes.

PN67

MR ANGELOPOULOS: Your Honour, this is where we depart company quite dramatically. I mean, my instructions are to push the jurisdiction forward quickly. It’s a quite distinct error. It’s a matter which really does not involve getting into the details of the report in any fashion. I’ve spent the last couple of days basically setting out the parameters of this jurisdictional argument. I don’t see why persons who are at least here today are not in an position to spend a similar sort of time doing their either application or their response to a jurisdictional argument. We don’t need to go through the detail of the report. The report is quite lengthy.

PN68

If that’s not necessarily to deal with the jurisdictional arguments, it’s really about the structure of the provisions, the notification, the time frame, the relationship between the current provisions, their starting date, the consequential provisions, their scope and operations and the previous operation of the Workplace Relations Act when it was still part 9. That’s what it’s all about for the most part. And really the conduct of the parties or to notify is not in the context of the detail of the report but the process that’s been followed.

PN69

THE VICE PRESIDENT: I propose to make directions that those wishing to submit that the Commission does not have jurisdiction to proceed file full written submissions by Friday, 22 December and those parties who intervene as wishing to submit to the contrary file all written submissions in response by Friday,
2 February and the initial parties submitting that there is no jurisdiction file full written submissions in reply by Friday, 16 February.

PN70

MR NOLAN: Your Honour, can I make a special plea for that Friday,
2 February date to be moved back somewhat because I know there’s going to be some difficulty with people actually being away for the whole of January. It will make it difficult for us to get the submissions just briefly on Christmas Eve and then be able to turn it around in a timely fashion so we’d be confident it would all be finished by 2 February. I mean, if we got the submissions a week before
22 December, well we could possibly spend some time then and finalise anything that we wanted to say, but it does put us in a somewhat awkward position because of absences.

PN71

THE VICE PRESIDENT: Would another week from 2 February assist,
Mr Nolan?

PN72

MR NOLAN: I think it would, yes.

PN73

THE VICE PRESIDENT: I'll push it back to 9 February for your response and 23 February for the submissions in reply. I would propose that they be full written submissions and I would determine the matter on the basis of those submissions without further hearings on those questions and depending on the outcome of those matters the matter may be re-listed again. Are there any other matters the parties wish to raise? Mr Angelopoulos?

PN74

MR ANGELOPOULOS: Yes, your Honour.

PN75

MR NOLAN: Perhaps just a liberty to apply just in case something - - -

PN76

THE VICE PRESIDENT: Yes, liberty to apply will be part of the directions. Thank you, Mr Nolan. Mr Angelopoulos?

PN77

MR ANGELOPOULOS: Yes, your Honour. There’s a couple of other matters. I am aware that the report, and that’s how I’ve obtained it, has been filed with a covering letter in the registry. It is my submission that that report, although it has not been tendered, it is in effect evidence by the components. In the circumstances I do seek an order or direction from the Commission pursuant to section 356(5) of the schedule that it not be published.

PN78

THE VICE PRESIDENT: Which section is that?

PN79

MR ANGELOPOULOS: It’s section 356(5) of the schedule. If I could perhaps read it out to your Honour.

PN80

THE VICE PRESIDENT: 300?

PN81

MR ANGELOPOULOS: 365.

PN82

THE VICE PRESIDENT: Yes. 365 doesn’t seem to have the subsection.

PN83

MR ANGELOPOULOS: No, I realise I’ve just - sorry. 356, I apologise. It’s 356. Your Honour, it’s actually interestingly headed under the 356 under the heading of Trade Secrets Tendered As Evidence, however what you’ll note is if you look at the form of section 356 subsection (1) concerns proceeding concerning matters of trade secrets or the financial position or profits of the witness or party. That’s one issue. Then if an objection is made pursuant to that then that evidence may be given under direction of the Federal Court or the Commission. I do also make a submission in that respect in respect of at least parts of the report which are a bit impossible to identify because it’s illiterated throughout and one of the attachments to the report which is the deed of settlement which is subject to secrecy.

PN84

The reason I make the submission is that the deed of settlement does concern the financial position of my client, at least in part of the terms of settlement. In the circumstances I do seek by direction that the information may only be given as evidence as you direct and that in the circumstances that if it is given it is given in secret and pursuant to that I also do seek that it not be published and together with the whole report. In the alternative we also seek that the documents which have been produced in this matter, although not formally tendered, it is my submission it is in some ways tantamount to a tendering from the bench or from the bar table that pursuant to that section that they not be published as well.

PN85

THE VICE PRESIDENT: Yes. Mr Nolan, what do you say about that?

PN86

MR NOLAN: Well, in a broad sense we have no difficultly to direction. We had no intention to publish it, but you must appreciate it’s been, as I understand it, considered by members of the executive of the New South Wales branch of the organisation and of course it will be published to the extent that it will be served consistent with what the earlier discussion has been on anyone who puts their hand up and seeks to be served with the material. But it’s not formally been tendered yet as evidence in the proceedings so it hasn’t gone into the public domain in that sense I guess. So subject to understanding those constraints we have no difficulty with the undertaking not to publish it anywhere apart from in connection with this proceeding unless and until the matter becomes a matter of evidence in the proceedings before the Commission or some other event that permits us to publish it.

PN87

THE VICE PRESIDENT: I guess the question also involves how the Commission treats the file on this matter and the matters that have been, the documents that have been filed. At this stage I’ve only considered that the letter from your client dated 15 November 2006 is formally part of the file, in other words not the attachments and the subsequent attachment that was forwarded by hand yesterday. The question is how the Commission should treat those attachments.

PN88

MR NOLAN: Well, I must say I’m not absolutely familiar with the extent to which access allows the Commission to files in respect of matters that have not yet been the subject of a public hearing, but I would imagine if the Commission was minded to do so could direct that that part of the file could remain confidential or remain on a restricted access basis unless and until further orders are made.

PN89

THE VICE PRESIDENT: Yes. Mr Easton, do you have a view about this?

PN90

MR EASTON: I think in terms of the Commission’s file I think Mr Nolan’s suggestion was an appropriate one. In terms of the other material the only concern we have is our ability to run our case in terms of obtaining instructions from people and the like. I think as a general matter we accept that the report and those materials ought be confidential and we accept the notifier’s undertaking in relation to this matters, a qualified undertaking that Mr Nolan’s indicated now. But we’re just mindful of the ability to prepare the case that’s all.

PN91

MR ANGELOPOULOS: Your Honour, I would propose that in those circumstances that certainly counsel and solicitors should have access to all the documents, however beyond that point it certainly should be limited and what I’m proposing is I’m also possibly venturing into the Commission’s process if it starts undertaking its preliminary investigation, that is that the evidence given should be done in a private environment, in a private hearing rather than in a public forum because of the nature of the Commission’s processes. It’s a bit like a committal hearing. It’s not going to be full evidence and therefore that information, we do have here today a number of people here from the media ready to hear what is happening.

PN92

They will hear bits of information, bits of allegations, nothing that will be thoroughly tested because that obligation ultimately goes to the Registrar and therefore they can make judgements based upon incomplete evidence because the Commission is not required to actually come to a concluded view of anything. That is part of that, but the other part of it is that I do accept that people should have the opportunity who have been served (a) to see the document. They have a right to apart from anything else, but really what this concerns the publication is a publication by the Commission or by any other person who has access to that document, whether they give it to the media or give it to persons other than themselves.

PN93

Certainly where it’s for legal advice or those factors that’s not an issue, that certainly would be allowed in my submission.

PN94

THE VICE PRESIDENT: Yes. I think those matters can be considered at a later point if necessary. In the interim period and subject to any further order of the Commission the Commission will regard the attachments to the correspondence of 15 November as not published or available for inspection other than access by the parties and interveners in the matter. Are there any other issues that anyone wishes to raise at this stage?

PN95

MR EASTON: There’s only one comment, your Honour, and that is the association has the internal mechanisms to deal with these kinds of issues as well. It was hoped that those mechanisms would be utilised, but they have not been. I'll perhaps just indicate some instructions for the record that we’re still hopeful that those internal processes might bring some kind of sensible conclusions to these issues.

PN96

THE VICE PRESIDENT: Yes. Thank you for that. Mr Angelopoulos?

PN97

MR ANGELOPOULOS: Your Honour, there is one final matter and I’m not sure whether it’s relevant perhaps at the preliminary jurisdictional level, but if the matter goes beyond that point then there is an issue of Mr Riordan who is the report writer. As the report writer he is a person who will be giving evidence and therefore it would not be appropriate in the circumstance that he attend and participate in all the hearings until such time as he’s given his evidence.

PN98

MR NOLAN: I think we can cross that bridge when we come to it, can’t we?

PN99

THE VICE PRESIDENT: I think we can. If there are no other matters to be addressed I would propose to formally issue directions to the parties in line with what we have discussed today. That will cover directions as to service of documents on behalf of the applicant, on additional persons to be ascertained, contact details and also the filing of written submissions in relation to the issue of jurisdiction. On that basis the Commission will now adjourn.

<ADJOURNED INDEFINITELY [10.48AM]