C2012/6644, Transcript of Proceedings [2013] FWCTrans 79 (11 February 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1035346-1

VICE PRESIDENT WATSON

C2012/6644

s.418 - Application for an order that industrial action by employees or employers stop etc.

DP World Sydney Limited
and
Maritime Union of Australia, The
(C2012/6644)
DP World Sydney Enterprise Agreement 2011

(ODN AG2012/4588)
[AE893741 Print PR523419]




Sydney

9.11AM, WEDNESDAY, 19 DECEMBER 2012

PN1

THE VICE PRESIDENT: Can I have the appearances please?

PN2

MR D PERRY: Yes your Honour. Perry, initial D. I seek permission to appear for the applicant.

PN3

THE VICE PRESIDENT: Mr Perry.

PN4

MR M BURNS: Your Honour, Burns, B-u-r-n-s initial M, for the union.

PN5

THE VICE PRESIDENT: Mr Burns. Permission is granted Mr Perry. I should say I have limited time this morning. There's a Full Bench matter due to commence here at 10 am, and I would have further time this afternoon if necessary. But have the parties had any discussions regarding the application and explored the opportunities for some common understanding?

PN6

MR PERRY: We haven't had an opportunity to have those discussions about the application specifically, your Honour. There have been some discussions over the last few days about the dispute that seems to have given rise to the application, and your Honour has listed a conference I think for tomorrow to deal with that matter. Perhaps if I could say this at the outset though, your Honour. The position is there is a complete stoppage of work at Port Botany and there have been a series of stoppages over the last 24 hours. The matter does have some urgency from that point of view. There are three vessels which are currently alongside which aren't being worked. I do have a statement which I can hand up, and perhaps if I could just in five minutes indicate to your Honour what the position is.

PN7

THE VICE PRESIDENT: Yes.

PN8

MR PERRY: Perhaps we can see how we go from there.

PN9

THE VICE PRESIDENT: Yes. Yes, I'm happy with that course Mr Perry.

PN10

MR PERRY: If I can hand up a statement of Mr Mark Howard Bellears, your Honour. I'll seek to tender the statement in due course but perhaps if I could just do this, that by reference to the statement just indicate to the Tribunal what the position is. The employees to whom this application relates are members of the Maritime Union of Australia who are covered by the DP World Sydney Enterprise Agreement 2011. That's an enterprise agreement within its nominal term which does not expire until 30 June 2014, and your Honour will see that in paragraph 5 of the statement which I've just handed up.

PN11

There is a dispute which has arisen, your Honour, about the dismissal of three employees, and the position which the union has insisted upon is that the company reinstate those employees, and the company has indicated that it is not prepared to do so. On the 14th and 17th of December Mr McAleer, who's the deputy branch secretary, came onto site and made a range of threats to organise stoppages if the claim made by the union was not acceded to by the company.

PN12

What then follows is set out in paragraph 7 of the statement of Mr Bellears, and yesterday morning, your Honour, at about 9 am there was a dismissal of an employee on site. Mr McAleer indicated that he would close the site down and during the smoko break for the day shift employees at about 10 o'clock Mr McAleer addressed the employees. Following that address the employees did not resume duty as required at 10.30, despite being directed to do so, and there was then a stoppage of work until the end of the day shift at 2 o'clock.

PN13

The afternoon shift came on to site at 2 o'clock and held an unauthorised stop work meeting that went for about 20 minutes. Mr McAleer and another official of the union, Mr Keating, were in attendance at that meeting. Following the meeting work resumed and there was then a further meeting at about 5.50 or 6 o'clock between MUA officials and the employees, and following that meeting work ceased at about 6.40 pm and did not resume until the end of the shift at 10 pm. Mr McAleer was then onsite again for the start of the evening shift and there was a meeting between him and employees rostered to work that shift.

PN14

The outcome of that meeting was the employees indicated that they would cease working for four hours at 2 am and that in fact is what happened. There was a cessation of work at 2 am and not a resumption of work until the end of the shift at 6 am. The current position, your Honour - and this is set out in paragraph 8 of the statement of Mr Bellears, is that the day shift was due to commence at 6 am this morning and no work has been done by employees rostered to work on the day shift. They are onsite in the amenities room but not performing any duties, despite being required to do so.

PN15

So in very small compass, your Honour, that's the factual position. I'm conscious of the amount of time you do have. It is, we say, a clear and flagrantly unlawful industrial action. It's a complete stoppage of work. It satisfies the definition of industrial action in section 19. The industrial action is happening and clearly the industrial action is not protected. We have an enterprise agreement within its nominal term and no suggestion of any ballot of employees or notices having been given.

PN16

So we say on that basis, your Honour, the requirements of section 418 are made out and an order should issue. We do seek an order in the form attached to the application for a period of six months, and if I could just briefly indicate the company's position in relation to that matter. Your Honour will see from paragraphs 12 through to 16 of the statement of Mr Bellears that this industrial action has caused serious disruption. There are three vessels alongside which are currently not being worked and there are others due to come in. The stoppages are of a cavalier nature.

PN17

The union and the employees, it can only be inferred, must be conscious that they're not entitled to be taking this industrial action, but they have nonetheless proceeded to do so and one can have little confidence that further action will not occur in the future. So we say that an order for a period of six months is appropriate to address each of those matters. But they're the brief factual matters that I raise at the outset, and if I need to I will call Mr Bellears to give his evidence. But perhaps for the moment it's unclear whether this application is opposed.

PN18

THE VICE PRESIDENT: Yes. No, thank you, Mr Perry. I think that gives us all a good understanding of the nature of the application and the nature of the case you intend to lead. Mr Burns can I ask what the MUA's position is in general terms in relation to the application?

PN19

MR BURNS: In general terms, well for a start I need to get some instructions on this material. There are issues in relation to the content of the affidavit. Generally the union's position is that the course of conduct has been brought on by the behaviour of the employer. I want to get some instructions on this affidavit itself and if I could just have 10 minutes or five minutes just to go through this please before I outline - - -

PN20

THE VICE PRESIDENT: It would appear to be a narrow issue that I have to determine in response to the application; whether industrial action is happening. It's alleged that industrial action is occurring as we speak. Do you have any instructions on that position or any position of the MUA in relation to current industrial action?

PN21

MR BURNS: I can say that the current position is that the workers are not working.

PN22

THE VICE PRESIDENT: Yes.

PN23

MR BURNS: If that is the answer you're seeking.

PN24

THE VICE PRESIDENT: Yes. So you're seeking five minutes or so to get instructions further and to determine your position in relation to the application?

PN25

MR BURNS: Yes.

PN26

THE VICE PRESIDENT: Very well. Yes, I think from what has been alleged and the evidence that's foreshadowed, I think it would be appropriate for you to, as I said, have regard to the narrow issue that I need to determine. It would appear that the application, given that industrial action is currently occurring and is conceded that it is occurring, there's an obvious urgency to a determination of the matter. Perhaps I'll give you that five minutes and hear from you at that time.

PN27

MR BURNS: Yes.

PN28

THE VICE PRESIDENT: We'll adjourn for five minutes.

<SHORT ADJOURNMENT [9.22AM]
<RESUMED [9.38AM]

PN29

THE VICE PRESIDENT: Mr Burns?

PN30

MR BURNS: Your Honour, we have a situation where although we don't contest the fact that there is action taking place currently, the version of events as described in the material provided to us is contested.

PN31

THE VICE PRESIDENT: Sorry, what did you say about the existence of industrial action at the moment?

PN32

MR BURNS: It's conceded that there is industrial action - - -

PN33

THE VICE PRESIDENT: Concedes?

PN34

MR BURNS: Yes.

PN35

THE VICE PRESIDENT: Yes.

PN36

MR BURNS: But the version of events as put in the affidavit of Mr Bellears is contested.

PN37

THE VICE PRESIDENT: Yes.

PN38

MR BURNS: And the matter and the nature of the employer's conduct, which the union says has given rise to the reaction of the workforce, is relevant in deciding the nature of the order to be made. The union opposes the six months order absolutely.

PN39

THE VICE PRESIDENT: Well, Mr Burns, why wouldn't I adopt the course, in the light of your concession, of making an order now and listing the matter for report back and further argument as to the terms of the ongoing order at 2.30 this afternoon? And confine the order that I would make now to 24 hours, and enable you to run the arguments that you wish to make as to the terms of any ongoing order and otherwise report back on the situation at that time.

PN40

MR BURNS: Yes, your Honour. Yes we accept that.

PN41

THE VICE PRESIDENT: Have you any objection to that course, Mr Perry?

PN42

MR PERRY: Could I suggest a different course, your Honour? The concession that industrial action is happening having been made, I don't need to call evidence. So to the extent that there is anything controversial in that evidence, that issue falls to one side because of the concession which has been made. The concession having been made, the requirements of the section are established and an order should issue.

PN43

If there is a question about the duration of the order that's a very short point that I'm happy to deal with now, and in a very short compass. But there seems to me to be little more to be said if a further hearing is to take place, and we would respectfully submit to your Honour that a final order should issue, the concession that industrial action is happening having been made.

PN44

THE VICE PRESIDENT: Yes, well nevertheless I do wish to provide the MUA with an opportunity to raise whatever arguments it wishes to raise concerning the terms of the order and the length of the order. The parties are free to have discussions in the interim period about those matters to see whether an agreement should be made, or can be made. But I'd be disposed to follow the course that I foreshadowed, Mr Perry.

PN45

MR PERRY: If it please your Honour.

PN46

THE VICE PRESIDENT: Obviously the operations of your client are important operations and any disruption is highly damaging. I think that an order should issue without delay, but also the union should have an opportunity to make submissions as to the terms of a final and ongoing order, and a proper opportunity to make those submissions later today. So I will make that order with a 24 hour operation and adjourn this matter till 2.30 this afternoon.

PN47

MR PERRY: If it please your Honour.

<ADJOURNED UNTIL 2.30PM [9.43AM]
<RESUMED [2.36PM]

PN48

THE VICE PRESIDENT: Mr Perry where are things up to?

PN49

MR PERRY: Where things are up to, your Honour, is that shortly after your Honour's order was made earlier this morning work has resumed and is currently being performed. So I'm not in a position to say that industrial action is happening however what we do seek, your Honour, is that the order be extended for a period of six months. We do so on the basis that - and I will go into evidence on this, your Honour - that industrial action continues to be probable, if not threatened or impending.

PN50

On that basis and in particular given that, in our respectful submission, your Honour can have no confidence that industrial action will not occur again in the foreseeable future, an order should be made which covers a period of time to enable things to calm down as it were on the site. The dispute which has seemed to have precipitated the industrial action is very much a live one and on the basis of evidence that I intend to call, your Honour, we say that industrial action is probable and that an extension of the order is appropriate in the circumstances.

PN51

THE VICE PRESIDENT: It seems like a very lengthy period. Do you say that the issue that gave rise to the industrial action is going to be a live one for that period?

PN52

MR PERRY: It may well be, your Honour. The issues involve the dismissal of some three employees. There is a dispute about those dismissals. There is a notification of a dispute which has already been lodged by the union and there may be other proceedings. I'm not able to indicate what they may be at the moment but from the company's perspective there's life in the dispute. Having regard to a range of other discretionary considerations upon which I wanted to lead some evidence, we say that a lengthy period is appropriate and an efficient use of the Tribunal's time.

PN53

THE VICE PRESIDENT: You say you wish to lead evidence?

PN54

MR PERRY: Yes I do, your Honour, in the absence of there being consent to an extension of the order. Your Honour of course has an obligation to make an order on making the findings that your Honour made this morning, but the duration of the stop period is of course a discretionary matter, and the evidence that I would wish to call is in the statement of Mr Bellears, which I handed up to your Honour this morning. That evidence deals with the pattern of the action which has occurred, threats of other action, the fact that there is a dispute which remains alive and on foot and the fact that the industrial action is having serious consequences for the company and other third parties.

PN55

I'd also be asking your Honour to take into account a range of other orders which it has been necessary for the Tribunal to make against this union in relation to unprotected action in other recent respects. That they would be in the broad the discretionary considerations, and based upon those we would ask your Honour to make the order in the terms sought.

PN56

THE VICE PRESIDENT: Yes. Well, Mr Burns, are you able to outline briefly your position in relation to the orders?

PN57

MR BURNS: In our submission the order that has been made this morning has done its job. We don't believe that there should be any extension of the order. It's unnecessary. To extend the order in fact would basically give a green light to the employer's conduct here. The union has a concern that there's a pattern of behaviour by the employer, particularly coming up to Christmas. This isn't a situation that arose out of proactivity - proactive - that it was something that the union started.

PN58

This was some issues that arose about terminations of employees for relatively minor issues or one who was sick, in the week before Christmas. No need to do that. Industrial pressure being engaged on the employees has led to this, from the company, and it seems to be a pattern of behaviour by the company across other areas as well. We don't believe that a granting of a six month order would really do anything except say to the company, "You've got carte blanche to do whatever you want to the employees". We would welcome going into evidence against Mr Bellears to ask some questions, because this isn't all one way.

PN59

This was an issue that arose out of employer conduct and it was a reaction. However - and even as the evidence discloses in one of the paragraphs, that the union was seeking 24 hours to investigate a particular set of circumstances and that wasn't forthcoming. The squeeze put on by this employer has led to this, and really the matter has been dealt with. They've gone back to work. The matter has been put into dispute. It's back before your Honour tomorrow so your Honour can have a further handle on the matters going forward.

PN60

That's the appropriate mechanism for which the Tribunal can be ensured that this matter has been controlled. So obviously they're poles apart, the position of the union and the employer, but in the union's view the matter has been - well, the initial matter has been dealt with. There is no need to go further and the appropriate mechanism is to use the dispute resolution process before your Honour which commences tomorrow.

PN61

THE VICE PRESIDENT: Thank you Mr Burns. Well unless that submission has persuaded you, Mr Perry, I think you need to call your evidence.

PN62

MR PERRY: Yes. Yes, well I call Mark Bellears, your Honour.

PN63

THE VICE PRESIDENT: Yes.

<MARK HOWARD BELLEARS, SWORN [2.44PM]
<EXAMINATION-IN-CHIEF BY MR PERRY [2.44PM]

PN64

MR PERRY: Mr Bellears, could you indicate your position with DP World?
---My position is general manager DP World Port Botany.

PN65

Thank you, and for the purposes of today's proceedings, Mr Bellears, have you caused to have a statement prepared?---I have had a statement prepared.

PN66

Do you have that statement with you?---I do.

PN67

Can I take you to paragraph 7A of your statement, Mr Bellears?---Yes.

PN68

Is there anything you'd like to say to clarify that paragraph?---Yes, I think I would like to add the fact that the termination of Mr Wills was decided after consideration of a few points. One is discussion with Mr Wills, with Mr McAleer present, and secondly a medical report provided by the specialists should be added to that paragraph.

PN69

Thank you Mr Bellears, and with that clarification are the contents of your statement true and correct?---The contents of the statement are true and correct.

PN70

I tender the statement, your Honour.

PN71

THE VICE PRESIDENT: The statement of Mark Howard Bellears dated 19 December and the annexures thereto will be exhibit P1.

EXHIBIT #P1 WITNESS STATEMENT OF MARK HOWARD BELLEARS DATED 19/12/2012 WITH ANNEXURES

PN72

MR PERRY: Thank you, your Honour.

PN73

Could I take you to paragraph 16 of your statement, Mr Bellears?---Yes.

**** MARK HOWARD BELLEARS XN MR PERRY
PN74

You say there that, "The length of the delay will have flow on impact on all Australian ports"?---That is correct.

PN75

What will that impact be?---Vessels delayed at my terminal at Port Botany proceed from there to other Australian ports. So any delays at the terminal at Port Botany, they are all slotted into windows so any delays at the terminal at Port Botany delay the window arrival at the next port. So there is a flow on effect from that, and also as they tend to book positions overseas. An example, a slotting time through the Panama Canal. Again those times are put in jeopardy by delays at Port Botany terminal. So the other terminals lose both - or potentially lose both productivity time and berth window arrival times.

PN76

Is there any financial consequences of that, Mr Bellears?---Financial consequences are quite considerable both at my terminal and other terminals. They range from commercial penalties from the shipping companies to landside commercial penalties by the Sydney Ports Corporation. There are or there will be claims from the shipping companies for additional charges to speed up, to try and cut back some of the lost time. There will be claims on a commercial basis for storage, late receivals, running of reefers, and those same costs will flow on to other ports. And of course there'll be additional costs in labour to stevedore those vessels now that we're back at work.

PN77

Thank you.

PN78

Nothing further, your Honour.

PN79

THE VICE PRESIDENT: Mr Burns?

PN80

MR BURNS: Thank you.

**** MARK HOWARD BELLEARS XN MR PERRY

<CROSS-EXAMINATION BY MR BURNS [2.48PM]

PN81

MR BURNS: Mr Bellears, so if I can take you to paragraph 7A which you were earlier referred to. So you've agreed that at that meeting no decision had yet been made?---The decision was made at the meeting.

PN82

The decision was made at the meeting?---After hearing the case. Yes.

PN83

So what decision was actually made?---The decision was made to terminate the gentleman.

PN84

So are you aware that - if I put it to you that the word termination was never mentioned during the meeting would you be aware of that?---I think I am because at the end of the day the other parties left the meeting before the meeting had concluded and my people I am advised followed the other parties to the corridor. They did not want to return to the meeting so the word termination was used in that discussion outside of that office.

PN85

If I put it to you that that's not correct would you be able to respond to that?---I believe it is correct.

PN86

Do you have a - now Mr Wills was invited to this meeting?---Yes.

PN87

He received a letter?---I'm not sure on how the invitation was communicated to Mr Wills.

PN88

Do you have a usual practice of communicating with employees to attend these sorts of meetings?---Yes we do.

PN89

So you're not aware if there was a letter or not?---The practice is either by email, by letter or by phone call.

**** MARK HOWARD BELLEARS XX MR BURNS
PN90

If I told you that a letter was sent and that that letter did not refer to the termination of Mr Wills's employment would that surprise you?---No, the letter would have been under the guise of attending for a meeting to discuss the relevant issues. It would not be right to terminate the guy without hearing his side of the case.

So at the meeting on 18 December are you aware of what Mr Wills said in relation to his future?---No. I was not personally at the meeting.

PN91

Are you aware what said to him about his future by other people in the meeting?
---No.

PN92

And you're saying the decision to terminate his employment was not made prior to that meeting?---Correct.

PN93

Had you seen a medical report?---At that stage no.

PN94

You hadn't seen one?---No.

PN95

Are you aware that the company had received one?---I was aware the company had received one, yes.

PN96

MR PERRY: Your Honour, I haven't interrupted my friend out of courtesy to date but in my submission this line of questioning really goes nowhere. It seems to seek to elicit information about the circumstances in which this employee was terminated. The fact is that industrial action was taken and the evidence of the dismissal of the employee is simply there to provide context for perhaps the precursor to that industrial action. I rather apprehend here that we're starting to commence an unfair dismissal arbitration maybe, and am just conscious of the relevance of that line of inquiry in the context of a section 418 application. I just wanted to make that objection at this stage so that we don't have large amounts of irrelevant cross-examination. If it please your Honour.

**** MARK HOWARD BELLEARS XX MR BURNS
PN97

THE VICE PRESIDENT: Yes, I tend to - - -

PN98

MR BURNS: Well I'll - - -

PN99

THE VICE PRESIDENT: Are you going to - - -

PN100

MR BURNS: I'll move it forward, your Honour.

PN101

THE VICE PRESIDENT: You'll move forward. Thank you.

PN102

MR BURNS: So the union's position - would it surprise you that going forward at that meeting, at the conclusion of that meeting - well, for the union's part of that meeting, the union wasn't aware - Mr Wills and Mr McAleer were not aware that the meeting was related to a decision to terminate Mr - - -?---At what stage?

PN103

After the meeting?---They were the ones who walked out of the meeting. Before the meeting concluded they had walked out of it. My people followed them to make the outcome quite clear.

PN104

Now prior to the conclusion of the meeting there was a discussion between Ms Sita and Mr McAleer regarding Mr - I withdraw that. The debate became heated during the meeting, you're aware of that?---I was advised that was the case. Yes.

PN105

And there was - in your statement you say at paragraph 7A that Mr McAleer - regarding an expression by Mr McAleer regarding closing the site, yes?---Sorry, your point?

PN106

My point is that if I put it to you that those words said by Mr McAleer did not relate to Mr Wills or any termination or decision relating to Mr Wills, would you be aware of that?---No I wouldn't. That comment was transferred to me via my people.

**** MARK HOWARD BELLEARS XX MR BURNS
PN107

Was it ever told to you that that comment, if it occurred, may have been made after Ms Sita referred to Mr McAleer's care about members' safety generally?
---I'm unaware of any of those comments.

PN108

You've been unaware?---Of that comment, for sure.

PN109

If I can take you to your paragraph E on page 3?---Paragraph?

PN110

E of paragraph 17 I believe?---Yes.

PN111

Now in relation to the conversation there you say that that's a correct version of your conversation that you had with Mr McAleer?---The conversation was in general in that office. Yes.

PN112

If I put it to you that a better contextualisation of this conversation is that at paragraph 3 - sorry, at the third line in paragraph E, the third line of conversation, that it was you who said, after initially saying, "The worker's returning to work" and Mr McAleer saying, "That's what we're meeting about"; that it was you who said words to the effect that, "The workers are off the payroll"?---I've stated here that I've asked the - for "The troops to return to work or they will be stood down and off pay".

PN113

If I put it to you that it wasn't a question that you posed there; you advised at that particular time that the workers were already off the payroll?---That's not in the context of the question. It's a statement.

PN114

I'm putting it to you that that's what you said?---I state - - -

PN115

MR PERRY: I'm not entirely sure what's being put and I'd ask that the question be rephrased.

**** MARK HOWARD BELLEARS XX MR BURNS
PN116

MR BURNS: I'm putting to you that what you said at that meeting, what you told Mr McAleer at that meeting was at the time words to the effect that the members were off the payroll then?---Mr McAleer, Mr Keating, my Mr Bilston and Jason Webb were in Mr Bilston's office. I walked in. I asked, "Are the troops returning to work?" Mr McAleer said, "That's what this meeting's about". My comment was, "The troops need to return to work whilst the meeting takes place or they're off the payroll".

PN117

I'm putting to you that's not what you said?---Well, as far as I can recall that is true and accurate as to what I've stated.

PN118

I'm putting to you that what really occurred was you advised Mr McAleer and Mr Keating at that time that the workers were off the payroll, to which they responded words to the effect that they'll have to inform the workforce?---They certainly did respond by saying, "That's it then. We are off pay. I will inform the workforce". They responded to that.

PN119

In response to your advice that the members were already off the payroll?
---The - that they hadn't returned to work, they would be off the payroll.

PN120

Yes, there's obviously a difference of opinion?---So there's - it's semantics. There's connotations to it, yes.

PN121

Yes, so at that point in time the workers could have returned to work and not been docked pay?---Potentially.

PN122

Potentially? So a decision hadn't been made then?---Not in its entirety. No.

PN123

But you didn't make that clear?---I thought I've made it clear, "The troops need to return to work while the meeting takes place or they will be stood down and off pay". If I didn't make that clear then why did I get a response, "Then that is it. We're off pay"?

**** MARK HOWARD BELLEARS XX MR BURNS
PN124

Well it's a pretty - if I put it to you it was a pretty significant thing to be a bit ambiguous about, given the consequences of what occurred; would you agree with that?---No, I don't think it was ambiguous at all. Everybody knew the consequence of not returning to work at the appropriate time.

PN125

Is that similar to everyone at the meeting earlier that day knowing that it was about a termination of employment when termination was never mentioned?

PN126

MR PERRY: I object to that question, your Honour. What's the relevance of it?

PN127

THE VICE PRESIDENT: I'm not too sure that's a clear enough question, Mr Burns.

PN128

MR BURNS: I'll move on.

PN129

Now if I can take you to your paragraph 7H at paragraph 4?---Seven H?

PN130

Sorry, 7H at page 4?---Correct.

PN131

Where there's some text that you talk about regarding docking a minimum of four hours' pay. Now I want to ask you about a worker asking you again - were you asked by any of the workers what would happen if they returned to work now, would they get paid the four hours or otherwise; would they get paid for the time they worked?---No I was not asked that question.

PN132

You were not. If I put it to you that you were asked, "If we return to work now will be on the payroll?" and you answered, "No"; do you recall that conversation?
---I recall an employee asking or making - asking me to be clear were they off the payroll - and I can name the employee - off the payroll for four hours because of some connotations he'd had earlier. The answer to that clearly is they are off the payroll for four hours because under legislation that's the minimum available, and also it's illegal to ask to be put back on the payroll as I understand to it.

**** MARK HOWARD BELLEARS XX MR BURNS
PN133

Now in relation to paragraph I where there's another conversation there and you asked Mr McAleer what it's about?---Correct.

PN134

I put it to you that you refer to the matter of Mr McAleer saying, "It's in relation to the termination of Darren Wills". I put it to you that you did not say that - sorry, Mr McAleer didn't say that, he didn't refer to the termination of Mr Wills?---Well he did and as Mr McAleer and I were having conversations at that particular time there were some half a dozen - eight other parties around and that's the notes that were taken.

PN135

I put it to you that the nature of the conversation related to processes being followed, not in relation to the termination but generally in relation to the treatment of this particular employee, another employee who had been terminated earlier in the week and the processes about which the company dealt with these issues?---Correct.

PN136

Particularly in the period coming up to Christmas?---Correct.

PN137

And the need for the company to deal with these issues right at that time?---That was certainly questioned. Yes.

PN138

But I put it to you that at page 5, again in paragraph I, at the end there are three lines of conversation - I put it to you that what is said there just didn't occur at that point?---Sorry, I don't have I on page 5.

PN139

No, if you go back to page 4 you've got paragraph I?---Yes.

PN140

And then turn over the page with the continuation, where the conversation continues at the top of page 5?---Yes.

**** MARK HOWARD BELLEARS XX MR BURNS
PN141

That particular part of the conversation didn't take place?---As I said, there were eight-odd other parties privy to that conversation and that was the notes that were taken of that conversation.

PN142

If I can take you down to paragraph O?---Yes.

PN143

Again that on paragraph O line 4 there's a referral to terminate. I put it to you again that termination wasn't the issue in relation to both employees because - well, that it was simply that DP World would withdraw its decisions in relation to the two employees, the termination again wasn't mentioned?---Referring to paragraph O page 5?

PN144

Yes?---Again in that meeting there were some eight people, two of my staff taking notes and that is reflected in the notes they took.

PN145

If I take you forward to sub paragraph R on page 6 there is some reference to checking income protection in your conversation. Now at this point I put it to you that you were asked by Mr McAleer to delay any decisions for a period of 24 hours to allow some investigations to be made?---I think that's correct, yes.

PN146

And I put it to you Mr McAleer expressed that he had difficulty understanding what the company intended to do with Mr Wills?---That would be incorrect because I myself spoke to him earlier on and made it very, very clear Mr Wills was terminated and so had my operations manager post the meeting in the morning. So if he asked, it would be a reiteration.

PN147

I put it to you that's just not true?---Well I dispute what you're saying.

PN148

And when Mr McAleer asked regarding Mr Wills, "Please tell me what he's done wrong" - - -

**** MARK HOWARD BELLEARS XX MR BURNS
PN149

MR PERRY: Your Honour can I make the same objection I made earlier in my friend's cross-examination. We seem again to be straying into the merits or otherwise of the treatment of this particular employee, which is a matter which doesn't arise in this application and I do object to this line of questioning.

PN150

MR BURNS: Your Honour, this is a line of industrial pressure that the company is exerting on its staff members that has resulted in meetings. I'm leading evidence or cross-examining on the nature of conversations that occurred, the confusions that occurred, the request for a time to consider by the union, the inadequacy of the response, the lack of clarity of the response. Obviously these issues lead to confusion in the minds of the workforce as to what's going wrong. But nevertheless I will move on.

PN151

Because if I can take you to sub paragraph T on page 7?---Yes.

PN152

Again there is a reference there in paragraph T to Mr Bilston saying to you that, "The proposal they are seeking is that you delay" - well, Mr Bilston says, "the termination for 24 hours while they investigate the income protection insurers"?
---Yes.

PN153

And you agree that that's consistent with the conversation that Mr McAleer had had with you about Mr Wills?---Yes.

PN154

So was the decision made to proceed with the termination of these people at Christmas time made for any particular reason?---No. We had - we have an absenteeism problem at Port Botany which is of no great secret to everybody and we have a process that we're following to address that costly and inappropriate situation. Christmas, unfortunately nothing to do with it.

PN155

But you're aware that there's a fair - well, are you aware of the time that termination was first stated in relation to Mr Wills - referred to, that the termination of employment was - - -

**** MARK HOWARD BELLEARS XX MR BURNS
PN156

MR PERRY: I object again, your Honour. I fail to see the relevance of this line of questioning.

PN157

MR BURNS: I've just got instructions and I'm going to put this. If I can take you to paragraph U, I'm putting it to you that at paragraph U in that conversation there with McAleer, that Mr McAleer asked you at that time about why that was the first occasion that you'd mentioned termination to him?---Can you be more clear please? At what time?

PN158

I'm putting to you that in paragraph U, in the conversation at paragraph U, you say, "I recall a conversation to the following effect"?---Correct.

PN159

I'm putting to you - - -?---Mr Gardiner, Mr Bell, Mr McAleer and Mr Keating came in to Brendan's office - I was there - and sat down. Correct.

PN160

I'm putting it to you that Mr McAleer asked you at that time why that was the first time that the word termination had been mentioned?--- I'm putting to you that Mr McAleer never spoke in that meeting. That Mr Gardiner spoke in that meeting and it was along the lines of, "Is there anything we can do about today's termination? Are you prepared to bend?" I said, "No" and there was a comment made between two of the parties and they got up and left. No other conversation took place in that room.

PN161

All right. Now the workers have gone back to work immediately this morning?
---No they didn't.

PN162

Are you aware of that?---No, they went back to work at 10.30.

PN163

They went back as soon as his Honour gave the order in this court?---They went back to work at 10.30 this morning.

**** MARK HOWARD BELLEARS XX MR BURNS
PN164

At or about the time, and they've been working ever since?---As far as I'm aware. Yes.

PN165

No further questions, your Honour.

PN166

THE VICE PRESIDENT: Mr Perry?

PN167

MR PERRY: Thank you, your Honour. A couple of brief things in re-examination.

<RE-EXAMINATION BY MR PERRY [3.16PM]

PN168

MR PERRY: Mr Bellears, my friend asked you some questions about paragraph 7E of your statement which is on page 3?---Seven E?

PN169

Yes?---Yes.

PN170

And can I ask you to indicate to his Honour at the time of the conversation which you refer to there, were the employees performing work at the time of that conversation?---No they were not. They were all in the canteen area having conversations. There was no work being performed.

PN171

Thank you. Can I take you now to paragraph 7O of your statement?---Seven O?

PN172

Where you refer to a meeting in the training room?---Yes.

PN173

And you gave some evidence about that meeting and you mentioned that there were notes of that meeting?---Correct.

PN174

Can I just show you a document and just ask you whether those are notes of the meeting you refer to?---They are the notes taken at that meeting.

**** MARK HOWARD BELLEARS RXN MR PERRY
PN175

You'll recall my friend asked you in his cross-examination - I withdraw that. My friend put to you that there was no mention of termination in that meeting; do you recall his question?---He did mention that. Yes.

PN176

Yes. Could I just ask you on the first page of those notes about a third of the way down the page whether there's any reference in those notes to a termination decision?---There is.

PN177

And that's consistent with your recollection of what was said in the meeting by you?---It is consistent with my recollection and my statement.

PN178

If I could ask you to just go to the end of the document and the second-last comment by BB; who is BB?---B who?

PN179

BB?---Brendan Bilston, my operations manager.

PN180

And he refers to a termination there?---Correct.

PN181

And are the words that are attributed to him by this document accurate to the best of your recollection?---They are accurate.

PN182

I tender this document, your Honour.

PN183

THE VICE PRESIDENT: I'll mark that document exhibit P2.

EXHIBIT #P2 NOTES OF MEETING HELD ON 18/12/2012

PN184

MR PERRY: There's nothing further, your Honour.

PN185

THE VICE PRESIDENT: Yes, thank you for your evidence Mr Bellears. You can step down.

**** MARK HOWARD BELLEARS RXN MR PERRY

<THE WITNESS WITHDREW [3.20PM]

PN186

THE VICE PRESIDENT: Do you wish to call any other evidence, Mr Perry?

PN187

MR PERRY: No, that's the case, your Honour.

PN188

THE VICE PRESIDENT: Do you wish to call any evidence, Mr Burns?

PN189

MR BURNS: No, your Honour.

PN190

THE VICE PRESIDENT: Is it convenient to move to submissions, Mr Perry?

PN191

MR PERRY: Yes, your Honour. Given the time of the afternoon I'll be as brief as possible. Can I just deal first of all with the evidence which your Honour has just received. We submit that the evidence should be accepted in its entirety. My friend had an opportunity to call responsive evidence. He has Mr McAleer in court here with him and he has elected to not do so. One should therefore infer that the evidence Mr McAleer could have given would not be helpful to the union's case.

PN192

In any event in my submission the evidence given by Mr Bellears was truthful and should be accepted by your Honour. We would encourage your Honour to make findings of fact to the extent necessary which is consistent with that evidence. Your Honour, the issue which I wish to address your Honour on is what the relevant stop period should be for the order which has been made this morning. As I indicated to your Honour earlier this is a discretionary matter for your Honour and in exercising that discretion there are a range of factors which in my respectful submission your Honour would have regard to.

**** MARK HOWARD BELLEARS RXN MR PERRY
PN193

Before I go to each of those factors and the evidence which is supportive of them can I just put the basic proposition; the basic proposition is this, that your Honour can have no confidence that in light of what has occurred in recent days and in recent months that there will not be further instances of unprotected industrial action. My friend's line of cross-examination was indicative of the very cavalier approach taken by this union to industrial action. The suggestion seemed to be that there was some misunderstanding or lack of clarity about the position with Mr Wills and that as a result that somehow justified the union organising for stoppages of work during the life of an enterprise agreement; and we say that that's a matter to which your Honour can have regard.

PN194

Can I move now to the particular factors which in my submission are to be taken into account in an exercise of discretion. The first of those, your Honour, is that the industrial action was clear and unambiguous and the occurrence of it was conceded by the Maritime Union in proceedings before your Honour this morning. There are no grey areas. The stoppages of work were deliberate. They were pre-meditated and it was conduct of a kind which the union and the employees must have been aware was unlawful, but they proceeded with it nonetheless.

PN195

All the order really requires the union to do, your Honour, is to act in a lawful manner by not taking unprotected industrial action. We say it's not a heavy burden in those circumstances. That's the first factor. The second factor, your Honour, is to have regard to the pattern of the industrial action which has been taken, when one considers the likelihood of further industrial action. So what we have is stoppages which have occurred on 18 December and again today. On the day shift on 18 December there was a stoppage from 10.30 to 2 pm and I can refer your Honour to paragraphs C to K inclusive of Mr Bellears's statement in that regard.

PN196

On the evening shift there was a stoppage of work from 6.40 pm to 10 pm and I can refer you to paragraphs 7R to V of Mr Bellears's statement in that regard. On the night shift there was a stoppage of work from two to 6 am and I can refer you in that regard, your Honour, to paragraph 7W of Mr Bellears's statement. Then this morning, your Honour, the day shift did not work from the commencement at 6 am and work was resumed at about 10.30 am, as your Honour just heard from Mr Bellears in his oral evidence.

PN197

Your Honour will observe from the evidence that each of those four stoppages occurred after a visit to the site by an official of the Maritime Union and following discussions with members. So there's a series of stoppages which were a result of intervention by the union on the site and of the pattern of conduct which is established. So that's the second factor, your Honour. The third factor which your Honour is entitled to have regard to is in addition to the industrial action which has occurred there have been a range of other threats of industrial action.

PN198

Those were made by Mr McAleer on behalf of the Maritime Union in the context of other dismissals, and those occurred on 29 October, 14 December and 17 December. Your Honour will see those threats referred to in paragraphs 9 through to 11 of the statement of Mr Bellears, which were uncontested in cross-examination. So your Honour has a pattern of actual stoppages and also a pattern of other threats of stoppages which are connected with site issues such as the dismissal of an employee.

PN199

The fourth factor which your Honour should have regard to in exercising your discretion is that the underlying dispute which has triggered, it would seem, the industrial action remains unresolved and ongoing. The position of the union is that the employees should be reinstated and the position of the company is that it's not prepared to do this. Now the rightness or wrongness of each party's position can be tested in due course but this is not the place for that test.

PN200

We simply make the point that the dispute remains on foot, it is unresolved, and can I refer you in that regard to paragraph 7I, O, T and U of the statement of Mr Bellears which makes that proposition good. It's probably a self-evident proposition but I refer your Honour to those parts of the evidence. So we have a dispute. The evidence shows there is a high degree of hostility between the parties about that dispute, and the submission we make is that there is a very real risk that that dispute will continue and manifest itself in further occurrences of the kind we've seen in the last few days.

PN201

So that's the fourth matter, your Honour. The fifth matter which your Honour may have regard to in exercising your discretion is the serious consequences of the action which has been taken. If I can refer to paragraphs 12 to 16 of the statement of Mr Bellears and the oral evidence he gave in chief a little earlier this afternoon. The position we have is that there are three vessels alongside. There have been delays in stevedoring those vessels. There are other vessels that are due in to the port.

PN202

There are delays in the vessels getting to other ports and, as Mr Bellears outlined to your Honour this afternoon, there are serious financial implications for the company of the delay which has been caused by this industrial action, and that is a matter to which significant weight should be attached, in my respectful submission. The sixth factor, your Honour, is that this is not an isolated or unprecedented thing for this union to do. The taking of unprotected action by the Maritime Union of Australia members has unfortunately been a not uncommon occurrence in recent times, and can I refer your Honour to two recent section 418 orders that have been made, both made by your Honour.

PN203

The first was on 10 March 2012 in print number 521041 where there was a stoppage of work in relation to a ban placed on a vessel which had sailed in from Auckland, and orders were made by your Honour in respect of which enforcement proceedings in the Federal Court became necessary. The second is an order made in respect of Fremantle on 2 April 2012, which is print 521937. So your Honour is entitled to have regard to the propensity for this respondent union to engage in further action of this kind.

PN204

The final factor, your Honour, which I wish to advance in the exercise of your discretion is the undesirability of multiplicity of proceedings. Your Honour, if an order is not made that extends for a period of time, given the high likelihood, in our submission, of further industrial action it will be necessary for a new application to be brought back before the Tribunal and dealt with. Logistically that's obviously an undesirable thing at this time of the year, your Honour, with the resources of the Tribunal not being as fulsome as they may otherwise be, and also a resourcing difficulty for the company as well.

PN205

But perhaps the most important aspect of the undesirability of multiple proceedings, your Honour, is that before an application can be brought before the Tribunal and dealt with, the damage is done in a sense. What has happened today is, despite the application being dealt with by the Tribunal in the most expeditious fashion possible, there were stoppages of work which were not able to be avoided and those come at a significant cost to the company.

PN206

The making of an order which operates for a period of time would provide greater protection and certainty in that regard for the company. So the result of all this, in my submission, your Honour, is what you have is you have a pattern of continued threatened and actual industrial action. It's clearly unlawful. It's clearly premeditated. There's a history of unprotected industrial action being engaged in by this union.

PN207

There's serious damage to the employer and other third parties, and what you have is this all happening in the context of a dispute which is real and one that involves a degree of hostility on site. While that dispute remains unresolved there's a very high likelihood, in my respectful submission, that further unprotected industrial action could occur. It's on that basis, your Honour, that we say that an order for a period of - well, for a long period such as six months, is appropriate in all of the circumstances, and that is the approach that we respectfully contend the Tribunal should adopt.

PN208

THE VICE PRESIDENT: Do I have material on the file as to when the application in this matter was served on the MUA?

PN209

MR PERRY: Your Honour doesn't but I can indicate that the application was served on the MUA - so the application - if I can just indicate dates, and if there's any contest about this I can provide the emails. The application was filed by email at 5.25 pm yesterday, 18 December, and a notice of listing was provided at 6.03 pm on the same day, and the relative papers were served under cover of two emails, the last one of which was 6.18 pm yesterday evening.

PN210

So while of course industrial action was in fact occurring on site at that time, and did continue until 10 pm, and then of course there was further industrial action from 2 am to 6 am this morning, and then again from 6 am until 10.30 am this morning. So certainly a significant portion of the industrial action was taken in circumstances where the union was aware of this application and the arrangements for it to be dealt with this morning.

PN211

THE VICE PRESIDENT: Do you have instructions as to when the notices were posted on notice boards in accordance with paragraph 1(b) of the order for substituted service?

PN212

MR PERRY: Yes, if your Honour could just give me one moment?

PN213

THE VICE PRESIDENT: Yes.

PN214

MR PERRY: I'm instructed at around about the time Mr Bellears left site at about 7.30 last night.

PN215

THE VICE PRESIDENT: Yes, thank you Mr Perry. Mr Burns?

PN216

MR BURNS: Your Honour, the union's position is obviously contrary to the company's. The union cross-examined Mr Bellears. Mr Bellears wasn't present for the meetings in which the dialogue between the union and the company people took place. The manner in whether the union's position is - the manner in which the company conducted itself through the course of the day was the incendiary effect, and that Mr Bellears when cross-examined as to the ambiguity of the timing of when the workers were trying to understand whether they were on the payroll or not, he didn't believe that that was something he needed to clarify.

PN217

Now the effect is that throughout - there was - in situations leading up to the Christmas period if a company is going to place pressure on its employees and act in an aggressive and ambiguous way then it's going to potentially get a reaction that it's seeking. So we don't believe that the employer in this situation deserves to benefit from that, from its own conduct. The union was seeking time to resolve the matter, 24 hours to examine issues. There was no quarter given by the company in relation to the issues that were being raised, and in the end what happened.

PN218

THE VICE PRESIDENT: Are you suggesting that the industrial action was a proportionate response to the actions of the company?

PN219

MR BURNS: Well the members didn't realise at the time that they were actually taking industrial action. That was a decision - it was easy for - the company could have sent them back to work. Which was the company in - while the workers were trying to understand what was going on. It was the company's decision to impose over the top of that - to withdraw them from the payroll. So that was a move made by the company in circumstances of confusion and from there on there was a domino effect it appears.

PN220

But since then dispute notices have been filed in the Commission where the Commission - or the Tribunal for the present will have some control of the matter going forward. The order has been made. It has been instantly complied with and the Tribunal can be satisfied the directions this morning of his Honour to notify the delegates has - the members, has been complied with. The issues have resided. I would suggest that there is no further requirement to extend any orders. The order has been made. It has had its effect. It hasn't been breached and the matter should be left there. Your Honour.

PN221

THE VICE PRESIDENT: Thank you Mr Burns. Anything in reply, Mr Perry?

PN222

MR PERRY: A couple of very brief matters, your Honour. First of all I made the point in my initial address that my friend chose not to call evidence so it's difficult for him to dispute conversations that occurred. But one recurrent theme which I will deal with is this suggestion that it was the company who told the employees they were off the payroll. The fact was when those conversations occurred the employees were not working and Mr Bellears, conscious of his obligations under the Fair Work Act to not pay employees for at least four hours if they were engaging in industrial action, made the entirely appropriate and proper response which was, "Well no, you're not on the payroll" or whatever the words are in the statement; because it would have been unlawful for the company to pay those employees, them being engaging in industrial action at the time those conversations occurred; so an entirely unexceptional position for the company to take, your Honour.

PN223

My friend needs to be careful what he says in open court, as it were, about the request his members made about being on the payroll, having regard to the sections of the Fair Work Act that prohibit requests of that kind. That may be a matter for another place and another time. But it's an important distinction to make, your Honour, that at the time the requests for being on the payroll were made the employees were not working and they were engaging in unprotected industrial action, and it was not open to the company to put them on the payroll because that would have contravened the Fair Work Act. So I just make that point, your Honour. Otherwise I - - -

PN224

THE VICE PRESIDENT: You say that it's clear on the evidence that the stoppage of work was not condoned, or the meeting was not agreed to be an authorised communication meeting or anything of that nature, such as might suggest that the stoppage was not at the time of the initial meeting industrial action.

PN225

MR PERRY: Well if I can perhaps just take your Honour to the evidence that is on the record. In paragraph 7C of his statement Mr Bellears says that at 10.30 he noticed that the day shift stevedores had not returned to work following the conclusion of their meal break. So he then endeavoured to locate Mr Bilston. Mr Bilston was in the meeting which was then dealt with in paragraph 7E and that is when the conversation took place. There is no evidence to suggest that the employer in any way condoned that stoppage of work.

PN226

My friend has called no evidence to that effect and there's certainly no suggestion from the evidence led by the company that there was any approval or condonation for that stoppage of work. We would submit that that's not a finding which is open to the Tribunal in respect of that particular issue. There were of course, your Honour, subsequent stoppages of work where the same difficulty, as it were, does not arise. That evidence I've just taken your Honour to was for the first stoppage on 18 December. There are subsequent stoppages where it's quite clear that the company is saying the action is unprotected, it's illegal.

PN227

If your Honour looks at the evidence in paragraph 7H of Mr Bellears's statement there's an example of that, and there are others. So it's clear, your Honour, that what the company was saying, in my respectful submission, is that the stoppage was not authorised and that as a result of that it was unprotected action, and the company when it was saying the employees were not on the payroll was simply indicating its position as to what it regarded its legal obligations to be in respect of non payment for unprotected industrial action.

PN228

MR BURNS: Your Honour, may I just say - - -

PN229

THE VICE PRESIDENT: Yes Mr Burns.

PN230

MR BURNS: That I don't appreciate my learned friend's comments about some of the evidence that was led and some of the positions that were put, particularly in regards to the issue around whether industrial action was occurring at the beginning or not. There was confusion about that. I find it difficult to believe that a senior partner of a law firm such as Herbert Smith Freehills would say such things. Perhaps with a bit more experience in these types of cases he will see that it's actually as we know - that it is actually the employer's discretion at particular times in particular initiations of the situation that occurred as to whether to deem that a particular type of conduct is industrial action or not.

PN231

That can be his decision but in many occurrences employers may decide that it's not. In this particular situation there was dialogue, there was a smoko, there was dialogue between people - the employees. Things might have gone away. Mr Bellears himself said that the company hadn't made up its mind at that time. So I don't think that that's an appropriate submission to make, given at the beginning - ultimately in the end it may have been that there was some industrial action.

PN232

But at the beginning, as happens very, very commonly, there is confusion as to what is actually going on, and it's not inappropriate for people to ask questions about what the status currently is. Hence my submission that the employer didn't assist the situation by its ambiguity around that, and hence it is the union's position that the company shouldn't benefit from that.

PN233

THE VICE PRESIDENT: But four separate stoppages occurred here, Mr Burns.

PN234

MR BURNS: I understand. I'm just talking about the first one.

PN235

THE VICE PRESIDENT: Yes.

PN236

MR BURNS: And that it was the first one in relation to - that Mr Perry's comments were made.

PN237

THE VICE PRESIDENT: Yes.

PN238

MR BURNS: I'm just dealing with that.

PN239

THE VICE PRESIDENT: Yes, I understand. Yes, thank you Mr Burns. I can indicate my decision in relation to the outstanding matter that I reserved this morning, being the period of operation of the order.

PN240

I was satisfied this morning, based on the submissions of the parties, that industrial action was at that time happening and that there was both jurisdiction and an obligation on the Tribunal to make an order that that industrial action stop. I reserve for further consideration an opportunity for the parties to make submissions and lead evidence as to the terms of the order, and in particular the duration of the order. Evidence has been led this afternoon concerning the history of industrial action over the course of yesterday, last evening and earlier today.

PN241

It appears to me on the basis of that evidence that industrial action occurred in response to disciplinary action of an employee of DP World. I have regard to all of the circumstances contained in the evidence and summarised in the submissions before me. Of particular concern is the fact that the industrial action not only occurred in response to disciplinary action, but it occurred on successive shifts by different groups of employees following meetings conducted with the involvement of officials of the MUA. It has long been established that industrial action is not justified in response to disciplinary action of employees.

PN242

There are remedies and other available avenues to deal with disciplinary action without recourse to industrial action, and I regard the history over the last 24 hours in particular to be inconsistent with an acknowledgement of that principle. I am concerned also at the engaging in industrial action following the filing of the application that led to these proceedings, and the communication of that application to the MUA and its members. I consider that not only was the action happening at the time I made the order but, given the events over the past 24 hours, further action was impending and probable.

PN243

I consider in all of the circumstances that an order should continue for a period to adequately protect the company from the prospect of further industrial action in relation to this matter. I simply made the order for a period of 24 hours this morning to enable me to consider the duration later today. In all of the circumstances I would propose to extend the term of that order to a period of one month. I expect that with the underlying dispute being dealt with initially by conciliation before me tomorrow, and possibly with other proceedings that might be available, the underlying dispute will be dealt with.

PN244

But in terms of the general principle, the concern I have is that the MUA and its members at Port Botany have knowingly engaged in industrial action in response to disciplinary action, and the failure of the MUA in the proceedings today to renounce that behaviour does require an appropriate protection for the company and the third parties who are affected by industrial action of this nature. I will issue the amended order from my chambers at the earliest convenience and now adjourn the proceedings.

<ADJOURNED INDEFINITELY [3.52PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MARK HOWARD BELLEARS, SWORN PN64
EXAMINATION-IN-CHIEF BY MR PERRY PN64
EXHIBIT #P1 WITNESS STATEMENT OF MARK HOWARD BELLEARS DATED 19/12/2012 WITH ANNEXURES PN72
CROSS-EXAMINATION BY MR BURNS PN81
RE-EXAMINATION BY MR PERRY PN168
EXHIBIT #P2 NOTES OF MEETING HELD ON 18/12/2012 PN184
THE WITNESS WITHDREW PN186