C2015/7, Transcript of Proceedings [2015] FWCTrans 170 (25 March 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 TPO1051583-1

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT ACTON

DEPUTY PRESIDENT GOSTENCNIK

C2015/7

s.604 - Appeal of decisions

Gutzeit

and

Liquorland (Qld) Pty Ltd
(C2015/7)

Melbourne

10.04 AM, WEDNESDAY, 18 MARCH 2015

PN1

JUSTICE ROSS: Could I have the appearances, please? From the appellant, is that Mr Chapman?

PN2

MR J C CHAPMAN: Yes, it is, your Honour.

PN3

JUSTICE ROSS: Mr Chapman?

PN4

MR CHAPMAN: As the authorised representative and Ms R L Gutzeit.

PN5

JUSTICE ROSS: Thank you.

PN6

MR A POLLOCK: Thank you, your Honour. It’s Pollock, initial A, seeking permission to appear on behalf of the respondent.

PN7

JUSTICE ROSS: I'm assuming, Mr Chapman, you're seeking permission to appear as well?

PN8

MR CHAPMAN: Yes, I am, your Honour.

PN9

JUSTICE ROSS: All right. Any objection from either side? No?

PN10

MR POLLOCK: No.

PN11

JUSTICE ROSS: All right, permission is granted in each case.

PN12

MR POLLOCK: Thank you, your Honour.

PN13

JUSTICE ROSS: In relation to this matter, we caused to have an email sent to each of the parties indicating that having regard to the nature of the submissions, rather than deal with permission separately from the substantive appeal, it seemed, at least to us, to be convenient to deal with both at the one hearing, since you were both going to be attending. The email also indicates that if either party objects to us taking that course, they should advise us at the commencement of the hearing. Do either of you object to that course?

PN14

MR POLLOCK: Your Honour, if I ‑ ‑ ‑

PN15

MR CHAPMAN: No, your Honour.

PN16

JUSTICE ROSS: No? Thank you.

PN17

MR POLLOCK: Your Honour, if I might, I think perhaps there might be one issue that I just might raise. To the extent that that permission to appeal is granted, from the material that’s been filed by the appellant, it seems that permission to appeal might be sought on grounds that include that there has been insufficient consideration of the evidence or perhaps that there should have been further evidence that had been led or admitted. So to that end it may well be that running a substantive appeal ‑ ‑ ‑

PN18

JUSTICE ROSS: Yes. It may be that if we were to grant permission and we were to uphold the appeal, then on the basis of what’s been referred to, there would need to be a further hearing.

PN19

MR POLLOCK: Of course.

PN20

JUSTICE ROSS: Yes.

PN21

MR POLLOCK: So, to that end, the hearing of an extension to an application afresh, obviously the Full Bench is in a position to do that, it might be more practical for that to be referred back to ‑ ‑ ‑

PN22

JUSTICE ROSS: No, I don’t disagree with any of that. If we were to grant permission and we were to uphold the appeal, Mr Chapman, then the course that we would be likely to adopt would be to remit the matter to a single member for the hearing of evidence in relation to what was the central issue below, that is the date of termination.

PN23

MR POLLOCK: Yes.

PN24

JUSTICE ROSS: As I understand the material, that if the date of termination is as contended by the appellant then there was no need to seek an extension. So it did become a critical issue in the case.

PN25

MR POLLOCK: Yes, I think that’s right. Yes.

PN26

JUSTICE ROSS: All right, thank you. Mr Chapman, you'll see that we've drawn the parties’ attention to section 397 of the Fair Work Act which provides that the Commission must conduct a determinative conference or hold a hearing if the matter involves facts which are contested. It seems on the material that this case did involve facts of which there was a dispute, that is the question of the date of termination, and yet the Deputy President reached her decision on the basis of the submissions filed rather than conducting a conference or hearing. Is that correct?

PN27

MR CHAPMAN: Correct. Correct, your Honour.

PN28

JUSTICE ROSS: All right. Is there anything else that you wish to say other than the written material that you've filed in support of your application for permission to appeal and the appeal itself?

PN29

MR CHAPMAN: No, your Honour. I think we've covered it sufficiently within the form F7 as well as the submissions of appeal and I won’t bother wasting your time repeating what was in there.

PN30

JUSTICE ROSS: All right, thank you. Mr Pollock, anything you wish to say in response?

PN31

MR POLLOCK: Yes, your Honour. I might just focus some attention on a question that your Honour has raised around section 397. I think from a factual perspective it’s actually the case that a conference was held on 1 September and you'll note at page 27 of the appeal book there is a reference to – there’s a notice of listing to a conference that was held on that date.

PN32

JUSTICE ROSS: That was to hold a mention directions conference, though.

PN33

MR POLLOCK: Yes.

PN34

JUSTICE ROSS: That only dealt with the subsequent directions to file material, didn't it?

PN35

MR POLLOCK: Your Honour, I think you'll note in the notice of listing it says that it provides the parties an opportunity to discuss the application and the response and whether the matter can be resolved and then the programming of proceeding in the event that it progresses to a hearing. There is nothing in section 397 that refers to a determinative conference that requires the Commission to hold a conference or a hearing to the extent there are contested facts.

PN36

JUSTICE ROSS: So you're contending that the conference that was held on 1 September by telephone constituted a conference within the meaning of section 397.

PN37

MR POLLOCK: That's correct, your Honour. There’s certainly nothing in the supplementary materials accompanying the Fair Work Act which require it to be a determinative conference.

PN38

JUSTICE ROSS: All right.

PN39

MR POLLOCK: What follows from that; obviously the directions that flowed out of that conference were directed towards the filing of the material and an explicit request to the parties to ‑ ‑ ‑

PN40

JUSTICE ROSS: What happened at that conference?

PN41

MR POLLOCK: Sorry, your Honour?

PN42

JUSTICE ROSS: What happened at the conference?

PN43

MR POLLOCK: Your Honour, I wasn't instructed in the manner at that stage. Now, I certainly don’t have instructions as to the specific issues that were dealt with, but ‑ ‑ ‑

PN44

JUSTICE ROSS: Was your instructor there?

PN45

MR POLLOCK: No.

PN46

JUSTICE ROSS: Was anyone there from the party you represent?

PN47

MR POLLOCK: Not from the party that I represent, as I understand. If I can just take some brief instructions?

PN48

JUSTICE ROSS: Sure, sure.

PN49

MR POLLOCK: Your Honour, as I'm instructed, the representatives on the call – there was Ms Stevenson, who is not actually an employee of the respondent, rather certain HR functions that are performed in relation to that business, so conducted by a separate entity, that is Coles Supermarkets Australia. So to that end there was no representative on that call. There was a representative but ‑ ‑ ‑

PN50

JUSTICE ROSS: Presumably, Ms Stevenson was purporting to represent the respondent.

PN51

MR POLLOCK: Yes.

PN52

JUSTICE ROSS: What did she say took place?

PN53

MR POLLOCK: Your Honour, I'm not instructed on that precise point. I can take instructions in that regard.

PN54

JUSTICE ROSS: All right. Do you want to do that?

PN55

MR POLLOCK: I might have to stand the matter down just briefly because Ms Stevenson is obviously not in the body of the court.

PN56

JUSTICE ROSS: Okay. We might just hear from Mr Chapman about what took place, whether he was there or anything like that, and then you can convey that to Ms Stevenson to see if we've got any issue about what took place.

PN57

MR POLLOCK: Thank you, your Honour.

PN58

JUSTICE ROSS: All right. Mr Chapman, were you present or was your client present at the conference, the telephone conference, that took place that’s being referred to now?

PN59

MR CHAPMAN: Yes, I was, your Honour. I was the authorised representative, as well as the three representatives from Coles Liquorland Group.

PN60

JUSTICE ROSS: What can you tell me about what took place?

PN61

MR CHAPMAN: To be honest, your Honour, not much took place. I'm the applicant’s husband, so I don't have a legal background.

PN62

JUSTICE ROSS: Yes.

PN63

MR CHAPMAN: I was unprepared for the conference and what came out of the conference was that Asbury DP allowed us time to prepare formal submissions to put forward.

PN64

JUSTICE ROSS: Yes.

PN65

MR CHAPMAN: What was to follow on from that, I'm not sure, but I would like to raise that out of that came contested facts in both the submissions that we put forward as well as the submissions from the respondent and they were contested to evidence that was supplied later on.

PN66

JUSTICE ROSS: All right. So your recollection is, am I right about this, that at the telephone mention directions that were held on 1 September, there was no discussion about the substantive application?

PN67

MR CHAPMAN: That's correct, your Honour.

PN68

JUSTICE ROSS: There was simply a discussion about the procedure that we adopted for dealing with the application.

PN69

MR CHAPMAN: That's correct, your Honour.

PN70

JUSTICE ROSS: Then the directions were issued on the same day that required the filing of the written material.

PN71

MR CHAPMAN: That’s correct, your Honour.

PN72

JUSTICE ROSS: It was the written material which gave rise to the factual contest. Is that the essence of what you're saying?

PN73

MR CHAPMAN: That's correct, your Honour.

PN74

JUSTICE ROSS: Okay. Look, we might stand the matter down. Mr Chapman, we’re just going to adjourn briefly. We'll do that till 10.30 to enable Mr Pollock to get some instructions from Ms Stevenson to see if there’s any different view to what you've just put about what took place at the conference and we'll also make some inquiries about whether there’s any transcript, whether the telephone conference was recorded, in which case we can get the transcript and read for ourselves where it is. Okay?

PN75

MR CHAPMAN: Your Honour, I'll save you the time. There was no transcript. I inquired about it a week ago and there is no transcript of evidence of the phone conference.

PN76

JUSTICE ROSS: It may be whether it was recorded, though, Mr Pollock. There might not be a transcript. It may be that a transcript hasn't been ordered, but we'll just inquire about whether it was recorded at all. If it was recorded, then we can order the transcript, but we'll make an inquiry about that, but thank you for that indication. Till 10.30.

SHORT ADJOURNMENT [10.15 AM]

RESUMED [10.30 AM]

PN77

JUSTICE ROSS: Mr Pollock, what can you tell us?

PN78

MR POLLOCK: Thank you, your Honour. I’ve had an opportunity to take instructions from Ms Stevenson. I can say at the outset just to correct one submission I made earlier, also present on that call on 1 September were Mr Neil and Ms Gill, who are operations managers from Liquorland (Queensland).

PN79

JUSTICE ROSS: Okay.

PN80

MR POLLOCK: I can say that the conference lasted for approximately 30 minutes, I'm instructed. There was some high level discussion of the facts in dispute, that is the position that had been put by the applicant in their application and by the respondent in their response. The question as to the actual termination date was certainly ventilated at a high level. I'm instructed that the applicant raised the issue of the date on the separation certificate and noted that there was some discrepancy between that and what the respondent said the termination date was.

PN81

At that stage, given that there was a clear distinction between the two versions of events, I'm instructed that Asbury DP drew the parties’ attention to some directions to put on written material to deal with those issues. We don’t suggest that it was a full and complete determinative type conference of those questions, but certainly given that both the applications and response have been filed and a fair review of those documents would indicate that there was a dispute as to the relevant facts.

PN82

That dispute was dealt with at a high level in that conference and then obviously programmed for more fulsome materials to be filed.

PN83

JUSTICE ROSS: All right, thank you, Mr Pollock. Is there anything else you wish to put?

PN84

MR POLLOCK: Yes, your Honour. I might say that – and just going to this point of section 397 – obviously we say that the requirement in 397 has been satisfied here. We say that there is no additional qualification on what a conference must be in that section. We say in ‑ ‑ ‑

PN85

JUSTICE ROSS: So just to be clear, you say section 397 was satisfied by virtue of the conference that was held on 1 September at which there was a high level discussion about the issues in dispute.

PN86

MR POLLOCK: Yes. Following on from the written application and response that had been filed, which obviously drew out the nature of the dispute and the contested facts.

PN87

JUSTICE ROSS: Yes. So following on from the written application and response that had been filed and then there were directions issued for the filing of materials.

PN88

MR POLLOCK: Yes.

PN89

JUSTICE ROSS: It’s on the basis of that conference that you say 397 was satisfied and therefore there’s no issue about the need for any further determination of that matter.

PN90

MR POLLOCK: Your Honour, we would say that 397 has been satisfied in those circumstances. So what then follows from that is a question of whether 399, or what Asbury DP was required to do under section 399. Now, obviously that’s a discretionary decision as to whether it is appropriate to hold a hearing, taking into account the views of the parties and other factors that are relevant.

PN91

JUSTICE ROSS: Yes.

PN92

MR POLLOCK: What’s pertinent here is what’s drawn out within the directions and the decision. The parties were requested to notify the Commission whether they intended to cross‑examine witnesses from the other side and they were notified that in the event that neither party wished to cross‑examine then the Commission would determine the matters based on the materials that had been filed.

PN93

JUSTICE ROSS: Yes.

PN94

MR POLLOCK: Each party had an opportunity to cross‑examine if they took issue with any of the facts that were raised in the materials filed by the other party and neither party did so. That had been raised as a central question around how appropriate was it for Asbury DP to hold a hearing, given that the parties have indicated that they don’t wish to cross‑examine. They don’t wish a hearing to be conducted and ‑ ‑ ‑

PN95

JUSTICE ROSS: I follow that to the extent that it was a discretionary matter. You say no party had sought cross‑examination, no party had sought a hearing and in those circumstances it was an appropriate exercise of discretion to deal with the matter on the papers.

PN96

MR POLLOCK: That's right. I think it goes even further than that, your Honour. In circumstances where neither party wish to cross‑examine, there’s a real practical question around: what was the alternative. Had a hearing been conducted and the parties had maintained their position, which they indicated they weren't going to cross‑examine, Asbury DP would be faced with precisely the same materials which her Honour was faced with on the papers. She wouldn't have been armed with anything further and so: (a) it cannot be said that it would have been appropriate to hold a hearing in those circumstances. It would have been simply a waste of the Commission’s resources and it wouldn't have been an efficient use of the Commission’s time or the resources of the parties. It simply doesn’t disclose an appellable error in those circumstances.

PN97

JUSTICE ROSS: No, I follow what you say about 399. I think the issue in relation to the hearing, non-hearing, really comes down to 397 and that’s really based on your argument about the characterisation of that conference on 1 September.

PN98

THE DEPUTY PRESIDENT: Mr Pollock, was it apparent to the Deputy President when she listed the conference that there was a dispute about the termination date?

PN99

MR POLLOCK: Yes. I think that’s abundantly clear based on the materials that were filed, the application and the response.

PN100

THE DEPUTY PRESIDENT: The application in the appeal book seems to be missing a page.

PN101

MR POLLOCK: I certainly noted in the copy that I was provided from the applicant there were a number of missing pages also.

PN102

THE DEPUTY PRESIDENT: Yes, because there’s a concession at 1.4 that it was made out of time. The application was filed on 6 July, termination date, according to the employer response was 13 June. The date contended for by the applicant after the conference was that the date should be the date in the employment separation certificate, which was a later date. If it seems at least – and I don't have the missing page of the application, but it seems to me that termination date on the application and the employer’s response was in fact common ground not in dispute.

PN103

MR POLLOCK: I'm not sure if that can necessarily be the conclusion drawn, your Honour. At 1.4, the applicant notes that she’s unsure, “If I'm within the 21-day period as I still received a formal” – I read that as potentially a typo and, “Still yet to receive a formal termination notice stating the details regarding my termination.”

PN104

JUSTICE ROSS: Yes, but they ticked the box “no”. “Are you making this application within 21 calendar days?” or they crossed the box “no”.

PN105

MR POLLOCK: That's right. They have crossed the box. I think you'd have to read that as being qualified by the statement that follows.

PN106

JUSTICE ROSS: But they don’t say anything about the date of termination.

PN107

MR POLLOCK: Your Honour, I, too, am slightly hamstrung by the missing pages from the appellant’s appeal book. I might ‑ ‑ ‑

PN108

JUSTICE ROSS: We can check what we have as to the actual form 2.

PN109

MR POLLOCK: The actual file. In any event, I think the response certainly articulates that we say that the application was out of time.

PN110

JUSTICE ROSS: Sure.

PN111

MR POLLOCK: At the conference, it’s abundantly clear that those positions as to a dispute as to the facts in that particular detail was certainly drawn out.

PN112

THE DEPUTY PRESIDENT: Yes, but that’s my question. If the first occasion on which it became apparent that there was a disputed fact was in the conference convened for purpose A, how do you say that conference is sufficient for purpose B?

PN113

MR POLLOCK: Your Honour, I think what will be appropriate here is to make sure that we have a complete version of that application.

PN114

JUSTICE ROSS: Yes. No, we'll allocate that. We'll find that document.

PN115

MR POLLOCK: Yes. Your Honour, I might also raise a further issue around 397. If your Honours are not with us on the operation as we say it that 397 has to play, whether generally or in this particular situation, if we say that there was no dispute on this particular point at that stage, there is then a question of what’s the effect of that error. This is not a question where simply a potential failure to meet the requirements of 397 necessarily leads to a House v King type error where we would say ‑ ‑ ‑

PN116

JUSTICE ROSS: It’s not a House v King error. It’s a legal error.

PN117

MR POLLOCK: Yes. But it’s of that decision whether or not to list a conference or a hearing, that is simply a – that’s not a House v King error. You're right. That's a discretionary issue, but the extent to which that impacts on the discretionary decision of whether or not to extend time, that decision is discretionary. Now, it’s a question of whether a decision around 397 had any impact on the exercise of discretion whether or not to extend time and if that impact – it’s only if that impact is in the nature of the errors in House v King that we fall to consider this.

PN118

JUSTICE ROSS: But isn’t it in the public interest that members follow the statute? If you're wrong about your characterisation of conference within the meaning of 397 and if we don’t agree with your argument about the telephone conference that was held then it would seem to follow that the Deputy President hasn't applied the provisions of the Act.

PN119

MR POLLOCK: If all of those things are correct then ‑ ‑ ‑

PN120

JUSTICE ROSS: Yes. I understand what you say about how you have to get there.

PN121

MR POLLOCK: Yes.

PN122

JUSTICE ROSS: Yes.

PN123

MR POLLOCK: But assume all of those things, obviously it would follow that 397 hasn't been applied. I'm not sure it goes so far as to say that every failure to follow a provision necessarily invokes a public interest, otherwise that would be a very low threshold. You might take a different view in this case that there might be sufficient public interest in the observance of 397. I would say, your Honour, that particularly in circumstances, as I’ve set out, that whether a 397 was complied with and a hearing was held, there would have been no practical difference, given that the parties were not going to cross‑examine. I don't see how we can say that there is sufficient public interest that is invoked in this case.

PN124

JUSTICE ROSS: All right.

PN125

THE DEPUTY PRESIDENT: Mr Pollock, isn’t the consequence of not complying with 397 this, that any finding of fact which is in dispute was not properly made and so the finding of fact about the termination date can’t safely be relied upon?

PN126

MR POLLOCK: Your Honour, I'm not sure if that’s the case. There was material that was before the Commission filed by each side and unchallenged material. There was a factual basis and a proper factual basis on which those findings could be made and each party had an opportunity to challenge that factual basis through cross‑examination. They elected not to.

PN127

There are cases which I was going to draw your Honour’s attention to in the course of my submissions and, of course, we've perhaps waylaid that a bit, but, your Honour, there was one decision, I think, that you presided over, the Vivianette(?) matter which articulates to some extent the extent to which the Commission is required to give parties a leg up beyond the reasonable opportunity to be heard and so it gathers together those relevant authorities and makes abundantly clear that the Commission has to provide a reasonable opportunity to be heard, but doesn't have to provide each party with the opportunity to best avail themselves of those opportunities.

PN128

JUSTICE ROSS: I don't think this case was put on - I don't know that it turns on an allegation of denial of procedural fairness.

PN129

MR POLLOCK: Your Honour, it from the way that your Honours are raising questions, I think that’s right. I think certainly from the appellant’s submissions there were quite a number of issues raised.

PN130

JUSTICE ROSS: No, no, I follow that.

PN131

MR POLLOCK: But the more confined discussion we’re having, I think that’s right.

PN132

JUSTICE ROSS: Yes. So in relation to those arguments, you put the proposition that a reasonable opportunity was provided. It’s not necessary that the tribunal ensure that a party takes the best advantage of any opportunity provided.

PN133

MR POLLOCK: That's right.

PN134

JUSTICE ROSS: Yes. No, no, I follow what you say about that.

PN135

MR POLLOCK: Yes.

PN136

JUSTICE ROSS: All right. Is there anything further you wish to say?

PN137

MR POLLOCK: Your Honour, I might just, before we conclude, see if I can get some instructions and get the complete version of that application. I’d just be loath to close my submissions without closing out that question because ‑ ‑ ‑

PN138

JUSTICE ROSS: Sure.

PN139

MR POLLOCK: ‑ ‑ ‑ I think for your Honour that is a central question for you.

PN140

JUSTICE ROSS: No, that’s fine.

PN141

MR POLLOCK: So, your Honour, I can attempt to trawl back through my documents to obtain it or, alternatively, if there’s a copy on the file, a complete copy, then that ‑ ‑ ‑

PN142

JUSTICE ROSS: All right.

PN143

MR POLLOCK: We might all be enlightened by it.

PN144

JUSTICE ROSS: If you have a look through your material and we'll endeavour to find the original file.

PN145

MR POLLOCK: Yes, thank you, your Honour.

PN146

THE DEPUTY PRESIDENT: Mr Chapman, do you have a copy?

PN147

MR CHAPMAN: I'm just having a look now, sir. Your Honour, I do have a full copy here.

PN148

THE DEPUTY PRESIDENT: On the second page of that application did the applicant indicate a date when termination took effect or when she was notified?

PN149

MR CHAPMAN: Your Honour, under 1.3, the applicant put in “unsure”, but the discussion record I received, stated termination took effect immediately. I have not received a formal termination notice specifying a termination date.

PN150

THE DEPUTY PRESIDENT: And the discussion date, is that a reference to the ‑ ‑ ‑

PN151

JUSTICE ROSS: 13 June.

PN152

MR CHAPMAN: That's correct, your Honour.

PN153

JUSTICE ROSS: Okay.

PN154

MR POLLOCK: Your Honour, as I'm waiting for this material to come up, I'll take the appellant’s representative at his word on what that document says. I think even at that, we can – I would say we can safely draw that there is at least a contest of facts there. There’s certainly not an unequivocal acceptance from the applicant at that stage that the termination date was as the respondent said it was. If that were the case, simply it would have stated that date and there would be no reference to the fact that she was unsure and that she hadn’t been provided with the relevant material. There’s clearly a question mark over the facts there at that point.

PN155

That, armed with the response that the respondent put in, articulating very clearly that the termination date was the 13th, following that meeting I think gives rise to the contested facts.

PN156

JUSTICE ROSS: All right. We've got a copy of that, Mr Chapman, and as you indicated on the record, 1.2:

PN157

What date were you notified of your dismissal?

PN158

The date specified is 13 June 2014. The answer to 1.3:

PN159

What date did your dismissal take effect?

PN160

The answer is:

PN161

Unsure. Though the discussion record I received stated termination took effect immediately. I have not received a formal termination notice specifying a termination date.

PN162

All right? We understand what you say about that, Mr Pollock. Is there anything further?

PN163

MR POLLOCK: Your Honour, obviously these submissions have been cast quite narrowly on this point 397. I'm not sure if your Honour would like to be addressed on some of the other issues that the appellant raises around the weight that should have been attributed to the merits, which is effectively the second ground that was advanced. I think I can fairly shortly dispose of that issue on the basis that questions of weight to be attributed are not appellable errors within the scope of House v King.

PN164

JUSTICE ROSS: Sure.

PN165

MR POLLOCK: There are a number of authorities I can take you to from the Federal Court that make that abundantly clear.

PN166

JUSTICE ROSS: Yes.

PN167

MR POLLOCK: Moreover, there is that difficulty arising between the tension between section 394 and 396 around the point at which the merits of the matter are to be considered and there are decisions of this Commission which suggest that given that tension, effectively, a deep dive review of the merits at the extension of time stage is simply not appropriate. We say it could not have been a House v King error, in any event, but the approach that Asbury DP took was consistent with authority.

PN168

Just to confirm, that last decision I was talking about, the tension between 394 and 396 is Shields v Waringarri Aboriginal Corporation.

PN169

JUSTICE ROSS: Do you have the reference, the citation?

PN170

MR POLLOCK: Yes, I do, your Honour. That is [2009] 202 IR at 361. The other Federal Court decisions to which I was referring to around the issue of weight and whether or not they give rise to appellable error, the first is McDonald v ABCC [2011] FCAFC 29; [2011] 202 IR 467 and also Re Maritime Union of Australia [2014] 241 IR 216. All of those are contained within ‑ ‑ ‑

PN171

JUSTICE ROSS: Sorry. 2014? What was the volume?

PN172

MR POLLOCK: 241 IR at 216.

PN173

JUSTICE ROSS: Yes.

PN174

MR POLLOCK: All of those are contained within the folders of authorities that I’ve provided to your Honours.

PN175

JUSTICE ROSS: Thank you.

PN176

MR POLLOCK: To that end we've obviously made submissions on the public interest point. I think the high water mark of that, to be fair, is around this question of 397; absent that, we say absolutely there is nothing even resembling public interest. We would say in these circumstances, if you are against us on the way that 397 is intended to operate and also if you're against us on whether there was a contest of facts based on the application in the response that was filed by the time the conference was listed then we say there is no public interest that’s enlivened, simply because there would have been no different outcome. Listing a conference or listing a hearing where the parties had elected not to cross‑examine would have left the Commission in precisely the same circumstances.

PN177

With that in mind, it doesn't give rise to any particular pertinent public interest type considerations other than the general consideration that, of course, it’s obviously in everyone’s interests that the Commission applies the law, but that cannot rise to the level of a Makin-type public interest consideration, otherwise we would simply see permission being granted in every case.

PN178

JUSTICE ROSS: All right, thank you, Mr Pollock.

PN179

MR POLLOCK: Thank you.

PN180

JUSTICE ROSS: Is there anything you want to say in reply, Mr Chapman?

PN181

MR CHAPMAN: Your Honour, yes. I would just like to point out that when Mr Pollock referenced that the party cross‑examine, there would be no further evidence available to the Commission to help determine the facts in the matter, I refer to page 48 of the appeal book where I sent an email through to Ms Stevenson requesting information as evidence to help our case and on page 49 the response stating that the application:

PN182

As outlined in the notice of listing regarding the above, if the matter is not resolved it will proceed to a hearing.

PN183

But, essentially, the onus behind it was that it was conference. It was not a hearing and evidence would not have to be supplied. If in fact the respondent’s application is that it is a hearing that determined all the facts, we have documents that we've provided to the Full Bench that prove that at that point in time their determination was that it was a conference not a hearing and that they didn't have to provide any evidence to prove the contested facts at that point in time. That's all, your Honours.

PN184

JUSTICE ROSS: All right. Nothing further from either party?

PN185

MR POLLOCK: Your Honour, just very briefly just to address that. I'm not sure whether my friend has perhaps mischaracterised what I’d said. I didn't suggest that the conference was in fact a hearing and the email I think that he’s referring to at 49 was obviously not from the Commission. That was to and from the relevant parties. I think that’s all I need to say on that particular point.

PN186

JUSTICE ROSS: All right, thank you. Nothing further? We'll adjourn and reserve our decision in respect of this matter and we'll hope to get that to you in the near future. Thanks very much.

ADJOURNED INDEFINITELY [10.55 AM]