C2015/5665, Transcript of Proceedings [2015] FWCTrans 498 (26 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052315

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VICE PRESIDENT HATCHER

C2015/5665

s.604 - Appeal of decisions

MPR Scaffolding Pty Ltd

and

Construction, Forestry, Mining and Energy Union

(C2015/5665)

Sydney

2.00 PM, TUESDAY, 18 AUGUST 2015

PN1

THE VICE PRESIDENT: Thank you. Yes, I'll take appearances. Mr Ward, you appear for the appellant in Canberra?

PN2

MR W WARD: Yes, I do.

PN3

THE VICE PRESIDENT: Mr Neilson, you appear for the respondent in Sydney.

PN4

MR A NEILSON: I do and I seek permission to appear.

PN5

THE VICE PRESIDENT: I have called this - first, I should say I will grant the parties permission to be represented by lawyers for the purpose of this directions hearing. I called the matter on for directions, because obviously the appeal is somewhat unusual in nature. It raises issues of whether an extension of time should be granted, given the date of the original decision and also there may be issues about permission to appeal and maybe adducing of further evidence.

PN6

So I thought it might be useful to explore with the parties as to how they envisage the matter might proceed. Mr Ward, I will allow you to say how you think the matters should proceed, whether for example the issue of extension of time should be dealt with separately or whether it should be dealt with in conjunction of the hearing of the appeal itself, but I would also be particularly interested in whether the hearing of the appeal would involve you seeking leave to adduce new evidence.

PN7

MR WARD: Yes, we would - well, the normal practice directions for an appeal are you provide a copy of the decision and you provide a transcript of the actual hearing in relation to the decision. In relation to this particular matter, we don't actually - like, the decision itself is three sentences long or three paragraphs long, just approving the thing. There is no actual transcript.

PN8

So if complying with the normal practice directions there wouldn't - all that would be filed is the actual application papers itself, which is the Form 16, the Form 17, and the Form 22, which is already there in the Commission's hands there.

PN9

So given that we do think that, you know, new evidence would need to be submitted, in that regard our suggested position is that we actually file or tender the transcripts for the two days of the Royal Commission where the MPR Scaffolding EBA was discussed and all the procedural deficiencies were brought up and those kinds of things.

PN10

So that's our - in terms of what should be put forward as evidence, that's the position that my client would actually prefer in terms of directions being given. Then submissions then could be made in relation to that particular evidence.

PN11

THE VICE PRESIDENT: I don't know what happened before the Royal Commission, but did that involve issues of the credit of witnesses and conflicting evidence?

PN12

MR WARD: The parties were cross-examined - well, when I say the parties, Mr Josifoski who is the managing director, sole director and secretary of MPR Scaffolding, he and his wife and also an employee were all cross-examined by Mr Agius SC who was acting on behalf of the CFMEU in relation to this matter. So it's not like it is totally uncontested evidence.

PN13

THE VICE PRESIDENT: Was there credit challenged in the cross examination?

PN14

MR WARD: Not that I recall. There may have been - well - - -

PN15

THE VICE PRESIDENT: Did Mr Agius suggest they weren't telling the truth?

PN16

MR WARD: No.

PN17

THE VICE PRESIDENT: All right. So as I understand your submission, you are putting that the issues of extension of time permission to appeal on the appeal should be heard conjointly, is that right?

PN18

MR WARD: Yes, because they all - I mean, they all roll into the same set of facts in the sense that this material only became available or publicly available on the 29th and 30 July when it was adduced and when questions were asked in the Royal Commission. So the material came out - - -

PN19

THE VICE PRESIDENT: What sort of material are we talking about?

PN20

MR WARD: All the procedural deficiencies that were not complied with in relation to the EBA.

PN21

THE VICE PRESIDENT: Right, well - - -

PN22

MR WARD: Employee and - I mean, I didn't - I mean, I am acting for MPR Scaffolding in relation to this matter. The Trade Union Royal Commission has its own lawyers, has its own counsel. They were summoned Xing these particular witnesses; they were reducing this evidence. They were summonsing these people and that's how this evidence came out. I didn't produce this evidence. Like, I wasn't involved in calling these witnesses and those kind of - that was all the Commission's lawyers. So - but what I am just saying is the material that was produced - the evidence that came out of that is what goes to show how this enterprise agreement shouldn't have been approved in the first place.

PN23

THE VICE PRESIDENT: Has the CFMEU - given the way the Royal Commission conducts its proceedings - got to the stage where it has been given an opportunity to call any evidence to about what has been put by your client and others?

PN24

MR WARD: My understanding is that some of - the union officials have - will be providing responses in relation to evidence adduced in Canberra in September sometime. That is my understanding that the dates are a bit loose in terms of how the Royal Commission is operating, and you are probably aware there are various other matters going on with it as we currently speak.

PN25

THE VICE PRESIDENT: All right.

PN26

MR WARD: But that is my - they will be - my understanding is they are due to give evidence in relation to the stuff in Canberra in September.

PN27

THE VICE PRESIDENT: All right. Now, I hope the parties have received it, but having perused the notice of appeal and the accompanying correspondence I took steps to recover the documents from the Commission's file concerning the original approval of the enterprise agreement and this is a matter the parties can make submissions on in due course, but it might lead to further inquiries. If you have got that document, you may have noted that it appears that although the documents received by the Commission were date‑stamped 1 August 2010, the electronic filing records show that they were in fact file on 10 August 2010. Did you receive that document, Mr Ward?

PN28

MR WARD: Yes, I received it this morning. Yes.

PN29

THE VICE PRESIDENT: You might want to consider all that further, but it raises the question of whether you seek that the Commission make further inquiries as to the filing of these documents, given there's a discrepancy between the date stamp on the documents and the electronic filing record that we have.

PN30

MR WARD: I mean, I don't know how your system - I mean, are they immediately put into the system the day they are received? I mean, I am not aware of the exact administrative arrangements that the Commission has when documents are filed.

PN31

THE VICE PRESIDENT: They are perfectly legitimate question is, but what I am really putting to you is that if the issue of the date of the filing of the documents is maintained as a critical issue in the appeal, the parties might wish to consider whether the Commission should be requested to make further inquiries and, for example, prepare an internal report on the matter which might be then made available jointly to the parties, which might deal with the question you've raised and any other questions in that connection which might arise.

PN32

MR WARD: I'd probably like to talk to Mr Neilson about that and get instructions as well, because I only received this this morning and I haven't had a chance to discuss it with our client.

PN33

THE VICE PRESIDENT: I raise that in issue, but perhaps what I will do is grant leave to the parties to communicate with my chambers further about that issue if they wish to pursue it.

PN34

Mr Ward, is there anything else you want to raise at this stage?

PN35

MR WARD: A couple of other little points. Firstly, I would like to make a couple of - well, two point in relation to amendments. I would like to make one minor amendment to the actual appeal application because I found another procedural transgression in relation to the approval process. It's only minor, and also we are in the process of briefing counsel for the actual appeal and he, subject to him reviewing the brief, may suggest other amendments to the - so we'd just like leave to possibly make minor amendments to the appeal application itself.

PN36

THE VICE PRESIDENT: You can make an application for amending your appeal notice when you're ready to do so, and we'll deal with it then.

PN37

MR WARD: Yes.

PN38

THE VICE PRESIDENT: Is that all?

PN39

MR WARD: The second thing is in the appeal application we did tick the box seeking a stay in relation to this. Now I'm sort of in your hands as to how you want to deal with this, given the age of the particular enterprise agreement that we're dealing with and those kinds of things. But the main purpose of that is as this matter is also in the Federal Circuit Court, if there is a stay then it means we deal with it in the Fair Work Commission before the Federal Circuit Court.

PN40

THE VICE PRESIDENT: Well the potential difficulty is that and I'd hear the parties about this if necessary but potentially until you receive an extension of time to file an appeal, there's no competent appeal on, you can't apply for a stay. So I suspect, subject to hearing further from the parties, that if you seriously seek a stay then it would be necessary to deal with the extension of time application first, which itself would require probably dealing with any evidence about the unusual circumstances of this case. So you might want to consider that but can I give you this indication that it's likely that the hearing of this appeal, subject to me hearing from what Mr Neilson says about the procedural course would occur in the period 20 to 22 October.

PN41

MR WARD: 20 to 22 October.

PN42

THE VICE PRESIDENT: Did you have any indication as to - I'll ask Mr Neilson this as well as to the timing of the Federal Circuit Court proceedings? Mr Ward?

PN43

MR WARD: Was that to me or Mr Neilson?

PN44

THE VICE PRESIDENT: Firstly to you.

PN45

MR WARD: Sorry, I thought it was - yes, well at the moment we've asked for the matter - well, the current directions were for us to file a response by 17 August. We wrote to the - we had liberty to apply and we wrote to the court the other week seeking the matter be re-listed for further directions. That was based on the fact that we had lodged the appeal in the Fair Work Commission. So we will be seeking that the matter be adjourned until the appeal is dealt with in the Fair Work Commission.

PN46

THE VICE PRESIDENT: Thank you. Any further matters at this stage?

PN47

MR WARD: Not at this stage, no.

PN48

THE VICE PRESIDENT: I'll come back to you later. Mr Neilson, what do you want to say about the procedural course for this appeal?

PN49

MR NEILSON: Well, your Honour, I have to say it's quite an extraordinary application, both as a consequence of the delay in the filing of the appeal but also in the way that my friend seeks to conduct the proceedings. Your Honour may not be aware that the matters that are the subject of the allegations that form part of both the letter and the appeal application are firmly denied by my clients. They will be and were firmly denied in the Trade Union Royal Commission and my client has significant concerns that MPR are making allegations in relation to non-compliance with certain procedural steps in circumstances where my clients haven't been given the opportunity to put any material before the Royal Commission, nor have they had any opportunity to have that evidence tested.

PN50

THE VICE PRESIDENT: So the witnesses that Mr Ward referred to, who were cross-examined by counsel for the CFMEU, was their - as it were their credit challenged?

PN51

MR NEILSON: Well, your Honour, it was insofar as their version of events as to these matters was challenged but the important distinction to draw, of course, is that a Royal Commission is very distinct from an ordinary proceedings save perhaps before this Commission and/or perhaps before a court, and that is that our powers to do certain things are extremely limited in that inquiry. The terms of cross-examination are reference by practice directions that are issued by the Commission. Our ability to subpoena or request information that might otherwise be produced in ordinary proceedings is limited, and so we are very much in some respects a passenger to the inquiry process that is undertaken by the Royal Commission.

PN52

That's why evidence that is often undertaken or led before the Royal Commission is regarded with some degree of scepticism in a court of a tribunal when those matters that fall out of the Commission are subsequently raised before those tribunals or courts. What we're seeking here, at least as we understand my friend's application, is evidence that was adduced in the Royal Commission that can't otherwise be used ordinarily in criminal proceedings or further proceedings, be adduced before the Commission. That evidence go untested before the Commission and be accepted on its face value, in circumstances where my client was effectively operating with one hand tied behind its back in defending the allegations.

PN53

Now the position that's been put by my friend, at least as I understand it, is that they have some suspicion that certain things were not done. If you read the letter which my client has significant concerns about in the way it was communicated to the tribunal, and the allegations that were expressed in it, it's not necessarily firmly put as a positive case that there were in fact procedural irregularities committed by my client. The evidence of Mr Josifoski is that he agrees that he signed the document, he just doesn't have recollection that it was the particular document that formed part of the application. That doesn't get anywhere near to a firm denial - - -

PN54

THE VICE PRESIDENT: When you say "the document", what document are you referring to?

PN55

MR NEILSON: Well the - - -

PN56

THE VICE PRESIDENT: The employer declaration?

PN57

MR NEILSON: The employer declaration, that's right. So he evidence - - -

PN58

THE VICE PRESIDENT: Sorry, he says he signed it or - - -

PN59

MR NEILSON: He says that it is his signature.

PN60

THE VICE PRESIDENT: Yes.

PN61

MR NEILSON: He agrees, at least on the evidence before the Royal Commission, and I want to traverse that, that his wife's handwriting appears immediately above the declaration because she was assisting him in the preparation of the enterprise agreement process. The only, I suppose, irregularity if you like is in relation to the stamping of the document.

PN62

Now the evidence as it flows will establish clearly that that was a procedural error unfortunately committed by the registry official who stamped the document. Back in 2010 it was common practice that the registry - and I'm sorry to give this evidence from the Bar table - had a stamp and it was often - it was the case that the person was required to move the date on the stamp and then it would update as each day occurred. That may not have occurred, but in circumstances where the electronic record, as it exists with the Commission, firmly establishes that it was 10 August that it was lodged, those issues go away in our respectful submission because it's wholly consistent with the way the agreement was actually signed by my clients and entered into, in accordance with the Act.

PN63

With respect to this application, it is no more than rouse to avoid the prosecution proceedings that are currently on foot before the Federal Circuit Court. Those proceedings were the subject of investigation by my client in February and March this year, whereby my client issued a number of notices to MPR to produce certain records, in relation to allegations of breach of the agreement. It's only now after the proceedings have been filed that MPR raises issues in relation to what it says is non-compliance.

PN64

Now that, with respect, raises issues as to whether or not these proceedings are actually being deliberately prosecuted in an effort to get out of the proceedings before the Federal Circuit Court. But it also raises issues in relation to the timing of the application as to whether or not leave should be granted. All of those things were fed into a determination as to whether an extension of time should be granted in relation to this matter.

PN65

I don't wish to run my friend's application but he faces a jurisdictional hurdle insofar as the agreement that is the subject of the application is now void, insofar as that it has been replaced by a non-union enterprise agreement that was entered into by my friend's client. In those circumstances, the previous agreement that is the subject of this dispute has no effect anymore, at least as it is understood under the Act. That is that it does not continue to have operation. So - - -

PN66

THE VICE PRESIDENT: Has no current effect but - - -

PN67

MR NEILSON: Well current effect but it does with retrospect. So my friend essentially seeks to revive an agreement, which he can't do at least as we understand section 54, in an effort to get a stay of the application, a stay of the original decision in order to be able to prosecute its appeal in an effort to try and stop the Federal Circuit Court proceedings from going ahead. It's a very convoluted argument and with respect it's not sustainable given the discretionary factors that need to be taken into account by the Commission, in determining whether an extension of time should be granted.

PN68

What we say should happen is that my client should not be put to the expense of having to deal with a full blown appeal, in circumstances where not only are the prospects of success extremely low but the prospects of getting an extension of time are even lower, given the passage of time that has occurred, and given at least on their own evidence as we understand it, that they became aware of what they say were the irregularities almost four weeks ago but they only filed the application last week.

PN69

So even if you could establish that they acted as quickly as they became aware of what they say was irregularities, there was also a significant delay and they never actually, as I understand it, probably met the timetable requirements in any event, in circumstances where they became aware on that particular occasion. So what we say should occur is that the first thing that needs to be dealt with is the extension of time application. That may necessarily have some form of interlocutory flavour about it insofar as that my friend will have to demonstrate that he at least has a reasonable case, which we say on any view of this there is none.

PN70

THE VICE PRESIDENT: I mean, I understand why you put that, but the difficulty it seems to me is that the matters which would go to the extension of time application are probably the very same matters, especially the factual matters which we'd deal with in the appeal itself. That is the extension of time would be presumably justified on the basis of the same factual matters which would justify the appeal itself. That is, that these irregularities occurred and they were of a nature which would make any approval of the agreement invalid.

PN71

MR NEILSON: Whether or not - - -

PN72

THE VICE PRESIDENT: And just to complete that thought before you answer it. That is it leaves a situation where to the extent that there's evidence we'd end up hearing it twice in the event that we chose to grant the extension.

PN73

MR NEILSON: Well, that may be the case, your Honour, but whether or not the Tribunal can proceed to determine not only the stay application but the substantive application, having not made a first determination as to an extension of time, would be an issue. Whilst I appreciate that the Tribunal probably wants to deal with this all in one hit if it can, my client is significantly concerned to have to put up significant resources to defend the application in circumstances where not only is it trying to run the proceedings in the Federal Circuit Court but is also trying to deal with this in the circumstances of the Trade Union Royal Commission.

PN74

THE VICE PRESIDENT: I understand that but what I'm really putting to you is that the resources and costs involved in running the appeal in one go may be the same or even less than the course you're proposing. That is, knock it all off in one go as distinct from having an extension of time hearing which may involve the same issues being ventilated, with the possibility of then requiring a further hearing.

PN75

MR NEILSON: Not to avoid your Honour's question but can I perhaps reserve my position in relation to that, and the reason I say that is because my friend is not sure as to how or why or whether he's going to put on any evidence apart from what he says is the Royal Commission evidence, which we would have fundamental objections to. So he has a decision to make as to how he intends to either make application for the introduction of new evidence and what that new evidence is, and until such time as at least we have a flavour of what that application is likely to be it's very difficult for us to say one way or the other that we'll commit to a full hearing with the necessary requirement to put on evidence in response.

PN76

THE VICE PRESIDENT: So just tell me how many witnesses about this issue has the Royal Commission heard today?

PN77

MR NEILSON: Your Honour, I don't have the exact figures but I understand in relation to MPR it may be four from the company's side.

PN78

THE VICE PRESIDENT: And Mr Ward mentioned the possibility of any contradicting evidence from the CFMEU being heard some time in September. Do you have any - - -

PN79

MR NEILSON: That's my understanding. Perhaps the last week of August, but more than likely September.

PN80

THE VICE PRESIDENT: Do you have any instructions about how many witnesses might be involved there?

PN81

MR NEILSON: Your Honour, it's very much limited by what the Royal Commission allows in terms of who it invites effectively to give evidence, but my understanding is that a number of officials of the branch have been called and it's necessary that they'll be dealing with this matter. I think it may be three or four.

PN82

THE VICE PRESIDENT: With respect to the evidentiary position and Mr Ward's proposal simply to tender the transcript, is your client's position protectative (1) it is given the right to cross‑examine those persons who gave evidence in the Royal Commission and (2) calling the evidence it wishes in rebuttal? To the extent that we grant leave in the first place to bring any evidence.

PN83

MR NEILSON: Well, I suppose that's the key question. I mean, the introduction of evidence even by way of a re‑hearing is an extraordinary step. There would have to be questions that my friend would have to answer as to why that was necessary, but if it was a case that there were to be Royal Commission transcripts tendered then I speak without instructions because the proposition wasn't raised prior to today. I think my client would have significant concerns in relation to that given the way that evidence is put and adduced in the Royal Commission. Whilst we appreciate that it could ordinarily be dealt with by way of cross‑examination, I think I would need to take firm instructions in relation to that issue.

PN84

THE VICE PRESIDENT: All right. So your proposal is that we have a discrete hearing about an extension of time and then presumably there would be an issue about evidence to be adduced, if any, at that hearing?

PN85

MR NEILSON: Yes.

PN86

THE VICE PRESIDENT: And how long would that take?

PN87

MR NEILSON: I'm in my friend's hands but I wouldn't estimate more than half a day, your Honour. I'm very conscious of the fact that these proceedings are due to return to the Circuit Court as I understand it on 31 August. My client is very keen to progress that matter, should be entitled to progress the matter. The Court would of course be interested to hear what the Fair Work Commission is doing. But I'm very conscious that these proceedings are going to be used at least as an attempt to delay those proceedings and my client will resist that.

PN88

THE VICE PRESIDENT: All right. It seems to me that if the appellant seeks to adduce evidence to support its extension of time application, then half a day may not be sufficient, that we may be talking about a two day hearing, for example.

PN89

MR NEILSON: In circumstances where we're talking about - yes.

PN90

THE VICE PRESIDENT: And secondly, if there was an evidentiary contest in the extension of time hearing then a date - you're talking about what, before the end of August? I don't think I've got a date to that effect, but even if we did that wouldn't allow parties sufficient time to properly prepare an evidentiary case to go to hearing, would it?

PN91

MR NEILSON: Well, again I'm in the hands of my friend with respect to how he puts his case on. We are merely the respondent in this and we say that the agreement was validly approved. That's the prima facie position. It's up to them to make their case.

PN92

THE VICE PRESIDENT: All right. Anything else at this stage?

PN93

MR NEILSON: No, your Honour.

PN94

THE VICE PRESIDENT: Sorry, and the question of the filing date. Would you be able to seek instructions as to whether the Commission should make further internal inquiries and produce some sort of report about that?

PN95

MR NEILSON: I will. I don't think we will think it is necessary in the circumstances that we say the dates all line up consistent with the 10th. But I will seek the instructions.

PN96

THE VICE PRESIDENT: All right, thank you.

PN97

Mr Ward, I'll ask you a few questions in a second about what Mr Neilson has said but firstly do you want to say anything generally by way of reply?

PN98

MR WARD: Firstly in relation to the general issue of time. I mean he says that we, you know, are delaying. We lodged this within the 21 days of this evidence being adduced on the 29th and 30th July. I mean, we could have waited until the CFMEU's evidence came on in September but look, then we would just be giving him further argument to say we're delaying it even further. I mean, should we be waiting until the Royal Commission hands down its findings? We took the steps once there was appropriate evidence provided under oath to a degree that we thought was appropriate to warrant the Fair Work Commission having a proper look at the whole process of the approval of this agreement.

PN99

So you know, where do you draw the line of where we should have started? We did it as soon as the evidence was adduced. Now that's in relation to what my friend had to say in terms of the unexpected delay. We do think that the two issues run side by side. If we get leave for an extension it's based on the same issues in terms of why the agreement should be overturned. In our view it will just be a re-hearing of the same issues if we get leave, so it just makes sense to try and kill two birds with one stone.

PN100

THE VICE PRESIDENT: All right. So would you be in a position to have your case ready by the dates identified, that is 20 through to 22 October?

PN101

MR WARD: Yes, I mean it does clash with counsel but we might have to change counsel if that's the situation. But I mean assuming - providing the directions are along the lines of we tender the statements and transcripts, and then the various witnesses would be available for further cross‑examination by the respondent, yes we would be in a position to conduct the hearing. But that is said subject to I don't know what my friend Mr Neilson would be wanting to adduce on behalf of the CFMEU.

PN102

THE VICE PRESIDENT: Well, he will say he would want to see your case first I suppose. But in any event you accept that to the extent that you seek cross‑examine the transcript of the Royal Commission evidence, that the CFMEU should have the right to cross‑examine, in a way which is suitable to the procedures of this Commission, the persons who gave evidence.

PN103

MR WARD: Yes. It would just be similar to what - - -

PN104

THE VICE PRESIDENT: And then would further have the right to call its own witnesses in response.

PN105

MR WARD: Yes.

PN106

THE VICE PRESIDENT: I think Mr Neilson referred to something like four witnesses already having given evidence and the possibility of more. That seems to me like a two‑day case.

PN107

MR WARD: In the Royal Commission, it took the best part of two days. It was half a day for Mr Josifoski, it was half a day for his wife. It was half a day for an employee of the company and then it was only a few hours for a lady called Natasha Roach, who was an employee at the Commonwealth Bank. She is not our witness. She was a witness summonsed by the Royal Commission. That took the best part of two days for those four people to give their statements and to be cross‑examined.

PN108

THE VICE PRESIDENT: That's where the evidence‑in‑chief was adduced orally, was it, rather than - - -

PN109

MR WARD: Well, it was statements and part oral, as well.

PN110

THE VICE PRESIDENT: How long did the cross‑examination take?

PN111

MR WARD: The cross‑examination was the majority of the evidence in terms of the time taken on the transcripts.

PN112

THE VICE PRESIDENT: So you're assessing two days might not be enough?

PN113

MR WARD: If there are going to be several witnesses from the CFMEU, I suspect then it will probably be half a day per CFMEU witness.

PN114

THE VICE PRESIDENT: All right. To answer my question, what is your best estimate of the time to take to hear this appeal?

PN115

MR WARD: Does Mr Neilson - I can't recall the number of witnesses he suspects. Was it two or three or four? I couldn't remember the number.

PN116

THE VICE PRESIDENT: Three, he said.

PN117

MR WARD: Three. My best guess now would be it would be three and a half days or thereabouts.

PN118

MR NEILSON: Sir, can I just say my friend doesn't know, with respect, what his application is or what he's intending to do. I mean, he should come here with at least some idea as to how he's going to progress his case. We're now talking about going out to a three and a half day hearing.

PN119

THE VICE PRESIDENT: I think what he's putting is that he will tender his evidence‑in‑chief, the transcripts and statements from the Royal Commission, so that's evidence which presumably your client is now familiar with. He accepts that you have the right to then cross‑examine those witnesses in a fairly unrestricted way, consistent with the usual procedures of this Commission, and then you would have the right to call any witnesses to rebut that evidence. I think I understand the nature of the case he intends to call.

PN120

MR NEILSON: I appreciate the case, with respect, if he was to put on some form of statements - whether they be in the same form as what they were before the Royal Commission - for those witnesses. We may have an issue in relation to the transcripts and those being relied upon to go towards matters that he says they prove. Again we're faced with this issue where it is not clear until now perhaps on one view as to how my friend intends to progress his case.

PN121

I mean, in a court you would of course have some form of statement of claim or something like that. The application that's filed with the appeal is quite scant. There are references to various provisions of the Act that he says are not complied with.

PN122

THE VICE PRESIDENT: We can assume in accordance with your practice - and there would be directions requiring the filing of outline of submissions, so that would presumably put your client on detailed notice as to the nature of the case and the propositions.

PN123

MR NEILSON: Yes.

PN124

THE VICE PRESIDENT: And you'd have a chance to respond to that in court.

PN125

MR NEILSON: Yes, I appreciate that, your Honour. Thank you.

PN126

THE VICE PRESIDENT: Before you sit down, Mr Neilson, this estimate of time. We're up to the number of days.

PN127

MR NEILSON: Well, your Honour, again - - -

PN128

THE VICE PRESIDENT: It can't be more than three.

PN129

MR NEILSON: No, I can't imagine it would go more than three days, your Honour. I see it as a very short point, to be frank. Subject to seeing their evidence, but on the basis of what they've put so far, it doesn't get to the level of a reasonable case, with respect, your Honour, so we don't anticipate it will take too long to deal with.

PN130

THE VICE PRESIDENT: All right. Presumably - and this is addressed to both parties - the witnesses are in Canberra, so we should sit in Canberra?

PN131

MR NEILSON: Yes.

PN132

MR WARD: Yes, they are in Canberra.

PN133

THE VICE PRESIDENT: All right. Anything else you want to put at this stage, Mr Ward?

PN134

MR WARD: Not at this stage. Thank you.

PN135

THE VICE PRESIDENT: I'll give the parties until close of business on Friday to either singularly or jointly make a request, if they wish to make one, for further inquiries and a report to be issued with respect to the date of filing of the documents concerning approval of the relevant enterprise agreement. If such a request is received, I will make arrangements with the general manager of the Commission for such a report to be prepared and I'll disclose to the parties the request for a report which I make to the general manager.

PN136

When the report is issued, it will simply be made available to both parties and the parties can make whatever use of it they wish. Is that a suitable arrangement, Mr Ward?

PN137

MR WARD: Yes. I just do have one question. On the actual report that came through, it says the decision to approve was made on 25 August, but the actual decision itself approving it was dated the 20th. I'm just trying to understand how these things work.

PN138

THE VICE PRESIDENT: All right. Again, if you want that to be part of the internal report and inquiries, you can add that to your request.

PN139

MR WARD: Yes.

PN140

THE VICE PRESIDENT: And we'll deal with it, if that's an issue.

PN141

MR WARD: Okay.

PN142

THE VICE PRESIDENT: If you want to make a request of that nature, do so by close of business Friday this week and I'll arrange for the general manager of the Commission to - a report about it.

PN143

MR WARD: Thank you.

PN144

THE VICE PRESIDENT: Anything else at this stage?

PN145

MR WARD: No.

PN146

THE VICE PRESIDENT: Mr Neilson?

PN147

MR NEILSON: No, nothing.

PN148

THE VICE PRESIDENT: Having regard to what has been put, I will issue directions for the hearing of the matter, but I can indicate that my inclination - and I'll confer with the other members of the Full Bench - is that all matters associated with the hearing of this appeal, including the extension of time, the question of permission to appeal, the appeal itself, an application for leave to adduce further evidence and the hearing of the evidence itself, should occur on 20 through to 22 October in Canberra. The directions will be made to facilitate a hearing of that nature. I thank the parties for their attendance and I will now adjourn.

ADJOURNED INDEFINITELY [2.37 PM]