C2015/5402, Transcript of Proceedings [2015] FWCTrans 551 (7 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052489

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SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE

C2015/5402

s.603 - Application to vary or revoke a FWC decision

Application by Atkinson
(C2015/5402)

Perth

1.35 PM, THURSDAY, 24 SEPTEMBER 2015

PN1

SENIOR DEPUTY PRESIDENT ACTON: Could I have the appearances, please? Could you stand up and tell me who you are?

PN2

MR G ATKINSON: Garth Atkinson.

PN3

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Atkinson. Mr Atkinson, you've made an application to vary or revoke a decision of a Full Bench of the Commission. The decision being that of the Full Bench in Obatoki, is that right?

PN4

MR ATKINSON: Yes.

PN5

SENIOR DEPUTY PRESIDENT ACTON: As we understand it, your application seems to be premised on a notion that we are obliged to follow, or the Appeal Bench dealing with your other matter, your appeal against the decisions of Williams C.

PN6

MR ATKINSON: What do you mean "follow"?

PN7

SENIOR DEPUTY PRESIDENT ACTON: To follow the principles in Obatoki.

PN8

MR ATKINSON: Yes, it is, definitely. That's the - like that a - some subsequent decision would be bound by an earlier decision in principle, yes.

PN9

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN10

MR ATKINSON: Yes, I sort of made that out in my application.

PN11

SENIOR DEPUTY PRESIDENT ACTON: Okay. So we are on all fours about what's the basis of your application. The situation is that as a Full Bench, we have equal standing with the other Full Bench.

PN12

MR ATKINSON: Yes.

PN13

SENIOR DEPUTY PRESIDENT ACTON: And we are not obliged to follow that other Full Bench decision or the principles in it if there are cogent reasons put to us as to why we should not follow it.

PN14

MR ATKINSON: Right.

PN15

SENIOR DEPUTY PRESIDENT ACTON: Now, I've read your appeal submissions in the appeal against the decisions of Williams C and, as I understand it, in that appeal or in those appeals you present submissions on why Obatoki should not be followed.

PN16

MR ATKINSON: I do. In the first - pages 2 and 3 of my outline of submissions went through and made a request basically saying, "Please do not that allow to affect my appeals."

PN17

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN18

MR ATKINSON: Is that what you are referring to? Or are you referring to grounds - - -

PN19

SENIOR DEPUTY PRESIDENT ACTON: Yes, that's exactly what I am referring - - -

PN20

MR ATKINSON: - - - that I use in my appeal later on?

PN21

SENIOR DEPUTY PRESIDENT ACTON: I am referring exactly to those submissions.

PN22

MR ATKINSON: Yes.

PN23

SENIOR DEPUTY PRESIDENT ACTON: Those submissions would be considered by the Full Bench and it's the same Full Bench dealing with your appeals, and in essence what would happen is that you've raised these issues as to why the principles in Obatoki should not be followed and the appeal Full Bench would deal with those submissions.

PN24

MR ATKINSON: Right.

PN25

SENIOR DEPUTY PRESIDENT ACTON: The appeal Full Bench may come to the view that the arguments you raise are persuasive or alternatively may decide that the arguments you raise are not persuasive about why you think the decision in Obatoki is wrong.

PN26

MR ATKINSON: Right. Now, it's that sort of position that you've explained there is why I decided at the eleventh hour to put through this application that we are hearing today, to separate that request out and make it more formal, because I really wasn't sure of my rights as an appellant to ask that sort of thing.

PN27

SENIOR DEPUTY PRESIDENT ACTON: Well, you do have rights task that sort of thing as an appellant. Indeed, you may have more rights to ask that thing by virtue of the appeal than you do to have made the section 603 application, because the section 603 application requires you to be a person affected by the Obatoki decision.

PN28

MR ATKINSON: Yes.

PN29

SENIOR DEPUTY PRESIDENT ACTON: And there may be some question about whether you are such a person.

PN30

MR ATKINSON: I have, sort of, authority that, sort of, touches on that point that I've managed to find from prior decisions that could come close to explaining to that.

PN31

SENIOR DEPUTY PRESIDENT ACTON: Okay. The reason I raise it now is that given the Full Bench dealing with your appeals will consider the submissions you raise in respect of Obatoki and your submissions, in essence, why you are saying Obatoki is wrong, whether you need to pursue this section 603 application.

PN32

MR ATKINSON: Okay. So on that point could I ask then that the content, the substance of the application that we're hearing today, the actual grounds if I could call them than, the reasons why I would want to have the original decision varied - - -

PN33

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN34

MR ATKINSON: You will see that if you look at those grounds or those reasons and compare them to the request that was on pages 2 and 3 of my outline of submissions for my appeal, you will notice some minor changes.

PN35

SENIOR DEPUTY PRESIDENT ACTON: Right.

PN36

MR ATKINSON: I possibly might have overstated one of the issues on pages 2 and 3 of my outline of submissions for my appeal.

PN37

SENIOR DEPUTY PRESIDENT ACTON: Right.

PN38

MR ATKINSON: I've corrected that in the grounds that I've used as the substance for this application, so if you are to go and assess my grounds for, sort of, asking you to not allow that decision to, sort of, affect the granting of permission for my appeals, I've asked you to refer to the grounds that are in this application as being more correct, more representative for what I'm actually claiming.

PN39

SENIOR DEPUTY PRESIDENT ACTON: Okay. So one way of looking at that is that you might like to amend your submissions you've made in the appeals to incorporate the arguments that you've raised in this matter.

PN40

MR ATKINSON: Yes. They're fundamentally the same, but I think it's just a bit more narrowed.

PN41

SENIOR DEPUTY PRESIDENT ACTON: I see. Mr Atkinson, one of the things that we could do is take the arguments that you've raised in respect of this matter, because as you say they're slightly different to the ones you previously raised, and advise the respondent to the appeals; that is, your former employer and those other people who are respondent to those appeals, that you want us to also take into account the arguments you've raised in this matter as part of the appeals.

PN42

If they've got any comments to make on those further submissions, give them a bit more time to make those submissions in writing.

PN43

MR ATKINSON: Have you seen - they made their submissions- - -

PN44

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN45

MR ATKINSON: You saw those yesterday?

PN46

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN47

MR ATKINSON: I think it's fairly - well, without prejudicing where they're coming from or anything, but I think it's fairly plain that they will probably just refer back to say that I have made substantial submissions. At any rate, the nature of the differences between what I have put as the grounds today and what is on pages 2 and 3 of my outline of submissions for my appeals is not significant.

PN48

They would not even notice any difference. It's really an allegation that I made - a claim that I made with regards some of the discrepancies. I've softened that terminology used on today pretty much and that's really the only significant change.

PN49

SENIOR DEPUTY PRESIDENT ACTON: Yes, it's really a matter of procedural fairness, Mr Atkinson.

PN50

MR ATKINSON: Yes, well clearly, if I - would you take it upon yourselves to do that or shall I submit again?

PN51

SENIOR DEPUTY PRESIDENT ACTON: Yes, we'd do that. No, we can do that. We can take what you've said in respect of this application into account as part of the appeals and advise the other side that you've put there other submissions in and if they have any comment to make, they can do, and we'll give them a limited time period to do so. Then we would decide the matter on the basis of the material you've put in together with the material that forms the submissions you'd want to make in this matter.

PN52

MR ATKINSON: Right.

PN53

SENIOR DEPUTY PRESIDENT ACTON: So if that's satisfactory to you, that may be a more appropriate way of dealing with the concerns you have about Obatoki rather than dealing with it through this application.

PN54

MR ATKINSON: Right. Certainly my objective starts and stops with its effect on my own appeals. You know, I think that there is a greater issue with the decision there. In fact, if some single member in the future sort of refers back to that and makes a decision in accordance with it, adopts it in their case, I think it would be wrong for that to occur, but that's not my situation.

PN55

SENIOR DEPUTY PRESIDENT ACTON: Okay. So are you content to not proceed with your section 603 application on the basis that the matters you raise in support of that application will be taken into account in the appeals?

PN56

MR ATKINSON: Taken into account? See, I'm just sort of not sure of, like, so that's a decision that you would make, at the time of considering my appeals, as to whether to grant them permission - - -

PN57

SENIOR DEPUTY PRESIDENT ACTON: No, you've made submissions in support of your section 603 application.

PN58

MR ATKINSON: Yes.

PN59

SENIOR DEPUTY PRESIDENT ACTON: Well, which were contained within the application, because it's quite detailed, your application. I don't know whether there was anything further you were going to say today in respect of the section 603 application?

PN60

MR ATKINSON: Well, with such short notice I wasn't able to really put together anything substantial to come up with. I was able to come up with a whole lot of - well, several Full Bench references to section 603 and how it might be used and the authority to use it in certain way.

PN61

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN62

MR ATKINSON: And also some other - like the Workplace Relations Tribunal, I think it was, sort making new - - -

AUDIO MALFUNCTION - RECORDING STOPPED [1.46 PM]

RESUMED [1.55 PM]

PN63

SENIOR DEPUTY PRESIDENT ACTON: Now, Mr Atkinson, prior to the problem with the recording device we were dealing with the usefulness of you proceeding with this application under section 603 when the Full Bench dealing with your appeals could take into account the submissions that you want to make in respect of the section 603 application in considering the appeals. The suggestion was that those appeal Full Benches - that appeal Full Bench consider your submissions and advise the other side whether they wanted to make any comment.

PN64

It may be, however, that the neatest course is for you to amend you submissions in the appeal to incorporate any arguments that you wanted to raise here that deal with the errors in Obatoki for those amended submissions to be provided to the respondent to the appeal, so that they've got a chance to make comment on them, and then for the appeal Full Bench to deal with the matter.

PN65

MR ATKINSON: Okay. I understand what you're saying there. I have a concern and this is sort of a bigger-picture motivator for me, if I could use that terminology, of getting that Obatoki decision changed or altered such that it doesn't go on to affect subsequent single member decisions. I mean, I understand that my appear could be allowed based on my submissions saying the Obatoki decision is not reliable and you might choose to accept what I say there and grant permission for my own appeals to be heard.

PN66

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN67

MR ATKINSON: That's well and good for my circumstance, but there's the case where if that's left to stand, that it can go and sort of impact on other single-member decisions with regards bullying and resulting in the dismissal of those applications, because of what's been decided in the Obatoki appeal. It's a concern and it was, sort of - you know, it's always in the background.

PN68

It's not my main motivation for doing what I do today or this application, or - you know, it really is about my own appeals, but if that's left to stand and my appeals are heard because you've decided not to pay any attention to the Obatoki decision, at that point there, whatever chance I had to be - to claim as a person affected by the Obatoki decision is lost.

PN69

SENIOR DEPUTY PRESIDENT ACTON: Mr Atkinson, I've laid out for you the situation with respect to what the appeal Full Bench would do with respect to your submissions on Obatoki. There's not much more I can say. It's up to you whether you wish to pursue your section 603 application.

PN70

MR ATKINSON: Well, I think really I would ask for more time to think about that.

PN71

SENIOR DEPUTY PRESIDENT ACTON: We are here today to deal with you section 603 application if you want us to deal with it.

PN72

MR ATKINSON: Will I also be given the opportunity to amend my outline of submissions to bring the pages 2 and 3 of that more in line with that the substance of today's application is?

PN73

SENIOR DEPUTY PRESIDENT ACTON: Yes, you can.

PN74

MR ATKINSON: So in addition, if I decide to proceed with the section 603 application I will still be given that opportunity?

PN75

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN76

MR ATKINSON: Yes. Well, if I have to make a decision right now, I would say that I would like to proceed with the section 603 application.

PN77

SENIOR DEPUTY PRESIDENT ACTON: Well, of you got. We're here to deal with it.

PN78

MR ATKINSON: Yes.

PN79

SENIOR DEPUTY PRESIDENT ACTON: Make the submissions. The first thing we would like you to address is whether you are a person affected.

PN80

MR ATKINSON: Yes. Your Honour, there's one other issue I'd like to raise before I begin trying to show that I am a person affected by the decision. I wasn't given very much notice for today's hearing and I wasn't sort of - I mean, there's been no opportunity made to support my application with any written submissions, and although I've tried to gather in some authority that might support me claiming to be a person affected by the decision, I have been able to look at them in any great detail, due to the time constraints and, sort of, not really being exactly sure what today's hearing was all about, because I'm only listed - I'm the only person listed and I would have thought that if the matter was going to, sort of, progress, that there would be more parties listed as respondents.

PN81

SENIOR DEPUTY PRESIDENT ACTON: Well, we've only notified you. It's your chance to make submissions. If, subsequent to your submissions, we think there's a need for others to be advised, they would be.

PN82

MR ATKINSON: Is there a chance that I can be given the opportunity to make a written submission to this? I mean, I have brought something in with me, but really it sort of hasn't undergone a lot of scrutiny by myself to determine exactly now relevant it is and there might well be stuff out there that comes closer to showing this.

PN83

I can go through what I have brought in, but like I say , I haven't given it a lot of attention.

PN84

SENIOR DEPUTY PRESIDENT ACTON: Well, it's not Thursday. This matter was listed on Monday.

PN85

MR ATKINSON: At 2 o'clock. 3 o'clock.

PN86

SENIOR DEPUTY PRESIDENT ACTON: Yes. That's quite a bit of time.

PN87

MR ATKINSON: Hey?

PN88

SENIOR DEPUTY PRESIDENT ACTON: It's quite a bit of time.

PN89

MR ATKINSON: Well, I think the normal procedure would be - - -

PN90

DEPUTY PRESIDENT GOOLEY: No, normal procedure is not that we have written submissions. That might be the normal procedures on appeal. This is not an appeal. You made your application - presumably before you made your application, you considered the issues in relation to making that application. It is very common in this Commission for people to make applications and come along and make oral submissions in support of their application. There is no normal procedure in relation to the filing of written submissions. So I think (indistinct) appeal but that's because appeal would raise different issues. This is the - - -

PN91

MR ATKINSON: Well, yes, I'm limited to my experience with my applications for bullying orders, which certainly went through the submission - the written submission process and, of course, with the appeal which also did that. So that's the process I am familiar with. I don't know what grounds you have for departing from that.

PN92

Obviously, you think that you are going to depart from that now, so that's okay. I have brought something in, I just don't know how exactly relevant and whether there's something out there that would do a better job of - - -

PN93

SENIOR DEPUTY PRESIDENT ACTON: Well, Mr Atkinson, this is your opportunity. You should present the submissions you've got.

PN94

MR ATKINSON: Okay.

PN95

SENIOR DEPUTY PRESIDENT ACTON: So if you can address whether you are a person affected. The requirement is section 603(2)(b)(i) for an application under section 603.

PN96

MR ATKINSON: Yes. I believe I am a person affected by the decision because the case FWCFB 1661 is an appeal from a decision to dismiss an application for an order to stop bullying.

PN97

I have two appears before the Full Bench currently, each of which is also an appear from a decision to dismiss an application for an order to stop bullying. The decisions at first instance in all three appeals and the reason for those decisions are sufficiently similar that the Full Bench may refuse to grant permission for my own appeals - may. Accordingly, I am a person affected by that earlier decision of FWCFB 1661.

PN98

I have other authorities that talk about the likelihood that I may be able to argue I am a person affected by that decision. If you'd just grant me some time here to find them.

PN99

I am not sure of the acronym that sort of indicated which Commission or Court that this matter was heard in. It's AIRC.

PN100

SENIOR DEPUTY PRESIDENT ACTON: Yes, it is the predecessor to this tribunal.

PN101

MR ATKINSON: Yes. And the matter I refer to is from 1996, 19 March and the identifying numbers at the top of it is 216/96. It's a print and then there's another identifier called M9753. That might be a matter number of something?

PN102

SENIOR DEPUTY PRESIDENT ACTON: It's the print number.

PN103

MR ATKINSON: Yes. That's the original authority that I've copied here and it begins with - it talks about the general principles are the determination of the appeals before us require a consideration of both the duty on parties to fully and frankly disclose relevant matters to the Commission and the circumstances in which an organisation will have a right to intervene in proceedings before the Commission.

PN104

And they go through and they sort of - obviously the full and frank disclosure side is an argument - I think what happened reading over it is that a decision was made after one of the parties provided either incorrect information or omitted certain information from the Commission and they arrived at a decision incorrectly, basically.

PN105

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN106

MR ATKINSON: And it went on to, like, argue that that was a proper use of a vary or revoke power that was available to them, because their decision was not well made. In my circumstance, it's subtly different in that the decision that is not well made is not something by a party, it's actually by the Commission themselves is what I would argue, and that is the decision of FWCFB 1661.

PN107

So the full and frank disclosure side, I don't know if I want to bore everyone here by talking about that side of it so much, we can just go straight on to talking about how a party might quality as being a person affected by the decision and have the right to intervene in the proceedings.

PN108

SENIOR DEPUTY PRESIDENT ACTON: It's not a matter of intervention. It's a matter of you being able to make an application because you're a person affected.

PN109

MR ATKINSON: Yes. That terminology came of out of this case Yes, I know, there's a difference as to my circumstance. But I don't believe the underlying principles of where they allow a person to be added as a respondent or an applicant or whatever the terminology is in another matter, the principles that they go over and use, I think, applicable to my circumstances. We shall see anyway, if we want to look at that.

PN110

And like I say, it's unfortunate I haven't been able to provide written submissions at this stage because there's quite a lot here and I haven't had the time to go through and prune out any bits that might actually end up being irrelevant, so I'd like to be allowed to read from it in its entirety if that's okay?

PN111

SENIOR DEPUTY PRESIDENT ACTON: How much have you got?

PN112

MR ATKINSON: Nine pages.

PN113

SENIOR DEPUTY PRESIDENT ACTON: Mm-hm, off you go.

PN114

MR ATKINSON: General Principles:

PN115

The determination of the appeals before us requires a consideration of both the duty on parties to fully and frankly disclose relevant matters to the Commission and the circumstances in which an organisation will have a right to intervene in proceedings before the Commission.

PN116

Full and Frank Disclosure: It is a longstanding principle of this Commission and its predecessors that there is a duty on persons appearing before the Commission to ensure that there is full and frank disclosure of all matters - - -

PN117

SENIOR DEPUTY PRESIDENT ACTON: What's full and frank disclosure got to do with the person affected?

PN118

MR ATKINSON: I did sort of try and explain how I thought that was relevant in the case where - this matter dealt with one of the parties not providing a full and frank disclosure, and how that impacted on the decision that was going to be varied or revoked, and I've tried to draw a parallel - - -

PN119

SENIOR DEPUTY PRESIDENT ACTON: This is where someone was a party to the proceedings at first instance.

PN120

MR ATKINSON: Yes, and I explained that in my circumstance there is a parallel to be drawn between the omission or the less than frank disclosure that was made to this body, and the decision that exists in [2015] FWCFB 1661, which is Obatoki's appeal. The parallel I draw is that there was wrong information that was relied upon by the Commission in this instance, and in my circumstance there is a potential of the Commission relying upon wrong decision a wrong decision, a poorly made decision and the difference of course being is that it's a poorly made well in fact it's the same case there is that there are two decisions; I argue that the appeal decision in Obatoki's case is wrong, and this case here deals with a wrong decision made earlier and the ability to vary or revoke it.

PN121

SENIOR DEPUTY PRESIDENT ACTON: In summary, do you say you're a person affected because this Full Bench or the Full Bench dealing with your appeals might follow Obatoki?

PN122

MR ATKINSON: Yes.

PN123

SENIOR DEPUTY PRESIDENT ACTON: Is that the basis of your submission that you're a person affected?

PN124

MR ATKINSON: Yes.

PN125

SENIOR DEPUTY PRESIDENT ACTON: Was there anything else you want to say in person affected, because that's the basis on which you say you're a person affected? We can deal with that submission.

PN126

MR ATKINSON: But my understanding from what you've told me so far in terms of you when the moment comes to consider whether to follow the precedent set by the Full Bench in Obatoki's case or to say well we're actually going to pay that no heed and we're going to hear Mr Atkinson's appeal, allow them to be heard or considered, that's a discretionary act by this Full Bench at the time. It would not change I would think my claim that I am a person affected by it. You could choose to exercise your discretion to say right well we've just decided not to make Mr Atkinson you know, not to follow a decision made earlier on the case of Mr Atkinson's appeals before us now, but prior to that moment there is the risk the potential that could have been made subject to the earlier decision.

PN127

SENIOR DEPUTY PRESIDENT ACTON: Do you have any actual cases that deal with what a person affected is deal with the phrase 'a person affected'?

PN128

MR ATKINSON: I would need to just quickly refer to this to see if that phrase is used.

PN129

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN130

MR ATKINSON: It's the same principle but I don't know if they use that phrase.

PN131

SENIOR DEPUTY PRESIDENT ACTON: Bearing in mind the case you've just gone to is a case in which was being argued by someone who was actually a party to the proceeding, whereas you weren't a party to the proceeding in Obatoki.

PN132

MR ATKINSON: You are very confident that that was the case, that this argument here was put forward by one of the original parties?

PN133

SENIOR DEPUTY PRESIDENT ACTON: Well from what you've read.

PN134

MR ATKINSON: I haven't read anything that was - - -

PN135

SENIOR DEPUTY PRESIDENT ACTON: You've read about an appeal case, in which someone is saying that there wasn't full and frank disclosure.

PN136

MR ATKINSON: That's one part of it and it's a two‑part thing.

PN137

SENIOR DEPUTY PRESIDENT ACTON: That's a person aggrieved, was it, as opposed to a person affected?

PN138

MR ATKINSON: A person affected, and I don't have a lot of confidence in what was actually read here - - -

PN139

SENIOR DEPUTY PRESIDENT ACTON: Have you got the case there?

PN140

MR ATKINSON: Yes.

PN141

SENIOR DEPUTY PRESIDENT ACTON: Can you hand it up to me?

PN142

MR ATKINSON: I haven't got the complete case from - - -

PN143

SENIOR DEPUTY PRESIDENT ACTON: Okay, just hand up what you've got. Where did you get this from, Mr Atkinson?

PN144

MR ATKINSON: From the AustLII web site.

PN145

SENIOR DEPUTY PRESIDENT ACTON: Okay. Well one of the issues the bit you've printed off is about full and frank disclosure, right? It's not about person affected.

PN146

MR ATKINSON: That is it segues down into that discussion further along.

PN147

SENIOR DEPUTY PRESIDENT ACTON: Can you take us exactly to the point where it segues down?

PN148

MR ATKINSON: Not without having the thing in front of me.

PN149

SENIOR DEPUTY PRESIDENT ACTON: Well I'll give it to you and if you can go directly to that point?

PN150

MR ATKINSON: And as I said before I'm not sure of the terminology they use here, whether it matches word for word what we're trying to achieve or what we're trying to understand in my case with the new Fair Work Act.

PN151

SENIOR DEPUTY PRESIDENT ACTON: Well the notion that people should give full and frank disclosure to the Commission or a similar body is a very different concept to a notion of person affected.

PN152

MR ATKINSON: I did try and explain the parallel of that idea, full and frank disclosure, with the circumstance that I'm in, and that's about the quality of the decision made in Obatoki, but it's not a point that I'm willing to argue. The document that I printed opened up with that discussion and then moved on to talking about whether a person has the right, or should be given the right, to be added as a respondent or an applicant or part of the proceedings when they weren't in the original matter. So I've just got to find that bit if you could bear with me.

PN153

SENIOR DEPUTY PRESIDENT ACTON: When you're not in the original matter you've got a right to come along, as you have sought to do on the appeals, to say: Full Bench dealing with the appeals, you shouldn't follow Obatoki because it's wrong for these reasons. You've done that.

PN154

MR ATKINSON: Yes.

PN155

SENIOR DEPUTY PRESIDENT ACTON: And I've told you the Full Bench dealing with your appeals will deal with that argument.

PN156

MR ATKINSON: Yes, but what's at issue right now is the determination or the argument that whether or not I am a person affected by the decision.

PN157

SENIOR DEPUTY PRESIDENT ACTON: Yes, because you've decided to pursue your section 603 application, and that's the first hurdle you need to get over when you're a person affected.

PN158

MR ATKINSON: Yes, that's right and that's what I'm trying to do now, so I understand that with my appeals that the Full Bench would, based on my submission, would look at that and they'd say well he's asked us not to look at the Obatoki decision and - - -

PN159

SENIOR DEPUTY PRESIDENT ACTON: All right, go directly please to the standing issue - whether you're a person affected.

PN160

MR ATKINSON: Okay, and it begins on that same case that I mentioned earlier, it's section 2 of it and it's headed: Procedural Fairness and Intervention.

PN161

SENIOR DEPUTY PRESIDENT ACTON: What's that got to do with a person affected?

PN162

MR ATKINSON: Can I read from this, and it should fall out of what I disclose an answer to your question should be made if I read through this?

PN163

SENIOR DEPUTY PRESIDENT ACTON: Why do you think it is relevant?

PN164

MR ATKINSON: Obviously, section 603(2)(b)(i) says that I must be a person affected. The explanatory memorandum - and I'm quoting here from memory - talks of that as not to limit the person who can use that provision, the 603 provision, to just the parties, so in there already there's scope to add - - -

PN165

SENIOR DEPUTY PRESIDENT ACTON: Have you got that copy of the explanatory memorandum on that?

PN166

MR ATKINSON: No, I don't.

PN167

SENIOR DEPUTY PRESIDENT ACTON: Yes?

PN168

MR ATKINSON: But it does explain why they haven't just limited it to the parties. You can do it on application to the Commission - it can be done on application to the Commission, or the Commission can choose to take it upon themselves to vary or revoke, and when talking about what sort of person might be affected, the explanatory memorandum talks about that obviously decisions will be made by the Commission that affect a vast number of people across Australia.

PN169

SENIOR DEPUTY PRESIDENT ACTON: Mm.

PN170

MR ATKINSON: And those people would not be allowed to apply to the Commission; they would not qualify as a person affected.

PN171

SENIOR DEPUTY PRESIDENT ACTON: So why are you different?

PN172

MR ATKINSON: Because I have a matter before the Commission my appeals which may be affected.

PN173

SENIOR DEPUTY PRESIDENT ACTON: You've got the right to raise those in the appeals.

PN174

MR ATKINSON: Yes but I don't know what the outcome would be.

PN175

SENIOR DEPUTY PRESIDENT ACTON: But you may not know the outcome from this if you're not a person affected.

PN176

MR ATKINSON: That's right and that's what we're arguing now.

PN177

SENIOR DEPUTY PRESIDENT ACTON: Yes, all right.

PN178

MR ATKINSON: And at any rate, as I said earlier, if I do just sort of - - -

PN179

SENIOR DEPUTY PRESIDENT ACTON: If you've got material there, we can read this material, rather than have you read it. If you hand it up I'll get copies for the Bench, we can adjourn briefly and read it.

PN180

MR ATKINSON: Yes, and then you could make an assessment of how relevant it is.

PN181

SENIOR DEPUTY PRESIDENT ACTON: Yes. That's the material you want to rely on in terms of person affected?

PN182

MR ATKINSON: Well I would like to be given the opportunity to make a more substantial written thing if this is going to be a deciding factor.

PN183

SENIOR DEPUTY PRESIDENT ACTON: We've told you this is your opportunity to make your submissions. If your submissions are contained within that - - -

PN184

MR ATKINSON: You told me that today. I wasn't told that on I rang your associate and tried to find out the purpose of this thing, it was to make more oral submission in support of my argument.

PN185

SENIOR DEPUTY PRESIDENT ACTON: Mr Atkinson, the notice of listing that went to you

PN186

The above matter is listed for hearing and for oral submissions to be made by the applicant in support of the application.

PN187

MR ATKINSON: Yes, at 3 pm on Monday afternoon.

PN188

SENIOR DEPUTY PRESIDENT ACTON: You're lucky it was dealt with so quickly.

PN189

MR ATKINSON: Well it might turn out that I could actually describe it as being unlucky.

PN190

SENIOR DEPUTY PRESIDENT ACTON: Well you've had now 3 days.

PN191

MR ATKINSON: Minus 22 hours 2 hours, yes.

PN192

SENIOR DEPUTY PRESIDENT ACTON: The submissions you've got are there? You've got them before you? Well you just told us you were going to read 9 pages.

PN193

MR ATKINSON: Yes, well I've now refined that to seven if it's of any interest.

PN194

SENIOR DEPUTY PRESIDENT ACTON: If you want to give us the whole nine we can adjourn briefly, read the pages and come back - if they're your submissions on person affected.

PN195

MR ATKINSON: Here they are.

PN196

SENIOR DEPUTY PRESIDENT ACTON: Okay.

PN197

MR ATKINSON: I'm not happy not being allowed to make more substantial submissions on this. If this is going to be the limit of my argument I'm not happy with that.

PN198

SENIOR DEPUTY PRESIDENT ACTON: Do you have anything else on the issue of person affected?

PN199

MR ATKINSON: No. I would remind you that my reference to the explanatory memorandum, that's all.

PN200

SENIOR DEPUTY PRESIDENT ACTON: Thank you. We'll adjourn briefly just so we can read these submissions.

SHORT ADJOURNMENT [2.24 PM]

RESUMED [2.46 PM]

PN201

SENIOR DEPUTY PRESIDENT ACTON: Mr Atkinson, we've had the opportunity to read that document. I'll mark that document as A1.

EXHIBIT #A1 SUBMISSIONS OF MR ATKINSON COMPRISING NINE PAGES

PN202

SENIOR DEPUTY PRESIDENT ACTON: We understand that you consider yourself to be a person affected because the Full Bench dealing with your appeals might rely on the decision, Obatoki. Is there any other basis on which you say you're a person affected?

PN203

MR ATKINSON: It really hurts me to see someone suffer that injustice that Obatoki suffered as a result of that decision, so there's an emotional concern but that won't qualify, so no.

PN204

SENIOR DEPUTY PRESIDENT ACTON: And you're pursuing this issue still in the appeals?

PN205

MR ATKINSON: Yes.

PN206

SENIOR DEPUTY PRESIDENT ACTON: Having regard to what's been put to us, we're not persuaded that you are a person affected. Further, in the exercise of our discretion under section 603, we would decline to vary the decision in Obatoki or set it aside, because the matter that you raise in respect of Obatoki can be dealt with in the appeals that you have dealt with, which are still to be determined.

PN207

MR ATKINSON: And I'd be given sorry, your Honour, I'd be given the opportunity to amend my submission to the appeal - - -

PN208

SENIOR DEPUTY PRESIDENT ACTON: Yes, you will. How long would it take you to do that?

PN209

MR ATKINSON: One day.

PN210

SENIOR DEPUTY PRESIDENT ACTON: So you can file that tomorrow?

PN211

MR ATKINSON: Yes.

PN212

SENIOR DEPUTY PRESIDENT ACTON: Okay. When you file that we will forward it to the other side and give them some opportunity to make any comments, and then we will determine your appeals on the basis of all the material before us in the appeals. Yes?

PN213

MR ATKINSON: Taking the grounds or whatever they are out of today's application and putting it in would actually replace rather than add to the earlier - - -

PN214

SENIOR DEPUTY PRESIDENT ACTON: You do it however you want to do it.

PN215

MR ATKINSON: Yes, that's my intention here.

PN216

SENIOR DEPUTY PRESIDENT ACTON: Very well, we will now adjourn.

ADJOURNED INDEFINITELY [2.49 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SUBMISSIONS OF MR ATKINSON COMPRISING NINE PAGES PN201