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C2003/ 2509 , Transcript of Proceedings [2004] AIRCTrans 792 (3 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6163
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE, President
DEPUTY PRESIDENT HAMILTON
COMMISSIONER HINGLEY

C2003/ 2509 

APPEAL UNDER SECTION 45 OF THE
ACT BY COMSEC TRADING LIMITED
AND OTHERS AGAINST THE ORDER
MADE BY VICE PRESIDENT LAWLER
AT SYDNEY ON 25 NOVEMBER 2003 IN
C2003/2484 (PR 941077) RE APPLICATION
TO SET ASIDE SUMMONS

MELBOURNE

10.00 AM, WEDNESDAY, 18 FEBRUARY 2004

PN1

MR J. SACKAR: I seek leave to appear with my learned friend, MR M. McDONALD, for ComSec.

PN2

MS A. GOOLEY: I seek leave to appear on behalf of the Finance Sector Union and with me is MR A. NEAL.

PN3

JUSTICE GIUDICE: Yes, leave is granted in each case. Mr Sackar?

PN4

MR SACKAR: Can I just deal with a couple of housekeeping matters first? May I enquire as to whether Members of the Commission have received from us two bundles of materials, which includes amongst other things the decision of Vice President Lawler and transcript and other matters.

PN5

JUSTICE GIUDICE: There is a document called Appeal Book.

PN6

MR SACKAR: Yes. There were two. One supplemented the other.

PN7

JUSTICE GIUDICE: You had better tell us what they look like, Mr Sackar.

PN8

MR SACKAR: Well, I have just been told by Mr McDonald that you won't have the second bundle, mainly because it is "on the way". It is making its way up here now, so I apologise. I will try and proceed without out for the moment.

PN9

JUSTICE GIUDICE: We did receive an outline last night.

PN10

MR SACKAR: Yes.

PN11

JUSTICE GIUDICE: Yes.

PN12

MR SACKAR: But what you may not have, your Honour, is the decision of Vice President Lawler. It was included, is included in the second bundle of paper, and that is just a slight impediment to me developing the point.

PN13

JUSTICE GIUDICE: Yes.

PN14

MR SACKAR: But I will develop it shortly without it.

PN15

JUSTICE GIUDICE: Good.

PN16

MR SACKAR: And then if need be, I will come to it. Can I get to the second matter of housekeeping? We sent a letter yesterday afternoon, we being Freehills, rather, sent a letter yesterday afternoon to Ms Gooley at Maurice Blackburn Cashman. May I distribute a copy for each Member of the Commission of that letter, and briefly go to it? We make a reference in our outline to proceedings continuing before the learned Vice President. This is intended, we hope, to be a non-controversial update of exactly what has happened.

PN17

It is fair to say that perhaps due to the lateness of the hour that Ms Gooley got it we haven't received a response, but we don't think it would be controversial. That simply, as you will see in 8(g), indicates that the question of genuineness, if you like, has been agitated before his Honour, and evidence has been directed to that issue. We also seek two minor amendments to the notice of appeal, additional volumes and order, which goes to - if we have one - an appeal under section 45(1)(b), and of course we had failed in the original notice of appeal were we successful to ask that the decision of the Vice President be set aside. Now, just to say I don't know that any of those matters are controversial.

PN18

JUSTICE GIUDICE: Ms Gooley?

PN19

MS GOOLEY: Thank you, your Honour. Except in relation to point (f) in the letter, which refers to the fact that evidence of an expert witness, Professor Hewson, is to be called, that the evidence is complete. We reserved our position in relation to whether we need - we would be in fact calling any evidence in reply to Professor Hewson.

PN20

JUSTICE GIUDICE: Yes.

PN21

MS GOOLEY: But apart from that, we have no objection to the letter.

PN22

JUSTICE GIUDICE: Yes, thank you.

PN23

MR SACKAR: Well, we certainly have no objection, obviously, and couldn't rationally, to any evidence in reply.

PN24

JUSTICE GIUDICE: Yes.

PN25

MR SACKAR: Can I seek to put the point very shortly, because having read the outline, we either make the point good or we don't, in the outline. But the essential problem here is - which we say amounts to jurisdictional error, is that the question which the learned Vice President was confronted with, and the only question that was ripe for determination, was the question of whether the various paragraphs in the summons by their description of the categories of documents could be said to cure material which was capable of being relevant to the issue of genuineness.

PN26

What his Honour did, as is clear from the decision when hopefully it arrives shortly and I can show you, is he in fact decided the issue of the genuineness of the - or rather, the arguability of the genuineness of the industrial dispute itself. Now, leaving aside questions of predetermination or anything of that sort, it simply was not an issue that was before him, and was not an issue that could be properly before him. The parties in their outline of argument, and indeed in the address that they gave orally, kept themselves entirely to the question of the arguable relevance of the documents.

PN27

Now, again I apologise in the sense that I don't think I can make good - perhaps I can. There is one volume that I think - one that your Honours do have. May I just invite you to go to that for a moment? May I invite your Honours to go to page 71? Upper right-hand corner is the pagination. Now, this was the outline of argument that was filed on behalf of ComSec, and I don't ask you to read it now nor shall I read it to you, but when you have an opportunity look at it, the ComSec submission was purely based upon, having raised the issue of genuineness, were the documents in paragraphs 1, 3 and 4, or 1, 2, 3 and 4, because 5 was not pressed in the summons - documents which would arguably go to the issue of genuineness. Now the issue of genuineness I will come back to - - -

PN28

JUSTICE GIUDICE: This is this identification of paragraphs problem. Sometimes they are (a), (b), and sometimes they are 1, 2. Is that - - -

PN29

MR SACKAR: That may well be so.

PN30

JUSTICE GIUDICE: Yes.

PN31

MR SACKAR: I am sorry. I was trying to deal in a shorthand fashion - - -

PN32

JUSTICE GIUDICE: Yes, of course.

PN33

MR SACKAR: - - - with what the outline for ComSec was. But if you go to, let us say page 72. If I can just do page numbers. You will see under "The Principles Relevant to Setting Aside a Summons" a number of decisions were referred to, and over the page - - -

PN34

JUSTICE GIUDICE: Yes.

PN35

MR SACKAR: - - - the decision of Munro J in the Clerks Award, which was accepted by both parties as the decision distilling the relevant principles that the Vice President ought to consider in determining the question, and (b), paragraph 8(b):

PN36

...the documents sought must be of a nature capable of being relevant to an issue which might legitimately arise...

PN37

etcetera.

PN38

JUSTICE GIUDICE: If that condition is fulfilled, does that mean that the summons must be issued?

PN39

MR SACKAR: With great respect we would say in the absence of mala fides, and none was suggested, in the absence of oppression, and it was expressly disavowed, we would submit it would be an error in the exercise of discretion, unless - because if it is arguably relevant, then it would not as a result of that be fishing. So - - -

PN40

JUSTICE GIUDICE: Pretty broad test, isn't it, "capable of being relevant".

PN41

MR SACKAR: Yes. But that would be the test which would be applied in any subpoena context. The discovery test is arguably wider; "relate to" would be the discovery test. But arguable relevance is - not having seen the documents, of course, and although it is high level, it is a test which is well accepted and one indeed advanced by the union in this case as the appropriate standard.

PN42

JUSTICE GIUDICE: Yes.

PN43

MR SACKAR: And by us. Yes, it is. It is a high level of generality, but because you don't know what is going to be procured, unless for example the argument of oppression is put against us, which wasn't. As I say, it was expressly disavowed. One can have summonses which are oppressive, because the categories of documents are far too wide, or alternatively the period of time, for example, over which it is said documents relating to the issue of arguable, or rather arguably relevant is far too wide. But no such argument was put here.

PN44

Indeed, when we come to the union's outline of argument, one might be forgiven for thinking that the argument on relevance was really not addressed with any analysis, because it was very difficult in the absence of some other argument to suggest that the documents could not arguably be relevant. Now, I am dancing around that phrase. It ought to be put in context, because one ought to look at the summons itself in a moment, which I will go to. But regrettably I think it is in that second bundle of paper which is still obviously on the way.

PN45

JUSTICE GIUDICE: Well, probably set out in the - it is set out on page 71.

PN46

MR SACKAR: Yes, I think it is.

PN47

JUSTICE GIUDICE: In substance.

PN48

MR SACKAR: Yes, thank you.

PN49

JUSTICE GIUDICE: It is 4(a), (b), (c), (d) - - -

PN50

MR SACKAR: Yes.

PN51

JUSTICE GIUDICE: (a), (b), (c), (d). Yes.

PN52

MR SACKAR: Yes, thank you, your Honour, thank you. Now 2, paragraph 2, as it was, but difficult to work out, it is probably (b), (e) was not pressed, it was 5 in the summons. 2, the learned Vice President directed the documents answering that description ought be supplied. No argument was really put, as I say with very great respect, by way of any analysis, as to why (a), (c) and (d) would not procure, if they existed, documents that would arguably be relevant.

PN53

Now, in the outline of argument produced by the union - and perhaps I should just continue by taking your briefly through the outline adduced by ComSec and go back to paragraphs - I am so sorry, page 73. It just discusses, by reference to slabs of authority, the balancing procedure which the Vice President was invited to engage in and then, when one goes to the balance of the outline, there is nothing remarkable. I don't mean to be disrespectful to those who composed it but it really than addresses each of the paragraphs and puts, in a fairly bland fashion, why it will be the documents would be arguably relevant.

PN54

Now, of course, the outline filed for the union, may I take you to that and that commences at page 85. Then page 86, the union embraced Munro Js decision in that Alcoa case and they set out, almost identically, passages that have been put by ComSec. In paragraph 9, on page 87, they articulated the areas that were, as it were, they perceived it in issue between the parties although obviously no pleadings but nonetheless they were the issues as perceived, and correctly so. Then you will see in their paragraph 10, at page 87, there was an assertion that the documents sought in paragraph 1 are not relevant to any of those issues and apart from, again, perhaps an equally bland rejection by way of counter proposal nothing really to put in analysis.

PN55

Now when the matter came before his Honour for debate there were a number of matters adverted to as examples of what it was that ComSec wanted to allege was some evidence or at least provided a peg upon which it could hang its hat, ultimately, and why it wasn't a genuine dispute. Now one thing we say wasn't before his Honour was the strength or weakness of that argument. All that he had to deal with on the day was, is the issue seriously raised, no suggestion that it wasn't, what is the issue, what are the documents that are required to be produced and are they arguably relevant. Now, Mr Douglas - if I may just take you to one or two passages where he attempted on behalf of ComSec to explain how it was the argument might be put; and I emphasise the word "might" because this was very early days in these proceedings.

PN56

The day was fixed or the time was set aside to debate the summons, but it was always intended that there would be days set aside for the evidence. But may I invite you to go to page 31 of this book, paragraph 429, fourth last from the bottom. I don't suggest what I am about to put to you is comprehensive, but just to give you a flavour of what it was or how the argument ran. Mr Douglas said, I have got no difficulty with that - I am so, sorry, perhaps I should read what the learned Vice President said. He described what was being put as a belts and braces approach from the union's perspective. The union recognises this is an inference. I am drawing here that the union recognises it may lose the Federal Court litigation; and stopping there for one moment.

PN57

You will see when we get a copy of this material that what had happened previously was that there was an application by this union for interlocutory injunctive release in the Federal Court, alleging that the movement, as it were, of employees from Commonwealth Bank to ComSec infringed provisions of the Act. And, in that context, Mr Douglas was attempting to juxtapose the declaratory relief which the union was seeking there and, again, when this decision arrives, which I can hand up, now. Perhaps if I can just give you the decision, a working copy of it, so that I can stop making somewhat meaningless references to paragraphs.

PN58

In the matter that I just mentioned, namely, the question of the declaratory relief, may I invite your Honours to go to page 10 of the Vice President's decision. Mr Douglas, in articulating the argument on behalf of ComSec, and clearly by way of example of the kind of evidence that ComSec was going to lead, in addition to oral evidence, tendered on the application an affidavit of Ms Sharron Caddie, an FSU person, National Assistant Secretary, along with a letter which is extracted in his Honour's judgment at paragraph 26. But, at paragraph 24 on that left hand page or on that page 10, your Honours will see, in paragraph 10:

PN59

As this dispute was not resolved the FSU instituted proceedings in the Federal Court of Australia seeking the following declarations.

PN60

And one of the points Mr Douglas was raising was, not only have they served 199-odd companies, he raised the question of whether they could be genuinely seen to be wanting award regulation in respect of all of those companies but, indeed, they had said or wanted relief in the Federal Court that the Court should make a declaration that people who were employed at ComSec had since May - so sorry, May 2002 been bound by the Commonwealth Bank of Australia Employees Award 1999 and other declaratory relief along those lines.

PN61

So what Mr Douglas was outlining, merely by way of example to the learned Vice President, was that the - ComSec wanted to juxtapose the conduct of the FSU in filing and serving the log against all of these companies and also raise the question of what their purpose and motives were, given the fact that they were alleging in another place that there was already regulation, if you like, in the nature of the award which governed the employment of ComSec.

PN62

Now what Mr Douglas said, and may I then briefly take you back to some of these exchanges, in the transcript. It doesn't really advance what I have just paraphrased but you will see that, at page 31, he says, Mr Douglas, that is, paragraph 429, I am sorry. If I may just invite you now back to that paragraph, he says:

PN63

But what I am demonstrating is that there was a question mark raised by the factual material we are ...(reads)... conditions in the log of claims against 199.

PN64

Now can I take you ahead a little to page 41 of that book, to two further statements made by Mr Douglas, the first at paragraph 533.

PN65

No, your Honour, it is not - but coupled in this case with what we say is the real intent of the union ...(reads)... and continues to occur between CBA and ComSec.

PN66

And further down that page, 538, we say, we are not going - I am so sorry.

PN67

We say, we are not saying that the dispute didn't arise in a real and genuine way because of the scope and ...(reads)... to prevent two employers from having their employees resign...

PN68

Etcetera, etcetera. And in the last reference and, as I say, not comprehensive, just examples. If your Honours would move forward to page 43, paragraph 557, Mr Douglas again:

PN69

We say, on the facts that are known, the moment that it is arguable that this paper demand, these demands ...(reads)... ComSec and there is no resignation...

PN70

Etcetera, etcetera. Now - so the two points that were emerging, just in dialogue and in amplification, were 199, you can't be serious and look what you have said in the Federal Court, so why do you need regulation if you say it already has it and the Federal Court should so declare it. That does not end the matter. It doesn't mean and didn't mean that the union may not have very good and substantial responses to those matters; and, no doubt, when the matter concludes in final submission before the learned Vice President, one would expect the union would put arguments in order to persuade the Vice President that he should not make some final determination or, that is, he should not make the finding of an industrial dispute. So that - - -

PN71

JUSTICE GIUDICE: Can I just ask you about paragraph 538. I am not quite sure I understand what the point is that is being made there. I understand the suggestion that there is something bogus about the log but what is the real purpose that is hinted at there?

PN72

MR SACKAR: I am afraid I - I think it was a dispute that Mr Douglas was debating rather than suggesting that the facts here gave rise - I think if you look - I think, if you go to paragraph 560, that is the decision of 3 September 1980, Metal Trades Award State of Victoria. The impression I had when I read that, your Honour, was that Mr Douglas was - had drifted into an analogy, I think, in that decision in the 1980 Metal Trades Award, in saying that - - -

PN73

JUSTICE GIUDICE: Well he says in paragraph 538 - - -

PN74

MR SACKAR: I am so sorry, 538?

PN75

JUSTICE GIUDICE: Yes.

PN76

MR SACKAR: I am so sorry. Yes.

PN77

JUSTICE GIUDICE: You see, towards the end of that paragraph:

PN78

Namely to prevent two employers from having their employees resign...

PN79

Etcetera - - -

PN80

MR SACKAR: Yes, yes. Well what he was trying to say was that the motivation in serving the log on all of these companies, particularly in the light of the declaratory relief sought in the Federal Court, gave rise to an inference that disruption was really what it was all about, not the finding or not an attempt to find or had, rather, found a genuine industrial dispute.

PN81

JUSTICE GIUDICE: To disrupt the - - -

PN82

MR SACKAR: To disrupt - - -

PN83

JUSTICE GIUDICE: - - - the transfer of employees from - - -

PN84

MR SACKAR: Yes, yes.

PN85

JUSTICE GIUDICE: - - - CBA to ComSec?

PN86

MR SACKAR: Yes. And although the learned Vice President later in his judgment, which I will come to in a moment, rejected that that would be the result of it, what Mr Douglas was saying, was, well, look, we want to investigate purpose and motive - - -

PN87

JUSTICE GIUDICE: Yes.

PN88

MR SACKAR: - - - and we want to say that this - and your Honours will - - -

PN89

JUSTICE GIUDICE: Yes, I follow that. I just wasn't quite sure - - -

PN90

MR SACKAR: I think that is what he had in mind.

PN91

JUSTICE GIUDICE: - - - what the specific - - -

PN92

MR SACKAR: I think that is what he had in mind.

PN93

JUSTICE GIUDICE: - - - purpose was.

PN94

MR SACKAR: Yes, and I think what your Honours - I do not propose to take your Honours to the decisions which you are already familiar with, but the juxtaposition or rather the distinction between the dispute and disruption is one which sometimes is made in some of the cases.

PN95

JUSTICE GIUDICE: Yes.

PN96

MR SACKAR: All that happened was that ComSec was, obviously there being no pleadings, articulating, but not necessarily comprehensively because they weren't asked, although his Honour seemed to think that that was the only basis upon which it may deport, and Ms Gooley has been at the hearing and I am not suggesting, because I am not privy to what has been happening, as to whether any other arguments have now been advanced on genuineness.

PN97

Mr Douglas was merely giving examples and, for that purpose, relying upon Ms Caddie's statement and the letter, to simply say, look, when you look at what they have asked for in the Federal Court, when you look at what they are doing here, when you look at how many companies they have purported to make claims against, we want to question a matter, I now put by way of interpolation, upon which the union of course bears an onus, we want to question whether or not, in all of the circumstances, as a matter of fact, this should be seen by you, the Commission, as a real and genuine dispute.

PN98

That is all he is saying, and that was what the union came along to join issue about. Now, his Honour, in the decision, certainly sets out the principles which he was invited to apply; and may I now take you to that decision, briefly. Your Honours will see on page 2 of the print - I am so sorry, if you would be kind enough to go back to page 1, that there was going to be a hearing and some days set out aside for this to be debated, it doesn't seem to be in issue, this was, yes, we accept a procedural steps towards that occurring but his Honour makes a remark in paragraph 1:

PN99

The Commission has not yet determined whether there exists between the parties an industrial dispute within the meaning of section 4(1) of the Act.

[10.25am]

PN100

And he was always anticipating that there would be evidence and that the case would proceed. This was a question of what documentary material if any ComSec would or would not get access to. Over the page at page 2 his Honour correctly sets out that the parties first agreed that Munro Js propositions ought to be that which governs his consideration of the matter. And your Honours will see from his paragraph 7 on page 3 the FSU did not submit that compliance with the summons would be oppressive so that rather takes out of the equation any suggestion that the categories of documents that were being sought were too wide or too broad or at least that would be the usual argument put in a conventional context or impression.

PN101

He then sets out in paragraph 9, page 3, the respondent's defended by saying "real and genuine". And he alludes to the argument that they put mainly to frustrate, neutralise, etcetera. He then goes to the relevant law which he says it is desirable, in his paragraph 10, page 4, he set out at some length. Now, this is with great respect, where we say his Honour, with the very greatest respect to him, went off at a tangent. He considers the various authorities and it is clear that he has now drifted from a consideration of arguable relevance to a consideration of the arguability of the genuineness of the dispute and whether or not the respondents have anything other than a snowball's chance in hell, so to speak, of persuading him of that fact.

PN102

That was a wrong approach. It was an approach which was not invited by the parties. It was antithetical to the question that he had before him. It was not just unnecessary, it was utterly inappropriate for him to engage in this analysis at this early stage of the proceedings especially when what was before him was a summons to procure or not documents of arguable relevance as it was put. I don't propose to invite your Honours to dwell upon it but he does in the following paragraphs go through if not all most of the leading authorities and then, as I have already taken you - - -

PN103

JUSTICE GIUDICE: I take it from you what you have said there was no reference to these cases in the argument before it.

PN104

MR SACKAR: I don't believe - well, there was a reference by Mr Douglas to some of them.

PN105

JUSTICE GIUDICE: Yes.

PN106

MR SACKAR: - - - in elaboration of the argument that if the sole purpose, as Mr Douglas put it, was to merely attract the regulatory functions of the Tribunal, that is the Commission, then that could in all the circumstances if they turned out that way it would be seen as something which lacked genuineness.

PN107

JUSTICE GIUDICE: Yes.

PN108

MR SACKAR: So to that extent, yes, some of these cases were or certainly the SPSF case and one or two others I have no doubt were put to him and were debated but not on the issue so much of whether or not his Honour should determine the arguability of genuineness but rather in support of the assertion, he describes as it a mere assertion in a moment, the assertion that there was a legal basis or an arguable legal basis for investigating the factual material. Now, the consideration which commences at paragraphs 28 through to 41, with great respect, is the manifestation of his, as we would assert it, error or jurisdictional error.

PN109

Having passed by the correct issue he then addresses for himself the issue of whether what Mr Douglas had put, with great respect, by way of example in debate on the question of whether the summons should issue or not that Mr Douglas as it were, if it were a court of pleadings, ought to be held to that and that alone as an argument and secondly, on the evidence that had been tendered merely as example of the way in which the argument was going to run. All Mr Douglas was doing was telling the Vice President in elaboration how he would ultimately, subject of course to the way in which the facts were to be found, how he would ultimately seek to put the argument.

PN110

No more than that. He certainly wasn't tying himself to that alone and couldn't be seen to be doing so. Whether he was or whether he wasn't is not to the point anyway. He was simply enlivening from mere abstraction to how in a practical sense he was going to link the facts to what he said he was going to put by way of legal argument. Therefore there was no occasion, with great respect, for his Honour to go beyond entertaining the issue of the arguable relevance of the documents. He dismisses as effectively unarguable what he describes in paragraph 34 as a mere assertion.

PN111

And he rejects that there is even an argument open on the way in which Ms Caddie's evidence and bearing in mind Ms Caddie has now given evidence and been cross-examined and at this stage she hadn't been as to how her statements in her paragraph 12, I think it was, of the affidavit earlier extracted in paragraph 24 of his judgment and in the letter of 13 June which is extracted in paragraph 28 and his Honour effectively said well, they can't be interpreted anything other than one way and it doesn't matter that there might be extraneous motives provided there is one namely that they do wish to have an award made in accordance with the authorities and he expressly called in aid the decision of Cohen.

PN112

He then called in aid what he described as the industrial realities of the essential circumstances described in Ms Caddie's statement at paragraph 36 and although he warned himself in paragraph 37 that it would normally or usually be inappropriate and even impermissible to make a finding - a final finding of fact however the peculiar circumstances of this case, I am reading now from his paragraph 37 at page 14:

PN113

It is entirely unrealistic to suppose that the factual conclusion on that issue emerging and the particular circumstances of this matter could be materially impugned by further evidence.

PN114

Now - and therefore in paragraph 38 it wasn't arguable. Therefore in paragraph 39 there was no live issue and therefore he then came back to the track that he set out upon namely was the summons in aid of the legitimate forensic purpose. But the legitimate forensic purpose was to be viewed from the question of whether given the outline, brief though it was and embryonic though it was that Mr Douglas had given to him by way of example, the question was whether the documents in those categories would arguably be relevant to those issues.

PN115

Now, the documents in those categories, if I may return to that just for a moment and for this purpose, if your Honours would be kind enough to go back to page 1 of his judgment, he extracts likewise the terms of the summons:

PN116

Copies of all documents in relation to the logs which allegedly give rise to the abovementioned proceedings included but not limited to drafts -

PN117

etcetera. And then at paragraph 3:

PN118

Copies of all documents created since 1 January 2003 in relation to any proposal, strategy and/or plan.

PN119

And then 4:

PN120

Copies of all documents but not limited to e-mails, letters -

PN121

etcetera. And those:

PN122

And relating to the information contained in or relevant to paragraphs 1 to 3.

PN123

Now, the question of purpose and motive, there is an abundance of authority that that is clearly a relevant consideration. The question of subjective intention is a matter about which there may be said to be some debate. However in the Riordan case which his Honour referred to and which he said - rather raised certain warning signs again he seems to have omitted although he has underlined it - if I can take you back to page 9 of his decision, he seems to have been influenced, seems to have been influenced, or at least one trigger mechanism in his rejecting the genuineness of the issue or the arguability of the issue I suppose that those documents which were expressly alluded to in paragraph, I think, 3, namely strategy, might or would, we don't know, fall into the subjective intention box and maybe that is what he had in mind in saying, well, you are never go to get into that area anyway. But the problem is that the words that - he has highlighted them:

PN124

That is not an issue to be determined on extensive evidence given by union officials of their subjective intentions.

PN125

But I highlight "not to be determined on extensive evidence". There is no doubt that there are areas of the law, this is one of them, section 51 is another, where the test ultimately is objective but the question is whether evidence of subjective intention, purpose or design is at least relevant to that issue and what the High Court did not say in Riordan is that it was irrelevant. It merely said, as one would say in section 52 territory, it will not be determinative. But let it be supposed, as one would in a section 52 context, that there was a document which said quite blatantly, I am going to sell this product and it is my intention to do what I can to mislead the public into buying my brand of detergent.

PN126

Now, a Federal Court Judge would render that, with respect, admissible, not determinative, not determinative at all because it depends obviously who wrote it, it depends what action followed it etcetera. But it is part at least of a chain of relevant evidence which could be viewed by the Tribunal in coming, on the balance of probabilities in that context, to a finding or not that objectively what was published or written or represented was misleading and deceptive or likely to be such.

PN127

Now, here the High Court is simply saying, look, you look at the log. Prima facie one may come to certain conclusions about the service and rejection. Toohey J for example in the SPSF case in the High Court agreed with other members of the Court or they agreed with him rather, weight of itself determined the issue, it is a question of fact, and insofar as his Honour, as I say with very great respect, going off at this tangent was at all concerned that some of these documents might merely go to subjective intention again he was quite wrong, with great respect, to be motivated accordingly because the High Court doesn't say it isn't relevant. It simply says it doesn't necessarily determine it.

PN128

JUSTICE GIUDICE: And I suppose equally you would submit that documents of the kind that were sought might not be confined to what might be described as subjective expressions.

PN129

MR SACKAR: Absolutely.

PN130

JUSTICE GIUDICE: They might be documents of the union of the kind that were used in Caledonia Collieries.

PN131

MR SACKAR: Indeed.

PN132

DEPUTY PRESIDENT HAMILTON: And perhaps in other cases.

PN133

MR SACKAR: And of course this case here, your Honour, doesn't turn, and I think Mr Douglas was at pains to try to submit to his Honour that it doesn't turn on effectively an SPSF-type analysis, namely on the face of it are the terms of the log fanciful or exorbitant to the point that no-one would seriously think that the union would be pressing them, rather he was trying to suggest much more in accordance with Caledonia Collieries that the purpose or intent here was collateral.

PN134

And that what ComSec was trying to do, whether it was a strong argument or a weak argument, was to pursue nonetheless an argument which was bona fide seriously caught in circumstances where there was at least an arguable basis that when one contrasted what Ms Caddie had said both in the affidavit and in the letter and when one looked at precisely what the union was asserting in the Federal Court by way of asking the Federal Court to make that the declaratory relief on the basis that regulation was already in existence as a matter of law for ComSec then that was a context in which one might question and I use the word "might" through all of this because it was by no means something that Mr Douglas had to put as an absolute.

PN135

He was simply raising the way in which he was proposing to argue the case which, as I say, the learned Vice President was going to hear him on anyway and has done so. Now, our principal argument which is outlined in our outline which I do not propose to take your Honours through in any detail is that this is a jurisdictional error in accordance with the decision in MSA Security at paragraph 13 of our outline. It is either one or more of the following: It is either a failure to deal with the question at hand or a failure to deal with the question and deciding some irrelevant question or a misunderstanding of the nature of the jurisdiction to be exercised or an application of a wrong and inadmissible test.

PN136

So any one or more of those categories and they are some only of those which the Commission outlined in MSA come into clear focus when one analyses precisely what his Honour did here and in deciding ultimately not the arguable relevance or the capacity of documents to be arguably relevant but the inarguability of the genuineness of the dispute. As I say it is not a question so much of natural justice because if the matter had ended there and he made a finding then we were pursuing - we would be pursuing a natural justice point. The natural justice issue which we did raise in the initial appeal document has dissipated really and become a bit academic because he has gone on to hear us.

PN137

But that still leaves the taint of any one or more of those other categories of jurisdictional error. This raises, as we say in paragraph 6, a matter of fundamental importance, the approach to be adopted by the Commission not just because it is a necessary prelude to any award-making activities but it is an important environment in which these matters, albeit matters of procedure, are dealt with. We say that it is wrong, that won't get us there entirely. We say there is a jurisdictional error. That gets us a bit closer but we say that because it is so wrong and because it raises fundamental questions as to the methodology to be approached when one is entertaining such a summons as this, it should not, with great respect, stand. They are our submissions-in-chief.

PN138

Could I hand up the second bundle, not to deluge you with paper but it has in full, transcripts from other hearings. I haven't gone to them and I don't imagine I will need to. It has another copy of the decision in it but it has in full the witness statement of Ms Caddie part of which I think only is extracted but I don't seek to go to any further patent on that.

PN139

DEPUTY PRESIDENT HAMILTON: Was Ms Caddie cross-examined? I presume she was.

PN140

MR SACKAR: She has been subsequently cross-examined is my understanding.

PN141

JUSTICE GIUDICE: In the proceedings, yes.

PN142

MR SACKAR: In the proceedings which have followed.

PN143

JUSTICE GIUDICE: And was she cross-examined about the existence of other documents of the time that are referred to in the paragraphs of the summons?

PN144

MR SACKAR: I don't know.

PN145

JUSTICE GIUDICE: Well, it might be important, mightn't it?

PN146

MR SACKAR: Well, I can't tell the answer to that. It might be important but it might nonetheless and I don't put this because I put - I haven't read the transcript, it may well be said to be cavilling of course with the Vice President's decision if he ruled that the concept was not able to procure whoever it was to produce the documents. It might be regarded as merely cavilling with his decision if there is really any cross-examination about the existence of them because that would be a step towards perhaps re-agitating the issue.

PN147

Now, I can't speak for Mr Douglas. Ms Gooley was there and Mr Maher was there and they will know more about it than I but precisely what forensic strategy Mr Douglas adopted wouldn't arise here because there has been no case that we have come to meet which suggests that our conduct subsequently in some way has waived our point or estops the ComSec from agitating this appeal and it really would be meaningful perhaps either way.

PN148

PN149

That is an unsatisfactory answer because it is necessarily at a high level but we would say it wouldn't be relevant but in any event it would, on one view, be cavilling with his decision which would not only be discourteous but it would amount to a rejection on one view by ComSec of what he has said because it would seen as a step towards saying well, there are documents, we want to get them, that is all I can say in response to that.

PN150

Mr McDonald reminds me that - and I think Ms Gooley has probably wanted this - we don't suggest that there was any cross-examination on documents. She was cross-examined, I am instructed, on the question of genuineness and one example in the bundle which I have just handed to you, we have supplied the transcript of the proceedings as they have ensued before his Honour, I am asked to point out to you paragraph 1953 on page 249, the question or part of the question which was put you will see at paragraph 1953:

PN151

But realistically the log was served to create a dispute, wasn't it? The log was served as a first step in the process.

PN152

Now, I am giving you one, but one question, but we have asserted and if need be we will make good with other references to the issue of genuineness at least being agitated with Ms Caddie. That of course, on one view, is a little inconsistent with the Vice President's ruling but that makes it all the more intriguing, with respect, he doesn't seem to have prevented at least that type of question but - - -

PN153

JUSTICE GIUDICE: I suppose it depends upon whether there is any firm indication that the question of genuineness was not to be pursued through documents. On one view all that the Vice President did was say he wouldn't issue the summons with those paragraphs in it or he would strike out those paragraphs.

PN154

MR SACKAR: Yes, yes.

PN155

JUSTICE GIUDICE: I suppose that your construction of the decision is that he had ruled out, as it were, the production of documents of the kind in the paragraphs he struck out.

PN156

MR SACKAR: It is difficult to resist the conclusion because of the language that he uses particularly in say paragraph 37 on page 14 however in the peculiar circumstances, with great respect, not we say explained of this case, it is entirely unrealistic to suppose the factual conclusion on that could be materially impugned by further evidence and then there is no live issue in paragraph 39 and the whole thrust of his rejection of the summons was because there was not and could not be a live issue therefore there could be no documents out there that would or that he thought ought properly to be available in order to permit ComSec to explore the issue.

PN157

JUSTICE GIUDICE: Yes, paragraph 39 seems to be in the same vein.

PN158

PN159

MR SACKAR: Yes, it does and as I said he has - he takes the notion of legitimacy or illegitimacy forensic purpose out of the context of the discussion in Munro Js decision on arguable relevance and then determines no forensic - legitimate forensic purpose because the question of genuineness is inarguable. That is the real vice in the analysis.

PN160

JUSTICE GIUDICE: I may have the advantage on you to some extent, Mr Sackar, in that I heard the application for a stay.

PN161

MR SACKAR: Yes.

PN162

JUSTICE GIUDICE: I don't know whether you were at those proceedings, I think Ms Gooley did appear in them but if it is relevant and I am not sure whether it is, Mr Douglas did suggest that the paragraphs that we have just been discussing might have grounded an application that the Vice President not sit on on the matter because it pre-determined an issue.

PN163

MR SACKAR: Yes.

PN164

JUSTICE GIUDICE: And I think it was also a matter that was urged on me that that should lead to a stay of operation of his decision.

PN165

MR SACKAR: Yes.

PN166

JUSTICE GIUDICE: I think finally I took the view that that was really a matter that was more proper to be dealt with before the Vice President.

PN167

MR SACKAR: Yes.

PN168

JUSTICE GIUDICE: But obviously no application of that kind was made.

PN169

MR SACKAR: No.

PN170

JUSTICE GIUDICE: But it appears that an election or a decision has been made that the paragraphs we are talking about had really foreclosed the issue. I don't want to - - -

PN171

MR SACKAR: No, but I - - -

PN172

JUSTICE GIUDICE: You might like to consider that but I am just trying to - - -

PN173

MR SACKAR: No, I think - - -

PN174

JUSTICE GIUDICE: - - - grasp in my own mind exactly how all this span out in fact when the proceedings were resumed.

PN175

MR SACKAR: You will see from the transcript briefly that I came along and asked him as the preferred position not to continue the hearing until - - -

PN176

JUSTICE GIUDICE: I see.

PN177

MR SACKAR: - - - this appeal hearing had concluded.

PN178

JUSTICE GIUDICE: Yes, I follow, yes.

PN179

MR SACKAR: As a second position, understanding that these three days had been set aside and witnesses were there, as a fall back position that he continue or continue and reserve unto us if we are able to agitate the matter further but not make any final determination on the question. What he indicated was that he would do that and I will - perhaps I will find the precise reference in the transcript where he decided, notwithstanding the fact that he should go on, that he would not come to any final views until at least we had an opportunity of arguing the matter here. That doesn't answer your question directly. We make no - and we made no application for him to disqualify himself on the basis of apprehended bias.

PN180

One of the reasons, as I said a little earlier, that the natural justice point has defused to a very large extent is because he has gone to hear us and so any problem which may have arisen, as I said if there was one full stop at the end of his determination and he simply then at that stage had said well, I am going to make a finding of a dispute and I am really not going - I am going to cancel these three days a decision was taken on the part of ComSec that they would certainly waive, and it would be a correct interpretation, any application which might have been extant or might have been capable of being put to this Commission.

PN181

That doesn't detract from the jurisdictional error because the jurisdictional error, as we put it, doesn't depend upon a breach of the rules of natural justice. It rather depends, as I articulated it by reference to the MSA case, an adoption of a wrong test or an irrelevant issue or matters of that sort which we put in our outline so natural justice is certainly not an issue that we raise. If it were there it may, in certain circumstances, give rise obviously to jurisdictional error.

PN182

The ones we point to are those, many of which overlap, in simply addressing the wrong issue and therefore exceeding the jurisdiction in that sense.

PN183

JUSTICE GIUDICE: I suppose the issue about which I have some doubt at the moment is the significance to be attached to the failure of ComSec to cross-examine in a way which might have advanced the case in relation to documents. I understand or I think I understand your submission to be well, that was related to what appears to a finding that - - -

PN184

MR SACKAR: I think there is - - -

PN185

JUSTICE GIUDICE: - - - that part of the issue was foreclosed - - -

PN186

MR SACKAR: Yes.

PN187

JUSTICE GIUDICE: - - - at least until the appeal had been decided.

PN188

MR SACKAR: Well, as I said, I can't speak for Mr Douglas but it was certainly occur to me that if there was effectively an order or ruling, whatever, which had the effect of precluding access to the documents and I certainly know some judges who would take unkindly to questions which were designed in a sense to fish, because that is on one view what they might be seen as, namely a bootstraps do they exist type question. Ms Gooley may or may not depending on how the witness was going object to that line of question on the basis that it really as an issue which was foreclosed because it would not be relevant if documents existed because in the - - -

PN189

JUSTICE GIUDICE: Mr Douglas is not known for being timid.

PN190

MR SACKAR: I don't know him that well but I have gathered that in the very short time I have associated with him. But that said - - -

PN191

JUSTICE GIUDICE: I understand the point.

PN192

MR SACKAR: That is the other point.

PN193

DEPUTY PRESIDENT HAMILTON: The decision in question and the orders are described as interlocutory.

PN194

MR SACKAR: Yes.

PN195

DEPUTY PRESIDENT HAMILTON: Doesn't that suggest that well, it is just that? Members of the Commission have been known to take different views at different times on issues in proceedings. I think you find any number of instances in Commission and perhaps Court decisions. Does that have some significance and relevance in this present matter?

PN196

MR SACKAR: Not in relation to jurisdictional error, we would say with respect. It doesn't really matter what the status of it is, it may have something to do with - that may be the status of what his Honour did. It may or may not have something to do with the second way we put the appeal, namely on the question of order, that there had been an order and the fact that is it interlocutory it may be suggested that it is administrative and not only that because it is interlocutory and there are powerful arguments that Ms Gooley may or may not need to trouble you with, would detract from our argument that there would be a ground of appeal pursuant to 45 - section 45(1)(b).

PN197

But on jurisdictional error the provision in the Act doesn't turn upon the - what in fact was done or rather should I say how it was done whether it was final interlocutory or whatever. The question is only was the issue if you like resolved we would say by reference to extraneous or irrelevant or by posing the wrong question for example so that extent on jurisdictional error we say interlocutory or not it doesn't really detract from the argument.

PN198

DEPUTY PRESIDENT HAMILTON: Well, there is two possible examples. One is some aspects of the decision or order could be conceivably revoked or of no significance in the proceedings and secondly, ultimately the result of the matter may be one that is entirely satisfactory to you.

PN199

MR SACKAR: That is true.

PN200

DEPUTY PRESIDENT HAMILTON: And in both those cases wouldn't that be relevant to the present matter?

PN201

MR SACKAR: No.

PN202

DEPUTY PRESIDENT HAMILTON: Right.

PN203

MR SACKAR: With respect.

PN204

DEPUTY PRESIDENT HAMILTON: Okay.

PN205

MR SACKAR: No, I think what we say as a result of the jurisdictional error, we have been foreclosed in ventilating such factual material as may exist and arguably relevant to the issue and to that extent it raises, because of the manner in which the decision flowed and the reasoning process, it raises a very important and fundamental issue which is, as I have said, with the very greatest respect to the Vice President, because it so wrong, it really shouldn't stand as an example of an approach which is appropriate to take namely it is not appropriate when the question truly posed and accepted by both parties it seems to be posed, is the argument of relevance. It cannot be appropriate to go on and determine what might be described as the ultimate issue because that is simply the wrong question.

PN206

JUSTICE GIUDICE: Thank you, Mr Sackar. Ms Gooley?

PN207

MS GOOLEY: Thank you, your Honour. I apologise for not having forwarded this to the court yesterday. I do have an outline of submissions to hand up to - - -

PN208

JUSTICE GIUDICE: Ms Gooley, what we might do. If you hand that up I think we will take an adjournment for about 10 or 15 minutes. That will give us an opportunity to read it.

PN209

MS GOOLEY: Yes.

PN210

JUSTICE GIUDICE: And then - so we will resume at let us say 11.15.

PN211

MS GOOLEY: Thank you, your Honour.

SHORT ADJOURNMENT [11.00am]

RESUMED [11.20am]

PN212

MR SACKAR: Before Ms Gooley addresses you might I just - she has kindly agreed for me to point out a couple of transcript references which may go to the matter that your Honour, the President, referred me to. In book 1, if I can describe it as that, is the bundle of paper commencing with page 1. Could I invite your Honours to go to page 65 of the book. I think this was the day that - perhaps I should rethink. This was 25 November.

PN213

It was the day that his Honour gave his decision although I think the reasons were not available till the 26th. But can I invite your Honours to go to page 65, paragraph 736, describing what Mr Douglas had said as a rhetorical flourish. He said:

PN214

If I might say so, which is applicable to any setting of any separate question, never happens on a daily basis.

PN215

Mr Douglas was having some problems about having to put the case before the appeal came on, etcetera, I think. His Honour said:

PN216

Separate questions -

PN217

etcetera, determination -

PN218

No ultimate determination could be made in relation to the dispute finding that the union seeks until your clients have had a full opportunity to run their case in respect of genuineness.

PN219

Now it seems, on one view, that the inarguable case rather intriguingly referred only to the summons not to the issue itself. And so that raises yet another problem in relation to what his Honour did. In any event could I take your Honours then to book 2 and again to some transcript when I appeared briefly to ask his Honour to adjourn or not to finally determine. Ms Gooley said - I think she was addressing on the question of adjournment and appeals and things of that sort.

PN220

JUSTICE GIUDICE: Which page is this Mr Sackar?

PN221

MR SACKAR: I am so sorry. Commencing at page 163. Ms Gooley was opposed to any adjournment of any kind pending the appeal and she addressed his Honour on some authorities and so on and I won't detain your Honours in that. But I invite your Honours to page 165, paragraph 1068. She said:

PN222

There is no denial to the respondents of knowing the union's case in this matter. They are able to cross-examine the relevant officials fully. ...(reads)... pending here.

PN223

And then just to give your Honours the reference to where his Honour indicated what he would or would not do, on the next page 166 at paragraph 1074, he said:

PN224

I should also indicate at this time that in coming to ...(reads)... determination until after the Full Bench has delivered its appeal decision.

PN225

Now those references may go part of the way to enlightening your Honours as to procedurally what was and was not about to happen but the detail of that undoubtedly is in Ms Gooley's hands rather than mine.

PN226

JUSTICE GIUDICE: Yes. Thank you, Mr Sackar. Ms Gooley?

PN227

MS GOOLEY: Your Honour, in relation to that we do address those issues in our outline and I think - - -

PN228

JUSTICE GIUDICE: We have noticed those.

PN229

MS GOOLEY: Yes.

PN230

JUSTICE GIUDICE: You can deal with your case how you choose. If it is more convenient to deal with those matters now by all means do so but - - -

PN231

MS GOOLEY: I think it is more relevant. It certainly goes to the issue of whether there is any public interest in relation to granting an appeal. Even in circumstances where if you find there is an error in terms of jurisdiction. And that is my friend has put his case in a sense that they were foreclosed from the issue of genuineness. Now they clearly were not foreclosed on the issue of genuineness but more than not being foreclosed on the issue of genuineness the issue of the summons itself was not foreclosed.

PN232

And you can see that in the comments of his Honour. And I will just take you to them because I don't disagree that they seem in contrast to what his Honour said in the decision but I think his Honour has been at pains to make it clear to the appellants in this matter, the respondents in the matter before his Honour, that it is not a closed matter. So if I take you to page 10 of our submissions which is the reference that my friend just made to you at paragraph 44. But on 11 December when dealing with further programming of the matter his Honour specifically says and I, it is at paragraph 45 of our submission:

PN233

Mr Douglas, in relation to the bank's position in respect of the balance of the summons. The part I disallowed - do you anticipate calling any further ...(reads)... I am unable to say what might come from cross-examination.

PN234

Again, in relation to the adjournment on 2 February where Mr Sackar requested an adjournment. His Honour goes through, in quite detail, this issue of how one determines when there is no pleadings in the matter and he says, and this is on page 11 when he is talking about the question of genuineness, he says:

PN235

The live issues in this matter, if it were a court of pleading would be determined by the pleadings which would no doubt be verified by affidavit therefore ...(reads)... or the bank, the ComSec -

PN236

and I use the bank in the same way that paragraph 12 of the submission refers to the bank because Mr Douglas had previously objected to his Honour referring to the parties in this proceedings as the bank but apparently they did so in their own submissions -

PN237

ComSec and the other respondents are certainly entitled to have the summons and thus far been disallowed. And it seems to me on the authorities that even if there is an extraneous purpose, if there is a genuine purpose -

PN238

and he goes on. So it is very clear from what his Honour is saying to the respondents and the appellants in this matter that, if at any point during these proceedings evidence arises either through cross-examination or material that they put indirectly that re-enlivens the issues that are relevant in relation to the summons, the Vice President was quite willing to hear a further application by the respondents - the applicants before him to issue the summons.

PN239

Now, as my friend has acknowledged, the issue of genuineness was one that Ms Caddie was cross-examined about, the purpose to which - what the union was seeking to achieve was cross-examined about. And in paragraph 50 we set out the cross-examination that Mr Douglas took Ms Caddie through. And I should say in relation to that, there was one set of documents that Mr Douglas called for from Ms Caddie which were the company searches in relation to the 199 companies that had been summonsed.

PN240

And we on - the last day we were before his Honour, on that occasion, had said that we have found those documents but we had not previously produced them because they weren't within the scope of the summons that had been issued but Ms Caddie would make those available. And if I just take you to the reference to that. I might actually do it in the book that my friend has handed up to you, your Honour. Just bear with me a moment, your Honour. If you turn to page 260 of the second book that was provided to you because Mr Neal was cross-examined extensively in relation to the summons that we were required to comply with and some other documents had been found relevant to the summons.

PN241

And at paragraph 2029 we see that - I was saying to his Honour, Ms Caddie was asked to determine when the company searches in relation to that - the Vice President, whether there are still - whether there are any records that were attained from the searching that has been done. And I go on to say about it, then Mr Douglas - this is the Vice President:

PN242

Do you want to see these documents, Mr Douglas? Yes.

PN243

The Vice President:

PN244

I take it they are not available at the moment? No, because we didn't produce them in relation to the summons because we didn't consider that they went to - they in fact go to the question of authorisation.

PN245

Mr Douglas, "Yes." And then the Vice President goes on to say he will just check the summons. And then there is a question about our compliance with it and we indicate that we will produce those documents. Those were documents that Mr Douglas asked Ms Caddie about arising out of cross-examination of matters outside of the summons. Mr Douglas was free to question Ms Caddie as to whether, for example - because you will recall - you may or you may not be familiar with this.

PN246

We were required to produce documents that related to the authorisation and that gave rise to documents from the section of the union that covered the Commonwealth Bank. There are committee meetings and it also produced documents which exhibited the Federal executives acknowledgment that the ballot that had been cast had been passed and we produced those documents in accordance with the summons. And Mr Douglas, in his cross-examination of Ms Caddie in relation to those matters about the summons, for example, documents relating to paragraphs 1, 3 and 4 of the summons, he never said to Ms Caddie, Ms Caddie were there discussions at other executive meetings in relation to the motive of the union or the purpose of the union in issuing this log of claims after the resolution had been passed.

PN247

He never asked Ms Caddie whether there were any minutes of the CBOS group of the finance sector union after the issuing of the log of claims that went to the issue of the purpose of the union. But he did cross-examine Ms Caddie extensively on what the purpose was and she gave very clear evidence of the purpose of the union in relation to why this log was served. The other thing was that Mr Beck, who was the person who was summonsed - interestingly enough which we objected to, of course - to give evidence on behalf of the Finance Sector Onion but also to produce the documents.

PN248

Because his Honour had indicated that Mr Beck's documents that had been filed in the Commission in relation to the statement of authorisation could not be accepted without Mr Beck being present to give evidence in relation to those matters we made Mr Beck available for cross-examination. He was not cross-examined. And we also, because Mr Douglas had indicated that he wished to cross-examine, though we said examine Mr Schroeder, who was the National Assistant Secretary of the Union, who signed the letter that went out to the Federal Executive members, but a member of the National Executive nevertheless, was also available to be examined by Mr Douglas and they chose not to.

PN249

In circumstances where they questioned Ms Caddie about purpose, they could have questioned Mr Beck about purpose, they could have questioned Mr Schroeder about purpose, and in the - if, in that cross-examination, anything had come to light which had - would re-enliven the issue of the summons, the Vice President had made it absolutely clear, absolutely clear, that the summons could be re-agitated. And it wasn't.

PN250

There has been no attempt in these proceedings to re-agitate the issue of the summons, and there has been no attempt to seek a different summons. For example, in an exchange between the Vice President and myself, where I had argued in the matter of the summons, that any documents created after the National Executive had authorised the summons was simply not relevant to the question of whether the National Executive had properly authorised and was genuine in its demands.

PN251

And he said well, if there had been discussions at the National Executive which were admissions against interest, in that sense, you know, a just minuted discussion of the National Executive which says well, we have served the log but our real purpose is the kind of document that my friend referred to in relation to section 52, Mr Douglas would have been quite at liberty to seek a summons of National Executive resolutions, or minutes of National Executive meetings at which the issue of the log of claims was discussed, and he hasn't done so. Nothing prevented him from doing that in the decision of Vice President Lawler to not issue the summons that had been sought by the companies logged in this matter.

PN252

Now, it appears that - you will see from my - I will now address my submissions. My submissions are in - go with that to the three areas under which the appellant makes their case. An appeal under 45(1)(a), an appeal under 45(1)(b) and an appeal under 45(1)(g), and I will just address the first two quite quickly. We say, and we say on the basis of the authorities quoted in our submissions, that the decision of the Vice President, the order, if it be an order, is not a finding in relation to an industrial dispute or an alleged industrial dispute.

PN253

And at paragraphs 17, 18 and 19 we point out the authorities of this Commission which indicate that a finding by way - in relation to an industrial dispute is - example in the Full Bench in the CSR case said, you know, it is not a finding in relation to an industrial dispute having regard that the Commission did not pursuant to his decision issue a document of the type normally issued pursuant to section 101(1) when it considers that an industrial dispute exists, that is a signed document that an industrial dispute exists, and stating that the parties to it and the matters in dispute.

PN254

This is not a finding under - Vice President Lawler is quite clear. He has made no finding as to whether there is a dispute in existence between the parties. This is not in any way a finding in relation to an industrial dispute or an alleged industrial dispute. What it is is a decision pursuant to 111(1)(f) to set aside or vary the summons. Again in relation to the appeal in relation to section 41(1)(b), we say that this is not - the decision to issue a summons is not an order - is not an award or order made by a member of the Commission, and the decision was also not a decision not to make an award or order.

PN255

And we take you to the authorities which have discussed whether the decision to issue a summons is an order, and the most recent authority on that question is of course a decision of the Full Bench in Blore v BHP Refineries, which of course was cited as an example in Wright v The Australian Customs Services. And certainly nothing in Wright v The Australian Customs Services suggested that the decision in Blore was incorrect.

PN256

THE DEPUTY PRESIDENT: Is the - sorry to interrupt - the Vice President did say, and I quote, that:

PN257

It is not arguable on the -

PN258

I quote from paragraph 38 -

PN259

It is not arguable on the basis advanced the dispute is other than real and genuine.

PN260

And so on. Isn't that a finding in relation to an alleged industrial dispute within section 45(1)(a)? It is not a finding that a dispute exists, but it is an interim step in relation to an alleged dispute, isn't it?

PN261

MS GOOLEY: On the material before him at the time, but he had made no finding. He had made no finding in relation to the alleged - well, since we were obviously alleging an industrial dispute alleged, but he had made no finding. He says, "On the material before me at the moment" - but he made no findings. Even in relation to the alleged industrial dispute. He didn't say who the parties to it were, he didn't say what the matters were about.

PN262

THE DEPUTY PRESIDENT: So the word "finding" means the formal finding of dispute that is - - -

PN263

MS GOOLEY: Yes, yes.

PN264

THE DEPUTY PRESIDENT: Ordinarily occurs, doesn't include an interim step such as the Vice President has taken.

PN265

MS GOOLEY: No.

PN266

THE DEPUTY PRESIDENT: Right.

PN267

MR GOOLEY: We further say, in relation to 45(1)(b) and (c) that even if you find that the issuing of the summons contrary to the current authority is an order for those purposes, the Act provides at - sorry - 45(3) that the only person who can make - who can appeal against a matter under 45(1)(b) is of course a party bound by the order, and the only party bound by the order was Mr Beck. Mr Beck was the person who was the subject of the order. He was ordered to attend and give evidence. ComSec and the related companies were not bound by that order.

PN268

JUSTICE GIUDICE: Was that a matter dealt with in that Blore decision? Blore?

PN269

MS GOOLEY: Sorry?

PN270

JUSTICE GIUDICE: Was that a matter dealt with in the Blore decision?

PN271

MS GOOLEY: No.

PN272

JUSTICE GIUDICE: No.

PN273

MS GOOLEY: Because they - they reached the conclusion it wasn't an order.

PN274

JUSTICE GIUDICE: Yes, I follow that. But that, however, was a question of whether a summons should be issued at all, wasn't it?

PN275

MS GOOLEY: Yes, yes. That is right.

PN276

JUSTICE GIUDICE: Yes.

PN277

MS GOOLEY: We say there is no reason to distinguish between a decision to issue a summons, and a decision to vary a summons, and a decision not to issue a summons. It would mean, on that reasoning your Honour, that you couldn't appeal a decision to issue a summons except on jurisdictional grounds, but if they varied it, you could. Or if they said it aside, you could, particularly in circumstances where most summonses are issued without any opportunity for the party to be summonsed to make argument about why it shouldn't issue before it is issued. It would be an - - -

PN278

JUSTICE GIUDICE: Well, I follow the argument of consistency, yes. Or inconsistency. But here you have got a document that says "By order, X."

PN279

MS GOOLEY: Yes.

PN280

JUSTICE GIUDICE: And it is signed, and it looks like an order, and - - -

PN281

MS GOOLEY: Well - - -

PN282

JUSTICE GIUDICE: And presumably everybody treated it as binding.

PN283

MS GOOLEY: Well, his Honour certainly, in the discussion that is quoted in my friend's submissions, certainly thought he needed to do that to give something to appeal.

PN284

JUSTICE GIUDICE: Yes, he asked for it, didn't he?

PN285

MS GOOLEY: Yes.

PN286

JUSTICE GIUDICE: Yes, I have - yes.

PN287

MS GOOLEY: Right? But that doesn't turn it into an order. If all it required was for somebody to stand up before this Commission and say, "Well, I don't like the decision, I want you to issue an order so that I have got something to appeal," it would defeat the purpose of section 45, which has limited the circumstances in which appeals from decisions of this Commission may be made. Just because somebody calls it an order doesn't make it an order.

PN288

And anyway, even if it is an order, it bound Mr Beck. It did not bind the people seeking the order. It bound Mr Beck. And - and in relation to, of course, the appeals on the question of 45(1)(a) and 45(1)(b) in particular, the decision to - the decision that his Honour reached was a discretionary decision, and the decision whether to issue a summons or not issue a summons is clearly discretionary, in which an appellant bench should only intervene if it is shown that he made an error, and an error going to jurisdiction.

PN289

And we say there is no evidence that he made - that there is any reason to intervene in these circumstances. Now, part of our submissions do go to the issue of whether my friends have been denied natural justice, and I understand that they have been - they have effectively put the position that because they have been allowed to - the matter has proceeded, their arguments in relation to natural justice have diminished.

PN290

But we do want to emphasise the extensive cross-examination of Ms Caddie on this very issue of genuineness, which should end any suggestion that the question of genuineness was foreclosed, and we make references in paragraph 50 to extensive cross-examination, which I should again use the book that my friends provided. And it starts at page 236 - where Mr Douglas puts it very quite clearly to Ms Caddie that:

PN291

In February 2003, the time of the 17th committee meeting, did you have a view that the service of the log of claims would somehow help the FSU - the service of a log of claims on ComSec and other subsidiaries that might do the same thing, that is take on board CBA employees, may help the FSU either in preventing the process occurring or in some way to help you control it or have it regulated?

PN292

This goes to the issue that Mr Douglas told Vice President Lawler was the central issue.

PN293

Our sole purpose -

PN294

because this is what he told him when the issue of the summons was before him -

PN295

Our sole purpose in service the log of claims was to prevent employees resigning from the Commonwealth Bank and taking up employment with a subsidiary of the Commonwealth Bank.

PN296

And Ms Caddie is very clear. She says:

PN297

I see the Federal Court proceedings and the log proceedings as trying to achieve different things. We instigated the Federal Court proceedings because ...(reads)... which is why we have undertaken this process.

PN298

And she points out that:

PN299

So you are saying that the service of the log had nothing to do with the movement of employees from CBA to ComSec are you?---That was the action that initiated our response, but until that time I have to say ComSec hadn't even particular been on my radar. That occurred very shortly after I went into the National Assistant Secretary position. What happened in PFS -

PN300

and remember that in PFS was where employees - any new employees would be employed by ComSec, they had all previously been employed by the Commonwealth Bank, and employees of the Commonwealth Bank who wanted to take up a promotion or change of positions had to resign their employment from the Commonwealth Bank and be employed by ComSec -

PN301

What happened in PFS was cause for grave concern for me, because there was at least one subsidiary, possibly more, sitting out there with terms and conditions that weren't appropriate in the context of my industry, the finance industry.

[11.52am]

PN302

And that is the flavour of the evidence that Ms Caddie gives to Mr Douglas. And in relation to the argument that had been put as evidence that we weren't genuine, that we had selected the 199 companies at random just to cover - that we wanted to get ComSec and in response to a question by Mr Douglas about why we didn't serve the CBA, she says at paragraph 1828:

PN303

So that was the only reason why the log was served -

PN304

this is Mr Douglas -

PN305

It had nothing to do with the movement of employees from the CBA to ComSec or from the CBA to other subsidiaries ...(reads)... which makes subsidiaries and related entities of the banks of concern.

PN306

Mr Douglas had the opportunity there - and I won't take you to the other points that I refer to in the cross-examine, but they go to that issue of genuineness. Mr Douglas cross-examined Ms Caddie, who really was the relevant officer of the union in terms of being able to give the evidence on behalf of the union - cross-examined her extensively over the purpose that the union sought from the log. And as I said earlier, had he asked Ms Caddie whether there were documents, as he asked her about the company searches, Ms Caddie would have either indicated the documents did or did not exist and had Mr Douglas called for them and we objected, his Honour would have ruled on whether they were appropriate, because his Honour had not closed off the question that should in cross-examination this issue of genuineness reappear that the summons was closed off.

PN307

JUSTICE GIUDICE: Ms Gooley, can I just ask about Mr Schroeder? Who was he?

PN308

MS GOOLEY: He is assistant national secretary. Mr Douglas had indicated that he wanted to cross-examine Mr Schroeder. A summons was issued to Mr Schroeder. Mr Schroeder signed the letter that went to the members of the National Executive which made reference to the hundreds of CBA subsidiaries and he is a member of the National Executive - he is actually now the incoming national secretary of the union, but at that stage he held an equivalent position to Ms Caddie. Mr Beck hadn't been around when the letter needed to be signed, as was consistent with the practices within the National Secretariat.

PN309

The assistant national secretary signed correspondence. Mr Schroeder signed the correspondence. Mr Douglas indicated that he wanted him available for cross-examination. We said, well, it will be your witness, you can't cross-examine him. We had a bit of an argument about that but we made him available and in the end obviously reserving their rights in relation to this appeal - if they were successful on this appeal. The respondents in the matter before Vice President Lawler did not choose to examine or cross-examine him and they certainly didn't cross-examine Mr Beck and agreed to the tendering of the formal Commission documents, including Mr Beck's statement of authorisation without objection.

PN310

Now, we submit that his Honour did not err in his decision because of the way the case was put to him. On the material that was before him at the time we say that in deciding that those other elements of the summons were not relevant his Honour made the correct decision. We don't deny that we consider that it was not necessary - we don't think it was necessary for his Honour to go as far as he did in paragraphs 37 and 38. We don't think that - but we don't think that despite the bald reading of the sentence - the sentences in 37 and 37 of his decision, that that was what in fact he was doing - as my friend tries to put it, closing the way to the issue of genuineness.

PN311

But we don't think it was necessary for him to go that far for the same conclusion to have been reached, which was that the issue that - the documents relating to the authorisation by the Federal Executive were clearly relevant but the other documents were not. We further say that if you look at the decision we refer to - I am sorry, your Honours, I meant to actually hand up the folder of authorities that we referred to in - and I wish to take you to tab 14. It is the Transport Workers v Murray Charter Coaches.

PN312

DEPUTY PRESIDENT HAMILTON: Ns Gooley, could I just ask one question since you have raised paragraphs 37 and 38? It may well be put by the other side that there is a difference between those paragraphs and the passages of transcript you have referred us to; how do we deal with those differences.

PN313

MS GOOLEY: Well, I think you deal with them in the context that his Honour - the issue of the summons came up right at the beginning, before any evidence had been led, etcetera. It had been issued out of the Registry and then we objected to it. On the material that was before his Honour at the time, we say it was the correct decision not to - to set aside those elements of the summons. His Honour made those comments and he does say in his decision very clearly - he says:

PN314

I am in the unusual position of being able to find that it is not arguable on the basis advanced by the respondent -

PN315

at this time -

PN316

that there is not a prima facie case.

PN317

But the "at this time" is not there. If his Honour had said "at this time" we may not be here, but he didn't say "at this time", unfortunately. But all he is saying is that it is not arguable on the basis advanced by the respondent that it is a dispute which is evidenced prima facie by the service of the log of claims and the rejection is other than real and genuine within the meaning of the applicable authorities.

PN318

As I say, what his - what I think his Honour meant was "at this time" and I think that is the way you should take the statements his Honour has made subsequently, is that is clearly what he meant and he made it very clear to all the parties in the proceedings that should anything come up, either through cross-examination or direct evidence that would re-enliven that issue, it could be re-enlivened, because in some ways it is not particularly different to the circumstances that were before the Commission in Transport Workers Union v Murray Charters which was the Full Bench decision of 8 July which is at tab 14.

PN319

In that case they actually do conclude that Commissioner Bacon applied the wrong test. Again, it is a similar situation, they don't disagree that - in paragraph 9:

PN320

We did not understand Mr Smith to contend that Commissioner Bacon had erred in his statement of the principle to be applied when considering the grant of or setting aside of a summons to produce documents.

PN321

And then at paragraph 10 they say:

PN322

In our view the application of the principle required in understanding and identification of ...(reads)... having been adequately identified.

PN323

And then if we look at paragraphs 14, 15, 16 - I don't propose to read them to you - but what they do, having decided that - at paragraph 19:

PN324

It follows in our view that Commissioner Bacon was in error in concluding that the material sought to be produced ...(reads)... and on the Commission in the litigation of termination of employment matters.

PN325

Well, in fact, in any matters, and they - - -

PN326

JUSTICE GIUDICE: There was no suggestion in this case that the summons was oppressive, was there?

PN327

MS GOOLEY: No.

PN328

JUSTICE GIUDICE: No.

PN329

MS GOOLEY: Our submission was it was not relevant.

PN330

JUSTICE GIUDICE: Yes.

PN331

MS GOOLEY: And to the extent that any of the elements of the summons were relevant they weren't relevant in relation to documents created after the log was issued and the Federal Executive had authorised it, because the issue of whether a log is properly - the authorities to date have shown the log must be authorised in accordance with the rules of the union at the time it is served. It can't be retrospectively ratified. When the demand is made on the employer that is the time when the genuineness of the demand is relevant. Were we genuine when we sent out that demand that those employers comply with it - agree with it?

PN332

Did we genuinely, when we sent that out, seek what we were asking them to agree to? When it comes to - sorry. So then they go on to say at paragraph 22:

PN333

Moreover, and most importantly, the circumstances of proceedings of this kind, the decision to set aside ...(reads)... to appeal against the merits of the determination.

PN334

And we say that very similar circumstances arise in this case. At any point of time during this proceeding that the appellant could have, and did not, to date, seek to re-agitate the issue of the summons before Vice President Lawler, despite his constant invitations that that was available. We further submit that even if paragraphs 37 and 38 were - went too far, they were not necessary for his decision anyway. His decision in the end was that these documents were not relevant to the proceedings before him and they are not.

PN335

We say in relation to the orders that are being sought by my friend, which is simply to set aside the decision to vary the summons, that that is inappropriate. We say it is inappropriate because - because of the decision he made Vice President Lawler did not then have to address the issue of whether the summons was, in fact, too broad and that issue was relevantly before him, particularly in relation to the documents that were created after the service of the log. I just want to take you to a discussion his Honour and I had about that matter. So we say it is inappropriate for the summons simply as issued initially to be - come back into existence.

PN336

We say that either this Bench, or more appropriately, Vice President Lawler, who is far more familiar with the case and the evidence that is already in, should determine to what extent the summons should be reissued in its terms as it was. I just take you to - this is where his Honour and I were having a discussion about whether any documents created after the service of the log could ever be relevant to genuineness and this is where his Honour made reference to the - it does not appear to be in this book.

PN337

Sorry, your Honour, it is not in the book that has been provided to you. I will give you the reference. It is paragraph 656 of the transcript and I say to him, well, one of the letters that would be sought in this summons - I say:

PN338

For example, could a letter in which Mr Douglas has raised the issue of who signed the log and who signed the demand, and we don't resile from the fact that Ms Caddie signed the log and Mr Beck signed the demand, and we will have an argument about that with Mr Douglas, about whether that infects the authorisation process.

PN339

We don't - sorry, it is page 54 of the first book. Thank you. And it starts at - because my submissions is that to - my submission to his Honour was that for any documents to be relevant they would have to be documents which infected the decision making of the Federal Executive and that starts - that is around paragraph 651 and in 652 I say:

PN340

Well, it is not just any document that exits. For a document to be relevant in these proceedings it would have to infect the decision makers and the decision makers in this case is the Federal Executive.

PN341

And, as I was saying - and I said:

PN342

We don't pretend that there is some document that exists that authorised Ms Caddie - that authorised the log of claims ...(reads)... but I can't see how the breadth of what he is seeking - - -

PN343

And then the Vice President said:

PN344

The dispute with the categories in the summons may or may not be too broad but I think the point ...(reads)... the issue of genuineness in the service of the log.

PN345

And then I go on to say:

PN346

In that example that your Honour raised, yes, I can see that a document ...(reads)... Mr Douglas' summons goes beyond that.

PN347

So we say the question - if you determine that there is a jurisdictional error and it would only be on that basis that you could interfere with the decision of Vice President Lawler - if you say that it is in the public interest in circumstances in which the issue of this summons is able to - has been able to be re-agitated at any point in the proceedings before Vice President Lawler, that it is in the public interest to set aside his decision now - it is of such public importance that you should set aside his decision now, we say you should send the issue of the summons back to Vice President Lawler because he is the person in the best position, now that the evidence is in, except for Professor Hewson's evidence and evidence we might bring in reply, as to what documents he believes are relevant to the issues in the case that we should be required to produce. And I rely obviously on my outline.

PN348

JUSTICE GIUDICE: Mr Sackar, anything in reply?

PN349

MR SACKAR: Very briefly. The vice in our learned friend's submission which goes essentially, as we apprehend it, to the public interest question and the matter of public importance question, is that the door is open or ajar, at least, and we haven't really sought to push it open further, makes the fundamental error that the reason why it is only ajar and not open is because he has in our respectful submission fallen into error. What he says is if you can provide me with something new - in other words, concept, you bear an onus to show me that you have something which is arguable as opposed to something which at the moment is unarguable.

PN350

Now, that is really the clearest example of why there is an error. And paragraph 45 does nothing but to expose what has become perhaps a rather artificial context. Genuineness is being debated between the parties by way of oral testimony, so it seems, but we are not able to get access to documents should they exist, which in our respectful submission are arguably relevant to that very issue. Now, why there is a public interest component is not just because there is an error, which we submit is clear and obvious because what he addressed ultimately - namely, whether we had an arguable case on the evidence then before him was not a proper question to be posed.

PN351

We didn't have to discharge an onus at that point as to the arguability and genuineness and in addressing that he then placed himself in a position where subject to only us being able to discharge an onus, an evidentiary one, we might be able to have him entertain the issue again, but that is a manifestation of the wrong approach. Now, an error of the kind that is plain and obvious, which has led arguably to a somewhat disorderly and somewhat artificial context, in which a very important threshold issue is being debated, is a matter of considerable importance to the efficient running of the Commission and, therefore, it is an example how if error of this kind in a jurisdictional sense occurs, one has, as I have said, this rather disorderly and rather artificial context in which, as I say, it is being advanced at one level but for some reason, we say quite wrongly, being restricted at another.

PN352

It shouldn't be a matter which we have to come along and produce evidence or discharge any onus about if on the authorities the material alluded to in the paragraphs were arguably relevant. As to what use might be made of those materials other discretions arise and I will come to that in a minute in terms of addressing the form of the order we seek.

PN353

JUSTICE GIUDICE: It seems to me, putting the union's case at its highest, it is really quite simple, that there was an objection to the paragraphs of the summons, they were capable of going to the question of genuineness - or that is the context in which they were advanced by ComSec - the Vice President pointed to the law which indicated that provided there was a legitimate purpose, then a collateral purpose which might be said to be an impermissible purpose - not a genuine purpose, but a purpose of the definition of industrial dispute, wouldn't matter a great deal, and that on the material as filed he didn't see any case that could be advanced.

PN354

MR SACKAR: Yes.

PN355

JUSTICE GIUDICE: And seen in light of the comments he subsequently made on the transcript during the running of the case he indicated that he had an open mind on that question and was really leaving it to ComSec to pursue the matter in cross-examination or any other way it chose.

PN356

MR SACKAR: Yes, that is putting the - - -

PN357

JUSTICE GIUDICE: And so in those circumstances we shouldn't interfere; we should wait and see what happens at the end of the day and if there has been a denial of natural justice or there has been a foreclosing of the kind you are concerned about, or if for any other reason ComSec is unsuccessful in the decision, it can all be considered then.

PN358

MR SACKAR: That is a submission in aid of expediency, not in aid of articulating, with great respect, why there is no jurisdictional hearing. Our learned friend says that the Vice President was correct. Now, she tries to distinguish the latter paragraphs as rhetorical flourishes and o no substance. It is plain and obvious that what he did was to say, on what you have put before me at the moment I can't see how you could possibly argue the question of the genuineness of the industrial dispute on the authorities and I am not going to let you get those documents. Now, that was the wrong question, totally and utterly the wrong question.

PN359

It has the effect of placing an onus upon us to come up with a case as to why we should be entitled to look at documents which on their face are arguably relevant to the question of genuineness. And because he went that further step - and it is obvious that the trigger mechanism for his order setting aside those paragraphs is to be seen in the reasoning process which follows in paragraphs 34 and on, and he found no legitimate forensic purpose because he found that the case on genuineness was unarguable on the material that was put before him. What was put before him were examples of the way in which the argument might be sought ultimately to be put and pursued.

PN360

Logically, there shouldn't have been any oral investigation of the question of genuineness and that only raises the point of public interest in stark contrast because of what we submit, with great respect, the - what has happened, namely, a disorderly, and quite frankly, artificial context in which on one issue, namely, access to documents should they exist, for some reason we bear the onus. Now, that manifests itself, as I said, or rather, flows directly from his deciding that the proper question to be addressed was whether or not on the state of the evidence in the course of debating the summons, was such as to give rise legitimately - forensically to an argument on genuineness, whereas the question to be determined at that point was you having raised the issue of genuineness, are these documents arguably relevant?

PN361

Now, Ms Gooley says, well, I want to go back and I want to argue various other things and in any event you shouldn't make an order in terms of what we propose. The principles that both of us agreed would govern the matter leave ample room, if any arguments are to be put - if I may just invite your Honours to go back briefly to page 91 or page 2 of his Honour's decision. Now, both of us put to his Honour that - if I can invite you specifically to page 4 of his Honour's decision:

PN362

Any subpoena must specify with reasonable particularity -

PN363

etcetera -

PN364

the documents must be of a nature capable of being relevant.

PN365

And then the third one - in the third - - I am so sorry, paragraph 4 I meant to say of his Honour's decision. I am sorry, (c):

PN366

In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents ...(reads)... not be required where oppressive.

PN367

Now, we don't have to worry about oppression, but insofar as the union wants to put an argument that access to the documents, should they exist, or use of the documents, should they exist, be limited in some way, we are bound by the way in which we accept that Munro J suggested the procedure should follow. That follows, therefore, that the appropriate order, if we have persuaded you that there is error, would be to set aside the order. The documents would then be procured, if they exist, and then if there be an application under (c) so be it. That is a subsidiary discretion which may or may not be exercised.

PN368

But one must say this. When Ms Gooley was referring to the exchange between herself and his Honour two things have to be said about it. First, that was before he made his decision, but secondly, there was no oppression claimed. Now, normally at least in a conventional context the question of being too broad is something which is addressed under the heading oppression. It is too broad because it either requires the person to imagine what it is that is being sought, or it is too broad because it goes back over too many years and there is to be on the part of the person trying to find the documents a great deal of effort in determining what may or may not answer the description in the summons.

PN369

Now, that can be debated at another point as to whether having confessed no oppression there is really any sensible argument open as to breadth. So far as the particular category of documents are concerned, namely, that Ms Gooley was addressing those documents which came into existence after the event, as she says, the question is arguable relevance. There is no doubt that arguably something which occurs later, and which reflects upon in any way what occurred at the date that the authority was given or sought, may arguably be relevant to determining the context in which that authority was given.

PN370

So it can't be put to one side as an absolute. It obviously is going to turn on the kind of document that comes forward and, of course, what it does or does not say and that is a matter that ultimately will either impress or not, his Honour. So for all those reasons we say, with respect, there is nothing that has fallen, we say respectfully, from the FSU which addresses the question of a jurisdictional error and we do say, with respect, that his Honour was not correct to approach it from the point of view that he did. They are our submissions.

[12.24pm]

PN371

JUSTICE GIUDICE: Yes. Mr Sackar, there is a quotation from Adam P Brown Male Fashions in paragraph 57 of the Ms Gooley's outline.

PN372

MR SACKAR: Yes.

PN373

JUSTICE GIUDICE: That fails to identify that the first paragraph of that quotation is actually from Sir Frederick Jordan.

PN374

MR SACKAR: Yes.

PN375

JUSTICE GIUDICE: Where - a probate case, I think.

PN376

MR SACKAR: Yes.

PN377

JUSTICE GIUDICE: But in that passage a distinction is made, admittedly between categories of discretionary decisions - on the one hand points of practice or procedure and on the other the exercise of a discretion was to determine substantive rights. Do you have any submission to make about that distinction? It is one that has - I think that passage has been referred to in a number of Commission decisions - - -

PN378

MR SACKAR: Yes.

PN379

JUSTICE GIUDICE: - - - about these sorts of cases.

PN380

MR SACKAR: No doubt that is correct and certainly in matters of practice and procedure one would normally have to go one step further and show a miscarriage.

PN381

JUSTICE GIUDICE: Yes.

PN382

MR SACKAR: But here the context - namely, the particular issue that has been dealt with, namely the question of whether or not there is a genuine dispute or not, goes to the very foundation of the Commission's jurisdiction.

PN383

JUSTICE GIUDICE: Yes.

PN384

MR SACKAR: If what has happened as a result of the error has led to a somewhat disorderly or artificial context in which that is being looked at, especially given, as I have said, the rather inconsistency between the oral debate about it - the debate on documents - an appeal right ultimately is not a satisfactory way forward because if we were correct ultimately it would mean the matter would have to be dealt with again. Every case turns on its facts. This is a somewhat extreme case, only because of the rather inconsistent approach that on the face of it his Honour seems to be taking. I am - - -

PN385

JUSTICE GIUDICE: Well, yes, I follow. So if he had simply said, I think that these documents are capable of being relevant to an issue, I am going to strike those paragraphs out - - -

PN386

MR SACKAR: That would arguably be an error within jurisdiction in any event.

PN387

JUSTICE GIUDICE: Yes.

PN388

MR SACKAR: I mean the mere fact that he got it wrong wouldn't really be - wouldn't be much satisfaction for us.

PN389

JUSTICE GIUDICE: But it might bring it within the principles.

PN390

MR SACKAR: It might bring it within those principles, but an error where there has been a clear misapplication of principle gives us a reasonable tailwind in which to invite the Commission to look at the context in which the error has arisen.

PN391

JUSTICE GIUDICE: Yes, thanks, Mr Sackar. Anything arising out of that, Ms Gooley?

PN392

MS GOOLEY: No, your Honour.

PN393

JUSTICE GIUDICE: Thank you for your submissions, they have been very helpful. We will reserve our decision. We will adjourn.

ADJOURNED INDEFINITELY [12.30pm]