PN80

JUSTICE ROSS: The appearances I have are: for the applicant, Mr Borenstein with Mr Bakri; for the CFMMEU, Mr Dowling with Mr Massy; and Mr Rawson for the Registered Organisations Commissioner.

PN81

The applicant and the CFMMEU have filed draft directions in respect of the matter. Can I just go to you, firstly, Mr Borenstein, just to clarify a couple of issues in your proposal.

PN82

MR BORENSTEIN: Yes, your Honour.

PN83

JUSTICE ROSS: The application under 594 in relation to annexure 2, that's the annexure with a lot of the signatures on it; is that right?

PN84

MR BORENSTEIN: Correct.

PN85

JUSTICE ROSS: Which has not been published to date?

PN86

MR BORENSTEIN: That's correct.

PN87

JUSTICE ROSS: I think we will maintain that until we deal with the 594 matter and see if there's any objection to that course. If there is, that will be listed and dealt with in due course.

PN88

As I understand your draft directions, Mr Borenstein, they only deal with the jurisdictional objections that are identified in paragraphs 2, 3 and 4 in the objections filed by the amalgamated union on Friday; is that right?

PN89

MR BORENSTEIN: Yes, they are the only objections that have been identified and, having regard to the number of them, we took the view that it was appropriate that they be dealt with in the first instance and we have sought to frame our directions to do that.

PN90

JUSTICE ROSS: So that means the case would be split in two because the amalgamated union in direction 5 indicates that they are reserving their rights in relation to other objections to the applications once the jurisdictional objections have been dealt with.

PN91

MR BORENSTEIN: Yes.

PN92

JUSTICE ROSS: All right.

PN93

MR BORENSTEIN: Can I just say, your Honour, that although there will be a split between those two categories of objections, at least all of the jurisdictional objections which might produce subsequent proceedings will all be dealt with at once, and if there are to be any subsequent challenges to the findings of the Commission, they, too, will all be dealt with at once so as to expedite the overall process.

PN94

JUSTICE ROSS: I'm not sure how I see that expedites the overall process, but it's your application.

PN95

MR BORENSTEIN: It does in the sense that if we do one jurisdictional point at a time - - -

PN96

JUSTICE ROSS: Well, why wouldn't you do all of it at once?

PN97

MR BORENSTEIN: We're open to that, but we haven't got any other objections from our friend and the indications last time were that the union would simply put on its objections about jurisdiction. We don't know if there are any other objections.

PN98

JUSTICE ROSS: I think, just based on past experience, I think you can take it there will be other objections.

PN99

MR BORENSTEIN: We are assuming that, but we don't know.

PN100

JUSTICE ROSS: All right. The other issue is having regard to - bear with me for a moment - the language of 94A, it would seem that we are only empowered to accept an application if we are satisfied, having regard to the matters in subsection (2), that it is appropriate to accept the application.

PN101

MR BORENSTEIN: Yes.

PN102

JUSTICE ROSS: That really needs to be dealt with first, doesn't it, otherwise the application is not before us?

PN103

MR BORENSTEIN: Well, there's a nice question, your Honour, about the order in which the applications can be made. One of the other objections is that - and this is in objection number 3 - the constituent part didn't become part of the CFMEU as a result of an amalgamation and, if that's so, then that defeats the application as well, and then the third point is - - -

PN104

JUSTICE ROSS: No, no, but my point is that would be - after the application is made, you would make those objections.

PN105

MR BORENSTEIN: But they might go to the question about whether there's a valid application whatever the timeframe.

PN106

JUSTICE ROSS: Well, they might, but we can't accept an application until we grant the extension. So, you don't even get to the argument about whether it's a valid application because there is no application.

PN107

MR BORENSTEIN: Well, there's an application but it's made outside the time limit in 94.

PN108

JUSTICE ROSS: If there's an application and it's not accepted by us - - -

PN109

MR BORENSTEIN: Yes, that's right.

PN110

JUSTICE ROSS: Well - - -

PN111

MR BORENSTEIN: Your Honour, the reason why we have framed the directions in a way where all the jurisdictional points are argued together, as I said, is in aid of achieving the greatest efficiency and expedition in the processing of the application.

PN112

Now, we recognise, of course, that we have to persuade the Commission that it should accept the application outside the time limit in section 94; we also have to persuade the Commission that the conditions under section 94 are met and so on, and we say it's not inappropriate for all three of those matters to be ventilated before the Commission and then the Commission to decide them.

PN113

If the Commission decides that it rejects the extension of time under section 94A, then it might say, 'Well, it's not necessary for us to decide the other ones', but we would have thought that in circumstances where this is highly likely to go further, it would be desirable for the Commission to deal with all the constitutional points so that even if the Commission took the view that 94A hadn't been properly satisfied, if there are subsequent proceedings, the Court would have the benefit of the Commission's views on all the jurisdictional points.

PN114

JUSTICE ROSS: All right. Look, I might be missing something here because I have only just seen the CFMMEU's draft directions, but, other than some slight issues around dates, they are both framed as outline of submissions. The CFMMEU wants a limit in the outline of 20 pages. Is there much else between you?

PN115

MR BORENSTEIN: Your Honour, these are the issues that are inconsistent between the two directions.

PN116

JUSTICE ROSS: Yes.

PN117

MR BORENSTEIN: Firstly, in direction number 5, we make - - -

PN118

JUSTICE ROSS: Of yours, yes?

PN119

MR BORENSTEIN: Of ours, yes, I'm sorry.

PN120

JUSTICE ROSS: Yes, you've got the - no, I see that, that's fine, you don't need to take me to that now.

PN121

MR BORENSTEIN: So, what we have done is, in number 4, the CFMEU files its submissions on any of the jurisdictional objections.

PN122

JUSTICE ROSS: Yes.

PN123

MR BORENSTEIN: Then we've made facility for ROC.

PN124

JUSTICE ROSS: Yes.

PN125

MR BORENSTEIN: And then we've made specific facility in number 6 for any other person because other persons can't make submissions about 94A. So, we have sought to accommodate that structure, and that's missing from the union's direction.

PN126

In relation to the dates, we have sought to be equitable between all parties by giving everybody three weeks to prepare their materials. The union's suggestion is that we should file our primary submissions within approximately three weeks and then they want four weeks and then we have one week to respond.

PN127

Now, anticipating, perhaps pessimistically, the material that the union will file, we would submit that a week to prepare a response is quite inadequate and, in addition to that, we would say that, on our timetable, the union has six weeks from today to start to prepare and then refine its submissions and material, and we say that our timetable is more equitable in the distribution of the period between now and December when the matter is proposed to be heard.

PN128

JUSTICE ROSS: We can sort out the timings. What do you say about limiting the outline to not more than 20 pages?

PN129

MR BORENSTEIN: Your Honour, that's not a die in the ditch issue. If that's something that Mr Dowling is concerned about, we can accommodate that.

PN130

JUSTICE ROSS: I'm always slightly anxious about putting page limits on it because then I end up with single space, micro font.

PN131

MR BORENSTEIN: I hope your Honour remembers who suggested it.

PN132

JUSTICE ROSS: Well, I didn't want to suggest that I was accepting it, but that's my apprehension about that. Was there anything else you wanted to say?

PN133

MR BORENSTEIN: Can I just say you will see that we have also included an order in number 1 of our directions about the matter being heard by a Full Bench. That's probably - - -

PN134

JUSTICE ROSS: No, no, it will be heard by a Full Bench. That's not something that goes in directions; that's something I constitute separately.

PN135

MR BORENSTEIN: All right. Okay, that's fine. Then, in number 2, we've got an order about section 594 which your Honour has already mentioned.

PN136

JUSTICE ROSS: Yes.

PN137

MR BORENSTEIN: Other than that and other than the fact that we would be entirely comfortable not to have a 20-page limit, but if it's got to be, then we will accommodate it.

PN138

JUSTICE ROSS: All right, thanks. Mr Dowling, how strongly do you feel about the 20-page issue?

PN139

MR DOWLING: Not strongly, your Honour. We were hoping to save your Honour some reading, but we appreciate what your Honour says and what often happens in terms of font sizes, so it's not a strongly held view. It was put there to concentrate everybody's mind and to ensure that the submissions were as precise and concise as possible, but if your Honour is against it, we don't have a strong - - -

PN140

JUSTICE ROSS: Only because there's always a risk it tends to - it may generate some unfairness as well, Mr Dowling, because a point, you know, is put concisely and then the subject of more elaboration in the oral argument and the other side then wants time to respond and it just - I mean I adopt that course in permission to appeal because it is really intended to focus on - particularly in unfair dismissal matters - the particular tests and issues, but I would certainly put in something to reference a concise outline of submissions, but without sort of fully apprehending the argument the parties want to put, I would be a bit reluctant to put a page limit on it. That's all.

PN141

MR DOWLING: Yes, your Honour.

PN142

JUSTICE ROSS: Can I take you to the 594 application. Was there any objection to that proposition?

PN143

MR DOWLING: No, your Honour.

PN144

JUSTICE ROSS: All right. Mr Borenstein, I will get you to file a consent order in the form you seek and I will discuss it with - - -

PN145

MR DOWLING: Sorry, your Honour, if I could just say one very quick thing about dates and one correction that I need to make?

PN146

JUSTICE ROSS: No, I haven't finished with you, Mr Dowling, I'll be back.

PN147

MR DOWLING: Sorry.

PN148

JUSTICE ROSS: No, no, I just wanted to tidy up this issue first, that's all.

PN149

MR DOWLING: The 594, thank you, your Honour.

PN150

JUSTICE ROSS: Mr Borenstein, if you can have a draft consent order filed, set it up with Mr Dowling and then forward it to my chambers and we will take care of it. I note that, at the moment, annexure 2 has not been published and it won't be published until - well, it won't be published and I will deal with the order when it comes in.

PN151

Back to you, Mr Dowling. Was there anything else you wanted to say about the proposed directions? You mentioned the dates?

PN152

MR DOWLING: Yes, just a very brief comment about dates, your Honour. We think one compromise that might be able to be met or to achieve a resolution, the applicant proposes 24 October for his material.

PN153

JUSTICE ROSS: Yes.

PN154

MR DOWLING: We are content for that to remain as he proposed as opposed to how we propose 24 October. We thought what might then accommodate things - I think the applicant proposes three weeks, then three weeks for us and then three weeks in reply. Traditionally, and sensibly, the reply period is always a bit shorter. We thought if we took one week off the reply period, that would allow 24 October for the applicant, 21 November for the CFMMEU and any other objections, or the Registered Organisations Commissioner and any other persons, and then leave the date of 5 September in proposed order 7 of the applicant for their reply material.

PN155

JUSTICE ROSS: All right. What do you say about that, Mr Borenstein?

PN156

MR BORENSTEIN: Your Honour, we have no problem with that.

PN157

JUSTICE ROSS: All right. Just to be clear, it will be the applicant filing - if we were to use the draft directions proposed by the applicant, then direction 3 would remain, directions 4, 5 and 6 would be the 21st, and then direction 7 would remain as it is?

PN158

MR BORENSTEIN: Yes.

PN159

MR DOWLING: Yes, your Honour.

PN160

JUSTICE ROSS: All right.

PN161

MR DOWLING: Your Honour, I mentioned one correction and that's to the document that was filed on Friday in this matter, the objections of the CFMMEU.

PN162

JUSTICE ROSS: Yes.

PN163

MR DOWLING: Your Honour will see in directions 3 and 4 they say, 'Further, or alternatively, to 1.'

PN164

JUSTICE ROSS: Yes.

PN165

MR DOWLING: They both should say, 'Further, or alternatively, to 2.'

PN166

JUSTICE ROSS: Yes.

PN167

MR DOWLING: I think that is probably understood by everybody, but I thought I should correct it.

PN168

JUSTICE ROSS: Yes, no problem.

PN169

MR DOWLING: Nothing further.

PN170

JUSTICE ROSS: Thank you, Mr Dowling. Mr Rawson, does your client wish to be heard in relation to the extension of time?

PN171

MR RAWSON: Your Honour, it's certainly far from clear at this stage that it would. If I can say this, that the directions proposed by each of the parties do seem to contemplate a significant exchange of material between them. It's not clear to us at this stage that the Commissioner would want to have anything to say about the matter, and that's particularly so given the scope of the objections which have been notified by the CFMMEU. We do think it would be appropriate that an order be made, if necessary, requiring the parties to file or to serve a copy of any of the material they file on the Commissioner, but it's not - - -

PN172

JUSTICE ROSS: Look, as I think I indicated in the earlier statement, there will be a Major Cases page. You can register on that page and that way you will obtain the material as it's filed, and if the Commissioner is uncertain about whether it wishes to engage in the proceedings, I will simply put 'liberty to apply' on the directions and if, after seeing the material, you want to file something, well, you will need to seek an amendment to the directions.

PN173

Otherwise, you can take it that you will need to comply with the directions we issue that apply to the other parties. In other words, I don't want you waiting until early December and saying, 'We want to file something.' If you wanted to file something at that point, you would have to file it by 5 December so that we don't disrupt the hearing and put the other parties at an inconvenience.

PN174

That might be the safest course. You can see it as it comes in and be advised about that and then decide whether or not you want to get involved in it. I'm not sure I want to get involved in it, Mr Rawson, so I'm not sure why your client would want to be, but nevertheless.

PN175

MR RAWSON: Your Honour, I am grateful for that indication and we are content with that proposal. I can say that it would only be in the event that the Commissioner formed the view that there was a gap in the material filed by the parties about one of the matters in paragraphs (a) or (b) of section 94A - - -

PN176

JUSTICE ROSS: Okay.

PN177

MR RAWSON: Objection 2, that he would do that.

PN178

JUSTICE ROSS: All right, I will give some thought to that. As I foreshadowed with Mr Borenstein, I will discuss with my colleagues and give some more thought to the 94A point as a discrete part of this process, but, nevertheless, even if we decided to adopt that course, we would issue directions for the hearing of all of the jurisdictional objections, whether it's in phasing or in one group, so, in other words, we wouldn't be just issuing directions for the 94A matter, we would be issuing them for the jurisdictional objections that have been identified by the amalgamated union. All right?

PN179

MR DOWLING: Your Honour, with apologies, there is something I neglected to mention.

PN180

JUSTICE ROSS: That's all right.

PN181

MR DOWLING: The directions currently proposed by the applicant have 5 December for their reply material and then the hearing with an estimate of two days on or after 8 December.

PN182

JUSTICE ROSS: It won't be before the 12th.

PN183

MR DOWLING: Thank you, your Honour, that - - -

PN184

JUSTICE ROSS: Just because of availability. We have already discussed the availability of Bench members and I will be on a boat in the Antarctica on the 8th, so it's highly unlikely we will be having it then. Yes, I don't think it will be before the 12th, Mr Dowling.

PN185

MR DOWLING: That's fine.

PN186

JUSTICE ROSS: Are there dates that counsel are not available - bear with me - in the week of the 12th and the week of the 19th - of December?

PN187

MR BORENSTEIN: Your Honour, we would seek to avoid 13 December, if that were possible.

PN188

JUSTICE ROSS: Yes.

PN189

MR DOWLING: Your Honour, the only date in those two weeks is - sorry - no unavailability in the week of the 12th; some difficulty from the 22nd and the 23rd, your Honour.

PN190

JUSTICE ROSS: All right.

PN191

MR DOWLING: Thank you, your Honour.

PN192

JUSTICE ROSS: I will take that into account. Anything further? No?

PN193

MR DOWLING: No.

PN194

JUSTICE ROSS: All right, thanks very much. I'll see you shortly for the Manufacturing matter. I will adjourn.

ADJOURNED INDEFINITELY�� [9.49 AM]