PN1

JUSTICE ROSS: Good morning, I've got Mr Borenstein for the applicant and Mr Dowling for the amalgamated union.

PN2

MR H BORENSTEIN: Yes.

PN3

JUSTICE ROSS: Do I take it that, to the extent necessary, you each make application for permission to appear under section 596 contending that, having regard to the complexity of the matter, it will be dealt with more efficiently if permission were granted?

PN4

MR C DOWLING: Yes, your Honour.

PN5

JUSTICE ROSS: And there's no objection from either side to the other side?

PN6

MR BORENSTEIN: No.

PN7

MR DOWLING: No. I should say I am appearing again with Mr Massy.

PN8

JUSTICE ROSS: All right. You can take it that I'm satisfied that, taking into account the complexity of the matter, it will be dealt with more efficiently if permission were granted and permission is granted on that basis.

PN9

I would like to say the issues are a little more simple in this case, but, nevertheless, Mr Borenstein, it seems to me there are a couple of differences between the two draft directions. In terms of the difference between the applicant's and that provided by the CFMEU, the amalgamated union proposes that the matter be listed for mention; secondly, that they don't propose that they be required to file any evidence. Perhaps if I can clarify with you, Mr Dowling, is that because you don't envisage filing any evidence?

PN10

MR DOWLING: No, your Honour, it's for the reason that we thought what was most prudent was to again set out the full extent of the controversy and understand where both parties' positions were before evidence was filed. There may be factual issues where there isn't a controversy and that will inform the extent of the evidence. So, for our part, we didn't think it was efficient or proper that evidence be put on before we understand where both parties sit in respect of the objections and the responses to them.

PN11

JUSTICE ROSS: All right. Mr Borenstein?

PN12

MR BORENSTEIN: Well, your Honour, we have filed extensive materials that everybody has seen which set out the factual basis on which the application is brought, we have done the relevant supporting documents which explain how we advance the applications in this matter, so, effectively, we have put on our case and it's apparent from the material that we have filed what the parameters of our case is, and rather than find reasons to delay the progress of the case, we have provided directions which actually program it so that it can proceed from hereon, and asking the CFMEU and any other objector to file their objections and any evidence that they might wish to rely on and an outline of submissions is not an undue burden in the circumstances.

PN13

The case that they have to meet is spelled out in the documents both factually and legally, and we say that the appropriate course is for the Commission to program it as we have done in our directions so that it goes up to a hearing date at an early time, some time in October or shortly thereafter. There's no reason to go backwards and forwards in a sort of pleading exchange, if you like, and having arguments about responses and so on. Let's just get on with it, we say. We have put our case up, we can see the CFMEU's case and let's get on with it.

PN14

JUSTICE ROSS: Mr Dowling, I'm not quite following your argument about why it would be more efficient to identify the objections and then deal with the evidence later. As Mr Borenstein has put, the applicant's case has been filed, including its factual material. Why wouldn't we direct you to file what you say in response, which would set out your grounds of objection, the factual issues in contest and whatever evidence you want to file in support of what you say the factual findings should be?

PN15

MR DOWLING: There's two issues, your Honour. Firstly, from our recent experience in the other matter, we should make it very clear that we expect there will be preliminary jurisdictional issues in this matter. One alternative - and this is an alternative to the directions we have already proposed - is that we could raise for the Commission and for the applicant any jurisdictional issues that we raise, and we could do that much quicker, we could do that on the same timetable as in Mr Kelly's application, so that would be notification of jurisdictional issues by 30 September and then returning for directions on 3 October. That would enable those issues to be dealt with separately. That's the first response to what's said.

PN16

The second, your Honour, what we want to fully understand before we file our evidence is the extent of any evidential controversy. Now, our friend says they've filed all of their material, but that certainly doesn't reveal the extent of the evidentiary controversy. Take, for example, your Honour, section 95(a), 95(a)(4) provides that:

PN17

The Eligibility Rules of the new organisation must, as far as practical, reflect the application of the Eligibility Rules of the amalgamated organisation.

PN18

Now, we don't know, and it's not explained in the application, how it is that the Eligibility Rules of the new organisation reflect the application of the Eligibility Rules of the amalgamated organisation and there might be, your Honour, a significant factual controversy about that.

PN19

JUSTICE ROSS: Is it a factual controversy or a legal controversy?

PN20

MR DOWLING: It may be both, your Honour, but it certainly may be a factual controversy because it talks about 'reflect the application of the Eligibility Rules', so how they have been applied. That might be a significant area of factual dispute that we don't know the breadth of and we would be required to put on our material before knowing the breadth of that dispute. Your Honour, that is an example of something where, if the extent of the controversy between the parties is known before the putting on of evidence, that much time and effort will be saved, and also relevantly - - -

PN21

JUSTICE ROSS: Yes, but do you contest what the applicant says about that issue, the application of the Eligibility Rules?

PN22

MR DOWLING: Well, it's not entirely clear what they do say about that issue, your Honour. In the time we've had with the application, it's not entirely clear how they say the Eligibility Rules of the new organisation reflect the application of the Eligibility Rules of the amalgamated organisation.

PN23

JUSTICE ROSS: Well, they say that they do, and if you say they don't, then you could file material going to that objection, including any evidence, and then the applicant can file whatever evidence it wishes to file in reply.

PN24

MR DOWLING: Yes, your Honour, but certainly that would require us to assume the broadest breadth of the dispute and put on the material, whereas it may be in fact a narrower dispute about particular groups of members where there's a dispute about the application of the Eligibility Rules historically.

PN25

JUSTICE ROSS: Mr Borenstein, before you engage in that sort of debate, what do you say about - well, are your interests adversely affected if we were to adopt the same course as we adopted in the other matter and require the amalgamated union to put on its objections to the application, to identify those by next Friday and then you would at least have some information about the scope of those, and then, if there was a mention on the following Monday, that might then determine where the matter goes.

PN26

MR BORENSTEIN: Your Honour, the issue which our friend raises is, in our view, not really a jurisdictional issue anyhow, but, without dealing with that and directly answering your Honour's question, we can't really say that we would be seriously prejudiced by adopting that course, save to say that we say it's unnecessary. If, in line with the directions which we have issued, the union has to file its objections by 5 October, we will shortly thereafter know what the objections are and also know what the arguments in support of those objections are, which may be just as important.

PN27

Our friend says he wants to expose the real controversy. We won't know the real controversy until we see not just the list of objections but also the reasoning behind them. So we say, really, there's not a lot saved by adopting the course which has been suggested, but if the Commission's minded to do that, then we're in the Commission's hands about that.

PN28

JUSTICE ROSS: Mr Dowling, without needing to set out your full argument, would you be able to, perhaps in dot form, in relation to each objection, briefly state the reasons?

PN29

MR DOWLING: Is your Honour now contemplating just the jurisdiction objections by the 30th and then a listing on 3 October?

PN30

JUSTICE ROSS: Yes.

PN31

MR DOWLING: Yes, we would, your Honour.

PN32

JUSTICE ROSS: All right. The other consideration is that there'll be a different presiding member of this Bench, mainly because I've got long leave commitments and if the matter is going to hearing in November, I'm not around in November and then not back until the first week in December. So the presiding member will be Hatcher VP, I'll discuss with him what he wants to do, in relation to the issue, but it's likely the first step will be the one that you've suggested, Mr Dowling, and then the matter will be listed for mention, on the 3rd, before the Vice President, and I've provided all the materials to him, in any event. He'll get the transcript of today's mention and you'll at least be better informed, Mr Borenstein. How much better informed will depend on what level of detail Mr Dowling's able to file, but there may be some matters in there that you form a view might be better dealt with, collectively, as preliminary jurisdictional issues. That's why I think there may be some utility in that course.

PN33

All right. Well, thank you both. If there's nothing from anyone else, that's the course we'll adopt. Thank you for your attendance.

PN34

MR BORENSTEIN: Thank you.

PN35

MR DOWLING: Thank you.

ADJOURNED INDEFINITELY�� [10.27 AM]