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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

VICE PRESIDENT CATANZARITI

DEPUTY PRESIDENT MASSON

COMMISSIONER YILMAZ

 

C2022/1965

 

s.604 - Appeal of decisions

 

Appeal by Queensland Rail T/A Queensland Rail

(C2022/1965)

 

Sydney

 

9.45 AM, THURSDAY, 12 MAY 2022


PN1          

VICE PRESIDENT CATANZARITI:  Yes, good morning.  I have on the Bench with me this morning, in Melbourne, Masson DP, Yilmaz C, and in an observer capacity, Schneider C.  I'll take the appearances, thank you.

PN2          

MR C MURDOCH:  Yes.  May it please the Commission, Murdoch, initials CJ.  I appear on behalf of the applicant, Queensland Rail, instructed by Ms Power(?).

PN3          

VICE PRESIDENT CATANZARITI:  Yes.  Thank you, Mr Murdoch.

PN4          

MR C WATTERS:  May it please the Commission, my name is Watters.  That's W‑a‑t‑t‑e‑r‑s, initial C.  I appear as counsel in this matter, instructed by Australian Workplace Law industrial advocates on behalf of their client, Mr Rainbow, who is the respondent in this appeal.

PN5          

VICE PRESIDENT CATANZARITI:  Thank you.  Permission to appear is granted to both sets of counsel.  The Full Bench has had the opportunity to read the material, together with the detailed written submissions.  We'll now invite some short oral submissions.  Thank you, Mr Murdoch.

PN6          

MR MURDOCH:  Yes, thank you, your Honour.  I propose to deal with each of the appeal grounds in the order that they've been set out in the outline, without of course repeating the outline.  If I could deal first with the error of law that the applicant contends occurred in the way in which the Commissioner separated out and considered each basis for termination in isolation.

PN7          

You will have seen from the correspondence that was sent to Mr Rainbow terminating his employment – and for the record that's at page 181 and 182 of the hearing book – that there were three allegations that were (indistinct), and there were three allegations that were (audio malfunction) together in determining that the employment ought to come to an end.

PN8          

The contention of the applicant is that when the Commissioner came to consider the question of valid reason, the Commissioner erred in considering each of those bases for termination separately in terms of whether 1, 2 and 3 were individually and discretely met other reason, as opposed to considering them in totality to determine what was, and was there, a valid reason for the termination.

PN9          

Now, appreciating that there have been some different approaches taken by the various decisions of the Commission, I wanted to take the Commission back briefly to the Act, and if one goes first to section 385, it of course says that a person has been unlawfully dismissed if the Commission is satisfied that, relevantly, the dismissal was harsh, unjust or unreasonable.

PN10        

If one then goes to section 387, the criteria for considering harshness are set out, and one sees there of course that in considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable, the Commission must take into account a range of factors, but firstly, 'whether there was a valid reason for the dismissal related to the person's capacity or conduct', et cetera.

PN11        

What we take from that is that one of the criteria for considering harshness is whether there was a valid reason, and that, in our respectful submission, drives one back to the need to consider not just whether a valid reason can be identified somewhere in the material, but it involved an inquiry of the nature and the extent of the existence a valid reason, and that's necessary to be determined because the existence of a valid reason is one of the factors to be considered in considering harshness.

PN12        

In terms of the cases that have dealt with this issue, we first wanted to note in particular what was said in the Illawarra Coal Holdings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 749 decision.  That is at tab 3 of the bundle and it starts at page 36 of the bundle.  In that decision, if I could ask you please to turn to, first, paragraph 83.

PN13        

VICE PRESIDENT CATANZARITI:  Yes, we have that.

PN14        

MR MURDOCH:  One can see there that there's a reference by the Full Bench to the fact that there the Commission below focused on the language and not the totality of the conduct, and by doing so downplayed the character of the conduct.  If one then goes to paragraph 90,

PN15        

We are satisfied that the Commissioner did not properly characterise the conduct. While he determined that there was a valid reason for the dismissal, the mischaracterisation of the conduct meant that he was not able to properly weigh the existence of the valid reason against the mitigating factors raised by Mr Gosek.

PN16        

It's the submission of the applicant here that the Commission in this matter committed a similar error, because whilst there was a determination that there was a valid reason, that valid reason wasn't considered and there wasn't a proper characterisation of the conduct by not considering all of the matters relied upon together.

PN17        

We have separately referred to in the written submissions the decision of the Commission at first instance and on appeal in Pearson, which we say stands for the same proposition, and if I could also ask you please to go to the Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 Full Bench decision, which is at tab 8, at page 158 of the bundle of authorities.

PN18        

VICE PRESIDENT CATANZARITI:  Yes, we have that.

PN19        

MR MURDOCH:  And if you can please go to paragraph 24 in that decision.  We rely upon in particular the statement that begins at the beginning of the third sentence, 'The finding of a valid reason is a very important consideration', et cetera.

PN20        

What we take from that is that, again, it's not so much a matter of identifying a valid reason, but it's more than that.  It's a matter of identifying the instant case, the nature and the extent of the valid reason, so that that valid reason once identified can be weighed with all of the other matters that must be weighed in considering the test under section 387(?).

PN21        

VICE PRESIDENT CATANZARITI:  Mr Murdoch, on one view, the valid reason the Deputy President found was in fact the most serious matter.  The other matters on one view may not, even if they were found to be valid reasons, may not have tipped the balance.  But we do understand your point, and they're pretty clear from your written submissions, so in one sense re‑working them orally is not going to change the argument, because really all you're saying is he should have weighed up these other ones and turn them into valid reasons as well.

PN22        

MR MURDOCH:  Yes.

PN23        

VICE PRESIDENT CATANZARITI:  The most serious one, he did actually find a valid reason, and remembering the test on a Full Bench, right, is whether having found there was a valid reason we then go to the question of harshness and whether that discretion has truly miscarried in this situation; not that whether we, this Full Bench, for example, speaking for myself, we might have formed a different view having found that critical valid reason on the issue of harshness, but that's not the test.

PN24        

MR MURDOCH:  Your Honour, I accept what you're saying.  The difficulty, in my respectful submission, is in terms of the error of law - is that the Commissioner has approached the question of determining what is the valid reason wrongly(?), and I think from what your Honour said that the Bench understands the argument that we're making in that respect, so I won't press the explanation.

PN25        

Can I just though, before I move from ground 1, just ask you to take up the decision of the Commissioner below and just to deal with the matter that your Honour the Vice President raised a moment ago about the most serious aspect of the conduct?

PN26        

I accept that the most serious aspect of the conduct was the safety breach.  The difficulty is, though, if one goes to paragraphs 135 to 150, that the Commissioner has, in separating out each of the reasons that were relied upon, putting it in simple terms, downplayed the extent of the entire incidence that occurred, because whilst there was the serious matter of safety, there was on top of that the serious matter of safety occurring in the context of the employee engaging in private activities during work time, and when the employee was, we say, properly challenged in respect of the safety breach, the employee's response was to meet that challenge with rude and aggressive conduct towards his manager, and then storming off and departing from the workplace.

PN27        

So when one looks at the entire context of the incident, serious enough is the safety matter, but the serious safety matter is aggravated and his behaviour is aggravated by a consideration of all of the matters together, because what the Commissioner has done is say, well, engaging in a foreigner, that of itself isn't a valid reason, and in effect put it to one side; speaking aggressively in the workplace, that of itself is not a valid reason – this is - - -

PN28        

VICE PRESIDENT CATANZARITI:  Mr Murdoch, speaking aggressively, the only relevant aggression is what actually occurred, and it's in paragraph 142.

PN29        

MR MURDOCH:  Yes.

PN30        

VICE PRESIDENT CATANZARITI:  That is hardly the most aggressive statement you're going to find in a workplace.  I mean, if that was what was left in this case, you'd have to agree, wouldn't you, that that hardly is what's going to turn the case, that sentence.  There's a lot more offensive stuff that's said in the workplace.

PN31        

MR MURDOCH:  I of course accept that there is, but that's the problem, that it was considered in isolation as opposed to being considered - - -

PN32        

VICE PRESIDENT CATANZARITI:  Well, but it wasn't considered in considered to this extent, because the employee, Ms Coran, also engages in this sort of behaviour, and that is a factor that's taken into account, right, and she admitted that sometimes she swears, and what he said is, 'I've had enough of this shit.'  I mean, it's not as if the employer is not acting in the same sort of vein on that.  That's not the heart of the termination.  Anyway, keep going, Mr Murdoch.

PN33        

COMMISSIONER YILMAZ:  Mr Murdoch, can I just clarify that, as I understand, the gravamen of the submission is that had the Deputy President properly characterised the conduct, all of the conduct, it would have resulted in greater weight being placed on that conduct when considering against that the matters that he dealt with when considering the harshness and would have reached a different conclusion as to the dismissal being unfair or otherwise.  So (audio malfunction) weight would have been attached to the total conduct, and I'll use that shorthand, such that matters such as (a) his length of service, prospects of securing new employment, a largely unblemished service record save for recent warnings over language, that would have resulted in a different outcome.  Is that the gravamen of the submission?

PN34        

MR MURDOCH:  That's the gravamen of the submission, and we say that that balancing exercise went awry by the initial failure to consider all of the conduct in the incident in that way.

PN35        

VICE PRESIDENT CATANZARITI:  For my part and I think the Bench understands that to be the gravamen of the submission.  Thank you.

PN36        

MR MURDOCH:  Thank you.  In that case I won't then say anything more in respect of the first ground as set out in the written submissions, and then in respect of the second ground I'll be brief with that, because it's really the result, as it were, of that initial failure.

PN37        

I don't wish to say anything more in respect of that point other than to note that not only was there a failure to consider each of the matters together, but there was also a failure, the applicant submits, to consider the importance, or the full importance of the context of the safety contravention.  This was a workplace where there were safety policies in place that required when a person was working on a rail line for that line to be blocked out.

PN38        

The Commission seems to have taken the approach that because the employee was knowledgeable, for want of a better word, of the comings and goings of rolling stock in the workplace that day, it was for the employee to be able to assess the risk and to not follow the safety procedure.

PN39        

That, in my respectful submission, is an irrational and illogical approach on the part of the Commission, and that's because where an employer has in place safety policies, where an employer has in place administrative controls such as the requirement to block a track out, it's not for employees to, with respect, self‑assess or pick and choose when they comply.

PN40        

The policies are in place for a reason, and it's not a question of whether or not on the day in question nothing happened or the risk was low.  It's rather the focus is on the policy's in place, the employee ought to comply with the policy, and in that respect we rely upon the comments of the respective Full Benches in the Toms(?) decision and the BlueScope decision that we've referred to in the written submissions.

PN41        

The next point I was going to go on to was to deal with the conduct towards the supervisor, Ms Coran.  In the course of the discussion that I've already had with the Full Bench I've dealt with that to the extent that I think it needs to be dealt with.

PN42        

The next point that I wanted to deal with was the factual error that was made in respect of the location of the tyre pumping.  If I can ask the Bench please to go to paragraph 157 of the decision?

PN43        

VICE PRESIDENT CATANZARITI:  Yes, we have that.

PN44        

MR MURDOCH:  There's an overarching approach it would seem taken by the Commission in respect of a view that the employer has inflated the gravity and seriousness of the conduct, and one sees that expressed clearly in paragraph 157, and you can see, if one reads on in paragraph 157, there's a reference to it being 'commonplace for others to conduct foreigners on their vehicles.'  And then the Commission goes on, apparently in further demonstration of this concern as to inflation of the gravity and seriousness - it said:

PN45        

It was clear from the evidence that there had developed a practice of people pumping their tyres in the general vicinity of the train line.

PN46        

And then the Commissioner goes on:

PN47        

Had there been evidence of such a practice arising from the investigation, one might pause before terminating the Applicant for such conduct.

PN48        

So the approach seems to be there in paragraph 157, the employer's inflated the gravity, this practice had been going on for some time, one wonders why there wasn't a pause before terminating this gentleman for similar conduct.  The critical problem with the Commission's analysis there is of course that Mr Rainbow didn't pump his tyres 'in the general vicinity of the train line.'  He parked his vehicle across the train line, which is a totally separate issue from what the Commission's addressing there.

PN49        

So, in my submission, in forming that view about inflating the gravity and seriousness, which plainly was a matter that was taken into account in considering the harshness of the termination, the Commission made a significant error of fact, because the Commission compared apples, not oranges.  We weren't dealing here with a situation of doing something in the general vicinity.

PN50        

The next point that I wanted to deal with in particular, and I've really dealt with the safety matters so I won't press those any further, but the next and last point that I wanted to deal with, which again goes to the way in which the Commissioner weighed and the factors the Commissioner took into account in determining harshness, is the matters that were considered in paragraph 158.

PN51        

If one goes to 158, one sees a reference to there being what's described as 'troubling evidence from a number of witnesses', and then a reference to the particular incident not being properly and realistically evaluated, and I quote, 'but rather an opportunistic attempt by management to remove the Applicant from the workplace.'

PN52        

That's a quite significant statement for the Commission to make, and it's plainly something that loomed large in the Commissioner's evaluation of harshness in this case.  The difficulty is that the evidence was such that it was not open to the Commission to take such a (audio malfunction).

PN53        

There was evidence given by a Mr Benstead, and you have his stat dec before you, and you also have the transcript of his cross‑examination.  Mr Benstead was a very senior person within the organisation, who authorised the termination of the employment.  There was no suggestion made to Mr Benstead by anybody that he was engaging in some opportunistic attempt to remove the applicant from the workplace, and for such a serious allegation to be taken into account by the Commission, it ought to have been put to that person.  The only person who - - -

PN54        

VICE PRESIDENT CATANZARITI:  Mr Murdoch, can I just ask you to pause there, because I think what you're putting is that the Deputy President had formed a view that there had been an opportunistic attempt by management to remove the applicant from the workplace.  Now, he refers to that troubling evidence certainly.  He then goes on to, in that same paragraph, refer to the evidence of the witnesses, certain witnesses, that there had been a less than consistent approach to management of safety.  So he refers to that.

PN55        

Then he immediately goes on to talk about being 'satisfied that each of the Applicant's witnesses were credible and honest and therefore see no reason not to accept their testimony.'

PN56        

MR MURDOCH:  Yes.

PN57        

VICE PRESIDENT CATANZARITI:  I guess one could read that paragraph and form the view that he's referring there to all the evidence, or simply to the evidence in relation to the safety incidence.  It's not entirely clear to me that the Deputy President's decision is infected by a conclusion that this was an opportunistic attempt to rid the organisation of Mr Rainbow.

PN58        

I guess I'm just highlighting I'm not sure if I can find that in that paragraph.  On one reading he might, but on another reading he may just be referring to the evidence as to the safety.  But your submission is that, as I understand it, his decision is infected by a view he took about this was an opportunistic attempt to rid the organisation of Mr Rainbow.  Is that the submission?

PN59        

MR MURDOCH:  That's the submission, and I will accept that one ought not involve in an overzealous analysis of reasons for your decision.  However, in my respectful submission, when one reads paragraph 158 in its entirety it's apparent that the reference to 'an opportunistic attempt by management to remove the Applicant from the workplace' was not just an observation as to what had been said, but was something of which the Commissioner was satisfied, because he refers, first sentence, 'There was some troubling evidence from a number of witnesses.'  He makes the statement, if we go on:

PN60        

I was satisfied that each of the Applicant's witnesses were credible and honest and therefore see no reason not to accept their testimony.

PN61        

The difficulty is that an opinion from co‑workers as to management's attitude is different from management actually holding that attitude.  It's a serious statement and, I say, finding to make, particularly when - - -

PN62        

VICE PRESIDENT CATANZARITI:  Yes.  No, I understand the submission that you characterise that paragraph.  Yes, thank you.

PN63        

MR MURDOCH:  Yes.  I won't take that any further, other than to say that the only manager in respect of whom there was a focus in respect of being able to 'get him', putting it in the vernacular, was Ms Coran, because there was a suggestion made that prior to her going out into the workplace on the day in question she'd made a statement to the effect of, 'I'll fix him', and at AB112 that was rejected by her.  But in any event, as one sees from the record, Ms Coran wasn't the person who made the decision to dismiss.

PN64        

Apart from what's otherwise contained in the written submissions, that was all I had intended to say orally, and in terms of the question of permission to appeal, I'd rely upon, in respect of tests there, the submissions that have already been made in the written submissions ,and also the oral submissions that I've made today in respect of the respective grounds.  Unless there's anything that I can assist the Commission with further, they're the oral submissions on the appeal for the applicant.

PN65        

VICE PRESIDENT CATANZARITI:  Thank you.  Thank you, Mr Watters.

PN66        

MR WATTERS:  Thank you, your Honours.  I might comment from this point:  the critical grounds upon which the appellant says the appeal should be allowed, and indeed the grounds 1(b) and 2(a), essentially say that his Honour Lake DP erred by considering these matters in isolation, and that the full gravamen of the scenario would have resulted in a different outcome had he considered the matters holistically.

PN67        

Now, away from our submissions, we say, well, that's not right, that's not what occurred, specifically because, firstly, at paragraph 144 – that's on page 35 of the appeal book – his Honour makes this observation:

PN68        

I am not satisfied that either filling his tyres with air on a break or using the word 'shit' (despite having been warned for such language previously) constituted a valid reason to terminate the Applicant's employment.

PN69        

So the Full Bench would be entitled to find in that circumstances the totality of those matters were certainly considered holistically and together.  I understand my learned friend's argument that, well, that's separate to the safety breach, which clearly his Honour then went on to consider and discuss in the decision in some detail.  However, in that regard of course we also know his Honour referred to deciding 'the full matrix' I think are the words he used - I can take you to it, if you need me to - of the facts of the case to determine whether or not there was sufficient to terminate, and of course, as the Bench has already indicated to my learned friend, he did so find.  He did so find that the safety breach was committed, and was sufficient to ground a valid reason before termination.

PN70        

So we respectfully submit that there is no error by the Deputy President in this matter, and on that basis there is not grounds for appeal.  Of course, if the Bench is against me on that, I only want to touch and address a couple of items raised by my learned colleague in his oral submissions today.

PN71        

One of those is what he refers to in the appellant's grounds 1(e) and 2(e) as being the 'irrational and illogical approach' of the Deputy President in holding a view in respect of the safety breach and the block that had been placed on the line.

PN72        

My learned friend argues to this Full Bench that the evidence before the Commission was about vehicles regularly being parked on the line and that if his Honour misunderstood or made a mistake he erred in respect of the evidence about vehicles being parked on the line.

PN73        

Now, in reply, I submit that's not correct.  This is the appellant's argument at paragraph 39 – on page 39 on page 7 of his submissions.  If we go to the evidence, that's the affidavit of Ingles on page 184 of the appeal book, in paragraph 11 he says this, that 'vehicles regularly cross the line or have a vehicle on the line without a block.'

PN74        

So where my friend says his Honour was mistaken about the facts, his Honour was not mistaken.  That was the evidence of Ingles, that regularly vehicles crossed the line, or are on the line without a block.

PN75        

Now, if I just pause for a moment to highlight for the benefit of the Full Bench, in those same submissions at paragraph 39(c), page 7 of the appellant's submissions, my learned friend highlights that his Honour somehow inexplicably discards the evidence of the manager, Coran, in respect of the safety breaches or the incident.

PN76        

We submit in response that's not inexplicable.  That's clearly set out in his Honour's findings that he preferred the evidence of the three railway workers, Ingles, Richardson, and I think the other fellow was Ellis – Eaton, I beg your pardon, to that of Ms Coran.  But relevantly, Ms Coran, it is submitted at paragraphs C39 on page 7 of my friend's submissions - Ms Coran says, oh, well, there were other safety controls in place.  That's her evidence and that that should have been preferred.

PN77        

Well, to be fair, if I were to go to the nub of the situation of this case, that's exactly what the applicant says.  The applicant says I had a two‑way radio, I knew the arrival of the next shunt of a train, I had vision down the line, I accept that I didn't have a block on the line and I should have, but because of course my friend continues to talk about the full context of the case, the context in respect of this alleged safety breach is – and I can take your Honours to his actual answer in his original record of interview – he says he was just going up there to quickly pump up his tyres.  It's on page 189 of the appeal book.

PN78        

In the interview he's asked a question about the matter and he says, 'I was moving' –

PN79        

I was moving my car from one place to the other because I had a flat tyre, and I thought I would just duck up and give it a quick pump up and that's when everything happens.

PN80        

And he goes on to say there that he was there for approximately two minutes.  So in that context, does he really commit the grave safety breach as alleged by the employer?  He certainly admits that he was wrong.  He shows remorse for that, and I can take you if that's needed to the record of interview also

PN81        

where he says he has nothing personal against Ms Coran, or holds no animosity toward her, or words to that effect.  He says – this is at page 205 - he says at 301:

PN82        

But I've got no disrespect against her.  It was just something that happened at the time.

PN83        

So as not to delay proceedings, could I just go to and highlight in concluding the document at page 166 of the electronic authorities brief?  That's the brief prepared by my learned friend's instructors.  That document details the statutory provisions under the Rail Safety National Law in respect of safety at rail facilities.  The Full Bench will note at section 46 the management of risks is referred to and requires a duty on persons:

PN84        

(a) To eliminate the risk to safety so far as reasonably practical, and

PN85        

(b) If it is not reasonably practical to eliminate the risks to safety to minimise those risks so far as is reasonably practical.

PN86        

And of course 47 goes on to define for us what 'reasonably practical' means.

PN87        

Now, the respondent submits in these proceedings that he did in fact do things reasonably practical to manage, reduce and perhaps eliminate the risk to safety, both to himself and others, on the relevant date in July last year at the Portsmith Depot, that is, he ducked in for a couple of minutes to pump up his tyres.  He was two‑way radio‑equipped, so that if any shunt was to occur or there was going to be movement of a locomotive in the yard, he would know about it.  They would have to contact him.

PN88        

The Full Bench will of course appreciate there's a conflict in the evidence about who was in charge of the maintenance depot of his shed, but of course there's the evidence of Richardson that both the Deputy President and the Full Bench could rely on, which says, well, (indistinct) was in charge.  He was the one responsible.  He was expecting a shunt at 4 pm.  That's some 45 minutes after pausing his – pumping up his tyres.

PN89        

VICE PRESIDENT CATANZARITI:  Mr Watters, could I just stop you there?  I mean you're not putting the submission that if there is a documented procedure in place dealing with a particular safe workplace practice that it's open to individual employees to pick and choose which aspects of that procedure they will or won't follow?  You're not putting that submission, are you?

PN90        

MR WATTERS:  Absolutely not.

PN91        

VICE PRESIDENT CATANZARITI:  Because my understanding is that ultimately it wasn't controversial in the proceedings before the Deputy President that Mr Rainbow did the wrong thing.  He had a vehicle parked across the line.  It was a breach of the policy that was in place.  That was the finding that was made by the Deputy President, and ultimately that founded a valid reason for dismissal.

PN92        

MR WATTERS:  Yes.

PN93        

VICE PRESIDENT CATANZARITI:  Now, the gravity that attaches to that in the weighting exercise, the reason that the Deputy President – yes, he goes to those other matters, which you talk about in terms of the other precautions that were taken, but I just wanted to confirm that you're not putting that it was open to the individual to pick and choose which aspects of the procedure he would or wouldn't follow.

PN94        

MR WATTERS:  Absolutely not, your Honour, and I apologise to the Bench if that's been the inference or the understanding in my submission.  No, my submission is, in respect of the appellant's claim or submissions, that his Honour the Deputy President disregarded Ms Coran's evidence about the 2016 shunting incident where a siren or shunting alarm wasn't used, on the basis that she says other controls were in place.  As it turned out, there was no evidence in terms of what they were.

PN95        

But what I'm inferring(?) is that the Rail Safety National Law places a requirement – gives new meaning to being in the dark, I suspect.

PN96        

VICE PRESIDENT CATANZARITI:  Yes.  It's coming to that point.  It's not an unusual situation.

PN97        

MR WATTERS:  And may there be light.  No, so what I'm doing is citing the relevant statutory obligations, both on the employer, and to that matter on Mr Rainbow, and I'm simply drawing the corollary, as it were, between the treatment of Ms Coran's evidence, and of course the treatment of Mr Rainbow's evidence, because he accepts that he did the wrong thing.  He says that he should have put a lock‑out on.  His reason at interview was of course well, look, I was only there in there for a couple of minutes to pump up my tyres, I thought I'd be safe.  That's what he said at the interview.

PN98        

Unless I can assist the Bench further, they're really the extent of the – the touchstones that I wanted to seize upon.

PN99        

VICE PRESIDENT CATANZARITI:  Thank you.  Anything in reply, Mr Murdoch?

PN100      

MR MURDOCH:  Yes, just two points, your Honour.  My learned friend took the Bench to paragraph 144 as a response to the argument that has been made by the applicant in respect of the matters not being considered together.  In my respectful submission, paragraph 144 itself demonstrates the error, because there's the discrete consideration of the filling of tyres and the use of the language.

PN101      

The second point that I wanted to make is that my learned friend referred to the Commission referring to considering the full matrix of the material.  That's a statement that the Commission made in the last sentence of paragraph 139 where the Commission was summarising the approach that ought to be taken.

PN102      

Can I respectfully say that there's a difference between a tribunal member stating the approach that ought to be taken and, as a matter of fact, when one reads the entire reasons, taking the appropriate(?) approach.  The Commission asked the right questions, but in our respectful submission didn't then approach answering the questions in the correct manner.  That was all I wished to say in reply, subject to any questions you may have.

PN103      

VICE PRESIDENT CATANZARITI:  Thank you.  The decision is reserved.  The Commission is adjourned.

ADJOURNED INDEFINITELY                                                          [10.28 AM]