PN1

VICE PRESIDENT HATCHER: All right, can I take the appearances, please. Mr Harding, are you there?

PN2

MR M HARDING: I am, your Honour. I seek permission to appear for the ACTU, the United Workers Union and the AED Legal Centre.

PN3

VICE PRESIDENT HATCHER: Can I just confirm you will be appearing for all three organisations at the hearing?

PN4

MR HARDING: Yes.

PN5

VICE PRESIDENT HATCHER: All right, to the extent that you don't already have permission, I will grant that permission. Can I just clarify, do you know what the position is with the HSU? Are they appearing in the matter?

PN6

MR HARDING: I don't have specific instructions about that, your Honour. There's been some people who have been unwell, I believe, at the HSU. I have no reason to believe that they won't be participating, but, if they do, my expectation is they will be doing it within the rubric of the appearance that I've just announced, but I will need to get specific instructions about that.

PN7

VICE PRESIDENT HATCHER: All right, thank you. Mr Arndt and Ms Simmons, you appear for Australian Business Industrial/New South Wales Business Chamber?

PN8

MR J ARNDT: That's correct, Vice President.

PN9

VICE PRESIDENT HATCHER: Are you going to turn your camera on, Mr Arndt?

PN10

MR ARNDT: I have turned it on. Have I come through yet?

PN11

VICE PRESIDENT HATCHER: No, I can't see you. There you are. Yes, all right. Ms Langford, you appear for National Disability Services?

PN12

MS K LANGFORD: That's correct, your Honour, thank you.

PN13

VICE PRESIDENT HATCHER: Ms Boulton, you appear for the Endeavour Foundation?

PN14

MS K BOULTON: Yes, your Honour, that's correct.

PN15

VICE PRESIDENT HATCHER: Mr Christodoulou, you are appearing for Greenacres?

PN16

MR C CHRISTODOULOU: Yes, your Honour.

PN17

VICE PRESIDENT HATCHER: Ms Walsh, you are appearing for Our Voice Australia?

PN18

MS M WALSH: That's correct, your Honour.

PN19

VICE PRESIDENT HATCHER: And, Mr Sherr, you are appearing for the Department of Social Services?

PN20

MR A SHERR: Yes, your Honour.

PN21

VICE PRESIDENT HATCHER: All right. The parties will, in due course, be allowed to address any procedural matters they wish, but there's a series of matters which I wish to deal with.

PN22

The first matter I think I've covered, Mr Harding, and that is, to the extent that you have indicated you wish to cross-examine witnesses, you are going to do so on behalf of the three entities you have identified; correct?

PN23

MR HARDING: Yes, that's right, your Honour.

PN24

VICE PRESIDENT HATCHER: Yes, all right. Ms Walsh, can I turn to you. In Our Voice's submissions, there were some 14 witness statements.

PN25

MS WALSH: That's correct, your Honour.

PN26

VICE PRESIDENT HATCHER: They have been redacted, but they relate, I think to the closure of the Activ ADEs or ADE in Western Australia; is that right?

PN27

MS WALSH: Well, they are all from ADE workers at Activ services who, yes, who are affected by the closures of those work sites.

PN28

VICE PRESIDENT HATCHER: And those statements were prepared for the purpose of this matter, not for some other purpose?

PN29

MS WALSH: It's actually, yes, provided as what we consider to be a substantive matter leading to the national position paper, which we provided to the court in response to directions, and that was the witness statements and we rely on those to point out the difficulties experienced by people, by workers, in transiting from their employment, their ADE employment, to open employment, which is the only option that they have been given, and at least seven of those provide the lived experience of being unable to make that transition, and our national position paper already provided to the court supports an interim step in between. We believe that to be part of the substantive matter going forward, and also relates to, I think, paras 359, 360 and 361 of the case itself.

PN30

VICE PRESIDENT HATCHER: All right.

PN31

MR HARDING: I don't think you got an answer to your question, Vice President. Has it been prepared for this matter or not?

PN32

VICE PRESIDENT HATCHER: Yes (audio malfunction).

PN33

MS WALSH: Sorry (audio malfunction). We don't have legal advice, so we are doing the best we can and speaking, I guess (indistinct), yes, they have been provided in relation to the case - I don't have the number in front of me, but to the case heard in 2018 and which has followed on from there in relation to the wage trial and where those families and witnesses are at the moment.

PN34

VICE PRESIDENT HATCHER: All right, so I am taking that as a 'Yes', Mr Harding. Ms Walsh, do you accept that if those statements are to be used in this matter, they will have to be subject to any - unless you want to seek a confidentiality - but at least to the other parties, so the witnesses will have to be identified, that is - - -

PN35

MS WALSH: Well - - -

PN36

VICE PRESIDENT HATCHER: - - - they won't be able to be redacted in the way they are currently, which we have done for the purpose of publication to the website.

PN37

MS WALSH: Well, I don't think that they will have any issues with being identified. We just, without legal advice, we thought that was the procedure. The process used in the earlier part of the hearing, in the arbitration, we assumed that that would be the matter going forward, but as you will see from the separate submission provided by our West Australian representative, part of the frustration which is being felt by those disadvantaged people is that they aren't - they have no voice, they can't be seen, they can't be heard within the system as it stands and so they would have no problems with being identified for the purposes of going forward.

PN38

VICE PRESIDENT HATCHER: All right, thank you. Mr Harding, for what purpose do you seek to cross-examine those 14?

PN39

MR HARDING: For the purposes of evidence, your Honour.

PN40

VICE PRESIDENT HATCHER: Well, yes. I mean the Commission informs itself as it sees fit and, speaking for myself, I would need to be persuaded as to what utility - - -

PN41

MR HARDING: Well, your Honour - - -

PN42

VICE PRESIDENT HATCHER: - - - there is to be had from cross-examination.

PN43

MR HARDING: Well, your Honour, we didn't cross-examine the other worker witnesses called last time and it was thought that that evidence went in unchallenged. We challenge aspects of the evidence that is contained in those statements and its relevance to the issues that are before the Commission. We are entitled to test both the veracity of the evidence as well as the manner in which it was prepared, and we do.

PN44

Now, you know, it's a matter for Ms Walsh as to whether she wishes to rely on those statements, but, if she does and the Commission is intending to receive it as evidence of these individuals, we would like to test it. Obviously, if the Commission decides that it doesn't wish for us to cross-examine and would receive the evidence regardless, then it would need to be done under some submission about the weight to be given to that material.

PN45

VICE PRESIDENT HATCHER: It is obvious, Mr Harding, that there are matters that might be raised on the face of the statements about the weight that would be given to it, and that will obviously be the subject of submissions, I would anticipate, but I am more concerned with whether there's some factual challenge to what they say in their statements. Is it going to be put to them that anything they say is untrue?

PN46

MR HARDING: Well, I haven't prepared the cross-examination yet. Probably not, your Honour, but I'd like to know how those statements were prepared.

PN47

VICE PRESIDENT HATCHER: Yes, all right. What I'm going to do, Mr Harding, is direct your side to file by close of business next Wednesday an outline of the matters about which you wish to cross-examine those 14 witnesses and then the Full Bench will decide whether we can permit cross-examination. Nothing in connection with that is obviously meant to limit any submissions that might be made about the weight to be given to these statements.

PN48

MR HARDING: Your Honour, whilst you are on the subject of redactions, can I raise another matter pertaining to that, which is that the redactions of the names of workers contained in the statements filed by the ABI/New South Wales Business Chamber, I know that those redactions may have occurred for the purposes of publication, but, in our hands, we don't have the names of those persons in the tables that are relied on by Mr Christodoulou and others.

PN49

VICE PRESIDENT HATCHER: The parties can assume that if those parties (indistinct) participate in the hearing, we will presume that they will be provided with unredacted copies of statements.

PN50

MR HARDING: Thank you.

PN51

VICE PRESIDENT HATCHER: If any party, in anticipation of that, wishes to apply for some form of confidentiality order, they may do so, but parties can expect that at least other parties to the proceedings will have access to unredacted statements. That, obviously, doesn't affect our policy as to publication of statements on the website, but we might come back to that if any party wishes to raise any confidentiality issues.

PN52

One thing I'm a bit confused about, Mr Harding, is that you appear to have made a request to cross-examine people who don't appear to actually be witnesses. This is Ms Walsh and persons associated with the Activ Action Team.

PN53

MR HARDING: Well, we're in the same position as we were in last time around, your Honour. There's a whole bunch of material being put in by Ms Walsh's organisation that's a mix of submission and a mix of purported evidence, and insofar as there's evidence, we would cross-examine on it. I mean, we could deal with it by way of submission and say, well, you ought not have regard to the evidence, but it's being put forward as evidence.

PN54

VICE PRESIDENT HATCHER: I don't know that it is, Mr Harding. Unless any party tells me that any of those people are intending to give evidence, I don't propose to allow them to be cross-examined on some undefined matters. If there's factual matters in submissions which you say are in contest, you can identify those and we will take that into account.

PN55

The next thing again for you, Mr Harding, we now have statements from Professor McCallum and Mr Ford.

PN56

MR HARDING: Yes.

PN57

VICE PRESIDENT HATCHER: Are they actually in reply to anything? They were filed as material in reply, but, having read them, I can't see what they are replying to.

PN58

MR HARDING: Well, they're replying to the case that's being put by our opponents about the nature of wages in the sector. There's not a specific joining of a particular matter in a particular witness statement, but it's in reply to the case that's been put. I mean the ABI have now proposed another way of classifying workers which is new and the Professor's evidence goes to that issue as much as it does the proposed structure from the Full Bench, but it's reply in that sense and, in relation to Mr Ford, well, he gives some evidence about the nature of the industry, which is plainly relevant.

PN59

VICE PRESIDENT HATCHER: Well, it's plainly relevant, but - - -

PN60

MR HARDING: Yes.

PN61

VICE PRESIDENT HATCHER: - - - what is it replying to?

PN62

MR HARDING: It's replying to the case that's been put against us.

PN63

VICE PRESIDENT HATCHER: All right. Mr Arndt, do you maintain an objection to the admission of Mr Ford's statement?

PN64

MR HARDING: Well, Mr Arndt hasn't indicated an objection.

PN65

VICE PRESIDENT HATCHER: There is an indication that they reserve their rights to object to the statement. I am asking if there is an objection, whether we need to worry about it or not.

PN66

MR ARNDT: I think Mr Harding is actually correct. I can't take the matter any further than the position that's been put by Mr Scott in correspondence, which is we reserve the right to object to the statement on the basis that it is not reply evidence. I don't have instructions to withdraw that today.

PN67

VICE PRESIDENT HATCHER: I want to deal with these issues before the hearing. Can someone remind me, is Mr Ford otherwise required for cross-examination?

PN68

MR HARDING: He's not on my list.

PN69

VICE PRESIDENT HATCHER: All right. Well, Mr Arndt - - -

PN70

MR ARNDT: Could I seek a degree of time just to get final instructions on that to make a decision as to whether - or to get some instructions whether objection will be taken?

PN71

VICE PRESIDENT HATCHER: Yes. I think you would have to accept it's plainly relevant evidence. It may not strictly be in reply, but if it is not sought in any event to cross-examine him, I'm not sure whether any such objection will have any practical purpose. Anyway, can you confirm that one way or the other by close of business next Wednesday and, if an objection is maintained, then the Full Bench will rule on it before the hearing.

PN72

MR ARNDT: Thank you, Vice President, yes.

PN73

VICE PRESIDENT HATCHER: Mr Harding, pursuant to a direction earlier made, at least ADE - I think it's ADE - filed a document concerning a jurisdictional objection.

PN74

MR HARDING: Yes.

PN75

VICE PRESIDENT HATCHER: Dated 16 March. I have read that document and, to be perfectly frank, Mr Harding, I don't understand, and I think - - -

PN76

MR HARDING: Is that the position paper you are referring to, your Honour?

PN77

VICE PRESIDENT HATCHER: No, it's a one-page document.

PN78

MR HARDING: Yes, that's the position paper.

PN79

VICE PRESIDENT HATCHER: Well, it's headed 'Jurisdictional Objections of the Association of Employees with Disability Inc T/A AED Legal Centre' dated 16 March. It's a one-page document.

PN80

MR HARDING: Yes, I understand that. That was filed pursuant to a direction to outline position papers and which was fleshed out by the written submission.

PN81

VICE PRESIDENT HATCHER: You say that's fleshed out by the written submissions?

PN82

MR HARDING: Yes.

PN83

VICE PRESIDENT HATCHER: All right.

PN84

MR HARDING: Can I raise another matter, your Honour, whilst we are dealing with witnesses. Well, there's two issues. The first is that Ms Kate Last appears on the list, but my instructors tell me that they haven't identified anyone who has required her for cross-examination. I haven't checked that for myself, but I raise that.

PN85

VICE PRESIDENT HATCHER: On the latest list I have, Ms Last is not required for cross-examination. Did you have a different - - -

PN86

MR HARDING: I've got a different list and she is on that list.

PN87

VICE PRESIDENT HATCHER: I understand she is not required.

PN88

MR HARDING: We are proposing, at this stage, to provide chambers with two requests for witnesses to give evidence on summons and we are proposing to provide those documents to you today.

PN89

VICE PRESIDENT HATCHER: Who are they?

PN90

MR HARDING: Ms Langford and a Ms Mirra(?) from the National Disability Insurance Agency.

PN91

VICE PRESIDENT HATCHER: What would be the purpose of summonsing them to give evidence?

PN92

MR HARDING: Because they have given evidence in the Royal Commission and we wish to address the matters that are contained in the transcripts that have been prepared. It is directly relevant to the matter before the Commission.

PN93

VICE PRESIDENT HATCHER: This is coming very late in the piece, Mr Harding. We are trying to program the matter for hearing and there were directions made a long time ago to organise this hearing. Have the transcripts been identified as material upon which you would seek to rely?

PN94

MR HARDING: We can rely on it - not yet. We would identify those transcripts as material we want to rely on, but I didn't assume that the Commission would simply identify transcripts from another proceeding and take those in as evidence, but, on that basis, we could do it like that.

PN95

VICE PRESIDENT HATCHER: It's not a matter of assumption. The parties were directed to file the documents upon which they sought to rely now a long time ago and you didn't do that.

PN96

MR HARDING: Well, we'll do it now.

PN97

VICE PRESIDENT HATCHER: All right. Leaving aside Ms Walsh's 14, are the parties in a position to identify the means by which the witnesses required for examination give their evidence?

PN98

MR HARDING: Your Honour, are you asking whether it would be online or in person? Is that what you are - - -

PN99

VICE PRESIDENT HATCHER: Yes, and when we talk about online, it means it to be done like this. You can personally either go to a Commission courtroom in another state and we can try and organise a video, or they can organise a Teams link. For the parties' information, we need to know this because the technology in the Sydney office is unreliable and we need to jerry-rig some sort of system well in advance to have any hope it will work on the day. Can I ask the parties to advise by the end of the week the means by which they would prefer their witnesses required for cross-examination to give evidence.

PN100

MR HARDING: Yes.

PN101

MR ARNDT: Vice President, can I just ask, is there any preference from the Commission as to - if someone's not in Sydney, would it be preferable for them to be in a Commission hearing room somewhere else, or would it just be as easy to appear via Teams?

PN102

VICE PRESIDENT HATCHER: It's probably easier to appear via Teams, but it will be the responsibility of the party calling the witness to make sure the Teams link is something that actually works, that is, there's sufficient - well, whatever you need to make it work. Time and time again, we have people calling in on Teams and the link doesn't work very effectively, so if you are going to do that, the party needs to guarantee that there's an effective Teams link in operation.

PN103

MR ARNDT: Thank you.

PN104

MS WALSH: Your Honour, it's Ms Walsh here.

PN105

VICE PRESIDENT HATCHER: Yes, Ms Walsh?

PN106

MS WALSH: I'm just trying to, I guess, look at how we can make these witnesses, the 14 witnesses, available and, as per the email, is it possible for AED or their legal representative to narrow down the specific parts - I know that you've looked at that as coming next week, but we have a group of very anxious people over there that can't physically attend and would have to do it electronically, and there are also some physical - to get Teams in place, these people, seven of them live at home and there are really significant issues with how they can be made available electronically, given that they can't travel to be physically available.

PN107

It just would be helpful if we could - because we've already been in touch with them at midnight last night and we are trying to put in place the best possible way of being available for cross-examination, but I mean there are physical location and support issues in place, which we have identified, and if we could narrow that 14 people down a little bit, you know, that might give us all a better ability to actually make this work, yes, because we don't have any resources, they don't have any resources and we don't have any legal advice.

PN108

VICE PRESIDENT HATCHER: I understand that, Ms Walsh. It's your decision to put in 14 as distinct from 10 or three or eight.

PN109

MS WALSH: Yes.

PN110

VICE PRESIDENT HATCHER: It's open for you to review that decision at any time, so if you want to, as it were, do a cull, that's something for you, but, as I said, at the end of the day, if people want to call witnesses and they're going to be cross-examined, then it's up to the party to make sure that they can give evidence in some form which is effective so that we can understand what they have to say, but, as I have indicated, that is subject to a decision the Full Bench will make in advance as to whether we will allow cross-examination.

PN111

Ms Walsh, just as a first step, in the event that all or some of them are required, can you also advise by close of business Friday, or longer on request, the means by which they will give evidence?

PN112

MS WALSH: Thank you, your Honour. I think it would be helpful if we could have a response by Wednesday of next week that will be provided. I think we would probably require an extension to actually work out how we could physically make that happen and whether or not we do actually have to withdraw. There are some physical issues about some of those people being unable to physically attend, so the best thing we could do would be rely on the outcome of the close of business requirements next week and then see from there, but we probably would require a little bit of time to see whether or not some of those people can actually physically do what is being requested.

PN113

VICE PRESIDENT HATCHER: All right. Obviously, I am not anticipating that, if they give evidence, any of them will have to come to Sydney, Ms Walsh. Anyway, you have heard what I have had to say.

PN114

MS WALSH: Thank you very much.

PN115

VICE PRESIDENT HATCHER: All right. Can I turn to you, Mr Sherr. The last submission made by the Commonwealth was before the election. Is it likely that there will be any change in the position articulated in the last submission as a result of the election?

PN116

MR SHERR: Vice President, look, I'm still obtaining instructions on that particular point, but what I can say is that the government is currently giving consideration to its final view, but it's anticipated that any matters the government wishes to raise can be dealt with by way of oral submissions at the upcoming hearing, and it is certainly a matter of great importance and will be subject to very significant government discussions and consideration to ensure an appropriate position is arrived at, but, given that today is the first day of the new parliament, further time is required to give consideration and discuss these issues before a final position can be reached.

PN117

VICE PRESIDENT HATCHER: All right. Do you have the submission with you?

PN118

MR SHERR: The previous submissions, Vice President?

PN119

VICE PRESIDENT HATCHER: The submission dated 22 April 2022.

PN120

MR SHERR: I do, yes.

PN121

VICE PRESIDENT HATCHER: I'm just looking at paragraph 11 of the submission. This is an estimate - sorry, 11 and 12. This is an estimate of additional demands caused by having to administer SWS assessments to persons in ADEs. Is that assuming that everyone will have to be assessed annually and, if so, I'm just trying to - maybe it's something the Full Bench said earlier, but I am just trying to trace back the source of that assumption, that is, why it would be assumed that everyone would have to be assessed annually.

PN122

MR SHERR: It's a very reasonable question, Vice President. I, unfortunately, don't have the answer for you today. I can seek some instructions on that, if that would be of assistance, but I don't know the answer to that question.

PN123

VICE PRESIDENT HATCHER: I think it would because, reading the employer's material, I think there appears to be some anxiety as to whether the Commonwealth would bear the cost of SWS assessments, and obviously the cost and the frequency of that will depend upon how often they have to be undertaken and I am not sure where this assumption of annual assessments actually came from.

PN124

MR SHERR: I can certainly seek some instructions on that, Vice President, and address that in some submissions at the hearing, perhaps, if you are happy with that approach.

PN125

VICE PRESIDENT HATCHER: All right, thank you. All right, can I then return to the programming of the matter. Leaving aside Ms Walsh's 14 and leaving aside the issue of Mr Harding's foreshadowed summonses for persons to give evidence, would we be in a position to hear the evidence of the witnesses required for cross-examination in the first two days of the hearing?

PN126

MR HARDING: That seems to be ambitious, your Honour.

PN127

VICE PRESIDENT HATCHER: It seems to be ambitious? Why is it ambitious?

PN128

MR HARDING: Well, I think we were asked to give an indication of how long we would require the witnesses for, at least those that we have asked to speak to, and the range, from recollection, goes from an hour and a-half to two hours. I suppose we can crack on and get as many as we can done in that time, but it seems to me, at first blush, ambitious to be able to do that in two days. I don't want to suggest that that's possible.

PN129

VICE PRESIDENT HATCHER: I'm just trying to add up the time.

PN130

MR HARDING: Taking away the 14 obviously would make a significant difference.

PN131

VICE PRESIDENT HATCHER: Yes. I add up your cross-examination as nine and a-half hours.

PN132

MR HARDING: Yes.

PN133

VICE PRESIDENT HATCHER: I sort of assumed these were outer limits, Mr Harding.

PN134

MR HARDING: That might be an optimistic assumption, your Honour, but I'm happy to say you asked me for preliminary estimates and I will do the usual barrister thing and say I'll do my best.

PN135

VICE PRESIDENT HATCHER: Yes, all right.

PN136

MR ARNDT: Vice President, for Mr Ward's part, I think we add up to two and a-half hours.

PN137

VICE PRESIDENT HATCHER: Yes.

PN138

MR ARNDT: Based on all the numbers that I've seen, it does seem like two days is ambitious, but perhaps they are outer limits.

PN139

VICE PRESIDENT HATCHER: All right, I've heard that. Can I ask the parties to confer and provide by close of business next week a program for witnesses which will allow those witnesses - again leaving aside the 14 and leaving aside Ms Walsh and the Activ team - would allow those witnesses to be cross-examined in the first three days.

PN140

MR HARDING: All right.

PN141

MR ARNDT: If I might just raise, Vice President, as an issue which will need to be inbuilt into that program, Mr Christodoulou is required for cross-examination. He is also an active part of the proceedings beyond his appearance as a witness. We would seek that Mr Christodoulou and those like him can get their evidence out of the way earlier in the program so that they can be in attendance in the hearing as it proceeds.

PN142

VICE PRESIDENT HATCHER: I will let you sort that out with Mr Harding and his instructors. Obviously there's no applicant or respondent here, so what order the witnesses are called in doesn't matter all that much, I would have thought, so if the parties can accommodate each other's interests in that respect, I'm sure they can do that.

PN143

MR ARNDT: Thank you, Vice President.

PN144

VICE PRESIDENT HATCHER: All right. So, the parties can anticipate, leaving aside the question of any other witnesses, that we will then proceed straight into oral submissions.

PN145

Are there any other procedural issues which any party wishes to raise?

PN146

MR HARDING: For our part, I don't believe so, your Honour.

PN147

MR ARNDT: Nothing from our side, Vice President.

PN148

VICE PRESIDENT HATCHER: All right. Mr Harding, you said you will have the application for the summonses by close of business today?

PN149

MR HARDING: Yes.

PN150

VICE PRESIDENT HATCHER: All right, what I will do is I will direct - once those are received and the parties have them, I will direct those affected to respond to those applications by close of business at the end of this week.

PN151

One final question, Ms Walsh, so you expect - sorry, two questions. Ms Walsh, do you expect that the Activ team is going to attend the hearing in any form, or are you appearing on their behalf?

PN152

MS WALSH: Well, no, they are trying to raise money to at least get one member of the team over and they really need to be there because they are being cross-examined anyway, or there is a request for cross-examination. I think it would be better and preferable for all if, in fact, they are physically able to be present. That's why we have asked whether or not AED are happy to leave that as one spokesperson. Getting four over here is far too - it's just not possible, they just can't raise the money to do that. So, if AED are happy to have one spokesperson for those families or those workers, then, yes, we would be looking to have someone - one person at least - physically available.

PN153

VICE PRESIDENT HATCHER: Ms Walsh, I think on my part there has been a failure to communicate. Unless Activ indicate that they wish to have any of their personnel bring evidence, I don't intend to proceed on the basis that they have to date filed any evidence on which there can be cross-examination, so they don't need to assume that anybody needs to be in attendance and the Commission is happy, subject to time lags and things, to arrange electronic attendance at the hearing, if that is easier. I don't want people spending money on the assumption that they have to be here physically for some reason. Is that understood?

PN154

MS WALSH: Yes. Well, it's understood, but I think, if they are required for cross-examination, then they would probably feel, and I would need to discuss it with them, but they would probably feel that that is easier to actually be done physically rather than by electronic means.

PN155

VICE PRESIDENT HATCHER: Again can I say, Ms Walsh, unless there's an indication that any of them wish to have what they have put in to date received as evidence of a witness, there won't be any cross-examination.

PN156

MS WALSH: Right.

PN157

VICE PRESIDENT HATCHER: All right?

PN158

MS WALSH: I'll probably have to get legal advice, your Honour. I have - really this is out of my depth as well.

PN159

MR HARDING: Perhaps I can help, speaking for the parties. I understood the Vice President to be saying, Ms Walsh, that your Activ team were putting in a submission and if that is all that is being done, we won't require them for cross-examination given the Vice President's indication.

PN160

MS WALSH: Fine. All right then, I didn't realise that, I just assumed that as they had put in a submission or as they had provided what they have provided, that you would want to cross-examine them and therefore they needed to be physically available. So, what you are saying is that if they are only putting in a submission, then they won't be needed for cross-examination? Sorry, I just need some better idea.

PN161

VICE PRESIDENT HATCHER: The answer is, yes, they will not be needed for cross-examination if all they have put in is to be treated as a submission. So, if they are happy with the document they have filed to be treated simply as a submission, then they are not required for cross-examination.

PN162

MS WALSH: Thank you, that assists us.

PN163

VICE PRESIDENT HATCHER: And then whether they wish to attend the hearing and whether they wish to do so in person or electronically is a matter for them.

PN164

MS WALSH: Thank you.

PN165

VICE PRESIDENT HATCHER: All right. A final question, Mr Harding: are you going to attend physically and your team?

PN166

MR HARDING: I expect so, your Honour. I will need to get the final tick-off for that, but I expect so.

PN167

VICE PRESIDENT HATCHER: All right. If you are not, can you advise us so that we can make some sort of alternative arrangement?

PN168

MR HARDING: Of course.

PN169

VICE PRESIDENT HATCHER: All right. The directions I have made today will be reduced into writing and sent to the parties. I won't take any steps to send deidentified versions of the Activ statements until such time as we have received the further document from Mr Harding's clients and we have made a decision about that matter. Otherwise, the parties can expect to receive fully deidentified versions of the witness statements and if any confidentiality applications wish to be made, then I will leave the parties to make those at their convenience.

PN170

If there is nothing further, we will now adjourn.

ADJOURNED INDEFINITELY [9.55 AM]