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Fair Work Act 2009                                                    






s.604 - Appeal of decisions


Woodside Energy Ltd


Australian Workers' Union, The (002N)





11.00 AM, FRIDAY, 26 AUGUST 2022


VICE PRESIDENT HATCHER:  I'll take the appearances.  Mr Neil and Ms Kumar, you appear for the appellant?


MR I. NEIL:  Yes, if it please, your Honour.  We seek permission to appear for Woodside.


VICE PRESIDENT HATCHER:  Yes.  Mr Gibian, you appear for the respondent?


MR M. GIBIAN:  I do, thank you, your Honour.


VICE PRESIDENT HATCHER:  The parties are granted permission for legal representation.  The Full Bench has obviously read the written outlines of submission.  Mr Neil?


MR NEIL:  If it please the Commission, accepting as we do that this is proposed appeal against an interlocutory decision on a matter of practice and procedure, it is incumbent on us to point to some question of point of principle, or substantive injustice, or both, so as to justify permission to appeal and to sustain the appeal itself.  May we do so by pointing out three features of the proposed appeal, each of which we would propose to develop in more detail later in our submissions.


First, the proposed appeal raises important questions about whether, in the context of applications under section 236, common law obligations of procedural fairness, and in particular the hearing rule, are ousted in some cases in the absence of some explicit express statutory authorisation for that ouster in the Fair Work Act.


This is a fundamental proposition to our Ground 4.  The idea that the Commission can lawfully form a state of jurisdictionally significant satisfaction on the basis of the material, that one of the parties cannot see is, in our submission, wrong, and to the extent that there are first instance decisions to the contrary, they are not correct.


VICE PRESIDENT HATCHER:  But that base for the proposition is well established.  That is, there's plenty of authority which says that the Fair Work Act doesn't oust the rules of procedural fairness.  I don't think we need an appeal to establish that proposition.


MR NEIL:  That's the starting point.  But the idea that's fundamental to the decision under appeal, which is that the Commission can act for, what we say, is a jurisdictionally significant purpose, by looking for itself at material that we cannot see, and forming a state of satisfaction based on that material violates that rule.


VICE PRESIDENT HATCHER:  That may or may not be correct,


Mr Neil, but the Deputy President hasn't formed any state of satisfaction yet.  But your argument is if the matter has been determined and a majority support determination has been issued, but - - -


MR NEIL:  We would say that it is an essential feature of what the Deputy President called the partition method, the method that she proposed to adopt, that her Honour proposed to adopt, that it was permissible for the Commission to look at redacted copies of the petitions and to act upon those, and that for that reason it was not necessary or appropriate for us to look at unredacted copies of the petitions.


The whole purpose of the order for production that Woodside sought was to be able to look, amongst other things, at those unredacted petitions.  So that the issue in our submission squarely arises on this appeal.  It is contested by the respondent.  So far as we are aware, this is the first occasion when the issue arises squarely for determination on an authoritative basis, and that in our submissions is a matter of public interest.


VICE PRESIDENT HATCHER:  Hasn't the Deputy President embarked on a procedural cause which would involve consideration of an alternative method of identifying whether there is a majority?


MR NEIL:  To an extent, yes.  But whatever that alternative method involves, it won't include us, Woodside, looking at unredacted copies of the petitions, and it apparently won't involve Woodside having access to documents in order to make good the case that it wishes to make, that the petitions are not a reliable indication of the petitioners' wishes, not a reliable indication for the purpose either of satisfying the threshold inquiry about whether there is a reasonable hypothesis that a majority exists, and not a reliable basis upon which, if that threshold is passed, to go on to consider what, if any, method ought to be adopted for the purpose of the Commission forming a state of satisfaction about the existence of a majority.


VICE PRESIDENT HATCHER:  That's the first matter, so what's the second matter?


MR NEIL:  The Deputy President articulated and applied a test of necessity and appropriateness in exercising the discretion under subsection 1 of Section 590.  We say that test is wrong, certainly insofar as it focussed on necessity.  The respondent has embraced that test and for that reason our issue is joined in this appeal on the appropriateness of that test, and indeed the larger question of the test that ought to be applied in the exercise of the subsection 1, Section 590 discretion.  That issue, in our submission, is a matter of public interest.


Then third, we have pointed to a number of other errors in the decision in our written submission which are also all jurisdictional in character, and those are the three essential basis upon which we content that the proposed appeal is elevated beyond a question of practice and procedure, and raises matters of public importance.  We would propose to develop each of those propositions as we go through the grounds of the proposed appeal.




MR NEIL:  Before we come to remind your Honours of the salient facts, could we deal with one incidental matter.  There's now an amended appeal book.  In tabs 11, 12 and 13 we've included three short documents to which we would propose to take the Full Bench, and if it be necessary to do so we seek leave to have those three documents included in the appeal book.


VICE PRESIDENT HATCHER:  Mr Gibian, I take it that there's no issue that those documents are properly included in the appeal book?


MR GIBIAN:  No.  I must admit I haven't had a look at those, but no, I don't believe so.  I'm not sure that they were before, certainly that under tab 12 and 13 were not before the Deputy President for the purposes of the decision presently under appeal, because they post date it.  But if I have any submissions to make about it I'll wait to see what my learned friend says about those documents.


VICE PRESIDENT HATCHER:  All right, go ahead, Mr Neil.


MR NEIL:  Thank you.  May we now turn to remind your Honours of the salient facts.  We start with the respondent's application under section 236.  It begins are page 4 of the amended appeal book.  The portion to which we particularly wish to draw your Honour's attention appears on page 7, Section 2.4, 'The proposed method for determining majority support.'


There your Honours will see that for the purpose of addressing the threshold question, the respondent pointed to what it described as 'signed individual petitions from the majority of employees who will be covered by the proposed agreement', and then your Honours will see this statement at paragraph 2.  'The AWU will provide copies of these petitions to the Commission on a confidential basis.'


Woodside's response to that, to the substantive application begins on page 9 of the amended appeal book.  May we draw attention to the following portions, in particular.


First, paragraph 15, which appears on page 10.  Then on page 11 of the amended appeal book, paragraph 26, on page 12, first, paragraph 31; then paragraph 32 by which Woodside gave notice of its intention to apply for an order under section 590, for three classes of documents in respect of which it foreshadowed an application for the making of such an order are described in the first sentence of subparagraph (a), the first sentence of subparagraph (b), and subparagraph (c).


VICE PRESIDENT HATCHER:  So, Mr Neil, in relation to (a), how does looking at the unredacted copies of the petitions relate to your contention about misrepresentation?


MR NEIL:  The answer is, who would know?  Who would know what appears on the face of the petitions?


VICE PRESIDENT HATCHER:  That answer might be, on one view, described as the description of a fishing expedition.  That is, you've advanced the basis of a case where the employees were misled or subject to misrepresentation.  I'm trying to understand what is the apparent relevance of unredacted copies of the petition to your misrepresentation case?


MR NEIL:  I'm sorry, I misunderstood your Honour.  The misrepresentation case was only one of the issues that Woodside raised.  There were also questions about identity and count(?) that the unredacted petitions would inform.


VICE PRESIDENT HATCHER:  Are those issues identified in your submission?


MR NEIL:  Yes, of course.  Then of course the questions of identity link into the questions of misrepresentation because, how can one address such a case, such an issue, without knowing who are the people upon whom the misrepresentations acted?




MR NEIL:  The case that Woodside wanted to make was, at least in part, that the petitions were an unreliable indication of the petitioners' wishes because they were procured and materially influenced by what Woodside wished to contend were misrepresentations.  That is a question that ultimately turns upon the state of mind of the petitioners.  How could that question be sensibly investigated unless one knew who the petitioners were?


VICE PRESIDENT HATCHER:  So, is this is train of inquiry which leads to the petitioners being identified and then, what, you calling them for questioning about their state of mind?  Is that where this is going?


MR NEIL:  Where this is going?  It certainly would involve the identification of the petitioners, yes.


VICE PRESIDENT HATCHER:  But once you identify them, where does that go?


MR NEIL:  There may well be questions asked of them in the context of the application about their state of mind and what informed it.


VICE PRESIDENT HATCHER:  So when you say, asked of them, that would infer that the process of inquiry will be that you get their names and then you call them to give evidence?  Do you seek an order for them to attend the Commission to give evidence, is that - - -


MR NEIL:  That is an available possibility, contemplated by the procedures of the Commission, yes.


VICE PRESIDENT HATCHER:  All right, thank you.


MR NEIL:  Then going back to the response, paragraph 33, then turning to page 14 of the amended appeal book, may we draw attention to paragraphs 51, 52, 53 and 54.  Next in the sequence of events, Woodside made some submissions about the question of legal representation.  They begin at page 16.  We won't ask your Honours to go that now unless your Honours wish to do so.


The important points are that in that document on page 16 in paragraph 3, subparagraph (a), Roman (I), Roman (II), Woodside confirmed that it sought the production of unredacted copies of petitions, as well as copies of communications to its employees to test its concerns that the petitions had been procured as a result of material misrepresentations.


At paragraph 3(a), Roman (III), Woodside raised a further concern about the use of electronic, rather than physical signatures on the petitions.  Then on 30 June - - -


VICE PRESIDENT HATCHER:  So if we just stay with Roman (III), so it starts with the proposition that it's an online position.


MR NEIL:  Yes.  No but there was no physical signature.


VICE PRESIDENT HATCHER:  That's an established proposition.  But what follows from that, that makes the production of the documents of apparent relevance?


MR NEIL:  So that Woodside could examine the petitions in connection with its right to examine the petitions for itself, to satisfy itself as to their accuracy and reliability.




MR NEIL:  It's a fundamental – - -


VICE PRESIDENT HATCHER:  Stop interrupting.  It's to the Commission's satisfaction, not your client's satisfaction.  Unless you - - -


MR NEIL:  No.  No.


VICE PRESIDENT HATCHER:  Mr Neil, let me finish.  Unless you've got some positive case that you want to pursue about some defect in the manner in which the petition was obtained, it seems to me with respect, on one view, that this just becomes a fishing expedition.


MR NEIL:  That then - - -


VICE PRESIDENT HATCHER:  You're looking for a case.  You're not trying to prove a case that you've already advanced to the Commission.


MR NEIL:  Yes.  I'm sorry, I should apologise, your Honour.  There seems to be a kind of a delay and I'm cutting across your Honour for that reason, I'm sorry.  I don't mean to do so.


VICE PRESIDENT HATCHER:  No, no, that's all right.  But do you understand what I'm putting to you, that if - - -


MR NEIL:  I do, and that - - -


VICE PRESIDENT HATCHER:  That if I don't see a positive proposition advancing a case that there is some defect in the means by which the partition was physically procured, and it seems to me that in advance of such a case, it seems to me that it might be inferred that the purpose of the order sought is to look for a case rather than to prove a case you've already advanced.


MR NEIL:  On this particular point - - -




MR NEIL:  We would, with respect, not accept that proposition.  The petitions were the very foundation, the base of the substantive application, the basis upon which the respondent said it proposed to satisfy – that one, it satisfied the threshold question of whether there was a reasonable hypothesis as to the existence of a majority; and two, they were the basis upon which it proposed to satisfy the Commission that there was in fact a majority.


So these petitions were the wellspring, the source, on the respondent's case of those two jurisdictionally significant facts.  One, the existence of a reasonable hypothesis; two, the Commission's (indistinct) satisfactory.  So no one could deny the foundational jurisdictional significance of the petitions, themselves.  That fact, and that fact by itself, entitles us to see that, entitles Woodside to see that.


How could it know what case it wanted to make about the reliability of the electronic petitions unless it saw them, and saw, not just parts of them but all of them?


VICE PRESIDENT HATCHER:  All right, so you're pitched at that level, that is an absolute entitlement to see it?


MR NEIL:  Yes.




MR NEIL:  Yes.  We propose to submit, in connection with Ground 4, and now do so, that there is never – never a circumstance at no interest of justice whereby it is proper or lawful for the Commission to satisfy itself of a jurisdictional significant fact, on the basis of material that one party, the party whose interest may be adversarial affected by the use of that material, cannot see, either at all, or in its entirety.  Our proposition is - - -


VICE PRESIDENT HATCHER:  But again, Mr Neil, the Deputy President hasn't satisfied itself about anything yet.




VICE PRESIDENT HATCHER:  That's what I'm having difficulty understanding about your proposition.  It would be different if in terms of, particularly in relation to appeal, it might be different if the Deputy President has already satisfied itself on the basis of the petition and then this issue might properly arise, but she may go on to order a ballot of employees and then determine it on that basis.


MR NEIL:  And that would also be incorrect because that course would have leapfrogged over the threshold requirement of there being, at least a demonstration of a reasonable hypothesis that there was, in fact, a majority, and denied Woodside the material with which it wish to make a case that there was no such a hypothesis.


VICE PRESIDENT HATCHER:  But this reasonable hypothesis, that's not a statutory precondition.


MR NEIL:  No.  We point to what was said in INPEX (No 1), at paragraph 11.  We've provided a copy of INPEX (No 1) via separate email, and that is reported in volume – I'm so sorry, I've just – the medium neutral citation is [2020] FWCFB 5321 and the passage on which we rely is in paragraph 11, if your Honours have that.  That was in issue.  It was in issue at the time that the decision was issued.


Woodside wanted to see the unredacted petitions in relation to that issue, and by the decision, it has been shut out of making that part of its case, denied the opportunity to see material that presumably the Commission was proposing to examine in order to consider the question there identified.


So it's not really a question of waiting to see whether the Deputy President, with respect, whether the Deputy President ultimately adopted the petition method that her Honour proposed, including the use of unredacted petitions.


It's more fundamental than that.


The difficulty fell in at the threshold of the application.  And we do, if it please, put the proposition as highly as, there is never a circumstance when it is appropriate for the Commission to form any jurisdictionally state of mind, on the basis of material that one party, a party whose interests may be adversely affected by the formation of that state of mind, a party that does not consent to that state of mind being formed on the basis of material that it cannot see.  It can never be appropriate for that to happen, and that's exactly what was going to happen here as a direct consequence of the decision which is under appeal.


Going back to the salient facts, Woodside communicated that pursuant to arrangements made in a conciliation conference Woodside communicated with the Deputy President's chambers on 30 June, by an email which is reproduced at page 103 of the amended appeal book.  We draw attention to, particularly the following portions of that email.


First, the second paragraph, and of that paragraph, the second and third sentences, in particular, 'However, our client remains extremely concerned about the nature and content of the unsolicited communication sent to its employees on behalf of the applicant, the impact on the petitions that the applicant claims evidence majority support.  My client's present view is that it is important that if a majority support determination is to be issued, it is only on the basis that the applicant has satisfied the relevant requirements.'


And of course, those requirements include that identified in paragraph 11 of Inpex Number 1.  Then dropping down to the numbered paragraphs we would particularly draw attention to, first, the first sentence in paragraph number 1; paragraph number 2; and paragraph number 3.  Then on 12 July the Deputy President issued directions which are reproduced, beginning at page 72 of the amended appeal book.


Of particular significance, in our submission, are first, paragraph 6, and we point particularly to the second dot point in paragraph 6 and that's at the foot of page 72; and then paragraph 8 where your Honours will see that Woodside was directed to file and serve by 4 pm on 21 July, an outline of submissions which addressed, amongst other things, dot point number 2, 'whether it opposes the process for determining employee support for the application proposed in paragraph 6 above, and if so, what alternative method Woodside proposed.'


VICE PRESIDENT HATCHER:  Sorry, Mr Neil, just to go back a step, in paragraph 6 where it says, 'It is proposed' - - -


MR NEIL:  Yes.


VICE PRESIDENT HATCHER:  We presumably read that as meaning, it is proposed by the AWU?


MR NEIL:  No.  In our submission it is proposed by the Deputy President.




MR NEIL:  Looking at those two paragraphs together, we would say this.  As the Deputy President had invited Woodside to file written submissions by 21 July, and the appropriateness of the so-called proposed petition method - - -


VICE PRESIDENT HATCHER:  Sorry, Mr Neil, I've lost the place.  Where are we now?


MR NEIL:  We're now addressing the relationship of paragraphs 6 and 8, and the consequences of those two paragraphs, and what we are submitting is, focussing on the direction that Woodside file submissions directed to the appropriateness of the petition method, the method outlined in paragraph 6 by 21 July, then it follows in our submission that at least until that time, at least until the submissions so directed were filed and considered, there were extant issues in the substantive application that included all of the issues that Woodside had by then articulated including, one, whether the petitions were a reliable indication of the petitioners' wishes, including for the purpose of satisfying the threshold question in Inpex Number 1; and two, whether in any event, a process of the private assessment of those petitions, private because Inpex was not to have a fully informed part in that process, whether that was appropriate.


All of those issues were, at least by 12 July, all of those issues were extant, at least until Woodside had filed its submissions by 21 July, and those submissions had been considered.  On 15 July Woodside files its application for the making of an order under Section 590.  The email under which that was done appears at page 91.  It's not presently important.  It contains an explanation for why that application had not been made by 8 July, as Woodside had originally suggested it would try to do.


With that email came Woodside's Form 52, F52, and there is a copy of that in the amended application book, beginning at page 76.  Your Honours will be familiar with this form.  In Section 1.2 the form requires the party requesting the making of an order under Section 590, subsection (2), paragraph (c), to articulate why the documents were being sought.


Woodside addressed that question at length, beginning at page 78, and just working down through that, may we draw the Full Bench's attention to paragraphs 1, 2 and 3.


VICE PRESIDENT HATCHER:  Can I just take a step back to 1.1, Mr Neil.


MR NEIL:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Just so I understand the process. I mean, what is sought is an order for the production of documents to the Commission.


MR NEIL:  Correct.  Correct.


VICE PRESIDENT HATCHER:  In respect of at least one, that document has been, I assume, already produced to the Commission pursuant to the directions.


MR NEIL:  But who would know?  We wouldn't know.


VICE PRESIDENT HATCHER:  We know the direction was made.


MR NEIL:  Yes.


VICE PRESIDENT HATCHER:  That the AWU produce an unredacted copy to the Commission.


MR NEIL:  Of course, that hadn't happened by this time.  That was to happen by 21 July.


VICE PRESIDENT HATCHER:  Yes, but as we stand now, absent any contention that the AWU failed to comply with the direction, and no doubt Mr Gibian can confirm this on instructions, wouldn't we assume that the petitions have already been produced to the Commission?


MR NEIL:  The answer is I would have no basis for making a submission one way or the other.  I simply don't know.  My client doesn't know.


VICE PRESIDENT HATCHER:  If the Deputy President tells you that she has them, why would you doubt it?


MR NEIL:  No one has ever given us that information.  Instead, we have been told emphatically in the decision that we are not to see the unredacted copies.


VICE PRESIDENT HATCHER:  But that's a different issue.  All I'm making is that the actual application only seeks production to the Commission.


MR NEIL:  As being an application for the only form of order that can apply.


VICE PRESIDENT HATCHER:  All right, thank you.


MR NEIL:  So, 1, 2 and 3, we've drawn attention to, paragraph 5 on page 78; paragraph 6; and in paragraph 7 and 8 your Honours will see discussion of Le Visa Number 1, which we'll come back to a little later if we may; then paragraph 9 is relevant, and the first sentence in paragraph 12.


After paragraph 12, Woodside addressed, particularly the circumstance that the petitions were apparently completely electronically, and drew attention in paragraph 13 in about the middle of that paragraph, to the requirement that the Commission must rule out, for example, the possibility that a small group of individuals might have signed numerous petitions in various different names.


Then after paragraph 16, Woodside returned to its case as to the reliability of the petitions, as an indication of the petitioners' wishes, having regard to its case that there had been fundamental and material misrepresentations.  One sees that, for example, at paragraph 17, in paragraph 20, and then we would also draw particular attention to the first sentence in paragraph 23.


Then in Section 1.3 of the application, Woodside addressed the question of how would the documents assist the Commission in reaching a decision.  The decision, of course, is the set of decisions required by an application under section 236.  The principles applying to the issue of orders for production by the Commission are, in our submission correctly set out in paragraph 2, and then the question of relevance is addressed in paragraph 4.


If Woodside had supported its case, or at least its prima face case as to the making of what it described as fundamental and material misrepresentations with a witness statement made by a Ms Georgia Manuel, and there's a copy of that which begins at page 19 of the amended appeal book – I'm sorry, I should also draw attention, going back to the Form 52, there as a draft order annexed to that, and that begins at page 83.


That draft order conformed to the form prescribed - that has been approved under the rules of the Commission.  Your Honours will see the persons to whom it is addressed, on page 83, and on page 84, the proposed order was, as your Honour the Vice President has drawn attention to, that the documents be provided to the Commission, and then there are some notes in accordance with the approved form, appended to the draft order.


VICE PRESIDENT HATCHER:  Sorry, how do you produce it to the Commission by sending it to your client's lawyers?


MR NEIL:  That is a peculiarity of the draft order, and that can't be correct.  The requirement is that it be produced to the Commission.


VICE PRESIDENT HATCHER:  Right, thank you.


MR NEIL:  Then the notes, the second dot point, is important.  According the prescribed form, the persons in respect the order is made, are notified that they could apply to have the order set aside or varied.  Accompanying the Form 52 was Ms Manuel's statement.  There's a copy that begins at page 19 and we don't, unless your Honours wish to do so, ask your Honours to look at that now.


VICE PRESIDENT HATCHER:  I'm sorry to interrupt you, Mr Neil, but before we move on from page 84, having regard to the reference to the address of your lawyers, perhaps understandably, it appears from paragraph 7, the second sentence, that the Deputy President read that as, 'requiring production to Woodside' – sorry, in the decision.


MR NEIL:  It may be.  It may be so.  Of course, there never was any jurisdiction to make an order for production directly to Woodside.  We accept that.  Indeed, we draw attention, as your Honours have seen, to the difference between an order for production and an order for access, two different things.


The fact that the order, the draft order, gave the address of Woodside's solicitors is presumably something that if the order were made, would not be replicated.  Because it is plain that the application that was made, being the only application that could be made, was for production to the Commission.


There was a response from the Deputy President, at least from the Deputy President's chambers, to the filing of the Form 52, and Ms Manuel's statement.  It appears on page 90 of the amended application book.  One can see that it was a response to the email on page 91, filing the Form 52, and then the response was to, relevantly in the following – it appears in the bottom half of page 90.


In conformity with the direction there given, the respondent objected to the making of the order by an email which begins at page 86 of the amended appeal book dated 19 July.  This is where the privacy considerations, the so-called privacy considerations, that, as your Honours have seen, were significant in the decision under appeal.  This is where they had their source, first of all, in the second‑last dot point on page 86 of the amended appeal book, and then on page 88, particularly the last four or five dot points.


Then the next step was the issuing of the decision was the issuing of the decision which is the subject of the proposed appeal.  It is reproduced at page 92 and following.  I, maybe just for the moment, draw attention to aspects of the decision that, in our submission, are presently significant, and we will come back, if we may, to address them in more detail in connection with each of our proposed grounds.


First, may we draw attention to paragraph 6 on page 93.  Then, in paragraph 7, there's a reference to the making by Woodside of its application or request for the making of an order under section 590.  Then, in paragraph 8, there's a reference to the respondent's submissions and the effect of those submissions is summarised by the Deputy President in paragraphs 19 and 20.  Then, at paragraph 21 and following, all the way, we would submit, to paragraph 35, is a sustained defence by the Deputy President of the petition method proposed in paragraph 6 of the directions that have been made on 12 July.  They culminate in the statement in the first sentence in paragraph 35, and then the operative decision is recorded in paragraph 38.


Just to round matters out, we have included in the amended appeal book in the additional documents the statutory declaration of Mr Heath that was provided on 21 July in conformity with the directions that had been made on 12 July.  His statutory declaration appears at page 107, and your Honours will see, to the extent that it is relevant, that does not in fact, as required by paragraph 6 of the directions, describe the date and circumstances in which each of the petitions were obtained.


Those are, if it please, what we submit are the salient facts pertaining to the proposed appeal.


Could we turn first to grounds 1 and 7 and take them together, if we may.  By ground 1, as your Honours have seen, Woodside contends that the Deputy President misunderstood the nature of the discretion under section 590(1) and paragraph (c) of subsection (2).  We submit that her Honour did so in at least six ways.  If we are right about any one of them, then, in our submission, that's an error in a House v The King sense, as well as a misdirection as to the law giving rise to jurisdictional error.  In that regard, we have reminded your Honours of the decision of Marks, which is in the amended bundle of authorities at tab 12.  The two passages that we rely upon are paragraphs 40 and 62.


Fundamental to this ground is the proposition that in the exercise of the discretion under section 590(2)(c), the Commission is guided by the practice followed by courts in civil proceedings when issuing subpoenas.  The test is whether the documents sought have apparent relevance to the issues in the proceedings.  As your Honours have seen, in that regard, we have reminded your Honours of the decision of the Full Bench in Kennedy, which is behind tab 9 of the amended bundle of authorities.  The relevant passage is paragraph 23 at page 271 of that bundle.


The Deputy President did not refer to those principles anywhere in the decision which is the subject of the proposed appeal.  Instead, at paragraph 27 of the decision, page 96 of the amended appeal book, the Deputy President said:


I am not satisfied that the production of the Certificates of Completion is necessary or appropriate.


At paragraph 32 of the decision, page 96, the Deputy President identified the bases upon which her Honour held that the production order sought by Woodside was, as her Honour put said, 'inappropriate' and those are the only two places where, in the decision, your Honour, we can identify the articulation of a test or tests.


VICE PRESIDENT HATCHER:  Mr Neil, in relation to the petitions, I thought you were indicating before that the test is not apparent relevance because you have an absolute entitlement.


MR NEIL:  We have an absolute entitlement because they are relevant.


VICE PRESIDENT HATCHER:  But even if you apply the test of relevance and you are satisfied, that doesn't by itself require the Commission to order production of a document.  It guides the way in which the Commission acts, but ultimately - - -


MR NEIL:  We can accept that proposition, your Honour, and still make good ground 1 because the Deputy President didn't advert to that test, didn't advert to the test of apparent relevance and, in our submission, did not apply it, either expressly or by implication.  That's enough to make out ground 1.


We can accept that the language of appropriateness has a statutory foundation in section 590, but the test of necessity does not.  That is not a test that properly governs the exercise of the discretion under section 590(2)(c).  To apply that test, the test of necessity, either by itself or coupled with the notion of appropriateness, was an error.


Of course, as to relevance, as at the date of the decision on 20 July, one day before Woodside was to put in its submissions about the appropriateness of the petition method articulated in paragraph 6 of the directions, as at that date, the appropriateness of the petition method and the reliability of the petitions for any statutory purpose were all extant issues in the proceeding and all of the documents, the production of which was sought by Woodside, including the petitions, had apparent relevance to at least those issues.


The question that Woodside had by then, by the date of the decision, repeatedly raised, repeatedly articulated whether the petitions were a reliable indication of the petitioners' wishes for any purpose, as well as whether they were a reliable indication of the number of petitioners, of the existence of the majority or even a reasonable hypothesis that there was some.


Now, if they were not reliable for any of those purposes, then, as at the date of the decision, there was a justiciable question about whether an application that depended on the petitions, and depended on them alone, whether such an application satisfied the threshold test identified in (indistinct) number 1 and, even if there were, there were justiciable questions about whether any method that depended on the petitions, including the petition method articulated in paragraph 6 of the directions, any method that depended on the petitions would be an appropriate method in the sense contemplated by subsection (3) of section 237.


In our submission, there could be no doubt about the apparent relevance of any of the documents the production of which was sought by Woodside.


The next respect in which we submit that the Deputy President misunderstood the nature of the discretion that was being invoked by Woodside's application, the second respect in which we do so is to submit that the Deputy President misconceived the onus to be discharged by Woodside in an application for an order under section 590(2)(c).


In paragraph 27 of the decision, as your Honours will have seen, page 96, the Deputy President said that Woodside had provided no evidence to suggest that the petitions were fraudulently completed.  In paragraph 31 of the decision, the Deputy President said Woodside had provided no evidence that any employee had read or been misled by the material identified by Woodside as false.


It is apparent from those two references that the Deputy President considered evidence of that kind to have been a pre-condition of the exercise of the discretion under section 90(2)(c) in this case, but, on our submission, none of the evidence referred to in paragraphs 27 or 31 of the decision, in the circumstances of these proceedings, none of it is evidence that Woodside was required to adduce in order to discharge such onus as it had to make good its request for the making of an order under section 590(2)(c).  Indeed, our submission is that Woodside had no evidentiary onus, no evidentiary onus at all.  All that it was required to do was to articulate a legitimate forensic purpose for the making of the order by answering question 2.1 in the Form F52.


If one looks at section 590, one sees there no express or implicit onus imposed on a party requesting the making of an order under subsection (2)(c).  If one looks at rule 54 of the Commission's Rules, one sees there no such onus, no articulation of an express or implicit onus, and one does not see it in the form, Form 52, the approved form.  There was no requirement for Woodside to accompany its application for the making of an order by evidence of the kind given by Ms Manuel in her statement, no requirement at all.


All that Woodside had to do was to answer the question, 'Why are the documents being sought?' and to answer the question, 'How will the documents assist the Commission?' by articulating in its answers to those questions a legitimate forensic purpose for the making of the order, in other words, to satisfy the apparent relevance test.


In paragraph 13 of its written submissions, the respondent has suggested that the Deputy President was, or might have been, assessing whether the documents sought by Woodside had a legitimate forensic purpose or if Woodside was engaging in a fishing expedition.  In our submission, it is not evident from the decision that the Deputy President was doing anything of the kind.  Those words, those phrases and concepts related to them do not appear in the decision, either expressly or by implication.


The Deputy President did not ask, as the respondent contends, whether Woodside was endeavouring not to obtain evidence to support a case but to discover whether there was a case at all.  The Deputy President instead appeared to proceed upon the basis that if there was some other means by which Woodside could gain or develop information about the extant issues in the proceedings, that is, other than through the documents the production of which was sought, if there was some other means, then it would not be necessary or appropriate to order the production of those documents.  One sees that reasoning at work in paragraph 36 of the decision.


That, in our submission, is not the correct approach.  That approach incorrectly preferences the availability of other means for a party making its case over the means provided for by section 590.  The statute contains no such preference.  It is neutral on that question.


If the approach adopted by the Deputy President were correct, then really it could be used to justify the refusal of any order for production in any circumstance, except for the very unusual circumstance where there was no other means, other possible means, by which a party could make or develop its case, the case it wished to make on the issues raised for determination in a substantive application.


Paragraph 15 of the respondent's submissions addresses a question that Your Honour the Vice President asked of us particularly earlier.  Contrary to the submissions made in paragraph 15 of the respondent's written submissions, there was a legitimate forensic purpose for seeking production of unredacted copies of the petitions disclosing the names of the employees from whom the petitions had been given.  For example, it would enable Woodside to determine whether the employees were entitled to be represented by the AWU, whether those employees would be covered by the proposed agreement; as a step in the process, the beginning of a chain of inquiry, or a link in a chain of inquiry rather, whether any of those employees had actually accessed the posts and communications from Mr Heath that were set out in the statement of Ms Manuel of 15 July, or any other similar posts or communications that were produced in response to the order that was sought.  It would enable Woodside, again as a step in the process, a link in the chain of inquiry, to know whether any of the employees had in fact been misled by any material misrepresentations made by Mr Heath or others on behalf of the respondent or the CFMMEU.


VICE PRESIDENT HATCHER:  By the way, Mr Neil, what is the alleged misrepresentation?


MR NEIL:  There are instances of them given in the statement of Ms Manuel, which begins on page 19.  There were misrepresentations, for example, about these subject matters:  an enterprise agreement is the only way that employees can have effective input into the collective negotiation of their employment terms and conditions; enterprise agreements are the only way to lock in terms and conditions of employment; employment contracts do not protect employees' conditions of employment; employment contracts do not provide proper mechanisms for addressing issues in dispute; misrepresentations about Woodside's attitude or approach to changing employment conditions; its adherence to contracts and the like.  I don't do justice to it because there's a detailed statement which runs from pages 19 to 32 and there are a number of annexures that go with it.


VICE PRESIDENT HATCHER:  The test is that the Commission is satisfied that a majority want to bargain.  Does that require any exploration of why they want to bargain?  (Audio malfunction) realistic or whatever about why they want to bargain, isn't the only question whether, at a particular point in time, they have a desire to engage in enterprise bargaining, rightly or wrongly?


MR NEIL:  The case that Woodside would wish to make is that a wish to bargain which is materially influenced by misrepresentations either about the effect of employees' existing mechanisms of regulating their employment, or their employer's approach to those, any number of material considerations, if their wish is materially influenced by misrepresentations of that kind, then it's not a free and informed state of mind capable of engaging sections 236 and 237.


I don't do justice to the argument by that short summary.  The point we would make here for the present appeal is that an interlocutory application for the making of an order for production of documents is not the occasion to shut that proposition out and the Deputy President did not purport to do so.


Now, ultimately, Woodside might be right or wrong about the legal significance of the misrepresentations.  The plain fact is there was evidence of at least a prima facie basis to think - a prima facie basis to raise as an issue the fact that the petitioners' wishes were influenced by misrepresentations such that they were not reliable indicators of the petitioners' wishes.  That was the only question with which the Deputy President was properly concerned.




MR NEIL:  The third respect, returning to the six respects in which Woodside contends that the Deputy President misconceived the nature of the discretion, or the exercise of the discretion miscarried is another way of putting the same proposition, the third circumstance on which we rely is the submission that the Deputy President had regard to irrelevant considerations, and we point to these.


First of all, in paragraph 34 of the decision, the Deputy President referred, apparently as a basis for refusing the application, to Woodside having unfettered access to its own employees to provide them with information to ensure that they were fully and accurately informed about the advantages and disadvantages of entering into bargaining and to correct other assertions made by the AWU or its representatives - paragraph 34 of the decision.


Of course, in our submission, that circumstance, whether it be right or wrong factually, that circumstance does not, and cannot, in any logical sense bear upon the question of whether the documents sought had apparent relevance to the issues in the proceedings.


In addition, of course, the petitions, the reliability of which was in issue, had already been obtained by the AWU, and it was those petitions upon which the AWU relied.  If the petitions were vitiated for a statutory purpose by material misrepresentations made by Mr Heath or by some other person, then Woodside's access to its own employees, whether unfettered or otherwise, could not retrospectively cure or correct that deficiency.  It was an entirely irrelevant consideration.


Finally on this point, on the paragraph 34 point, without having access to the documents sought, particularly the relevant communications sent to its employees in the relevant period, Woodside could not know the extent of any misrepresentations made by Mr Heath or others and, it follows, could not be in a position to correct those misrepresentations.  You don't know what you don't know.


The fourth basis upon which we submit in ground 1 that the - - -


VICE PRESIDENT HATCHER:  Can I just follow up where this is all going, and perhaps we have covered this before, but it seems to me that, in effect, your client is proposing a path whereby the statutory test is read as if it means, in a genuine and informed sense, that you are entitled to access to any documents which might bear upon the state of mind of any employee who has expressed a desire for a majority support determination and bargaining to occur, that you want those names to be identified and then you want to be in a position to call them to give evidence and cross-examine them about their state of mind when they indicated they wanted to bargain.


MR NEIL:  In part, yes.


VICE PRESIDENT HATCHER:  This is where this is heading, is it not?


MR NEIL:  Yes, yes, we don't make any - yes, of course.  If there is a prima facie basis for concern about the reliability of the petitions as an indicator of the petitioners' wishes, then that is a live issue, available and appropriate to be determined within the Commission's process, yes.


VICE PRESIDENT HATCHER:  How many employees are involved in here, that is, how many employees are within the scope of the proposed agreement?


MR NEIL:  I'll need to take instructions about that.  I can give your Honour the answer, but perhaps I could take that on notice.


VICE PRESIDENT HATCHER:  I was in a matter not that long ago where we were dealing with a majority support determination for an employer with 100,000 employees.


MR NEIL:  Well, we're not in that category.


VICE PRESIDENT HATCHER:  No, but I'm just trying to think where this approach leads.


MR GIBIAN:  I'm told it's something in the region of 200.




MR NEIL:  We can get the exact figure.




MR NEIL:  Of course, the kind of case that Woodside wishes to make here in relation to the issue that Woodside has raised in relation to the reliability of these petitions is not a case that will occur in every circumstance.  It takes as its starting point the proposition that material misrepresentations were made, a proposition supported by Ms Manuel's evidence.  Whether ultimately made good or not, now is not the time to say, but, on any view, one would expect that it is an unusual circumstance where petitions for a majority support determination are solicited and obtained in the context of the making of what Woodside described as fundamental and material misrepresentations.


The floodgate doesn't open for every case.  This is a very particular case and it's an instance of a proposition that we would embrace, that every case falls to be determined on its facts.


The answer to the number of employees is between 200 and 210.


VICE PRESIDENT HATCHER:  All right, so a majority is obviously in excess of 105, so this could lead to you having identified and then cross-examining 105 employees about their state of mind when they signed the petition?


MR NEIL:  That is possible, yes, a circumstance of which Woodside was not the original author.  It can only deal with the facts created.  In a case of this kind, it can only deal with the facts created by others, on its case, with the facts created by Mr Heath.


VICE PRESIDENT HATCHER:  Sorry, I don't understand that submission.


MR NEIL:  Well, yes, it is a large exercise, but it's a large exercise that is occasioned not by the conduct of Woodside but by somebody else's conduct.  We don't have a choice about what kind of case is presented to us to deal with and we don't have a choice about the facts that support that case.  We can only deal with the case that comes to us.


VICE PRESIDENT HATCHER:  But it would follow that if there was a secret ballot, you would then want to have identified who voted in the secret ballot and then cross-examine each one of them about their state of mind when they voted because they might have been affected by a misrepresentation.


MR NEIL:  If there was at least a prima facie basis to raise that issue, yes, yes.


VICE PRESIDENT HATCHER:  All right, thank you.


MR NEIL:  Now, how that would work in practice, that is, we would submit, an issue for another day.  It's not an issue that arises at an interlocutory stage where the sole question - the sole question - is whether the documents have a legitimate forensic purpose, whether they have apparent relevance.  That's the only question that arises at the point of the exercise of the discretion about whether to make an order under section 590.


The difficulties of any case, that is, the practical difficulties of the running, the conduct of any case that might result from the production of those documents or - not result - to which the production of the documents might contribute, that's another question, a question for another day.  The Commission always has control over its own processes.


The parameters of the kind of practical difficulties that Your Honour the Vice President is raising, they cannot now be known, and they couldn't properly influence - and this, we would submit, is the important point - they could not properly influence the exercise of the discretion at the section 590 point.


The fourth ground, just returning more directly to ground 1, the fourth respect in which we submit that the Deputy President misconceived the nature of the discretion appears or focuses on paragraph 32(c) of the decision on page 96.  From that paragraph, it is evident, we submit, that the Deputy President erroneously proceeded upon the assumption that the recipient of a production order, to the extent that they are not a party to proceedings, cannot object to production.  Now, of course, that's wrong.  The terms of the draft order, which include the note that appears on page 84, the second dot point, demonstrate that that is not correct, and we have reminded your Honours of a decision in United Firefighters at paragraph 7, which appears on page 226 of the bundle of authorities.


In paragraph 16 of their written submissions, the respondent submits that that consideration was not material to the Deputy President's decision to refuse the application.  In our submission, that is not so.  It appears in the Deputy President's list in paragraph 32 of the five factors upon which the production order was said to be inappropriate, and that list, when one looks at that list, it's not apparent whether the factors are independent or cumulative of each other.


The fifth of the six respects in which we submit the Deputy President misconceived the nature of the discretion, or the discretion miscarried, is that her Honour appears to have conflated the issues of production and access.  In paragraph 30 of the decision, the Deputy President refers to the production orders as amounting to what her Honour described as 'an unprecedented invasion into the personal privacy of employees' and, at paragraph 33 of the decision, the Deputy President refers to the production orders amount to an 'extensive invasion of privacy'.


In our submission, those passages of the decision reveal that the Deputy President either did not understand or did not acknowledge that where a party is required to produce documents to the Commission in accordance with a direction or an order under section 590(2)(c), it does not automatically follow that the party who sought and obtained the production order is entitled to inspect the documents.


VICE PRESIDENT HATCHER:  With respect, Mr Neil, I'm not sure who had the misunderstanding.  It was your client that proposed an order which required production to its lawyers.  With respect, I am not clear what the Deputy President misunderstood at all.  She read the order, which required production to your lawyers.


MR NEIL:  Well, she read the draft order and, yes, there was an obvious tension between, in the terms of the draft order, between the express reference in the draft order to the fact that production was to be to the Commission and then nominated Woodside lawyer's address, but, the actual application itself, which, after all, is the document that the Commission rules require and upon which it acts, makes it absolutely plain that the order that was being sought was an order that the documents be produced to the Commission.  Page 77 makes that plain in the answer to question 1.1.


VICE PRESIDENT HATCHER:  Mr Neil, if the order had been made in the terms sought, compliance would have required production to Woodside's lawyers.


MR NEIL:  We can't cavil with that, of course:  to the Commission at Woodside lawyer's address.  Presumably they wouldn't have opened it because it wasn't being produced to them.




MR NEIL:  We understand the point that your Honour is making, but really, in our submission, when one looks at the whole of the application that was being made and when one looks at the jurisdiction that was being invoked, it would not be - it is apparent that the order that was being sought was an order for production to the Commission, and then, once that happens, the documents are within the control of the Commission and the Commission can determine who has access to those documents and on what basis they do.


For example, as your Honours have seen, in its initial response to the substantive application on page 12 of the appeal book, Woodside, in paragraph 33, Woodside have made it absolutely explicit that when it came to the question of access, there would be, one, that the question of access was separate to production and, two, that when it came to the question of access, this position was made explicit:


Appropriate confidentiality undertakings will of course be offered in relation to the access and use of such material.


And no one ever questioned that ever thereafter.


DEPUTY PRESIDENT CLANCY:  Sorry, Mr Neil, how far did that extend?


MR NEIL:  Well, one never - we never - - -


DEPUTY PRESIDENT CLANCY:  Who was going to give the confidentiality undertakings, and was that that it was going to be limited to Woodside's legal team?


MR NEIL:  The details were never articulated because the process never got to that point.


DEPUTY PRESIDENT CLANCY:  So, let's say the Deputy President had ordered the production, she has the material.


MR NEIL:  She has the material.


DEPUTY PRESIDENT CLANCY:  Woodside applies for it.


MR NEIL:  And we would then have to apply for that access.


DEPUTY PRESIDENT CLANCY:  All right, and what if the Deputy President, at that point, expressed the view that this was an invasion of privacy?  Where does that take you?


MR NEIL:  That circumstance would not defeat our right to have access to the documents, but it would inform considerations of the terms upon which access would be granted, and that is a conventional basis upon which to require confidentiality undertakings or impose or resolve confidentiality, and the time, the appropriate time, at which to consider the detail of those undertakings or orders is at the point when access is being considered, not production.


DEPUTY PRESIDENT CLANCY:  But it still gets you to the point that lies behind the purpose for your seeking the documents where you want to test the understanding and the state of mind of those who may have signed a petition in support of the application.


MR NEIL:  Yes.  Yes, and, no doubt, consistent with the position that was put at the time that production was being sought and consistent with the position that is being put now, no doubt, if the order had been made and it had come to a question of access, Woodside would have sought access to the unredacted petitions and it would have sought access to all of the other documents.


It is important, in our submission, not to lose sight of the fact that it wasn't just the unredacted petitions that were being sought - that was only one of the class of documents that was being sought - and we would certainly have sought access to that and we would have made the submission, no doubt, that we make now, that if the respondent was going to rely upon the petitions in support of its application either to satisfy the threshold impacts  number one question, or to satisfy any substantive, larger question once - if we pass beyond that point, we are entitled to see them.


If I have not put the submission sufficiently directly before now, it is our submission that the notion that questions of privacy entitle a moving party in the position of the AWU to insist that the opposing party, in the position of Woodside in this case, cannot see the evidence on which the moving party relies, that is wrong.  It is wrong in every circumstance, and we will come to develop that at little more, if we may, in connection with ground 4.


For the moment, could we turn to the sixth and last point or submission in relation to ground 1.  It really, in a sense, is an alternative to the fundamental position that I put just a moment ago.  The starting point is the passage from Lovisa No 1 that the Deputy President quoted in the decision at paragraph 24, which is on page 95 of the amended appeal book.  This is the first in a series of two decisions that Colman DP gave in relation to this area.


The critical sentence - the sentences perhaps - for present purposes are the first two sentence from paragraph 67 of Lovisa No 1, which is quoted in paragraph 24 of the decision under appeal.  Looking particularly at the second of those sentences, the sentence that begins with the words, 'And in the absence of some evidence', there are two parts of that sentence.


By ground 4 we challenge the correctness of the second part of the second sentence, the part that begins with the words, 'I would incline to the view.'  But even if we're wrong about that we draw attention in connection with ground 1 to the qualification to that position in the first part of that sentence.


That qualification as one reads that sentence one would suggest, in our submission, that what Deputy President Colman had in mind was that the proposition that employers might receive only a redacted copy of the petition documents would not apply where there was some evidence raising a prima facie concern about the reliability of petitions as evidence of employee support.  Even if one accepts the larger proposition, which we do not, in ground 4, then there is still the qualification to that, and that was a qualification which existed and was satisfied in this case, but there was prima facie evidence.  Ms Manuel's statement was enough.


VICE PRESIDENT HATCHER:  About the misrepresentations, alleged misrepresentations?


MR NEIL:  Yes.


VICE PRESIDENT HATCHER:  But that didn't bear upon the mechanics of a petition, did it?


MR NEIL:  Yes, in the ways that we have addressed.  The mechanics of the petition, it certainly bore - perhaps I shouldn't have accepted that proposition so readily if I may say, with respect.  It certainly bears on the content of the petitions, whether Woodside ought to have access to what Deputy President Colman called unredacted petition documents.  So, yes, it did.


VICE PRESIDENT HATCHER:  I think what Deputy President Colman's comments were directed to was a case where for example there was reason to believe prima facie evidence that signatures had been forged or the persons had signed multiple times, that sort of thing.


MR NEIL:  Yes.


VICE PRESIDENT HATCHER:  And I'm talking about the mechanics of the petition.


MR NEIL:  Yes, and that would be a very obvious point.  Now, here of course there was at least a circumstance where so far as was known the ordinary - this was an electronic petition, no actual signatures, none of the inherent reliability of such a process.  So even there, there was at least a cause for concern.  Concern is the question that the Deputy President used, no doubt advisedly, about the reliability of the petitions, even at that very basic level.


VICE PRESIDENT HATCHER:  Why; because it was online?


MR NEIL:  And without - yes, of course, without the protections that an actual signature gives.  We were asked, required just to accept all of this at face value.


VICE PRESIDENT HATCHER:  But, Mr Neil, Woodside satisfaction is not the statutory test.


MR NEIL:  No, but Woodside was a party to the proceedings, its interests were affected, it was entitled to participate in the proceedings, and it was entitled to have and to put a case on whether the Commission ought to be satisfied of any of the statutory requirements.  Otherwise what's the point of having Woodside there at all.


VICE PRESIDENT HATCHER:  The train of reasoning you were advancing is it was an online petition, not hand signatures, therefore it's dodgy, therefore we get access to the documents - - -


MR NEIL:  No.  I don't put it that highly and I don't have to put it that highly.  I don't have to put it that highly, and in any event that's deflecting attention or focusing attention only on one aspect of the problem.  There were many issues that Woodside had raised, including the misrepresentation issue, and access to the unredacted petitions was relevant to that issue.  Now, there was certainly a basis of prima facie cause for concern about those misrepresentations.  The only point we're making here is that satisfied the exception to such a larger principle as Deputy President Colman was seeking to articulate in Lovisa No 1, and that was enough.


VICE PRESIDENT HATCHER:  I think you've accepted before that apart from disclosing the identity of those who signed the petition that the petition unredacted won't tell you anything about misrepresentations or their effect or anything.


MR NEIL:  No, but it can certainly - it would certainly put Woodside on a relevant chain of inquiry, including inquiries about - at the risk of repeating ourselves - whether any of the employees who signed the petition had in fact access (audio malfunction) post and communications that were (a) known to Woodside and addressed in Ms Manuel's evidence; (b) the subject of other aspects of the order for production.  Now, how could you match the two unless you know the names of those people.  Did they sign the petitions, did they get the posts?  How could Woodside possibly conduct that inquiry, an inquiry which on any view was relevant to the case that it wished to make, without knowing the names.


It didn't have the starting point, and if it didn't have the starting point how can it possibly make good its case, the case in relation to, have a property opportunity, a reasonable opportunity is the test, and make its case on the proposition that those employees had been materially misled in a way that vitiated the apparent expression of their wishes.


It's axiomatic that apparent relevance includes chain of inquiry relevance.  And without access to the unredacted petition without knowing who the petitioners were that chain could never be formed and an essential link was missing, and the effect of the Deputy President's decision in denying the making of the order for production of the documents was to say, well you can never do that.  Instead the Deputy President said, well perhaps you can do it by other means, which he never said.


It was made explicit, as I am reminded, in the application for the order that the documents would enable Woodside to know who had got the posts and communications that on its case contained the material, misrepresentations and to match them up to the petitioners.


The only point that we are making here in this sixth and last submission under ground 1 is that on any view of it this case fell within the proviso to such principle as Deputy President Colman was articulating in Lovisa No 1, and that ought to have justified the making of the order.


The Deputy President seems to have thought so.  In paragraph 31, the first sentence of the decision, the Deputy President said this:


It is arguable whether each of the statements identified by Woodside - - -


That appears to be identified in Woodside's submissions - sorry in Woodside's F52 application.


It is arguable whether each of the statements identified by Woodside are fundamental and material misrepresentations as they allege.


Now, of course if it is arguable that they are not then it is also at least arguable that they are, and that's enough to constitute - or ought to have constituted a finding that there was a prima facie concern on that ground.


Ground 7, if we can turn quickly to that, Woodside contends by that ground that the Deputy President made at least three material errors of fact.  First at paragraph 7 of the decision on page 93 of the commended appeal book, that the Deputy President identified Woodside's application as seeking orders of the AWU, produce certain documents to Woodside.  Of course that was not correct, because the application was for orders that would be issued to four recipients; Mr Heath, the AWU, the officer of the Offshore Alliance and the CFMMEU.


Second, at paragraph 30 of the decision, and this is perhaps of more substance, paragraph 96, the Deputy President described Woodside as seeking production of all - and we underline the word 'all' - 'All communications over a six month period between employees from whom petitions have been obtained and Mr Heath or any person on behalf of the AWU, the CFMMEU or the Offshore Alliance.'


That was incorrect, and was incorrect in a way that seems materially to have influenced the Deputy President's thinking, because Woodside had sought only communications from Mr Heath or any person on behalf of the AWU, the CFMMEU or the Offshore Alliance to employees with whom petitions had been obtained.  That is materially different from the unprecedented invasion of privacy that the Deputy President seems to have thought the application involved.  And third, and perhaps incidentally, Woodside sought the production of such communications over a five month (indistinct) six month period.


And just to round this ground 7 off we have made the submission that these errors of fact amount to jurisdictional error and we remind the Full Bench of NABE v The Minister for Immigration and Multicultural and Indigenous Affairs (No 2) a copy of which is at pages, or the relevant passage is in paragraph 63.  It's at pages 484 and 485 of the bundle of authorities.


Could we now turn to ground 2, which is the contention that a decision which is the subject of the appeal demonstrates apprehended bias which amounts to - - -


VICE PRESIDENT HATCHER:  Mr Neil, (indistinct) in respect of what question or issue?


MR NEIL:  The question of whether - these questions - at least this issue, I will put it this way.  It is our contention that the decision demonstrates a concluded view that the petition method was the method that would be adopted unless Woodside proposed an alternative method that commended itself to the Deputy President; at least that.


VICE PRESIDENT HATCHER:  Mr Neil, how does that question arise in an appeal from a decision about production of documents?  That is - - -


MR NEIL:  Well - - -


VICE PRESIDENT HATCHER:  Let me just finish the question.  The Deputy President had not yet reached a declared decision about the method of assessing majority support.  If I understand correctly your client has applied for her to recuse herself from the proceeding, and that's a matter which is listed for hearing next Tuesday, is that correct?


MR NEIL:  Yes.  That's a matter that - yes is the answer to that.


VICE PRESIDENT HATCHER:  That is, I don't understand how you can raise a recusal application in respect of a matter not yet determined in an appeal from an interlocutory decision.  You can apply to the Deputy President, and it appears you have, to recuse herself on the basis of any advice about a matter she is yet to determine.  She will determine that one way or the other, and if you're aggrieved by that you can appeal that decision.  But speaking for myself I don't understand how it arises in this appeal.


MR NEIL:  It arises essentially because it seems that the concluded view that the Deputy President adopted on that question seems to have been a factor in the exercise of the Deputy President's discretion in relation to the section 590 issue.  Now, for our part we do not see how it came to be so, but it is in the decision and it presumably is there for a reason, and the reason, the only reason that we can see is that the Deputy President seems to have taken that view into account in the exercise of the discretion.  Now, if that's right it was wrong for her to do so.  That's the way which it arises.  But this isn't a recusal application.  It does feed into the relief that we seek on the appeal, because if ground 2 is upheld then we would seek an order that the substantive application be remitted to another member of the Commission to be dealt with in accordance, amongst other things, with a direction that an order of the kind in the terms sought by Woodside be made.  But it's not a recusal application, of course not, we can't make that here.  The only point we want to make - - -


VICE PRESIDENT HATCHER:  Sorry, I still don't understand.  How do you say she prejudged the issue to be determined in the decision under appeal?


MR NEIL:  Well, if one can understand the reasoning at this point, it seems to be that there was - it was not necessary, to use the Deputy President's test, to make the order for production that was being sought, in part because of the fact set out in the first - or the purported fact set out in the first sentence of paragraph 35, and we say if that is so, if that's the reasoning, then that purported fact is the expression of a concluded view on a matter that was still in issue and ought not to have formed an element in the exercise of the Deputy President's discretion.


VICE PRESIDENT HATCHER:  Mr Neil, with respect, you have to demonstrate prejudgment in respect of the issue the subject of the decision under appeal.  Correct?


MR NEIL:  Yes.


VICE PRESIDENT HATCHER:  So how do you demonstrate the prejudgment of the issue determined in the decision?  Not the prejudgment of some issue down the track for which you can make recuse application, but prejudgment of the issue determined in the decision?


MR NEIL:  Because the issue - to the extent that one can understand the chain of reasoning in the decision, we submit, with respect, it seems to be directly related - this prejudged issue, which was still alive because it was still the subject of submissions that are yet to be made, was a material factor in the exercise of the Deputy President's discretion in relation to this decision, in relation to the section 59 application.  Otherwise, we would ask rhetorically, what is it doing there?  Why is it there?  There must be some reason for it.  It must have formed some link in the Deputy President's thinking.


VICE PRESIDENT HATCHER:  That may be right.  You can submit and you have that it was an irrelevant consideration or that it represents an error of principle, et cetera, et cetera, but what it doesn't do is demonstrate prejudgment on the issue of whether these documents should be produced; that is the Deputy President determined this issue on a manner other than its merits.  That is she had some apprehension that she decided on some other basis.


MR NEIL:  I can't put the submissions differently than I have done.


VICE PRESIDENT HATCHER:  All right, thank you.


MR NEIL:  On that point.  I could put them in a different way, but it would be the same submission.




MR NEIL:  Now, I'm just looking at the time.  I am probably about 30 minutes away from the end.


VICE PRESIDENT HATCHER:  Thirty minutes?  Haven't you addressed all the appeal grounds now?


MR NEIL:  Twenty to 30 minutes.  There's still 3 and 4.  I could do it in 20 minutes, maybe 15.


VICE PRESIDENT HATCHER:  Yes, all right.  Speaking for myself I think I fully understand what you say about those, but anyway we will hear what you have to say and then we might take a break.


MR NEIL:  If your Honour pleases.  All right.  Can we take grounds 3 and 4 together.  We have said all we want to say about ground 3 in relation to our written submissions.  We have added a reference to El Masri, paragraph 35 of El Masri in our list of authorities.  The relevant passage is at page 498 of our amended list of authorities.


Ground 4 is the procedural fairness ground.  Our contention here is that the Deputy President's refusal to afford Woodside an opportunity ultimately to have access to and inspect the petitions, but the first step is the order for production amounts to a denial of procedural fairness.


VICE PRESIDENT HATCHER:  Again, Mr Neil, I don't understand how you can argue that there has been a denial of procedural fairness in circumstances where the Deputy President has made no substantive decision.  She might reject the application.  She might look at the unredacted petition and say I'm not satisfied, I reject the application.  That is it seems to me, with respect, entirely premature to say that you've been denied procedural fairness.


MR NEIL:  And the argument - there is no principle that says that a party who is denied the opportunity to look at - to have access to ultimately - to put before the Commission, let's put it that way, documents that are relevant to a case that it wishes to make, or to wait then with one or two hands tied behind its back to see whether the possibility that a decision adverse to it might be made.  There is no principle that suggests that that is a necessary course.


All we wanted were documents, the production of documents, the apparent relevance and the issues that we wanted to litigate be produced to the Commission.  Then we would turn to the question of access.  Unless they were produced to the Commission we would never have access to them.  The Commission would never have access to them, and that is a denial of a fair opportunity to make the case that we wanted to make.  It's a denial of a reasonable opportunity to be heard in the exercise of a statutory power, and that is a denial of procedural fairness.  It's a denial that bites at the time when it comes home, and it comes home when the order for production was refused.


We have included in the bundle of authorities a reference to SZSSJ, and we point to paragraph 83 which is at page 560, and this is where we come to what in our submission is a (indistinct) to what in our submission is a significant issue.  Can it be procedurally fair for the Commission to attain satisfaction of any matter identified in sections 236 and 237 on the basis of material that is kept secret from one of the parties.


Separately provided to the Commission, separately from our bundle of authorities, is Lovisa No 2, and we wonder if we could just take a moment to go to that, because it seems to be so far as our research has disclosed the wellspring of a growing practice in the Commission that when determining applications under section 236 of the Commission relying on petitions provided by an applicant for some statutory purpose, but declining to provide unredacted copies to the employer.  The reasoning in Lovisa No 2 starts at paragraph 53 where the employer's submission is recorded.


Moving next to attention to paragraph 54, we accept the correctness of everything that is said in paragraph 54.  Then paragraph 55; we accept the correctness of the first sentence in paragraph 55.  The error in this line of thinking, a line of thinking that fed directly into the decision which is the subject of the proposed appeal, is in the second sentence of paragraph 55.  In our submission the interest of justice can never authorise the Commission to act in a substantive way for a jurisdictionally significant purpose on material that one of the parties cannot see.  That violates every tenet of the hearing rule of procedural fairness.


There are some in our jurisprudence.  There are some isolated examples of statutes that explicitly oust the hearing rule.  For example there are national security provisions.  We have included a copy in our bundle, subsection (3) of section 29 of the National Security Information (Criminal and Civil Proceedings) Act 2004.  That's an example of a statute that explicitly ousts the hearing.  Wherever that occurs the ouster is carefully painstakingly and explicitly set out.  Why?  Because such provisions are a departure from the fundamental principles of the common law embodied in the hearing.  They are explicit statutory exceptions.  They are unusual and rare, and there is no such provision in the Fair Work Act.  None expressly, and we would say none by necessary implication.


In this case the consideration that outweighed the hearing rule in the reasoning of the Deputy President in the decision under appeal, the consideration that permitted, so the Deputy President, in our submission, seems to have thought, permitted a departure from the ordinary obligations of procedural fairness embodied by the hearing rule, appears to be a concern for the privacy of Woodside's employees.


That, in our submission is not - even if it be made out is not a circumstance that would justify a departure from the hearing rule in its full expression, but here of course there was no evidence of any employee in fact being concerned about their privacy.  All that the Deputy President was acting on were the presumptive or hypothetical concerns raised by the respondent in the passages in its objection to which we have drawn attention.  And in any event even if there were these presumptive or hypothetical concerns it is not correct that concerns of that kind either could or should trump or outweigh Woodside's right to be afforded procedural fairness, and the Commission's obligation to provide procedural fairness.  The Commission has available a wide penalty of powers to regulate Woodside's access to any documents that were produced in response to an order.


Second, Woodside was prepared to offer appropriate confidentiality undertakings, and there is no reason to think that it would not.


DEPUTY PRESIDENT CLANCY:  Tell us now what are they, Mr Neil?


MR NEIL:  Who knows because they haven't been asked of us, no one's asked us.


DEPUTY PRESIDENT CLANCY:  You just said that Woodside indicated that it was prepared to offer appropriate confidentiality undertakings.  I think we're entitled to know what they were.


MR NEIL:  At the question of access?  Well, our first response is to say that question hasn't arisen yet and no one has said to us what would satisfy these concerns.  I don't want to be coy about this, there's no issue that Woodside would be prepared to offer undertakings as to confidentiality that the Commission would regard as appropriate.  There is no issue about that.


DEPUTY PRESIDENT CLANCY:  How can we know that without you telling us what they would be?


VICE PRESIDENT HATCHER:  You're asserting they're appropriate, what are they?  You have contended that the Deputy President erred in treating privacy as a determinative consideration because Woodside would have offered appropriate undertakings.  Well, what undertakings?


MR NEIL:  With respect, your Honour, that would not be an available process of reasoning, because the question of access had not yet arisen.  The real problem here so far as this appeal is concerned, so far as this part of the appeal is concerned, is that the Deputy President refused to make an order for production upon the footing that production would entail an invasion of privacy.


DEPUTY PRESIDENT CLANCY:  But get back to the problem, Mr Neil.  The Deputy President has already directed the AWU to produce the unredacted petition.  So this, with respect, goes nowhere.


MR NEIL:  If it please, your Honour, we do not accept that.  It is plain the Deputy President has said, 'We will not see anything other than unredacted petition.'


DEPUTY PRESIDENT CLANCY:  You can't say on one hand we haven't got to access yet, we're only dealing with production of the documents for the Commission, and then say it's irrelevant that the Deputy President has already directed that those documents be produced.


MR NEIL:  We say that because of the muddled - if we may say, with respect - the muddled way in which the application for production was sought and was dealt with, confusing and conflating issues of production and access.


DEPUTY PRESIDENT CLANCY:  We have already dealt with that, Mr Neil.


MR NEIL:  We have dealt with that, if it please your Honour.  On these privacy issues can we - perhaps I just go back because I'm a little anxious on this point.  I am not ducking the question of what confidentiality undertakings would be given.  What I am saying about that is, what we are saying about that is that question has not yet arisen.  No one has told us what confidentiality undertakings they would consider would be appropriate.  The Commission has never required that of us.  What is known is that we have already said, nailed our colours to the mast, we would give them, we would give the appropriate confidentiality undertakings, and if we didn't give undertakings that the Commission thought was appropriate we wouldn't get access.  It's as simple as that, in our submission.


VICE PRESIDENT HATCHER:  Well, the (audio malfunction) Deputy President Clancy raises earlier, when you say appropriate confidentiality undertakings might that include for example that the access would be confined to Woodside's lawyers?


MR NEIL:  It might.  In an appropriate case it might.


VICE PRESIDENT HATCHER:  I mean if we assume that the Deputy President has the unredacted petition it's just open to you now to apply to the Deputy President and say on the basis of an undertaking that this doesn't go beyond our lawyers can we have access to that petition.


MR NEIL:  Perhaps so, and then that would not deal with the balance of the order that was not made.  It would only deal with (audio malfunction) possibly.  We did want to make this point about this hypothetical privacy concern.  It is predicated upon the proposition that it would be reasonable for anyone to think that Woodside would behave in some unlawful way towards its employees because they had evinced a wish to bargain.  The whole scheme of the Fair Work Act is predicated upon the footing that the interests of employers and employees might not always coincide.  The Act creates mechanisms to resolve those disputes.  What is bargaining?  But the expression by each side of positions that the other side does not (indistinct).


The Act by its general protections provisions ensures that any employee who expresses, evinces a wish to bargain is protected against any, any adverse action as a consequence of having done so.


VICE PRESIDENT HATCHER:  Or they might get remedy from the Federal Court a few years down the track, Mr Neil, but it doesn't really give a complete answer to concerns, does it?


MR NEIL:  It is designed to do so, and it does.  Why would anyone, why would the starting point for any analysis of this issue proceed upon the basis that Woodside or any other employer would act in a way that is contrary to the law.  Our legal system depends upon the presumption that ordinarily people do not behave in ways that are unlawful.  One sees that for example in the reasoning that lies behind the Briginshaw standard.


That's the fundamental proposition, and there is simply no basis for anyone reasonably to think that Woodside would ever behave in a way contrary to its legal obligations, ever, and certainly the fear, the apprehension that it might do so would not be a proper consideration to trump Woodside's right to see the material that was being relied upon in a substantive application to which it was a respondent.


We do want to say something very shortly about first paragraph 36 of the decision, which is addressed in paragraphs 23 and 24 of the respondent's submissions.  The idea that Woodside's ability to survey its own employees might in some rational way bear upon the proper exercise of the discretion.  That ability to the extent that it exists is no answer to the denial of procedural fairness arising from the refusal of the order for production of the documents that were sought.  Woodside was entitled to test the case that was actually advanced by the AWU.  It was required to test the materials actually put against it in those proceedings, and once it had done so it was entitled to take the position that the AWU had not demonstrated a reasonable hypothesis that there was a majority support for bargaining.


Paragraph 35 of the decision, if we could say something shortly about that.  The prejudice to Woodside is not addressed by the opportunity to suggest an alternative method by which to determine majority support.  In order to determine whether the so-called proposed method, the petition method was appropriate, Woodside required, and in our submission properly required, access to the documents sought in its request.  It was unreasonable and unfair to expect it to advance an alternative method when it was in no position to as a first step assess the appropriateness of the proposed method, the so-called proposed method.


Now, turning to ground 5, the submission that we make there is that the decision which is the subject of the appeal was affected by jurisdictional error arising from the Deputy President's failure to consider or even refer to the evidence of Ms Manuel.  In paragraph 25 of its written submissions the respondent asserts that there was no obligation on the Deputy President to refer to every piece of evidence, but here of course Ms Manuel's statement was all of the evidence on which Woodside relied in its application, and in the absence of any reference to it in the decision the Full Bench, in our submission, should infer that Ms Manuel's statement was not considered.


The Deputy President did refer to the issue of material misrepresentations, paragraph 14, 29, 31, 33, 34 and 35, but it was all done by reference to Woodside's Form 52 and not having regard to Ms Manuel's evidence.  In our submission that was a material error that affected the exercise of discretion.


By ground 6 Woodside contends that the decision is attended by legal unreasonableness arising from illogicality and irrationality.  In paragraph 27 of the decision the Deputy President said that Woodside have provided no evidence to suggest that the petitions were fraudulently completed.  Paragraph 31 the Deputy President said that Woodside had provided no evidence of employees who signed petitions being actually misled.


But in the absence of the production orders being made Woodside could not know which employees had signed petitions, or the methods used to procure the signatures, electronic signatures of those employees, or engage in any verification of their identity, or assess the chain of custody of any physical petitions, or enquire as to what misrepresentations had been made to which employees, and which had acted on the minds of those employees.  It was simply impossible for Woodside to locate evidence of the kind identified by the Deputy President.  And for reasons that we have already submitted the suggestion of the significance of Woodside's ability to carry out employee surveys in paragraph 36 is also illogical.


Now, if it please those are the grounds.  The orders that we seek in relation to this appeal is that the decision be quashed and a direction be made that the order for production sought by Woodside be issued.  And if ground 2 is upheld then our submission is as we said that it would be appropriate to remit the whole of the proceedings to another member of the Commission to deal with it afresh and in accordance with the direction we seek.  I'm sorry, I have taken up some time.  I rushed a little at the end.  Unless there is anything more your Honours have of us then those are the submissions we make by way of supplementing that which we have already put in writing.


VICE PRESIDENT HATCHER:  Thank you, Mr Neil.  What I think we will do now is take a break of not less than 20 minutes.  So can I ask the parties to disconnect from the link and then reconnect in not less than 20 minutes.  We will now adjourn.

LUNCHEON ADJOURNMENT                                                            [1.21 PM]

RESUMED                                                                                                [1.45 PM]


VICE PRESIDENT HATCHER:  All right.  Mr Gibian, we don't need to hear from you.  The Full Bench is in a position to deliver its decision.  We have decided to refuse permission to appeal.  We will issue our decision, our reasons for that decision in writing, and we hope to be able to do so by the end of next week.  So we thank counsel for their submissions and we now adjourn.

ADJOURNED INDEFINITELY                                                            [1.46 PM]