Court 22B 9:30 AM
Part Heard 1 CHRISTOPHER PAUL BROWN & OTHERS v HEALTH SERVICES UNION & OTHERS
HSU EAST & ANOR v NSW MINISTER FOR FINANCE & SERVICES & ORS
National Secretary of the Health Services Union, Kathy Jackson sitting at the front between two women, one in a red shirt who was here with Kathy Jackson’s children last Friday. Kathy Jackson has made more effort with her appearance this week, she was casual last week. Her hair is out, blow dried. She looks more serious.
“Silence all stand.” Everyone stands and bows to Justice Geoffrey Flick.
“The Federal Court of Australia is now in session.”
David Rofe QC who represented Kathy Jackson last Friday stands up (in robes).
Justice Flick: You are now appearing for whom?
David Rofe: I am appearing on an application for Kathy Jackson. We have today received a fax today from a consultant psychiatrist.
Justice Flick: …
David Rofe: Appearing for Kathy Jackson, instructed by her.
Punch: solicitor appearing for the Honorable Michael Moore. This is an issue that he does wish for me to bring to the attention … concerned with the delineation of his role as administrator. We believe it is significant. My role is to act as advisor in counsel in relation to matters where he needs his own specific advice.
Justice Flick: What’s the delineation of his role which you seek?
Punch: In terms of the order … orders 11-13 – he’s appointed as administrator … at liberty to exercise officers of the HSU East branch … to what extent is there a policy making role … participate in policy making forums … in person or by proxy … He would like to have clarified …
Justice Flick: Is it going to be the subject of any debate do you know?
Punch: I would hope it’s very short.
David Rofe: Our application in the first instance is that this matter be adjourned. I think that she will wish to take advantage of the matters she will be able to educe … make an application for reasons which we won’t be retained … because there are financial considerations. She has, I’m not sure what her status was, but she was certainly indicating last Thursday, I’ve forgotten …
Justice Flick: Last Friday … she foreshadowed an application which, I didn’t fully understand possibly to withdraw from the agreed statement of facts and … I think she wanted to cross examine because she wanted to put it in issue.
David Rofe: She wanted the court to hear …
Justice Flick: …
David Rofe: I can’t answer the question because we’ve had difficulty by way of access to her since last week to her at all. Your Honour gave her … she had to do.
Justice Flick: The less specific the nature of the application the harder it may be for her to proceed.
David Rofe: We haven’t had a chance to fully confirm with her, she’s had quite a large number of things to do … the last few days
(Yes, she was too busy speaking at the HR Nicholls Society and to Paul Murray on 2UE to speak to her QC.)
Justice Flick: I’m sure the ministers have too.
Mr Course (sp?): In matter no 621 2012 Mr Browns’ application, I no longer act for the individuals and my instructing solicitor will be filing a notice of ceasing to act. HSU East and acting general secretary Mr Mylan in NSW Industrial Relations … I still appear for HSU East and on relation to Mr Mylan … him will be removed. I don’t know if … wants to deal with that application now.
Mr Course: A couple of other matters of a similar ilk to the issue raised by Mr Punch that concern HSU East … the orders provide for suspension, the legislation provides for suspension … that does not carry with it any …
Justice Flick: Any suspension of payment?
Course: It does mean suspension of payment and suspension of duties… the orders that affect HSU East branch … The other matter that’s arisen in relation to the orders is your Honour you’ll see that order 4 all officers all property and credit cards of HSU East Ms Jackson has raised an objection to the return of her car, computer and mobile phone … she needs those to conduct her duties as national secretary. The administrator has agreed that she can retain the mobile telephone if she pays for the cost. She should not be treated any differently in relation to any other property. There’s been no objection.
Justice Flick: So they’re the three matters you want to raise?
HSU member Julia Batty: My name is Julia Batty and I’m speaking on behalf of …
Justice Flick: Is this the matter that Rob Morrie raised?
Julia Batty: The application is in Rob Morrie and my name.
Justice Flick: Do you wish to be heard orally in addition to the written …
Barrister: In respect of the written submission … insofar as the submission made assertions of fact and went beyond proceedings … we would oppose.
Justice Flick: What is the status of Mr Morrie or Ms Batty?
Barrister: They’re not parties to proceedings.
Justice Flick: Notice was given in the newspapers and that’s for interested parties … I want some … of what they are … The submissions go beyond proceedings.
Barrister: This document contains … that are not … concern that evidence. It raises the spectre of things for which there’s no evidence … What is said in this document becomes a public document and there’s one that affects my client.
Justice Flick: If anyone wants paragraphs struck out not relevant or raise factual issues … and Ms Batty will confine herself to that which is left.
Mark Gibian, Unions NSW, spoke particularly strongly, he has a commanding voice, with sharp dark glasses: … made of their views and other members of the HSU.
Justice Flick: expressed… why we should give it greater credence than the views of two people. It strikes me that we should hear from Ms Batty first. … Does anyone oppose Ms Batty being heard first? Just give me a moment while I quickly read this please.
There are many factual assertions in this document that are not before the court.
Justice Flick: Mr Gibian would take exception to … the two lines …
Mark Gibian: On the first page … members to speak on their behalf. There’s no evidence, it’s an assertion to that effect… the top of the following page. Some sub-branches have passed a resolution …
Tim Game, SC: Last 2 paragraphs should be rejected and on the next page the whole of the propositions under demerger and factional fighting are factual assertions for which there’s no evidence. Page 3 rank and file members. All of page 3 is not supported by evidence… it’s not factually correct, but rank and file members, I do object to that. Vacations of officers are factual assertions and that should be rejected. Proposed demerger is a submission … Representation and we object to that… top of page 5 first paragraph … Under the heading who should be the administrator, submissions that raise the pure speculation of an adverse kind about a particular administrator. It begins “members will perceive” and the next paragraph “members will be very” “members will be disgusted.”
Justice Flick: 1. Some will not be entertained by the court scurrilous and scandalous 2. This document doesn’t contain any such material does it?
Tim Game: That very section is adverse … it speculates in quite an adverse way about this person and his motives.
Justice Flick: Is that the 3rd line?
Tim Game: Yes your Honour.
Justice Flick: Ms Batty and Mr Morrie they are members, why should the court impose upon them …
Tim Game: There is no evidence at all of the bulk of the matters… it’d all be inadmissible and … somebody would stand up and object.
Justice Flick: With the exception of the second sentence on page 5 where it says who should be the administrator I will have deleted from copies on the court file from … up to … deleting also the paragraph on page 4 before … above the words “vocational officers.” It’s factually incorrect and not supported by evidence.
Justice Flick: I just don’t think it’s got anything …
Mark Gibian: With respect to the submission being handed up, Unions NSW has … conducted a large number of meetings with members of the HSU … it’s supported the appointment of … if it had come forward earlier we sould have put… It might .. to be limited to a statement by these individuals.
Justice Flick: Mr Morrie did he make it on the Wednesday? He also wanted to be heard on the Thursday. I’ll have a copy of your submission put on the court book, so that will be available for public … Except … sentence will also be deleted and I’d invite you not to make oral submissions on those issues.
Mr Lowenstein: Mr Shorten … speculative view and that’s unfair to Mr Shorten.
Justice Flick: That’s just …
Mr Lowenstein: This has the flavour of a media release your Honour … in terms of publication it has …
Justice Flick: I think you may be right, so it will also be deleted … the entirety of that last sentence … Now, you said you wanted to address these submissions orally.
Julia Batty: We do have… signed by 5000 members.
Justice Flick: I have already read and I understand the issues in those submissions. Do you want to say anything else?
HSU member Katrina Hart: We didn’t photocopy it 8 or 9 times.
Justice Flick: The proceedings first attract earlier on and … had evidence of this nature been … earlier … you may wish to … I may think of giving you an application to submit that evidence … Do you want that to take place?
Katrina Hart: …
Justice Flick: If it’s admitted as evidence… identification… I can rely upon it … mark it for which means someone gets to the full court … there’s …
Katrina Hart: authorization for us to represent 5000 members.
Justice Flick: Marked for identification? The admission to the extent that it contains factual material may be taken into account but to the extent … proceedings, those submissions will be entertained. The next application probably is to deal with Mr Rofe’s application… If there is to be an adjournment. Yes Mr Rofe.
David Rofe: As I … unforgivable I’m assisted by Mr Anthony Tudehope. Can I hand you a consultant psychiatrist’s report Dr Paul Foulkes… I’m instructed it came this morning.
Justice Flick: Does any party have any objection? To Dr Foulkes’ report being admitted?
Barrister: …firm directions Ms Jackson was to … Maybe. Can we reserve our rights and secondly… what weight on an undated and unsighted document… without a date.
Another barrister: Our position is the same, your Honour.
Justice Flick: In case the matter proceeds further, 4 volumes will be marked Exhibit 1. The undated and unsigned report from Dr Foulkes will be admitted as Exhibit 2.
David Rofe: We have not been able to have access to Ms Jackson and her time has been, particularly in the last weekend where she was attending to some of the matters your Honour inviting her to attend to. Her health is not good.
Justice Flick: If there’s no application…
David Rofe: We only received this this morning. The whole problem with Ms Jackson is she has to attend to a number of things. I know your Honour says she doesn’t have to, she’s invited. … She hasn’t had the time to give her three children the normal attention most parents want to and I’m reminded she certainly hasn’t got the resources of the other parties that are standing against us… Within a week we can probably get to know much more about the case and her role in this whole dispute is very important not only for her and those assisting with her but it’s also important for the HSU groups, the court should not deny her the opportunity of being able to access counsel over a wide range of matters that are the subject matter of this litigation.
Justice Flick: You’re making a further application or one more week on 5 grounds: 1. No access to Ms Jackson. 2. Existing medical condition Exhibit 2. 3. Ms Jackson has not had time to address the matters identified last Friday 4. Ms Jackson does not have the resources of other parties 5. Ms Jackson to access counsel. Does anyone oppose that application?
Adam Hatcher: Yes. Last week she was proceeding to final submissions. At no stage were any matters … today raised. Secondly the basis for the adjournment application appears to rest on Exhibit 2.
Justice Flick: Exhibit 2 as one of four factors.
Adam Hatcher: They were made by assertion from the bar table we would’ve raised matters not which of least it did not appear to impede her well publicised speech to the HR Nicholls Society during the week.
Justice Flick: Quite frankly I try to ignore the newspapers.
Adam Hatcher: There would be because of lack of supporting evidence. The next matter is the purpose of adjournment … for a week… passage of a week would allow for … insofar as there are matters identified with Exhibit 2…. No indication of what the adjournment is. So your Honour’s being asked to grant an adjournment of any application Ms Jackson would make.
Justice Flick: What I was hoping for today would be some idea of what Ms Jackson would want to do if the adjournment was granted… all of it in issue… What I was hoping for today was some greater refinement… Mr Brown’s affidavit if she wished to… statement of facts… depart from. Ther’es been none of that.
Adam Hatcher: in a week’s time… no indication of what the whole range of because as to whatever has been conveyed … are outweighed by the union, its branch and its members… the dysfunction of this union… those interests must outweigh the personal consideration…
Barrister: The medical report does raise understandable concerns… mention on 31 May on which the question of compliance of orders was raised… counsel then brought forward… why Ms Jackson should be allowed to depart from… Not even any suggestion to what it should be… allowed to withdraw from the conduct of her own counsel.
Justice Flick: Ms Jackson’s affidavit… what was taken out of the court book…
This whole saga is a mess, a very long way from perfect. These guys are trying to get things organised. The word “dysfunction” has come up several times as well as the word “desperate.”
At 10.30, SMH investigative journalist Kate McClymont came in and sat in front of us. I was sitting next to Paul Bibby @PaulBibby4 who seems humble and smart, always rushing from one court case to the next. All the SMH court reporters I’ve met use ipads.
There were so many different barristers speaking, I don’t have all their names. I rang http://www.auscript.com.au 1300308420 and asked how much an accurate transcript would cost and a rough estimate was $1200, so you’ll have to settle for my rough transcription for now. Excuse the ….’s.
Barrister … can trace… and how it was created. That was served on us. I took objection… is it to be understood these are only allegations… in the course of those submissions where all Ms Jackson did was deny the allegations of all… made against her. A very deliberate decision as to what was going in…
My feeling was that these guys want this stupidity over and done with.
Barrister: We support the submission made by Mr Hatcher… the high court. Changed the dynamic in applications of this kind… on the business of the court and functioning of the court generally… of objectives of… disposal of court’s overall caseload Ms Jackson has been given ample opportunity when she withdrew her lawyers at the 11and a half hour and she hasn’t done that… the material that’s advanced here… various matters being raised…
Mark Gibian: We also oppose … delay the resolution of this matter.
Julia Batty: We’d like to support the application for adjournment. We’ve not been able to get legal representation up til now. That would give us more time as well.
David Rofe: I’d just remind your Honour what the transcript indicates on 209 and I think that was the Thursday… Friday…
Justice Flick: I don’t have p209. Which date were you looking at?
It seems Justice Flick is eager to be fair and to be seen to be taking all the points into consideration. I’m sure he feels the vibe in the room.
David Rofe: we rely on that… your Honour had heard objections, nevertheless Ms Jackson wants to .. evidence resolving them… its application which I would questionably entertain now. Before you close your submissions at least… after 4 days… it was an impossible task for us to get enough time to talk to the potential client Kathy and I find it very difficult to understand how a barrister is able to get the client’s attitude because there was…
Justice Flick: you were put in an invidious position… because we still don’t know what it is that Ms Jackson wants to do… recant from the agreed statement of facts.
David Rofe: She wants to be able to present to the court merits.
Justice Flick: She wants an adjournment so that… and I’m not trying to push you into a corner… as you presently understand… although there are competing allegations, she wishes to vindicate her position… is that correct? Are there some allegations…
David Rofe: That’s what we’re here for. She’s made allegations which if correct will have an absolutely dynamic effect on the outcome of this case… that’s what we have been denied having so far.
Justice Flick: But can you tie it down a little?
David Rofe: We need access… I’ve been laid low for a day and a quarter in hospital
Justice Flick: That’s what your juniors are for.
David Rofe: There’s not much money flowing… The court to get to relevant factual information…
Justice Flick: The duty of the court is to get to the relevant facts… Why is it so relevant to work out who is right and who is wrong… If Ms Jackson was totally meritorious… a conclusion may still be open that the HSU is still dysfunctional.
David Rofe: … who started this dissatisfaction… I haven’t had a chance to talk to her at length…
Justice Flick: The application has been made for an adjournment. It’s refused, reasons will be made in a final judgment. You’re more than welcome to stay if you wish…
The woman next to me was thrilled, patted her friend on the knee. She’s a retired lawyer and unionist. I asked her why she was so happy, she smiled and held her hands up in the air. The woman in front of me was smiling.
David Rofe QC and his instructing junior left the bar table. On his way out at 10 to 11, David Rofe QC walked past Kathy Jackson without acknowledging her presence by glance. Less than a metre from KJ, they both looked straight ahead as they left and did not return to court. His instructions were solely to apply for an adjournment because there are cost considerations. The cost of an adjournment to others (with about 5 silks and numerous other counsel) would have been vast.
Kathy Jackson went to the bar table.
There was a discussion about administrators and proxys
Barrister: … defer our final.. it may offer the solution
Justice Flick: or it may not.
Kathy Jackson: Here we have an interim administrator flagging unavailability… lead the union and not delegate… the administrator hasn’t been there full time. Justice Moore isn’t available for whole chunks of time because it’s a full time role. Last week when you asked the parties to find out the availability of Justice Moore, they said he was available… did the parties know that last week?
Justice Flick: I understand the position Ms Jackson. Mr Punch there may be some merit in deferring your application. Can we at least hear from him first? When did we know the dates he was unavailable. They’re all separate issues. You say someone who’s not available, he shouldn’t be available…
Kathy Jackson: When did Mr Preston find out when he was unavailable?
Justice Flick: I think your answer… this morning I spoke to… I understand your position… The idea that any administrator… The idea is before the administrator can do the administration he has to be put on notice… Person of high esteem and integrity… an administration that will endure for some time… various commitments over 6 months. Shorter periods later in the peace he can’t avoid… well down the track into administration. 120 day limit.
(It’s obvious that Kathy Jackson wants the Hon Michael Moore out of the administration).
Justice Flick: can delegate, but 2 exceptions… when the court goes so much effort on who the administrator should be, I’ve got a real reluctance to let the… who the… should be.
Lowenstein: They can raise it with the administrator and the court. That’s clearly not a desirable situation… matter of practicality to allow a degree of flexibility… even if it’s nor Mr Moore and it’s someone else… all of the interested parties are on notice.
Justice Flick: …administrator may be unavailable doesn’t particularly concern me… why isn’t there sufficient flexibility in terms of the interim scheme whereby the administrator has the liberty to approach the court, … where by example if the administrator was unavailable for the first week in October for example.
Lowenstein: The effect of that is really not much difference…
Justice Flick: Although I’ve got the greatest respect for Mr Moore… I’d much rather if there was to be variation of the terms… the court should at least remain in control… I don’t think there is any ambiguity about exercising all the powers and if we could amend or put a provision in for example for clauses including the appointment of a proxy for the purposes of attending meetings of the national council in Perth…
Julia Batty: Rank and file members need stability in this time and dates of meetings could be changed
Kathy Jackson: It’s quite evident… the interim administrator…
Justice Flick: You’ve made that submission, if you want to make a different point…
There was a discussion…
Kathy Jackson: Who does Mr Crawshaw appear for? … No access to email system or phone so I can’t get into my office to continue as national secretary of the union.
Justice Flick: Have you returned the car?
Kathy Jackson: Yes.
Justice Flick: Have you returned the computer?
Kathy Jackson: Yes.
Justice Flick: Ms Jackson I will accept what you say but if that consideration… Ms Jackson just wants to download some data from it… I thought she wanted to keep the phone.
Kathy Jackson: My phone number is the same number as the national office. I’m uncontactable at the moment.
Justice Flick: When …?
Kathy Jackson: Probably on Monday.
Barrister: It’s not quite an application.. my client, that’s a matter your Honour should take into account.
Barrister: Not only is it relevant in it may be a reason why there should be more than one administrator appointed.
Julia Batty: Rank and file members do need to know who is instructing Slater and Gordon.
Justice Flick: to remedy the problem… proceedings that first came before you obviously raised… see even if you were to be … both branch and union are dysfunctional. You’ve identified 3 reasons: No administrator, no scheme approved, no easy means to resolve it. I accept that is a point that can…
Kathy Jackson: I’m concerned because Mr Crawshaw’s still pushing the position … the administrator’s not contacted me or anyone else. I also understand the administrator has… to Mr Pasfield. The instructions haven’t changed and yet it’s very confusing about who’s instructing who and if the administrator was…
Justice Flick: …availability of Mr Phillips.
Michael Easton, Counsel for the NSW Minister spoke about the availability of Mr Phillips and whether he can shuffle dates in his diary.
Justice Flick: The court is adjourned til midday.
In the break I met some of the other people in the room. There was an IR lawyer from Workforce, for Thomson Reuters.
I met two women, “both political junkies, interested in stuff coming in every day.” One is a retired lawyer and unionist. “All the stuff that Wixxy’s uncovering every day, it’s just unravelling and unravelling and unravelling. Craig Thomson’s been lost and that’s a good thing. Count how many silks there are. She’s crying poor and she’s willing to seek an adjournment because she hasn’t had time in the past week to brief David Rofe QC, who’s now out of it. She’s willing to waste the costs of today because she was too busy at HR Nicholls. So now she’s representing herself again.”
“The way she spoke to Justice Flick last Friday in open court, was so disrespectful and bewildering given that she’s cohabiting with a judge and she should know better. She doesn’t know how to address a judge in court while she’s living with one.”
“The whole thing is very fishy, her role in it is very fishy. She’s so desperate to get her message across as the whistle blower.”
We discussed how Paul Murray on 2UE broadcasts that he’s on her side. She said “Don’t rush to judgment, look at the Azaria Chamberlain case.”
“Google David Rofe, he’s at least 80, his gown was at the dry cleaners, he is one of the lawyer’s lawyer, head of the pack like Brett Walker is today, but very conservative. Kathy Jackson’s a union woman. That’s why I’m here, this whole thing doesn’t make any sense at all.”
“I’m still open to hearing Thomson’s side of things because so far we haven’t.
“The impression I got of her last week is she thought she was going to rush in and knock over legal obstacles and have a judge disqualify himself, she has no concept of boundaries. No union member is supposed to address the HR Nicholls society, it’s a rule.”
“This woman’s the most manipulative person, she appears to love politics. She doesn’t know what she believes in. She claims to be cleaning up the union. I want to see her finances investigated.”
Counsel for Michael Lawler last week and today for Kathy Jackson was David Rofe QC with barrister Anthony Tudehope. Google David Rofe QC and Anthony Tudehope and there a history of connection. There is also a familial connection between Anthony Tudehope and his brother, solicitor Damien Tudehope https://twitter.com/#!/dtudehope
“A spokesman for the anti-gay Australian Family Association (AFA) has failed in a bid to become the Liberal candidate for Baulkham Hills at the NSW state election.
“Damien Tudehope, a father of nine and a member of the ultra-conservative Opus Dei sect of Catholicism, was backed by the hard right Uglies faction of the Liberals led by David Clarke MLC.”
“Damien Tudehope, 57 Lawyer.Home: West Pennant Hills. He and his wife Diane have nine children.
Outside interests and memberships: Australian Family Association,”
Damien Tudehope is chief of staff to NSW Attorney General Greg Smith.
The plot thickens.
The court was closed down for today, judgment reserved til next Thursday at 12.00.
Court hears HSU’s Kathy Jackson in poor health: by @PaulBibby4 http://m.smh.com.au/opinion/political-news/jackson-in-poor-health-judge-told-20120615-20ehm.html #HSU