The Royal Commission is about to commence sitting - HSU hearing today
Thursday, 28 August 2014
Kathy Jackson has been called.
There has been some discussion between Counsel Assisting and Counsel for Ms Jackson about certain paragraphs of her statement - which have been excised. Ms Jackson's statement has been adopted and with the redactions received into evidence.
Ms Jackson was referred to a Deed of Release between her union and the Peter MacCallum Cancer Institute with particular reference to a schedule of legal and other expenses. Ms Jackson agreed that she had prepared the schedule or had caused it to be prepared.
Mr Stoljar took Ms Jackson to a barrister's invoice and compared it to the amount claimed by Ms Jackson in the schedule and noted the amounts matched.
He then referred Ms Jackson to a Slater and Gordon invoice of 29 October 2004 - in the amount of just over $1,000. Ms Jackson agreed that the figure in the schedule was inflated in that it showed a figure of about $65,000.
Ms Jackson agreed that the nominated future costs figure was also a guess selected to sum a total of about $250,000.
Mr Stoljar showed some financial statements from the NHDA account made from locations in the United States - Ms Jackson described her attendance at a Harvard University trade union course and stated that the expenses were associated with her attendance at that course.
She was shown some withdrawals which appear to be associated with a trip to Hong Kong - Ms Jackson could not recall what the expenses were for. Ms Jackson could not recall whether or not her family accompanied her.
Ms Jackson was shown a series of withdrawals which appear to be associated with a trip to the United States apparently in March 2006. Ms Jackson could not recall why she was in the United Staes. Ms Jackson cannot recall whether her family accompanied her.
Ms Jackson was asked about the payment of $50,000 to her former husband in March 2009.
Mr Stoljar showed Ms Jackson a series of withdrawals from the NHDA account which she agreed - in the main - were paid to her former husband Jeff Jackson.
Mr Stoljar took Ms Jackson to her Family Court settlement with her former husband Jeff Jackson which noted that Mr Jackson was to retain the sum of $102,000 already paid by Ms Jackson to him.
Mr Stoljar asked if that sum of $102,000 included money paid to Jackson from the NHDA. Ms Jackson said no.
Mr Stoljar summed a number of withdrawals from the NHDA account during the period from Ms Jackson's separation from her former husband until the final Family Court settlement which summed to about $107,000. Ms Jackson agreed with Mr Stoljar that a proportion of that money was paid to Mr Jackson - Ms Jackson says that the purpose of paying that money was for Mr Jackson to finance his political and legal costs related to his union role. Ms Jackson then commenced to read from her personal bank statements which she said will show the source of the funds from her personal resources to make payments to Mr Jackson.
Mr Stoljar said that those documents will need to be copied and provided to all parties during the morning tea break.
The Commission will return to this topic later in the day.
Mr Stoljar moved to the date of the merger of the HSU after 24 May 2010 and Ms Jackson's continued withdrawal of funds from the NHDA account.
Ms Jackson stated that a slush fund such as the NHDA simply stood outside the ordinary operations of the union and that she was able to continue to operate it according to the original "reason" for setting up the account.
Ms Jackson was asked if she made a final payment of $18,000 to her former husband Jeff Jackson from the funds of the NO 3 branch of the NHDA. She said she did not.
Ms Jackson was asked about the loss of her "exercise book" in which the financial transactions of the NHDA were recorded. She was asked where she recorded transactions after the exercise book was taken. Ms Jackson stated she did not keep any records from that time.
Ms Jackson was taken to paragraph 111 of her statement in which she said that she felt she was "ambushed" the last time she appeared at the Royal Commission. Ms Jackson said she felt that Mr Stoljar was challenging her credibility in relation to what she had said at the previous hearing of the Royal Commission in which she answered questions on the topic of the $50,000 by saying that she believed the money had gone to the No 1 Branch. Mr Stoljar stated that he would not pursue the line of questioning.
Mr Stoljar told the Commissioner that he would make arrangements for the documents Ms Jackson brought with her to be photocopied.
Mr Pritchard is on his feet with an application. The Commissioner just said, "Mr Pritchard, this is childish"
Mr Pritchard is reading an Affidavit from Kathy Jackson.
"Mr Mark Irving was an employed solicitor at the firm I dealt with in a number of disputes.
After about 8 months in or about late 1992 or early 1993 Mr Irving and I had a few too many drinks and I went back to his place and we commenced a sexual relationship.
Mr Mark Irving is the Counsel for the HSU and is due to cross-examine Ms Jackson.
Mr Irving is not visible in the hearing room.
Mr Pritchard continues to read to Affidavit which includes various letters to the solicitors instructing Mr Irving and letters in return to the solicitors for Ms Jackson.
The essense of the Application now before the Commisioner is that Mr Irving not be permitted to cross examine Ms Jackson on account of a previous sexual relationship they shared which apparently ended badly with some hard feelings.
Mr Pritchard is now referring to the taped conversation in which Mr Brown and Mr Williamson intercepted by NSW Police in which they discuss briefing Mr Irving to put together charges against Ms Williamson. Mr Pritchard states that it appears that Mr Irving was the author of disciplinary charges against MS Jackson.
Just when you thought it could not get any weirder.
Mr Pritchard has submitted that the "charges" filed against Ms Jackson by Mr Brown were in fact drafted on a computer - according to the file's metadata - owned by or allocated to Counsel for the HSU Mark Irving.
Ms Paynter appears for the HSU.
Mr Pritchard is now referring to the Royal Commission's Act and the means by which witnesses can be examined and cross-examined by Counsel with authority to appear.
The Commissioner to Mr Pritchard, "You would concede this is a very unusual application you are making?"
Mr Pritchard, "Of course."
Mr Pritchard submits that there is a real risk that a reasonably informed member of the public would conclude that Mr Irving may not be able to operate with the degree of cognisance of his duties necessary to discharge his obligations to the Commission.
The Commissioner said, "Judges must not be biased, Administrators must not be biased - but there is nothing wrong with Barristers being biased is there?"
Mr Pritchard has been instructed to approach Ms Jackson and seek instructions from his client as to when she became aware that Mr Irving was to cross examine her.
Mr Pritchard has completed his submissions.
Ms Paynter is making submissions on behalf of the HSU which seeks to have Mr Irving conduct the cross examination.
Ms Paynter says it was historical, it is long ago done, it has no relevant application to the circumstances in which Mr Irving and Ms Jackson find themselves in today, it has no interest beyond a prurient interest to observers and it can have no effect of Mr Irving's ability to do his job.
Ms Paynter says that a fair minded person would believe that 21 years after a short term affair any ill feeling should have dissipated.
Mr Stoljar is now making his submissions in response to the Commissioner's request for his view.
Mr Stoljar sets out a number of reasons as to why Mr Irving should be allowed to proceed with his cross examination.
He is now setting out the counter arguments - Ms Jackson is being compelled to answer serious allegations against her under oath. The question he apprehends is whether a witness grappling with serious allegations should be placed under additional distress as a function of the personal background/involvement of the person making the examination.
There has been evidence that Ms Jackson has suffered serious health issues - however that is not relied on by Mr Pritchard.
Mr Pritchard's submission reveals that the HSU has two counsel - and the alternate counsel should be able to carry out the examination. The Commissioner said that is a good point.
Mr Stoljar states it is fairly an exercise of the Commissioner's discretion. The choices are allow Mr Irving or allow his alternate or the instructing solicitor. Mr Stoljar says it's up to the Commissioner.
Mr Pritchard in reply said that Mr Stoljar summed up the arguments for and against very well. Mr Pritchard says that HSU will not be prejudiced if the junior counsel conducts the matter.
On 18 and 19 June Ms JACKSON gave evidence and continued that evidence on 30 July.
This morning Ms Jackson returned to the witness box so that Senior Counsel assisting could conclude his examination and so that any party deciding to cross examine Ms Jackson could do so.
There has been a debate this morning.
The question is whether MR M Irving should be precluded from cross examining Ms Jackson.
Mr Stoljar adopted a neutral position and put various considerations in both direction.
The Application wsa supported by an Affidavit affirmed by Ms Jackson this morning.
The grounds of the application are that Ms Jackson and Mr Irving in 1993/94 entered into a sexual relationship that was terminated by Ms Jackson. Ms Jackson claims that Mr Irving was resentful towards her as a result.
For two years Mr Irving has been acting for the HSU in litigation against Ms Jackson.
Ms Jackson knew that as well as Mr Irving acting for the HSU in this Commission.
Ms Jackson submits that she only recently became aware that she would be cross examined by Mr Irving.
It was probable that cross examination by Counsel for the HSU would be permitted so long as it was not repetitive of the examination by Counsel Assisting.
The Commission first became aware of the Jackson submission against Mr Irving this morning.
The evidence does not disclose any adequate explanation of this application. It has not been argued that Ms Jackson imparted any information to Mr Irving. It is not alleged that Mr Irving's examination would cause Ms Jackson any emotional or other distress.
In short Ms Jackson narrates that she became more concerned about the potential role of Mr Irving yesterday than she had been before because she heard the tape of a telephone conversatoin between Mr Williamson and Mr Brown. Mr Pritchard drew attention to the following passages spokeen by Mr Brown who said words to the effect that Brown needed a set of charges against Ms Jackson - to be formulated by Mr Irving. This was a conversation of March 2012 when Mr Williamson's reign was coming to an end.
Mr Pritchard submitted that this was evidence of Mr Irving being a "tool" of Mr Williamson and Mr Brown to destroy Ms Jackson. Mr Williamson and Brown also discussed the selection of an Ombudsman to hear charges against Ms Jackson.
Ms Jackson does not believe that Mr Irving would be objective in fact that he would be hostile against her. She states that the author of the charges against her within the HSU was Mr Irving because he was the person on whose computer the charges were created.
In his statement Mr Stoljar pointed out that the cross examination could take place today and that Mr Irving's junior could conduct the cross examination. There is no reason to doubt the capacity of the junior lawyer to take over the burden.
However in my opinion the Application should be rejected.
Mr Pritchard appealed to a judgement of Justice Brereton in which his Honour says that a Court has an inherent jurisdiction to control its court room - Mr Pritchard was quick to say that this Commission is not a court. The judgement spoke of the administration of justice and the apppearance of the administration of justice. Mr Pritchard spoke about the reasonable apprehension of bias.
The fact that a barrister had an affair with a professional colleague some time ago or that the barrister had a role in framing charges against that colleague ought not preclude that barrister appearing in proceedings against that former colleague.
The Commissioner finds that the chronology of the Application underminds the credibility of the Application. I see no impediment to Mr Irving conducting his cross examination.
Ms Paynter has been excused.
Mr Irving has commenced his cross examination of Ms Jackson.
Mr Irving is describing the merger of the HSU branches into HSU East and the relevant powers and authorities held by both Mr Williamson and Ms Jackson in the merged entity.
Ms Jackson agrees that Mr Irving's copies of the rules were correct.
Mr Irving has suggested to Ms Jackson that she had no authority to sign certain cheques drawn on the funds of the HSU after 24 May 2010. Ms Jackson disputes that interpretation of the rules.
Ms Jackson said that there was an agreement that in the early days of the amalgamation old banking and cheque accounts should continue to operate so that expenses and debts could be met as and when they fell due.
The air could be cut with a knife in the hearing room.
Counsel for Ms Jackson has objected to one of Mr Irving's questions about Craig Thomson on the grounds of relevance. Mr Irving agreed to move on.
The Commissioner just reminded Ms Jackson that while Mr Irving knows quite a lot about the affairs of the HSU, he the Commissioner does not and it would be useful for Ms Jackson to frame her answers towards informing the Commissioner rather than arguing with Mr Irving.
Mr Irving has drawn Ms Jackson's attention to the requirements of various legislative and rule related provisions concerning political donations and annual returns setting out the extent of political and other donations made from union funds.
Ms Jackson agrees that she knew and understood the rules.
Ms Jackson was shown a financial statement for the period ending 30 June 2003. It shows donations totalling $9,000 for the period. Mr Irving asked Ms Jackson if she filed a return under Section 237 of the Act. Mr Irving states that in the Affidavit of Mr Brown there is an assertion that no such returns were ever filed or any disclosures made.
Ms Jackson disagrees with Mr Irving. Ms Jackson states that she sought, recieved and relied on professional advice in relation to meeting the reporting requirements.
The time is now 1PM and the Commission has been in session for 3 hours without a break.
At 1.04PM the Commission adjourned until 2pm