PN1

THE VICE PRESIDENT: I'll take the appearances. Ms Knowles, you appear for APESMA in Melbourne?

PN2

MS KNOWLES: Yes, Vice President.

PN3

THE VICE PRESIDENT: Yes. Mr Seck, do you appear for - - -

PN4

MS KNOWLES: With Jackie Baulch from APESMA.

PN5

THE VICE PRESIDENT: Yes, all right. Mr Seck, you appear for the Pharmacy Guild with Ms Light?

PN6

MR SECK: Yes, your Honour.

PN7

THE VICE PRESIDENT: And Ms Thompson, you appear for ABI and the New South Wales Business Chamber in Newcastle?

PN8

MS THOMPSON: Yes, your Honour.

PN9

THE VICE PRESIDENT: All right, Ms Knowles, so the parties have filed some fairly extensive submissions in relation to this matter. I take it there's no prospect that any agreement is going to be reached about this?

PN10

MS KNOWLES: I think that's unlikely, Vice President.

PN11

THE VICE PRESIDENT: All right, well Ms Knowles what do you propose as to how we should take the matter from here?

PN12

MS KNOWLES: The parties have exchanged some proposed directions. I don't know if anyone in Sydney has a copy?

PN13

THE VICE PRESIDENT: Do you have those, Mr Seck?

PN14

MR SECK: I do, your Honour. Might I hand up a copy?

PN15

THE VICE PRESIDENT: Yes, all right. So who wants to speak to these?

PN16

MS KNOWLES: I'm happy to speak to them.

PN17

THE VICE PRESIDENT: Yes.

PN18

MS KNOWLES: And just in some discussion with my learned friend before, he proposed that we remove orders 5 to 7 and perhaps reconvene after the hearing of the evidence in respect of any timetabling for submissions, and we are content with that.

PN19

THE VICE PRESIDENT: So what is the purpose of the first direction?

PN20

MS KNOWLES: It mirrors the direction that APESMA was subject to in respect of filing a list of expert witnesses. These are really sort of extended over from the previous directions that were given in this matter in respect of the expert evidence and applying those also to the lay evidence for each party to exchange.

PN21

THE VICE PRESIDENT: Right, but at what stage is the expert evidence actually filed?

PN22

MS KNOWLES: APESMA filed its expert evidence already in line with the equivalent of the direction 1 that it was subject to.

PN23

MR SECK: Might I address on that, your Honour?

PN24

THE VICE PRESIDENT: Sorry, just hold on a second, Mr Seck.

PN25

MR SECK: May it please.

PN26

THE VICE PRESIDENT: So the reports are attached to the submission, is that right?

PN27

MS KNOWLES: Yes, Vice President, which I understand that the directions are modelled on - - -

PN28

THE VICE PRESIDENT: Ms Knowles, it might be easier if you just stay seated and make sure you're near that microphone so we can hear you clearly.

PN29

MS KNOWLES: Thank you.

PN30

THE VICE PRESIDENT: Anyway, Ms Knowles - I'll hear from you in a second, Mr Seck.

PN31

But direction 1 contemplates that as your client has done, there would actually be experts' reports provided with the documents referred to. Is that right?

PN32

MS KNOWLES: Yes, Vice President.

PN33

THE VICE PRESIDENT: Yes, because it doesn't actually say that.

PN34

All right, Mr Seck, what do you want to say?

PN35

MR SECK: Your Honour, as I understand it the expert evidence from APESMA has yet to be filed, and I might be corrected on this issue. What has been filed is an outline of the findings which are sought by APESMA based on proposed experts who will provide expert reports in these proceedings.

PN36

THE VICE PRESIDENT: Well, I'm just looking at this and in the form it has been printed out for me for example it states that there are reports annexed. I'm not sure I have them all but for example annexure F appears to be a report from Professor Aslani and Professor Krass and I think there are meant to be other reports annexed although I'm not sure they've actually been printed out. Do you not have those?

PN37

MR SECK: I do not have them and it may be that they exist but certainly we have not been served with those expert reports. So I might ask Ms Knowles to clarify whether or not in fact those reports have been filed and served. But what I have received is only an outline of submissions indicating the list of experts to be called and an outline of the findings which they submit ought to be made based on that proposed expert evidence.

PN38

THE VICE PRESIDENT: So do you have the annexures?

PN39

MR SECK: I don't think so, your Honour. I'm just checking now. Is your Honour referring to the submissions which were filed on 3 November 2016?

PN40

THE VICE PRESIDENT: No, 5 April 2017.

PN41

MR SECK: 5 April 2017. I haven't got - - -

PN42

MS KNOWLES: Vice President, my instructions is that they were filed and served. That they were attached to the documents filed with the Commission and my instructor says that copies of them were sent to the Guild.

PN43

THE VICE PRESIDENT: Anyway can you check that, Mr Seck?

PN44

MR SECK: Yes, I might just check that.

PN45

THE VICE PRESIDENT: That's the 5 April document, Ms Knowles?

PN46

MS KNOWLES: Yes, Vice President.

PN47

MR SECK: Your Honour, just from looking at the documents which have been filed and have been placed online it appears what has been attached to the submissions from my observations is the CVs of the experts and list of academic articles which they published as part of their CVs. But we haven't been able to identify any of the expert reports having been filed and served. That's not to say they haven't been done, but we certainly don't have a copy of them.

PN48

THE VICE PRESIDENT: All right, well let's deal with this one step at a time.

PN49

Ms Knowles, can you - Ms Thompson, do you have this material?

PN50

MS THOMPSON: Yes, forgive me for looking at my computer while the proceedings are on foot, but I can find annexure F. The CVs are at the front of the annexures which are attached to those submissions and then there's further material. There's 240 pages on the website.

PN51

THE VICE PRESIDENT: All right.

PN52

MS THOMPSON: Your Honour, I can get to annexure G so I presume it does go beyond annexure F.

PN53

THE VICE PRESIDENT: All right, it all appears to be there, Mr Seck, just having a check. So you'll obviously have to have regard to those matters.

PN54

MR SECK: I can see that, your Honour.

PN55

THE VICE PRESIDENT: Yes.

PN56

MR SECK: And your Honour's right, there is a report at the end. So I apologise if I have misled the Commission in terms of whether or not we may have received it. We will have regard to those matters in preparing our response under proposed order 1.

PN57

THE VICE PRESIDENT: Well, if I just go back to this. Being where we are now, why shouldn't we just take the normal course that a date be set for APESMA to file the balance of its case, that is the lay evidence and the outline of submissions, and then a further date upon which your client and any other employers file their case, expert, lay, submissions and otherwise?

PN58

MR SECK: I'm content with that approach, your Honour.

PN59

THE VICE PRESIDENT: Ms Knowles, why do we need to break up the timetable in this way?

PN60

MS KNOWLES: We thought it might assist to have the expert evidence finished before the parties put on their lay evidence.

PN61

THE VICE PRESIDENT: I'm inclined to take the more normal course. Ms Knowles, how long would it take your client to have the balance of its evidentiary case and an outline of submissions ready by?

PN62

MS KNOWLES: My instructions are mid-December, Vice President.

PN63

THE VICE PRESIDENT: SO 15 December?

PN64

MS KNOWLES: Yes, Vice President.

PN65

THE VICE PRESIDENT: And Mr Seck, so if you get the whole APESMA case by then, how long do you think you will need?

PN66

MR SECK: Just bearing in mind, your Honour, the time of year.

PN67

THE VICE PRESIDENT: Yes.

PN68

MR SECK: And the potential difficulties of getting hold of members of the Guild, I think what's currently envisaged is that we had two months. Might it be perhaps taken to the end of February?

PN69

THE VICE PRESIDENT: Yes.

PN70

MR SECK: Which gives us two and a half months.

PN71

THE VICE PRESIDENT: What is the last Friday in February? Do you have that, Mr Seck?

PN72

MR SECK: I will identify that, your Honour.

PN73

THE VICE PRESIDENT: Or how about 3 March?

PN74

MR SECK: I'm content with that, your Honour.

PN75

THE VICE PRESIDENT: And then do we want to put on reply evidence or is that sufficient - sorry, 2 March.

PN76

MR SECK: 2 March.

PN77

THE VICE PRESIDENT: So Ms Thompson, would you be content to be bound by the same timetable?

PN78

MS THOMPSON: Yes. Thank you, your Honour.

PN79

THE VICE PRESIDENT: All right, Ms Knowles, do you want an opportunity to put on evidence in reply or is that not necessary?

PN80

MS KNOWLES: Vice President, I think we'd probably like to put it into the timetable but it may be that in fact in respect of the expert evidence that just - we've had some preliminary discussions that we may be able between us to sort of narrow the issues in dispute in any event. But I think it's probably safest to provide for it, probably in particular in respect of the lay evidence.

PN81

THE VICE PRESIDENT: How long do you need for that; is three weeks sufficient?

PN82

MS KNOWLES: Yes, Vice President, that is.

PN83

THE VICE PRESIDENT: So that would be 23 March. And then what is the estimate of time for the hearing of the case?

PN84

MS KNOWLES: Vice President, we've had some discussions about that as well. My instructions are that APESMA will probably have between 10 to 15 lay witnesses and my learned friend indicates that they would have a similar if not more number of lay witnesses. At the moment we have four expert witnesses. My estimate is two to three weeks.

PN85

THE VICE PRESIDENT: Yes, well I always take those as overestimates.

PN86

What do you say, Mr Seck? Usually these things turn out to be fizzers when they actually happen.

PN87

MR SECK: Yes, we would say at least two weeks, your Honour. What we envisage is in terms of lay witnesses if there are individual pharmacists who give evidence, we're like to call evidence from each of their employers at the very least and there might be some additional lay witnesses. So we would say as many as - to the extent there are 12 to 15 lay witnesses called by APESMA, we'll have at least as many. We probably won't have as many experts, and I've indicated to my learned friend one thing which we might agreement on, your Honour, is either joint engagement of the experts or at least an agreement as to the evidence on certain aspects. Because your Honour would have appreciated having read quickly the material, one of the issues is academic qualifications and the content of courses and one would imagine that's an objective issue which can be agreed upon between the parties. So I'm hopeful that we can narrow the issues, factual issues in dispute between the parties, which will make it less than two weeks. But at the moment I would say at least two weeks.

PN88

THE VICE PRESIDENT: And what would be the location of the hearing? Obviously video links will be available for witnesses but it would be desirable if at least the major parties can be at the one place.

PN89

MR SECK: Your Honour, our preference - - -

PN90

THE VICE PRESIDENT: And if the parties want to discuss that further they can advise us down the track. But it would be desirable if the major parties at least were in the same place.

PN91

MR SECK: Your Honour, we can be flexible but obviously my preference would be Sydney.

PN92

THE VICE PRESIDENT: Yes, all right.

PN93

MS KNOWLES: Vice President, I think our preference would be Melbourne but also because I think a number of our expert witnesses are from - I'd have to take some further instructions about that.

PN94

THE VICE PRESIDENT: All right, perhaps we can go back to that issue when we know where the majority of witnesses are located.

PN95

MR SECK: Yes. May it please your Honour.

PN96

THE VICE PRESIDENT: All right, so I'll issue written directions based on the timetable indicated. I'll put the matter on for a further directions hearing once all the evidence is on, so that will be in the first two weeks of April, and then I'll attempt to identify two weeks in which the Bench is available for hearing and my chambers will liaise with counsel and Ms Thompson about availability for the purpose of those dates.

PN97

MR SECK: May it please your Honour.

PN98

THE VICE PRESIDENT: Is there anything further I can deal with now?

PN99

MR SECK: No, your Honour.

PN100

THE VICE PRESIDENT: All right, I thank the parties for their attendance and I now adjourn.

ADJOURNED TO A DATE TO BE FIXED�� [10.22 AM]