PN1

JUSTICE ROSS: I note that we have on the line Mr Robson from the ASU, is that right?

PN2

MR R ROBSON: Yes, sir. May it please the Commission.

PN3

JUSTICE ROSS: Thank you. Mr Pegg, on behalf of NDS?

PN4

MR M PEGG: Yes, your Honour.

PN5

JUSTICE ROSS: Ms Liebhaber and Mr Farthing for the HSU?

PN6

MS R LIEBHABER: Yes, your Honour.

PN7

MR M FARTHING: Yes, your Honour.

PN8

JUSTICE ROSS: Mr Bull for the UWU?

PN9

MR S BULL: That's correct, your Honour.

PN10

JUSTICE ROSS: Mr Ward and Mr Cahill for ABI?

PN11

MR N WARD: Yes, your Honour.

PN12

JUSTICE ROSS: Ms Bhatt and Mr Ferguson for Ai Group?

PN13

MR B FERGUSON: Yes, your Honour.

PN14

JUSTICE ROSS: And Mr Warren for the AFEI?

PN15

MR WARREN: Yes, Commissioner. I'm with Mr Doyle(?).

PN16

JUSTICE ROSS: All right. So just to recap, we issued directions in relation to the application in respect of this matter. The applicants filed an outline of submissions on 28 April and a statement of Mr Moody. Reply submissions were filed by ABI and AFEI, I think on Friday evening, and by Ai Group on Saturday morning. There has been an indication that Mr Moody, whose witness statement is attached to the applicant's outline of submissions, is required for cross‑examination. ABI has sent through two documents that they wish to put to Mr Moody. Mr Ward, are you the only cross‑examiner? I say that because I don't see much utility in Mr Moody being subjected to a series of cross‑examination questions all in the same or similar terms.

PN17

MR WARD: I would agree with that as a matter of principle, your Honour. As to whether or not the only person seeking to cross‑examine Mr Moody, I particularly don't know the answer to that, I'm sorry.

PN18

JUSTICE ROSS: No, that's all right.

PN19

MR WARD: But I anticipated that I would do the bulk of it, yes.

PN20

JUSTICE ROSS: Well, no other party has notified a desire to cross‑examine. Does any other party wish to cross‑examine Mr Moody?

PN21

MR WARREN: I haven't been instructed to cross‑examine at this stage (indistinct).

PN22

JUSTICE ROSS: Well, this may be the only stage, Mr Warren, so I'm not sure - - -

PN23

MR WARREN: But we don't expect to, subject to what happens in cross‑examination.

PN24

JUSTICE ROSS: So you want to see how well Mr Ward goes before you decide to enter the field?

PN25

MR WARREN: Yes, with you taking the lead.

PN26

JUSTICE ROSS: Okay. And Mr Ward, you have provided two documents that you want to put to the witness. Just before we call the witness, we have had a discussion about the submissions filed and it seems to us that they raise a number of questions in our mind, and the course we are proposing is that we would adjourn on the completion of Mr Moody's evidence and we would later today publish a background paper which would seek to summarise the submissions put for and against the claim and ask a series of questions. Can I indicate that it seems to us that the submissions by the employers raise some questions about the structure and terms of the claim and the quantum sought. We are also seeking information about the likely take up rate, for want of a better description of the allowance. So that would involve asking each of your clients how many clients they have who currently fall within the scope of the allowance, that is, how many clients of the businesses you represent have either been diagnosed with COVID‑19 or have been required to self‑isolate due to potential contact with someone with COVID‑19, or for some other reason. The third issue that arises is it's evident from at least the submissions of ABI and Ai Group that the funding arrangements in respect of an allowance, if it were granted, is a matter of some significance and may impact on the position of those parties in the proceedings. So unless there's some information that's available this morning as to funding, and I'll go to you about that, Mr Pegg, shortly, or rather after Mr Moody's evidence - if there's no indication at the moment, we are going to want an indication before we conclude our consideration of the claim. In short, what we have in mind is publishing a background paper later today with a series of questions. I have highlighted some of those to you now. Parties would be required to file responses to the background paper by 12 noon this Thursday. I would ask that you do that in a Word document, and we would adjourn today's proceeding until Friday at 9.30, at which point we would hear final submissions and, well, any oral argument the parties to raise and any further evidence. Can I get an indication from each of you as to what your reaction is to the proposed course of action? Can I hear firstly from Mr Pegg and the union applicants? Mr Pegg?

PN27

MR PEGG: Your Honour, NDS is comfortable with that. I need to advise your Honour and the parties that to date we have no firm commitment regarding the funding for the claim (indistinct) and is under active consideration. This (indistinct) they're unable to support the application from the applicant of a clear commitment to funding for this measure, and we'd be hopeful that the course of action and the timetable that you propose will allow time for that to occur, but it does change the position that we're taking this morning.

PN28

JUSTICE ROSS: All right. Do any of the unions oppose the course proposed, Mr Robson, Ms Liebhaber or Mr Bull?

PN29

MR ROBSON: Yes, your Honour. No, we think the Commission's proposal is reasonable. I should note that we disagree with NDS about the facts of(?) funding, but I believe this is something that we can clarify in response to the Commission's questions.

PN30

JUSTICE ROSS: What part of it do you disagree with? Do you say the Commonwealth has agreed to provide funding?

PN31

MR ROBSON: Yes, sir. We believe that there was an announcement on Thursday of a funding for supported independent living, an allowance of roughly $1200 per incident(?), and we believe that this would cover the costs of the allowance in that situation, and then in the case of in‑home support, there has been a temporary 10 per cent loading to the funding, which would also cover the allowance for providing support to our clients with COVID‑19, but we're happy to deal with that matter in response to your question.

PN32

JUSTICE ROSS: All right. Well, I'd rather not have a factual dispute about what funding has and has not been provided. So who do I ask that question of? Which Minister do I need to get a response from in that regard?

PN33

MR ROBSON: I believe that the matter is being dealt with by the Attorney‑General's office, in consultation with the Minister for Human Services.

PN34

JUSTICE ROSS: Okay. Thank you. Anything from the HSU and UWU?

PN35

MR FARTHING: We broadly agree, your Honour. (Indistinct) I think with the three unions.

PN36

JUSTICE ROSS: All right. Mr Ward?

PN37

MR WARD: No objection, your Honour. The only point we'd perhaps need to make is that it's possible that the questions that the Bench might ask might lead to reopen the opportunity for (indistinct), but I just raise that at this stage and in further questions.

PN38

JUSTICE ROSS: For our part, we don't propose to place any limitation on any party in their response to the questions. It's a matter for them as to whether or not they wish to call evidence on a particular point.

PN39

MR WARD: Thank you, your Honour. Sorry, your Honour, can I just ask her to repeat the question - and I apologise for this now somewhat - I don't know who the other Members of the Bench are.

PN40

JUSTICE ROSS: I'm sorry. It's Clancy DP and Lee C.

PN41

MR WARD: Thank you very much.

PN42

JUSTICE ROSS: Mr Ferguson?

PN43

MR FERGUSON: There's no objection to that course of action, your Honour.

PN44

JUSTICE ROSS: Thank you. Mr Warren?

PN45

MR WARREN: Thank you, your Honour. We note Mr Ward's qualification on that, and we have some questions in mind. We note your Honour's response to it and we'll (indistinct) any direction given by the Commission.

PN46

JUSTICE ROSS: Thank you. We'll call Mr Moody now.

PN47

THE ASSOCIATE: Please state your full name and address?

PN48

MR MOODY: David John Moody, (address supplied).

<DAVID MOODY, AFFIRMED [9.51 AM]

EXAMINATION-IN-CHIEF BY JUSTICE ROSS [9.52 AM]

PN49

JUSTICE ROSS: It might be convenient if I lead Mr Moody for a moment through his statement. I don't propose to deal with the detail. Mr Moody, can you state your name and address for the record, please?‑‑‑David Moody. Work address: Level 6, 369 Royal Parade, Parkville in the State of Victoria.

PN50

And you've prepared a statement in relation to these proceedings dated 29 April that goes to some 17 paragraphs, is that correct?‑‑‑Yes.

PN51

Do you say that statement is true and correct?‑‑‑I do, yes.

PN52

Have you been provided with two documents for the purpose of your cross‑examination this morning, one by NSW Health headed, "Infection Prevention and Control Policy" - that's a document issued in June 2017, and the other is a document headed, "Infection Prevention and Control Practice Handbook", and it was last updated in January 2020, and it's a document of over 200 pages. Do you have both of those documents?‑‑‑I have both of them before me, yes.

PN53

Thank you. Mr Ward on behalf of ABI is now going to ask you some questions. Mr Ward?

PN54

MR WARD: Thank you, your Honour.

*** DAVID MOODY XN JUSTICE ROSS

*** DAVID MOODY XXN MR WARD

CROSS-EXAMINATION BY MR WARD [9.53 AM]

PN55

MR WARD: Mr Moody, how are you?‑‑‑Good, thank you.

PN56

This is a somewhat unusual logistical set up, so if at any stage you can't hear me, please just let me know, okay?‑‑‑I'll be sure to do so. Thank you.

PN57

Do you have a copy of your statement in front of you?‑‑‑I do, yes.

PN58

Can I ask you to go to paragraph 7, which commences, "NDS has more than 1000 members?"---Yes.

PN59

The 1000 members you observe, what's the distribution of those members in terms of states and territories in Australia?‑‑‑Any evidence I give on this point will be, if you like, a back‑of‑the‑envelope assessment. We have a significant number of members, and we have most of them at our members' base in NSW, I believe contingency for 400. We have more than 230 members, organisational members in Victoria, and we have - we do have members in every other state and territory, but I wouldn't be able to say how (indistinct) those two states in particular. In some states - in the NT I believe they have (indistinct) - I think it's an 80 organisational membership there, with a similar number in Western Australia, but that's as far as I could go in terms of the detail.

PN60

So approximately 40 per cent of your membership is NSW‑based?‑‑‑Approximately, yes. I think that's a fair statement.

PN61

In terms of the nature of the member itself, and if I use language which isn't quite right, please correct me - how many of those members operate group homes?‑‑‑I don't know.

PN62

You have no ability to assess how many operate group homes?‑‑‑I can certainly find out. I don't have that immediately available (indistinct) - - -

PN63

Do you know how many of those members provide home care?‑‑‑A significant proportion of them would provide home care, and a lesser number would provide support in group homes.

PN64

I take it that's a best check on your part?‑‑‑Yes.

*** DAVID MOODY XXN MR WARD

PN65

Could you just describe for me the types of activities your members might undertake in group homes?‑‑‑A range of activities, including supporting people with disabilities. I should begin by saying, as the CEO of the peak body, I don't claim to be an expert in the provision of disability services, and in regards to the documents that you're taking me to, I've not seen them before, and I'm not aware of the extent (indistinct) - - -

PN66

Well we haven't got to that yet, Mr Moody?‑‑‑Okay.

PN67

(Indistinct)?‑‑‑I go back to my earlier - at the beginning my earlier response, and that is that I don't claim to be an expert in the provision of disability services, care and support. Disability care and support, that may be done by group homes or indeed home care. We have members who are experts and whose workforce may be regarded as very qualified to provide those supports in those environments, but I don't purport to be an expert.

PN68

Thank you for making that concession, Mr Moody. You say in your statement that your members deal with all types of disability?‑‑‑Yes, I do say - - -

PN69

You say that, but by "all types", what do you mean? ---Well, I think it's a true statement to say that the word "disability" is not (indistinct). I mean, there are - there's physical, intellectual and mental disabilities, and within each of those categories, and there would be others, there are a huge range of different disabilities that people with disabilities may in fact have. In fact, as you know, most people with a disability have more than one disability. So when I talk about the full range of disabilities, I'm talking about the great swathe of disabilities that people with disabilities in this country may in fact have.

PN70

You just used two terms there - you used the word, "intellectual", and then you used the word, "mental." What's that (indistinct) - - -?‑‑‑(Indistinct reply)

PN71

I'm sorry, Mr Ward, for interrupting?‑‑‑In terms of intellectual disability, that might be in the nature of cognitive disability. That's distinct from a mental illness, for example, (indistinct), or other mental illnesses, in and of itself, and intellectual disability, that is a mental illness.

PN72

Am I right in saying, Mr Moody, that your members consider their clients in various categories, such as one needs at the high level?‑‑‑Yes, well, in fact whether or not they do, certainly the way that Disability Services has historically been funded doesn't take away from the fact at different times taken into account whether one client with high needs or low needs, that's true. But certainly providing disability support, disability service providers are always cognisant of whether or not a client or person with a disability within - to use your words, Mr Ward - a high needs category or a low needs category.

*** DAVID MOODY XXN MR WARD

PN73

Then just for the benefit of the Commission, when does the industry use the distinction, low needs and high needs - can you describe that for them?‑‑‑I'm not sure that I can, because really it depends upon the needs of the individual.

PN74

Okay?‑‑‑Each individual is to be assessed on that basis.

PN75

So subject to the individual (indistinct) is it?‑‑‑Certainly in terms of (indistinct) to use your phrase or to use your words, when we're talking about high or low needs (indistinct) in regard to the particular person that is (indistinct).

PN76

Do you have knowledge of what workers do in their day to day job who might otherwise be covered by your claim?‑‑‑I'm sorry, I didn't hear that last part.

PN77

Who might otherwise be covered by your claim?‑‑‑Yes, I do.

PN78

Okay. Could you explain to use the range of work those persons might perform with a client?‑‑‑(Indistinct) may in fact (indistinct) a person to participate in their community.

PN79

What does that mean?‑‑‑By way of (indistinct) to go for a short walk or go out into the community. I'm not saying anything in the context of the pandemic (indistinct) a person who could otherwise (indistinct) were they to be isolated in a home or for the duration of the emergency, to support that person to take (indistinct) take a walk out in the community; to support that person whilst in the home (indistinct) occupy themselves, build their skills and build their understanding of - or to improve on the outcomes they've already achieved - individual. To support them, for example, to learn how to cook a meal; to support them in learning how to toilet themselves; to support them in terms of - to support them in undertaking a range of activities of daily living, to use a phrase. Yes, I mean, potentially to support the individual, wherever they may be, to work their way towards leading an ordinary life.

PN80

But would that extend to do groceries for a client - grocery shopping?‑‑‑It may (indistinct).

*** DAVID MOODY XXN MR WARD

PN81

And in terms of the health needs of the client, could you give a description of the types of support your members' employees provide to clients in terms of their health needs. Do they give them medication?‑‑‑It depends upon whether or not they're actually entitled to, depending on their level of qualification. But I know that some of our members would in fact - or rather, the workers of some of our members would be entitled to provide medication to (indistinct) some rather than all.

PN82

And that's subject to their individual qualification, is it?‑‑‑I believe so, yes. As I say (indistinct) I don't come to this hearing purporting to be an expert in the disability services. My expertise is in understanding and representing the feedback and interests of disability service organisations. I rely upon our members to (indistinct) us in regards to particular issues pertaining to the provision of disability services and supports.

PN83

So on that basis you wouldn't know, for instance, when a nurse would be required to care for a person with a disability (indistinct)?‑‑‑(Indistinct) yes.

PN84

Can you explain for me how the quality standards, in terms of providing care to clients for your members is regulated?‑‑‑It's a very good question. The National Disability Insurance Scheme (indistinct) Commission ‑ ‑ ‑

PN85

JUSTICE ROSS: (Indistinct) could I get you to slow down. It's very hard to hear you at the moment.

PN86

MR WARD: I do apologise.

PN87

JUSTICE ROSS: It's all right.

PN88

WITNESS: Under the National Disability Insurance Scheme registered disability service providers will take (indistinct) unregistered disability service providers are regulated by the National Disability Insurance Scheme quality and safeguarding Commission. The quality and the safeguarding Commission provides guidance, regulation, practice standards. The practice standards in particular are relied upon to regulate and define the quality of support and care which should be undertaken by registered disability service providers.

PN89

MR WARD: And so - I withdraw that. Would you say for the most part that your members met those quality standards?‑‑‑I believe that's the case. I'm not appraised of what the (indistinct) say about that, but certainly I think it's a true statement to say that (indistinct) face the prospect of being the subject of intervention by the Quality Safeguard Commission.

*** DAVID MOODY XXN MR WARD

PN90

And you might not be able to answer this, Mr Moody. If you can't, tell me. When your member, for instance, has done a quality and procedure for the use of personal protective equipment, is that governed by the Quality Commission for the NDIA?‑‑‑In that report I would have to take that on - unfortunately I would have to take that ‑ ‑ ‑

PN91

You don't know (indistinct)?‑‑‑No, I do not know the answer.

PN92

So I take it, then, you wouldn't be able to tell me whether or not your members largely followed - let's use that as an example of ‑ ‑ ‑ ?‑‑‑Okay.

PN93

‑ ‑ ‑ protective equipment policy or procedure, you wouldn't know whether or not your members largely follow state and government public health policies and procedures, then? You wouldn't know?‑‑‑I would rely upon the (indistinct) and any regulatory activity being undertaken by national state and territory authority in that regard.

PN94

I will come back to the (indistinct) let's say personal protective equipment for a moment, quite a contained issue. How many personal protective equipment policies operate on your members that you've personally read?‑‑‑I'm not aware of having read any in particular.

PN95

What about ‑ ‑ ‑ ?‑‑‑(Indistinct) provision of disability services.

PN96

I'm not holding out (indistinct) Mr Moody. How many personal protective equipment procedures used by your members have you read?‑‑‑I can't recall how many.

PN97

So you wouldn't be able to tell me whether or not members used state and territory government public health directions in formulating those procedures?‑‑‑No. I would have to rely upon the advice of our members in that regard.

PN98

I think it's a document (indistinct) I won't take too long (indistinct) you've already told us you've never seen them before, and you've just told us you've never read any personal protective equipment policies or procedures. So I just better ask you a couple of questions, but I won't (indistinct) this point (indistinct) people have issue with me very quickly if I do. Can I please go to the policy directive section prevention and control, please, sir?‑‑‑Yes, I've got it in front of me now.

PN99

You're saying that's a document you've never seen before?‑‑‑Correct.

*** DAVID MOODY XXN MR WARD

PN100

Could I just (indistinct) this document (indistinct) Mr Moody, I'm not suggesting that this is part of the NDIS Quality Commission documentation, this is a public health document from New South Wales setting out public health quality standards for dealing with infection, but I will just (indistinct) if I could ask you to go to page - I will pick an easy one. If you could go to page 9, and go to the bottom. You see there 6.3.15?‑‑‑Yes.

PN101

I will just read it if I can:

PN102

Gloves must be used for situations where the HW Act health worker is potentially exposed to body substances.

PN103

So you (indistinct) told me you've never read any personal protective equipment policies and procedures, so you wouldn't actually know what it is your members' policies or procedures are on wearing gloves, would you?‑‑‑Not specifically, no.

PN104

I won't go on with that document if you haven't seen it before. Have you seen the other document at all ‑ ‑ ‑ ?‑‑‑No.

PN105

‑ ‑ ‑ I sent you?‑‑‑No ‑ ‑ ‑

PN106

‑ ‑ ‑ infection control - infection and - sorry, bear with me, I'm trying to just call it up on the computer, "Infection protection and controlled practice handbook." You've not seen that?‑‑‑No. I must say to you I was involved in a - just for the record, make sure (indistinct) absolutely truthful and honest, I was involved in a webinar (indistinct) last week at which the New South Wales Department of Health may have referred to this document, but if they did, it was in the context of a PowerPoint presentation, rather than providing (indistinct) or indeed myself with a copy of the handbook (indistinct) handbook.

PN107

The handbook is the operational artefact of the other document, the policy direction but if you're not familiar with the material, that's fine. I won't take you any further on that. Let me keep going. You've been to great lengths to assure me you're not an expert on certain things. I do appreciate that. Can I take you back to your statement at paragraph 5?‑‑‑Yes.

PN108

Do you have that in front of you?‑‑‑I do indeed, yes.

PN109

You say in paragraph 5:

PN110

In my role as CEO of NDS I provide information, representation and policy advice to governments on disability and related issues.

*** DAVID MOODY XXN MR WARD

PN111

Would I be right in saying that your role is largely one of lobbying and policy?‑‑‑(Indistinct) but I mean, our principal reason for being is to advocate on behalf of disability service providers and the sector.

PN112

So do you spend the majority of your time engaged in policy formation and policy advocacy?‑‑‑It's a very mixed role at the moment, Mr Ward (indistinct) policy (indistinct) policy development, policy oversight, policy - and the settling of policy or policies for the organisation (indistinct) all those policies in the key elements of the role.

PN113

And I would presume it's the (indistinct) simply running the business?‑‑‑You would be correct in that assumption.

PN114

Yes?‑‑‑(Indistinct reply)

PN115

(Indistinct) I would be right, wouldn't I, that you don't give - and I will qualify what I mean by this if I need to - you don't give day to day operational advice to members?‑‑‑I wouldn't presume to, never.

PN116

No. Does anybody do that in your organisation?‑‑‑We have some members of the team who run a range of projects, whether it be a quality safeguard theme; a zero tolerance theme, zero tolerance to disability (indistinct) exploitation; we have members of the team who provide - we actually have a NDIS help desk which provides (indistinct) regarding (indistinct) that they may have by way of a question around the National Disability Insurance Scheme to do with employment issues. So we have (indistinct) employees at the organisation who are asked to provide advice to members about operational issues. We also obviously from time to time are fortunate enough to obtain government or other funding which allows us to actually undertake project work with third party vendors to actually develop products which are capable of supporting our members on operational issues as well.

PN117

So I would be right in saying that you have never given a member advice on personal protective equipment policies and procedures?‑‑‑Only in regards to - in fact, I've given many members (indistinct) only in regards to the availability or non-availability, as the case may be, of personal protective equipment in the context of the pandemic and in the context of the shortage of PPE, which I'm sure we're all aware of, that certainly until now (indistinct).

*** DAVID MOODY XXN MR WARD

PN118

So when you say, "I've given all members advice", I take that you've sent them out some form of email you wrote?‑‑‑(Indistinct) update (indistinct) regularly regarding the mechanisms they need to rely upon, or to access PPE.

PN119

When you say "we provide", that is via email, is it?‑‑‑Usually. Usually, or (indistinct) material, or (indistinct) for them (indistinct) so yes (indistinct)

PN120

And I will come back to that in a minute. In terms of PPE, I think you said that that information which you gave is about the sorting and purchasing and availability of PPE. Is that correct?‑‑‑Correct.

PN121

I take it you've not given any members specific advice about how to structure or undertake client (indistinct)?‑‑‑I have not, no.

PN122

And you've not given members any specific advice on the development or operational of clinical standards?‑‑‑No, I haven't.

PN123

And you've given no advice to members specifically on infection controls?‑‑‑No, I haven't.

PN124

And no advice to members specifically on waste management procedures?‑‑‑No.

PN125

Can I take you to paragraph 6. How do your members normally contact your association for advice?‑‑‑Often they will phone. We have state and territory offices in every state and territory, and they will phone the state or territory office, and then (indistinct) and they will ask advice that way (indistinct) they will send an email to NDS, whether it be to our (indistinct) or indeed more commonly (indistinct) to their local state or territory manager (indistinct) they (indistinct) a forum or workshop, an advisory group, or committee or other (indistinct). They may, for example, attend a virtual conference (indistinct) they may - for a CEO they may attend our CEO (indistinct) which is very well attended. So like many people (indistinct) variety of mechanisms to our members to engage with us and get the information they need.

PN126

(Indistinct) you say in paragraph (c):

PN127

I make this statement on the basis of my knowledge and inquiry (indistinct)

*** DAVID MOODY XXN MR WARD

PN128

I think you've already said that you've never read a personal protective equipment policy or procedure of any member. You've said you've never given a member any specific advice on those measures. Am I right also you've never read a policy and/or procedure dealing with infection control used by a member?‑‑‑If I have, I can't recall.

PN129

Is that a no?‑‑‑I can't recall ever having read one. I think that's what I meant.

PN130

Accepting you've never read a policy and/or procedure dealing with waste management either. That ‑ ‑ ‑ ?‑‑‑(Indistinct) I haven't, no.

PN131

No. I think you've already conceded that you haven't given any advice on those matters to members. When you use the word "inquiry" in paragraph (c), what inquiries are you talking about?‑‑‑A range of - I refer to it earlier in my evidence. I gave (indistinct) and asked them for their feedback regarding their experience, in this case on the pandemic and their capacity to actually continue to run services during the pandemic ‑ ‑ ‑

PN132

You would randomly ring people, or ‑ ‑ ‑ ?‑‑‑No, no (indistinct) range of different call forums and processes (indistinct) in order to obtain that information from our members. Some of it more formal than others, but it's fair to say that I'm in no doubt that our processes are capable of providing us with the information we need to support our members and advocate on their behalf.

PN133

You've not personally received any information about PPE policies and procedures, infection control procedures, clinical standards?‑‑‑I haven't received any information about those (indistinct) I am able to say, however, that I personally received - and for what it's worth (indistinct) obviously ‑ ‑ ‑

PN134

But (indistinct)?‑‑‑Yes, I appreciate that, Mr Ward. I received numerous representations from members regarding the trouble that they face in getting access to personal protective equipment.

PN135

Thank you for that. Can you tell me which members they are?‑‑‑Not off the top of my head, I'm afraid not.

PN136

Is that because you don't remember who they are?‑‑‑It's because there have been (indistinct) to be able to remember, that's correct. I mean (indistinct).

PN137

You've forgotten?‑‑‑Yes. I don't - I can't recall ‑ ‑ ‑

PN138

I accept you might have forgotten?‑‑‑Yes.

*** DAVID MOODY XXN MR WARD

PN139

I take it you're personally familiar with the application?‑‑‑I am.

PN140

Yes. And are you personally familiar with the amended application filed on the Friday?‑‑‑I am. I'm just calling it up again now, Mr Ward.

PN141

Was the idea for this allowance NDS' idea?‑‑‑It was the subject of collaborative discussions together with relevant NDIS members.

PN142

How did those discussions commence?

PN143

MR WARREN: I object to this question. The legal practitioner was involved in those discussions. There's common law privilege in relation to (indistinct) collaborative discussions.

PN144

JUSTICE ROSS: Even if there isn't, Mr Ward, I'm not sure we're going to be assisted by the background to the matter, and NDS' position ‑ ‑ ‑

PN145

MR WARD: Your Honour, I'm leading up to how the NDS calculated the allowance. I was just (indistinct) the Commission concerns that I've attempted to start warming up too far away. I will get closer to the issue.

PN146

JUSTICE ROSS: I'm not sure you even need to get to the issue. How they calculated the allowance can be a matter for submissions, and it will be one of the questions that we propose to put to the applicants as well.

PN147

MR WARD: That's true, your Honour, but I don't get a chance to test it then.

PN148

JUSTICE ROSS: You can ask him, but ‑ ‑ ‑

PN149

MR WARD: I think the (indistinct) question, your Honour, if I can ‑ ‑ ‑

PN150

JUSTICE ROSS: All right. Okay.

PN151

MR WARD: ‑ ‑ ‑ if I'm allowed to (indistinct) that question.

PN152

JUSTICE ROSS: All right. Ask the question.

*** DAVID MOODY XXN MR WARD

PN153

MR WARD: Thank you, your Honour.

PN154

Mr Moody, are you there?‑‑‑I am.

PN155

How did NDS decide that the quantum of allowance was the right allowance?‑‑‑(Indistinct) hourly allowance of 0.5 per cent of the standard rate?

PN156

Yes?‑‑‑After advice from what would be a reasonable industry standard; from others involved in conversations, including of course our own counsel.

PN157

You've just used the term "reasonable industry standard". What do you mean by using that term?‑‑‑In terms of what - in terms of (indistinct) circumstances. As I say, I can provide (indistinct) that regard.

PN158

(Indistinct) and we've heard from your counsel this morning that your position is that you only consent to this if it's funded. Is that correct?‑‑‑That is correct.

PN159

So as long as it's funded, are you particularly worried how much the allowance is?‑‑‑I'm concerned to make sure that (indistinct) in all the circumstances, and I'm concerned to ensure that the (indistinct) provided by governments. We certainly are not - we say no more allowance than that.

PN160

(Indistinct) are you familiar with the terms of the actual claim itself, the draft determination?‑‑‑Yes. I have it in front of me now.

PN161

I'm trying to understand your understanding of it in some small part, if I can. And again, I appreciate you've already explained to us today what you're not an expert on, so if you can't answer this question, please just say so. But you've chosen to adopt a phrase in F.3(b). Do you see F.3(b)?‑‑‑Is that commencing, "Where an employer requires an employee to work with a client who"?

PN162

Yes. Can I just ask your understanding of what "work with a client" means?‑‑‑Work with - to support.

PN163

To support?‑‑‑(Indistinct) to work with a client, to support a client, to provide services and/or support to the disability support worker would be affected ordinarily (indistinct) course of their employment.

*** DAVID MOODY XXN MR WARD

PN164

Mr Moody, you might not be able to answer this, but we will see. Have you been keeping abreast of government announcements in terms of social distancing?‑‑‑Yes, I have.

PN165

(Indistinct)?‑‑‑(Indistinct) all Australian governments' sometimes variable approaches to social distancing, so yes.

PN166

In paragraph 14 you use the phrase "difficulty (indistinct)"?‑‑‑Yes. You've taken me back to ‑ ‑ ‑

PN167

(Indistinct)?‑‑‑You've taken me to the outline of submissions now, are you?

PN168

No, paragraph 14 of your statement ‑ ‑ ‑ ?‑‑‑Statement now? Going back to the statement? Okay (indistinct) paragraph 14?

PN169

(Indistinct) do you see that phrase "the principal difficulty". Is that right (indistinct) social distancing, or are you referring to some extra difficulty (indistinct)?‑‑‑Physical distancing, as in like ensuring that - ensuring (indistinct) you're not being (indistinct) 1.5 metres or thereabout of the other person.

PN170

Okay. So that explains what I was trying to (indistinct) that's your language you've used for what we might describe as the 1.5 metre rule?‑‑‑Yes.

PN171

You're not able to tell us, are you, when employees of your members, when they're actually supporting clients, you're not able to tell us in what circumstances they may or may not be closer or further away than 1.5 metres, are you?‑‑‑The variation?

PN172

Yes?‑‑‑The scenario (indistinct) so no.

PN173

Can I ask you to - you've been in the job for a few years, haven't you?‑‑‑No, I haven't, actually. I commenced as acting CEO in February of last year, and I've been permanent CEO confirmed as of mid-November of last year.

PN174

So you've been in the job since February 2019?‑‑‑In this job ‑ ‑ ‑

PN175

In an acting capacity?‑‑‑ ‑ ‑ ‑ clarify it (indistinct) Victorian state manager at (indistinct) disability services commencing in July 2015.

*** DAVID MOODY XXN MR WARD

PN176

Okay. So you've been around before Covid-19 was part of our world?‑‑‑Yes.

PN177

Could I ask you to turn your mind back to before the Covert-19 part of the world, just for completeness we'll call that (indistinct) 19, certainly what they've (indistinct)?‑‑‑I'm sorry, I didn't catch that last bit.

PN178

Of 2019, (indistinct)?‑‑‑Yes, 2019, yes.

PN179

Yes, if you sort of think - get your mind back to 2019, that'd be good. Now, in that context could I ask you to go to your statement and if I could ask you to go to paragraph (indistinct). You used the words there, "The changing included", and then you talk about certain changes. I take it when you're talking about changing, you're talking about changing from hearing(?) what was in place before Covid-19, and then during Covid-19, is that correct?‑‑‑Yes.

PN180

So let's (indistinct) wind back the - to before Covid-19. Now I'm pretty certain you've already told me you've never (indistinct) suitable protective equipment (indistinct), she's(?) never read (indistinct) assessment, she's never read the clinical standards of (indistinct). So if you can't answer any of these questions, please say you can't. Would you agree with me that your members, before Covid-19, would have had (indistinct) protective equipment, policies and procedures in place?‑‑‑(No audible reply)

PN181

If you don't know, then just tell me. I (indistinct)?‑‑‑No, I couldn't comment. I don't know.

PN182

You don't know?‑‑‑Many of them would but I believe they (indistinct). I wouldn't like to misrepresent the situation by saying that all of them have, without knowing that for certain.

PN183

Do you know any (indistinct) method, before Covid-19, had on the personal protective policies and procedures (indistinct)?‑‑‑Yes.

PN184

Yes?‑‑‑Yes.

PN185

Which members?‑‑‑I don't know. I don't recall. I've been answering that question but I - I referred to conversations with members I've had in the past, so as I say, I've been working (indistinct) here, so - it's not the first time we've (indistinct) our discussions.

*** DAVID MOODY XXN MR WARD

PN186

Okay, so these would be, at best, would be informal parting comments, would they?‑‑‑Yes, I think that's a fair comment. There would be others there on (indistinct) and they'd have more formal operational (indistinct) conversations but I'm not one of them.

PN187

No, that's fine. That's fine?‑‑‑Okay.

PN188

And again, pre Covid-19, would you be aware of any members who had policies and procedures in place (indistinct) clinical standards?‑‑‑I'm sorry, I didn't catch that last part?

PN189

Clinical standards?‑‑‑Can you repeat the question please?

PN190

Before - and so we're thinking now, before Covid-19 starts, so we're thinking sort of, effective 2019 and earlier - - -?‑‑‑Yes.

PN191

Are you aware of any members of any (indistinct) who had in place at that time, policies and procedures dealing with clinical standards?‑‑‑I couldn't identify them by name but I know they're - that we do have members who will have those in place and I know that because I - I know of members who have - who have (indistinct).

PN192

Okay?‑‑‑And (indistinct) I am unable to - I am unable to recall which members specifically.

PN193

And again, did you pick that information up in passing conversation?‑‑‑Sometimes it would be in - invariably it would be, you know, in conversations, sometimes with the (indistinct) organisation or (indistinct).

PN194

Yes, okay. Thank you for that. Thank you. And again, if you think pre Covid-19, are you aware of any members who have policies and/or procedures dealing with infection control?‑‑‑I am confident that our members are - that the - that we (indistinct) who have policies in regard to infection control. As to which ones they are, I cannot recall.

PN195

Okay. And did you form that understanding based on knowledge, or do you form that understanding in the sense that it's an educated guess?‑‑‑I formed that knowledge on the basis of an understanding based upon the conversations I have had with members over the last five years.

*** DAVID MOODY XXN MR WARD

PN196

Right. But those conversations haven't involved you talking about the (indistinct) part of the infection control policies and procedures, have they?‑‑‑They have not.

PN197

No, okay. So is it quite possible that what I now want to take you to, you can't answer, but we'll see how we go. I don't want to be unfair to you, Mr Moody. And again, think pre Covid-19, if you can. Think pre Covid-19. You wouldn't have any knowledge in relation to standards for members we've got in relation to infection control?‑‑‑I can only say that prior to Covid-19 that standards that they would adopt in regards to infection control and other (indistinct) would be a function in most parts of Australia prior to - would be function of their state or territory, the state or territory rules and regulations and/or the quality and safety conditions (indistinct).

PN198

By state or territory rules, do you mean that they would take their guidance predominantly from state and territory health departments?‑‑‑I would - I wouldn't be able to say, Mr Ward. It would depend upon the state or territory, as I said. But (indistinct) from where - where the disability service group - the disability service provider takes their guidance.

PN199

Sure. Let's try and (indistinct), Mr Moody, please, and I don't want to be unfair to you, so please, this is no trick question. I just want you to - if you don't have the knowledge, would you please say?‑‑‑Okay.

PN200

Do you have any knowledge of how infections occur?

PN201

MR PEGG: I object here.

PN202

JUSTICE ROSS: On what basis?

PN203

MR PEGG: Well, this witness has got no expertise in infections or in (indistinct). It seems a pointless question to ask this witness.

PN204

JUSTICE ROSS: Mr Ward?

*** DAVID MOODY XXN MR WARD

PN205

MR WARD: Well, I told the witness now, think on four occasions that if he can't answer the question, he should say so. I tried to warn him in that regard as carefully as I can. But the witness has attested in his statement to what he describes as changes and material changes between what was, and what is now. I am very much entitled to understand how the witness understands what was, and what is now.

PN206

JUSTICE ROSS: No, no, I agree with that but that's not your question. Your question was, does he understand at a broad level how infections occur. I mean - well, have him (indistinct).

PN207

MR WARD: I'm sorry, I didn't hear you. Sorry, your Honour.

PN208

JUSTICE ROSS: No, no, that's fine. Put the specific question.

PN209

MR WARD: Thank you.

PN210

JUSTICE ROSS: You're entitled to ask questions directed to the witness' evidence about heightened infection control procedures which necessarily involve the consideration of the pre and post Covid-19.

PN211

MR PEGG: (Indistinct). Thank you. Thank you. Mr Moody, are you aware that infection could occur through incorrect cleaning and skills management?‑‑‑And skills management? Yes, I am aware of that.

PN212

Or (indistinct)?‑‑‑(Indistinct) I'm aware of (indistinct).

PN213

Are you aware (indistinct)?‑‑‑That's already been alluded to. I don't recall (indistinct) an infection - an expert, rather, (indistinct) these critical questions.

PN214

MR WARD: Mr Moody, I think we've all accepted that. We have. And as I say, if at some point in this line of questioning it moves beyond your knowledge, please say so, straight away. Do you understand that infections can occur through airborne droplets?‑‑‑Through airborne droplets? Yes, that is my understanding.

PN215

Such as coughing and sneezing?‑‑‑Potentially, yes.

PN216

Yes, uncorrect(sic) handling (indistinct)?‑‑‑Yes.

PN217

Exposure to (indistinct)?‑‑‑Yes.

PN218

Exposure to faecal matter?‑‑‑Yes.

*** DAVID MOODY XXN MR WARD

PN219

Yes. Contact with blood or body fluids?‑‑‑Yes.

PN220

Yes. Would you expect your members to know that?‑‑‑I would expect members (indistinct) people (indistinct) during my - our members are all individuals but invariably organisations. So I would expect that organisations providing disability services to people would surely - would have a knowledge of - and set in place processes to ensure (indistinct) infections.

PN221

At that (indistinct)?‑‑‑Yes. Yes.

PN222

Okay?‑‑‑Yes.

PN223

I'll try and put that into some context. And again if I'm asking you to answer something that you can't answer, please say so. I'm just going to identify (indistinct) infections so it'll put a bit of context to what I'm about to ask you?‑‑‑Sure.

PN224

I take it that your members would know, subject to a proper diagnosis, of course, would have an understanding of dealing with clients that had Hepatitis B?‑‑‑Who had what, sorry?

PN225

Hepatitis B?‑‑‑Hepatitis B?

PN226

Yes?‑‑‑See, I'm finding it difficult responding to it all because I don't - I don't (indistinct) anything, or nor could I ever attest to the level of knowledge of all of our members about these issues. As I say, (indistinct) members nationally and it's very difficult for me to provide (indistinct).

PN227

No, that's fine. Just moving on, I won't - I won't take you to (indistinct)?‑‑‑Okay.

PN228

Again, pre Covid-19, is it your evidence that your members would have had (indistinct) the procedures even though you said you've never read them - - -?‑‑‑Mm-hm.

PN229

Procedures for containing infection?‑‑‑I imagine many of them would have but I couldn't attest to all of them having those in place because I think we haven't had the (indistinct), myself.

*** DAVID MOODY XXN MR WARD

PN230

Okay. No, I appreciate you've never read any of these procedures but - again, I appreciate that. Do you have any evidence that pre Covid-19 your members might have had procedures on hand hygiene?‑‑‑I'm confident that we would have members who had that procedure in place. I couldn't (indistinct) for them having them in place.

PN231

All right. And this would be hygiene in relation to when hands are washed and how they're to be washed?‑‑‑I don't know.

PN232

You don't know. Okay. So you wouldn't know, for instance, when a health worker, and I'm using that term in the sense of a worker employed by your clients - sorry, your members (indistinct) to the client, if I can use it that way - you wouldn't know when the health worker was - before Covid-19, meant to wash their hands? You wouldn't know that?‑‑‑I wouldn't be able to recite it, no. No.

PN233

You wouldn't know when they were meant to use an alcohol based hand wash as part of that hand hygiene process?‑‑‑No. No.

PN234

And would I be correct therefore in saying that you wouldn't know when pre‑COVID‑19 at (indistinct) was meant to wear a (indistinct)?‑‑‑No.

PN235

Was meant to wear a gown?‑‑‑No.

PN236

Was meant to wear gloves?‑‑‑Gloves, no.

PN237

Was meant to wear a ‑ ‑ ‑?‑‑‑(Indistinct) in accordance with the policy in the ward, no.

PN238

Okay. Do you have any other knowledge when we're meant to wear gloves?‑‑‑Without the general public (indistinct) form the information we had there about the pandemic but, no.

PN239

(Indistinct). So this is pre‑COVID‑19 I'm talking about at the moment (indistinct)?‑‑‑Well, you wouldn't have known pre‑COVID‑19 that they were meant to wear (indistinct).

PN240

(Indistinct)?‑‑‑No.

*** DAVID MOODY XXN MR WARD

PN241

You wouldn't have known pre‑COVID‑19 how they were to dispose of incontinence pads?‑‑‑Not specifically, no.

PN242

No. You wouldn't have known pre‑COVID‑19 how they were meant to dispose of sanitary pads?‑‑‑No.

PN243

General faecal matter?‑‑‑No.

PN244

Blood?‑‑‑No.

PN245

Sorry, just bear with me, Mr (indistinct).

PN246

And I take it then you wouldn't know (indistinct) any of those procedures I've just described would differ between the representative facility and (indistinct)?‑‑‑No. I would not.

PN247

I take it then you wouldn't be aware of any training that would've been provided in relation to those types of procedures?‑‑‑It never required any training.

PN248

The provider - the undertaking of training, what was the training ‑ ‑ ‑?‑‑‑(Indistinct) not - no, not in any of that.

PN249

No, no. Again, pre‑COVID‑19 I take it you would not know when a client might be (indistinct) as to a hospital and post continued to be cared for by (indistinct) of the courthouse?‑‑‑No.

PN250

No. So let's go to the COVID‑19 (indistinct) if we can which opinion (indistinct) reasonable from March this year, would you agree with that?‑‑‑Sorry, what - can you - what's the month (indistinct).

PN251

Where do you - when the pandemic commenced?‑‑‑Yes. (indistinct).

PN252

(Indistinct) people meant that when do you say that happened from, February, March, what's the date that you have in your mind?‑‑‑Early March.

PN253

Early March. Well, let's take it on that level. Since early March (indistinct) some of the procedures of your members (indistinct)?‑‑‑No, I haven't, no.

*** DAVID MOODY XXN MR WARD

PN254

A client (indistinct)?‑‑‑No, I haven't.

PN255

(Indistinct)?‑‑‑No.

PN256

Infection controls?‑‑‑No.

PN257

(Indistinct) management procedures?‑‑‑No.

PN258

And you haven't given advice to members on (indistinct)?‑‑‑No, I haven't. (Indistinct), no.

PN259

No. So when you say that there have been changes for infection control procedures and the use of personal protective equipment, you have no knowledge that they - the comparison of the change, do you?‑‑‑Yes, I do. (Indistinct) as to what they're actually (indistinct).

PN260

No, ABN member who has told you about changes before and after COVID, give me a member?‑‑‑Through (indistinct) and I required to provide a name of a member, the person (indistinct).

PN261

I'm asking you did you send (indistinct) you've given - you've spoken to members?‑‑‑No, I haven't. Okay, prior to (indistinct) and all the ‑ ‑ ‑

PN262

So you (indistinct) for the (indistinct) a member for (indistinct) prior to (indistinct) and then trying to (indistinct)?‑‑‑(Indistinct) IBV treatment side of it. (Indistinct) COVID‑19.

PN263

Okay. And does it show you there PPE policies and procedures before and after COVID‑19?‑‑‑No, they're in conversations with their CEOs and with (indistinct) examples, Mr Ward, the (indistinct) way of their contact was with their CEOs (indistinct) around the (indistinct) was represented by the pandemic now until they're providing (indistinct) appropriate and safer course during the pandemic but (indistinct) challenges associated with making sure that infection control is in place to ensure that the (indistinct) impact of the pandemic is minimised.

PN264

So if that ‑ ‑ ‑?‑‑‑So I've known therefore of the conversations.

*** DAVID MOODY XXN MR WARD

PN265

Let's start with this one. If given you've spoken to the CEO (indistinct), is that correct?‑‑‑Yes.

PN266

Yes. And you didn't discuss with them the policies and procedures in operation before COVID‑19, that is, before early March this year in relation to personal protective equipment?‑‑‑I did not.

PN267

(Indistinct)?‑‑‑No.

PN268

(Indistinct)?‑‑‑(Indistinct reply)

PN269

Infection controls?‑‑‑No.

PN270

Work mandatory procedures?‑‑‑No.

PN271

No. Did you discuss with each person changes they had made to any (indistinct) procedures since early March?‑‑‑(Indistinct) conversations I had with them and this is what - we didn't - I didn't have to be qualified in their procedures and certainly none - in all the cases in the conversations I had it being of the understanding that the (indistinct) were (indistinct) challenges were of the pandemic on (indistinct) there weren't necessary supported by - during the pandemic, yes.

PN272

So after (indistinct) so you didn't discuss with that person at any stage the policies and procedures (indistinct) their obligation since early March?‑‑‑No. (Indistinct).

PN273

(Indistinct) talk about?‑‑‑We didn't talk with them the policies and procedures (indistinct) but that procedure is about practice (indistinct) the factors and their circumstances in them supporting the people in the building particularly in circumstances where there is (indistinct) significant (indistinct), significant or (indistinct) associated with (indistinct) ‑ ‑ ‑

PN274

Do you understand what procedures prior to (indistinct)?‑‑‑No.

PN275

No. (Indistinct). What - tuberculosis?‑‑‑No.

PN276

Measles?‑‑‑No.

*** DAVID MOODY XXN MR WARD

PN277

Mumps?‑‑‑No.

PN278

Rubella?‑‑‑No.

PN279

(Indistinct).

PN280

MR PEGG: Your Honour, objection. It's not (indistinct) do we really need to go through a long list of diseases?

PN281

JUSTICE ROSS: I think that's right, Mr Ward, I think the point has been made.

PN282

MR WARD: All right. (Indistinct), your Honour, I think (indistinct).

PN283

MR PEGG: It's been made (indistinct).

PN284

MR WARD: So can I take you back now (indistinct) - and again, I won't make that really - that I just have a couple (indistinct) here. You (indistinct)?‑‑‑Showering?

PN285

Showering?‑‑‑Showering, yes.

PN286

I think in your evidence today (indistinct) three COVID‑19 during COVID‑19, I take it you wouldn't know what (indistinct) was usual to shower pre‑COVID‑19 and during COVID‑19?‑‑‑No. I wasn't.

PN287

No. All right. (Indistinct)?‑‑‑Yes. Yes.

PN288

You say at paragraph 12 you've been (indistinct) have you got that in front of you?‑‑‑I do, yes.

PN289

(Indistinct) you say in paragraph 12 today (indistinct) the national difficulties assurance that NDIS have (indistinct) saying that (indistinct) we're now talking outside of the (indistinct) outside of your membership?‑‑‑Yeah, insofar as there are (indistinct) providers understand that (indistinct) that certainly was our current regime.

*** DAVID MOODY XXN MR WARD

PN290

And what is a small number?‑‑‑My knowledge is that it would not be around 12, it was about 10 but then we focused on - that was not (indistinct).

PN291

But so far as you understand that (indistinct) which means they acknowledge (indistinct)?‑‑‑It depends upon - has somebody told you 10?

PN292

(Indistinct) I think (indistinct)?‑‑‑I just think that that certainly (indistinct).

PN293

Well, and do I take it that you've heard that (indistinct) somebody else?‑‑‑No (indistinct) it's one or the other or both.

PN294

Okay?‑‑‑I thought that it was (indistinct) at the moment where (indistinct) so (indistinct).

PN295

(Indistinct)?‑‑‑Yes. Tell you the truth today (indistinct).

PN296

Yes?‑‑‑Hopefully we'll (indistinct). Your Honour and the Board (indistinct)?‑‑‑(Indistinct reply)

PN297

So there are (indistinct) as far as you're aware those numbers are (indistinct) by (indistinct) that's one of the things (indistinct)?‑‑‑I think I'd answer your - you would be best placed asking other than in terms of the declaration process (indistinct) I believe the figures of 8 and 12 are across the range of figures in the past (indistinct) possibly including the (indistinct) commission and (indistinct) record (indistinct) agree upon what (indistinct) strength of (indistinct).

PN298

Is that small number is that the (indistinct) ourselves open as well, those people who actually have contracted COVID‑19 (indistinct) 33?‑‑‑Yes.

PN299

And there's no - you don't hold any (indistinct), do you about self‑isolation?‑‑‑No, we don't.

PN300

All right. You're talk in paragraph 16 about challenging behaviours, you agree with me that the nature of behaviour demonstrated by the client receiving (indistinct) will be very much specific to that (indistinct), won't it?‑‑‑Yes. Yes.

PN301

And I could assume that that will be driven mostly by the nature of the disability required (indistinct) or the combination of disabilities?‑‑‑Yes.

*** DAVID MOODY XXN MR WARD

PN302

And possibly (indistinct)?‑‑‑I would like to think that (indistinct) that ‑ ‑ ‑

PN303

No, you can't, that's right. And (indistinct) experience that the worker provides a service to the (indistinct)?‑‑‑(Indistinct reply)

PN304

Related to the experience of the worker providing a service to them?‑‑‑It may. On the other hand we're talking about the behaviours that (indistinct) is whether or not (indistinct) where the changes in procedures could have been (indistinct).

PN305

If that - but that would happen with time?‑‑‑I'm sorry, when you say, (indistinct), what's that ‑ ‑ ‑

PN306

That would be a common challenge, in particular the circumstances for a work (indistinct) changes in work, changes in routine, a change in health (indistinct), all of that's then created challenges for the client and (indistinct)?‑‑‑(Indistinct), yes.

PN307

Yes. (Indistinct).

PN308

I don't have no further questions, your Honour.

PN309

JUSTICE ROSS: Thank you.

PN310

MR WARD: Thank you, Mr Moody.

PN311

JUSTICE ROSS: Thank you, Mr Ward. Is there any other cross‑examination?

PN312

MR FERGUSON: Not from our group, your Honour.

PN313

JUSTICE ROSS: No.

PN314

MR BULL: Perhaps if I may, your Honour. Your Honour, might I - this is (indistinct) Bull from (indistinct) division.

PN315

JUSTICE ROSS: Well, how are you cross‑examining your own witness?

*** DAVID MOODY XXN MR WARD

PN316

MR BULL: That's why I (indistinct) to ask a couple of questions but (indistinct).

PN317

MR WARD: Well, I object then, your Honour. He ‑ ‑ ‑

PN318

JUSTICE ROSS: You can re‑examine, Mr Bull, because he's your witness.

PN319

MR BULL: Then I'll re‑examine him then. I'll wait for the others.

PN320

JUSTICE ROSS: What do you wish to say in re‑examination?

RE-EXAMINATION BY MR BULL [11.03 AM]

PN321

MR BULL: I wanted to take him to the document that - both documents Mr Ward showed him which is the second document, it's the (indistinct) infection prevention and control policy.

PN322

Mr Moody, do you have that document in front of you?‑‑‑Yes. Yes, I do, Mr Bull?

PN323

Yes. On the first page there's basically a number of sentences that (indistinct) and then there's one that says:

PN324

Applied to -

PN325

- now have you seen that paragraph?‑‑‑I have it in front of me now, Mr Bull.

PN326

All right. If you just read through it?‑‑‑(Indistinct reply)

PN327

You don't have to read it aloud, just tell (indistinct) reading it?‑‑‑Okay. I've finished reading it, Mr Bull.

PN328

Yes. Well, (indistinct) organisation (indistinct) are they members of NDIS or ‑ ‑ ‑?‑‑‑(Indistinct reply)

PN329

‑ ‑ ‑ (indistinct) the case for members?‑‑‑No.

*** DAVID MOODY RXN MR BULL

PN330

Thank you?‑‑‑They are not (indistinct) I think (indistinct) has known they'd go back to work in the building just here in the minute while, you know, (indistinct) and my advice is that these documents are not, you know, (indistinct) applications of the disability sector and insofar as I understand it (indistinct).

PN331

That definition (indistinct).

PN332

JUSTICE ROSS: Is there any further re‑examination, Mr Pegg or any of the others? No.

FURTHER EXAMINATION-IN-CHIEF BY MR PEGG [11.05 AM]

PN333

MR PEGG: Yes, your Honour. Just (indistinct) questions in re‑examination.

PN334

Mr Moody, (indistinct) a long list of (indistinct) procedures (indistinct) allowed to use the PPE and infection control and so forth and should have considered you have a regime for these procedures, but it's also your evidence (indistinct) pre and post‑COVID?‑‑‑Yes.

PN335

JUSTICE ROSS: Don't - Mr Pegg, don't lead the witness.

PN336

MR PEGG: I apologise.

PN337

The (indistinct) - that's all I wanted to ask you in relation to.

PN338

JUSTICE ROSS: All right. Nothing further for Mr Moody? All right.

PN339

Thank you, Mr Moody, you're excused.

PN340

I might mark that ‑ ‑ ‑?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [11.06 AM]

PN341

JUSTICE ROSS: I might mark Mr Moody's statement as exhibit A1.

EXHIBIT #A1 MR MOODY'S STATEMENT

PN342

Mr Ward, did you want to tender the two documents you took Mr Moody to?

*** DAVID MOODY FXN MR PEGG

PN343

MR WARD: If (indistinct).

PN344

JUSTICE ROSS: I'm sorry, what was that?

PN345

MR WARD: Yes, your Honour. (Indistinct).

PN346

JUSTICE ROSS: All right. I'll mark the infection prevention and control policy of New South Wales Health as exhibit ABI1.

EXHIBIT #ABI1 THE INFECTION PREVENTION AND CONTROL POLICY OF NEW SOUTH WALES HEALTH

PN347

MR BULL: Your Honour, I might make a formal objection both on the basis of relevance, may it please the court.

PN348

JUSTICE ROSS: Mr Ward?

PN349

MR WARD: Well, I don't know exactly what (indistinct) I'm going to refer to them, I think they are about (indistinct) that I'm going to refer (indistinct) of - in my closing that what Mr Moody doesn't know rather than what he does know. I'm not suggesting for a moment that these are documents that bind him (indistinct) but I'm frankly somewhat relaxed whether or not (indistinct) but I do intend to make reference to them in our closing submissions given that they were at least put to the witness (indistinct).

PN350

JUSTICE ROSS: All right. We'll mark them for information. We'll mark the ‑ ‑ ‑

PN351

MR WARD: Thank you, your Honour.

PN352

JUSTICE ROSS: ‑ ‑ ‑ infection prevention and control policy MFI 1 and the infection prevention and control practice handbook MFI 2.

MFI #1 INFECTION PREVENTION AND CONTROL

MFI #2 INFECTION PREVENTION AND CONTROL PRACTICE HANDBOOK

PN353

All right. Because of the likely availability of the transcript we would probably be publishing the background paper tomorrow morning, having regard to that, we now propose to provide all parties with a further time period so until Friday at 12 noon to file material arising from the background paper. We'd also put you on notice that one of the questions we'll ask is what findings are to be made on the basis of Mr Moody's evidence and we will then reconvene the hearing at 9.30 am on Monday morning.

PN354

Nothing further at the moment?

PN355

MR WARD: Your Honour, sorry, I apologise. Mr Ward (indistinct).

PN356

JUSTICE ROSS: Yes.

PN357

MR WARD: Will the transcript of the day be made available?

PN358

JUSTICE ROSS: Yes, it will be. It's just - it probably won't be the same day, Mr Ward. It's likely to be available tomorrow and that's why I'm providing the additional time frame because ‑ ‑ ‑

PN359

MR WARD: Thank you for that, your Honour. Thank you for the provision, your Honour. Thank you.

PN360

JUSTICE ROSS: All right. Nothing further. We'll adjourn until 9.30 next Monday. Thank you.

PN361

MR WARD: Thank you.

ADJOURNED UNTIL MONDAY, 11 MAY 2020 [11.09 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAVID MOODY, AFFIRMED............................................................................. PN48

EXAMINATION-IN-CHIEF BY JUSTICE ROSS............................................. PN48

CROSS-EXAMINATION BY MR WARD.......................................................... PN54

RE-EXAMINATION BY MR BULL................................................................. PN320

FURTHER EXAMINATION-IN-CHIEF BY MR PEGG............................... PN332

THE WITNESS WITHDREW............................................................................ PN340

EXHIBIT #A1 MR MOODY'S STATEMENT.................................................. PN341

EXHIBIT #ABI1 THE INFECTION PREVENTION AND CONTROL POLICY OF NEW SOUTH WALES HEALTH................................................................................. PN346

MFI #1 INFECTION PREVENTION AND CONTROL................................. PN352

MFI #2 INFECTION PREVENTION AND CONTROL PRACTICE HANDBOOK PN352