ABCC v CFMEU (Pacific Highway Upgrade Case) (No 2)
[2022] FedCFamC2G 62
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABCC v CFMEU (Pacific Highway Upgrade Case) (No 2) [2022] FedCFamC2G 62
File number(s): SYG 2015 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 2 February 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act – whether evidence can be adduced in reply during civil case – whether applicant’s case can be reopened – whether defendant’s evidence reasonably foreseeable – grant leave to reopen case and present limited evidence. Legislation: Fair Work Act 2009 (Cth) ss 500, 550, 793 Cases cited: ASIC v Rich [2006] NSWSC 826
Australian Building and Construction Commissioner v Collier and Ors [2017] FCCA 1964
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
The Movie Network Channels Pty Ltd v Optus Vision Ltd [2009] NSWSC 132
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 2 February 2022 Date of hearing: 1-2 February 2022 Place: Sydney Counsel for the Applicant: Mr Chin Solicitor for the First Respondent: Mr Simic Counsel for the Second and Third Respondents: Mr Latham ORDERS
SYG 2015 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISIONER
Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Respondent
MR DEAN LESLEY RIELLY
Second Respondent
MR PAUL FITZPATRICK
Third Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
2 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Grant leave to present evidence in rebuttal given by one witness, Mr Jordan, limited in scope to the singular issue whether a concrete truck reversed in the presence of the second and third respondent..
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
In application filed on 26 August 2020, the Australian Building and Construction Commissioner (“ABCC”) seeks relief in the form of declarations and the imposition of pecuniary penalties against the first respondent, the Construction Forestry, Maritime, Mining and Energy Union (“CFMMEU”) and two of its employees, Mr Rielly and Mr Fitzpatrick.
The ABCC alleges contraventions of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by Mr Rielly and Mr Fitzpatrick on 22 August 2019 at the Woolgoolga to Ballina Pacific Highway upgrade project. The proceedings against the CFMMEU proceed on the basis of accessorial liability, by reason of the operation of ss 793 and 550 of the Act, in that Rielly and Fitzpatrick were employees of the CFMMEU at the relevant time.
It is broadly alleged that Mr Rielly and Mr Fitzpatrick entered a work site, and positioned themselves in between the rear of a concrete truck and the site of a concrete pour, thereby preventing the truck from reversing towards a concrete pour area for the purpose of completing the pour. This caused the concrete pour to be abandoned and the contents of the concrete truck, amounting to six cubic metres of concrete to be dumped, as it was no longer usable. It is alleged that a day and one half of work time was lost as a result of the actions of Mr Rielly and Mr Fitzpatrick.
INTERLOCUTORY ISSUE
The hearing was conducted such that liability needed to be determined initially followed, if necessary, by a further penalty hearing. The respondent’s relied upon their right to silence and no evidence was filed prior to the ABCC commencing their case. Evidence was called and cross examination ensued of the ABCC’s witnesses. The ABCC then closed its case.
A significant issue in contention was the position of the concrete truck and if it reversed during the time the two union officials were on site. In mid-December 2021, the respondents advised the Court that they proposed to call evidence in their defence. An Affidavit was filed from both Mr Reilly and Mr Fitzpatrick. An amended Defence was filed late on the afternoon of Monday 31 January 2022, the evening prior to the hearing recommencing. As no Court orders had been made for the filing of any amended Defence, leave was sought. Notwithstanding no adequate explanation was made as to why the amended Defence was filed at the very last moment, leave was granted for it to be relied upon. That leave was on the basis that consideration would need to be given by the legal representatives of the ABCC to additional cross examination of Mr Reilly and Mr Fitzpatrick, once they had time to properly consider the amended Defence.
Following the close of the respondents case, the legal representatives for the ABCC sought leave to reopen their case and call rebuttal evidence from a previous witness, Mr Paul Jordon, given the claim by Mr Reilly that, while he was present at the site, the concrete truck reversed without a spotter being present. A spotter is a person with responsibility to ensure that it is safe for a vehicle to reverse on a building site.
The Court notes at this point that Mr Fitzpatrick gave no evidence of the concrete truck reversing at any time, notwithstanding that he was present and in close proximity during the entire time Mr Reilly was at the work site. Further, the essential allegation of the ABCC in relation to hindering and obstructing was that Mr Reilly and Mr Fitzpatrick positioned themselves in between the concrete truck and the site of the pour preventing the pour taking place. Mr Reilly and Mr Fitzpatrick relied upon the premise that there was an imminent danger that justified their actions in that the concrete truck had or could have reversed without a spotter being in place.
THE LAW
The law in this area is reasonably settled. As a general rule, a party is not entitled to adduce evidence in reply in a civil penalty case unless it deals with evidence that was not reasonably foreseeable, and which the applicant had no warning: (see; ASIC v Rich [2006] NSWSC 826 (“Rich”) at [15]-[17]).
That general rule is subject to exceptions. In Australian Building and Construction Commissioner v Collier and Ors [2017] FCCA 1964 (“Collier”), Nichols J of this Court conveniently set out the law and relevant principles to be followed as to the exercise of discretion for a Court to permit evidence in reply in a matter such as this.
At [24] in Collier, Nichols J noted the comments of Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] that:
..In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.
Nichols J then went on to cite at [25], the judgement of Einstein J in The Movie Network Channels Pty Ltd v Optus Vision Ltd [2009] NSWSC 132, which cites with approval ASIC v Rich [2006] NSWSC 826 at [18] per Austin J, as to the factors to be considered in exercise of the discretion by the Court to allow leave to reopen. They are as follows (citations omitted):
•The nature of the proceeding;
•Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
•The consideration of fairness that the defendant is entitled to know all the evidence that he has to meeting taking forensic decisions as to cross examination and the nature and extent of the evidence he himself will adduce on the matters in question;
•The extent to which the plaintiff has embarked upon calling evidence on the issue in question in the case in chief;
•The importance of the issue on which the further evidence sought is to be adduced to the pleased issues in the case;
•The degree of relevance and probative value of the further evidence sought to be adduced and its potential in an undue waste of time;
•The prejudice to the defendant in terms of delay in the completion of the proceedings and consequential costs;
•The public interest in the conclusion of the litigation; and
•What explanation is offered by the plaintiff for not having called the evidence in chief.
Counsel for the applicant submitted that there were two crucial elements of Mr Reilly’s evidence that were not readily apparent prior to the filing of the amended Defence on evening before the respondents giving the evidence, being:
1. The agitator truck reversed next to the testing: (see; amended Defence paragraph 6); and
2. The allegation that whilst Mr Reilly and Mr Fitzpatrick were standing in front of the poor site, the agitator again reversed: (see; amended Defence paragraph 17 (a) to (f)).
The applicant in the matter was in a situation whereby the respondent elected not to put on any defence in reality and only did so after the close of the applicant’s case. Whilst there can be no criticism of the respondents in electing to rely upon the right to silence, certain consequences must flow. This may include the right to call rebuttal evidence where matters that were not readily apparent or became central to the case become apparent. It was submitted that it was only when the evidence of Mr Reilly was given, that the agitator truck reversed twice without a spot, for the full impact of this evidence became apparent. While some questions may have been asked of various witnesses, it was unreasonable to expect the applicant to be aware of the centrality of this particular issue to the defence case.
Counsel for the second and third respondents submitted that the questions asked in cross examination were clearly sufficient to enable the applicants to be aware of the centrality of the issue and that there was sufficient warning that this was a matter that was in issue.
It was submitted that serious consequences could flow from a finding against the second and third respondents which could include orders that the right of entry permits be revoked further and that even if the criteria in Rich were satisfied, the Court should not in any event exercise its discretion to allow rebuttal evidence be called, Mr Jordan had already been called as a witness. The respondents were not provided with a copy of the draft Affidavit of Mr Jordan until after Mr Rielly had given evidence. The respondents are prejudiced and they cannot put this new evidence to witnesses who have already given evidence.
CONSIDERATION
The case law referred to above makes it clear that leave to reopen a case once closed is a discretionary matter for the Court.
As this case has developed and evidence has been called, it is clear that a central issue will revolve around whether or not the cement truck/agitator reversed as claimed by Mr Rielly on two occasions without a spotter being present. Mr Rielly and Mr Fitzpatrick claim that there were imminent dangers which needed to be attended to in order to enable, in their view, the pour to go ahead. From the Courts limited view of the matter, and without making any final determination, the other matters that apparently caused issues relating to first-aid, eye wash, positioning of toilets, drinking water, and emergency response, which were outlined in the s 117 of the Act notice provided by the Union delegates to Seymour Whyte Management, were not such that they approached an imminent danger to workers. The essential issue of imminent danger revolved around the positioning of the cement truck/agitator and whether or not it could or did reverse without a spotter being present to guide it back.
In terms of the factors set out in Rich, the proceedings in which the application is being made are a prosecution under the Fair Work Act. The proceedings are not criminal in nature, however they involve the possibility of significant pecuniary penalty being imposed upon both the union and each of the delegates.
The Court is not satisfied based on the limited cross examination undertaken by Counsel for the respondents that this issue ought to have been reasonably foreseen. The evidence in chief of Mr Reilly, noting that it was not supported by Mr Fitzpatrick in his Affidavit, was that the cement truck/agitator reversed on two occasions without a spotter being present.
Whilst noting that the respondents are reasonably entitled to know all the evidence they have to meet in taking forensic decisions as to cross examination and the nature and extent of the evidence that they will themselves adduce, the Court notes that the respondents chose not to put on any evidence initially but to reserve the right to silence. As set out above, whilst this cannot be criticised, it may well have the consequence that leave to reopen will be granted in circumstances where had their evidence been put on earlier, such an application might be refused.
The Court is satisfied that the applicant embarked on calling all relevant evidence, however the centrality of this particular issue could not be reasonably foreseen. In the circumstances there is an entitlement to call rebutting evidence.
The issue of whether or not the agitator reversed or not is now of centrality to the claims made by each of the parties. The evidence that was sought to be adduced is relatively short in nature and it has no potential to involve an undue wastage of time.
Given the trial timetable, and noting the public interest in the conclusion of litigation, the calling of this evidence will not affect the likely date of conclusion of the proceedings in relation to liability.
Further the Court is satisfied that the explanation offered by the Applicant for not having called the evidence in chief is reasonable in all of the circumstances as the case has developed.
CONCLUSION
The Court has considered the overriding principle as to whether the interests of justice are better served by allowing rejecting the application to reopen. Given the limited nature of the evidence, and the way the case has developed the Court is of the view that it is appropriate for leave to be granted and evidence in rebuttal in relation to that one matter to be given by one witness, Mr Jordan.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate: Caelan Shaw
Dated: 2 February 2022
1
4
0