Alfred v Lanscar - [2007] FCA 833

FEDERAL COURT OF AUSTRALIA
Alfred v Lanscar [2007] FCA 833
EVIDENCE – admissibility – adoption of prior written statement by witness in his affidavit – whether evidence in proper form
Australian Securities and Investments Commission Act (2001) (Cth) s 19
Bankruptcy Act 1966 (Cth)
Building and Construction Industry Improvement Act 2005 (Cth) s 57
Evidence Act 1995 (Cth) s 37, s 59
Federal Court Rules O 14
Supreme Court Rules 1970 (NSW)
Workplace Relations Act 1996 (Cth) s 298S
Platcher v Joseph [2004] FCAFC 68
R v Gibson (1999) 110 A Crim R 180
GREGORY CHARLES ALFRED v LES LANSCAR AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ACD 15 OF 2006
BUCHANAN J
30 MAY 2007
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

ACD 15 OF 2006

BETWEEN:

GREGORY CHARLES ALFRED
Applicant

AND:

LES LANSCAR
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent

JUDGE:

BUCHANAN J

DATE:

30 MAY 2007

PLACE:

CANBERRA

INTERLOCUTORY JUDGMENT
BUCHANAN J:

These proceedings concern an application for civil penalties by an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth). The applicant alleges that the first respondent, a union representative and, through him, the second respondent, an association of employees registered under the Workplace Relations Act 1996 (Cth) (‘the WR Act’) breached the provisions of s 298S(2)(a) and (b) of the WR Act. The allegations relate to events which occurred in early 2005 in Canberra when, it was alleged, the first respondent attempted in various ways to prevail upon Mr Paul Papas, a director of Papas Painting Contractors Pty Limited (‘Papas Painting’) (a company which had been awarded a contract to carry out painting work on newly constructed residential apartments) to ensure that persons engaged by Papas Painting were, or became, members of the second respondent.
An investigation into the matters which became the subject of the proceedings was carried out by the Building Industry Taskforce of the Commonwealth Department of Employment and Industrial Relations. As part of that investigation statements were taken, within a matter of weeks after the events in question, from a number of people. The statements were signed and witnessed. When affidavits were later prepared for the purpose of the proceedings before the Court, a number of such statements made in this way were adopted as true and correct by witnesses in the applicant’s case and were annexed to affidavits made by them. For example, Mr Papas said in his affidavit:
‘2.Annexed hereto and marked “PP-1” is a true copy of a witness statement I signed on 11 February 2005, in relation to an investigation conducted by the then Building Industry Taskforce.
3.My statement was and remains, to the best of my knowledge and belief, true and correct, save for the following:-’
(the few amendments made are of no present relevance).
Eight statements, adopted in this fashion, were relied upon at the hearing as part of the evidence in chief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alfred v Lanscar

Details

AGLC: Alfred v Lanscar [2007] FCA 833
Case: [2007] FCA 833
Decision Date: 30 May 2007

CaseChat Overview and Summary

This case involved an application by an Australian Building and Construction Inspector seeking civil penalties against a union representative and the Construction, Forestry, Mining and Energy Union, for alleged breaches of the Workplace Relations Act 1996. The applicant alleged that the union representative had attempted to coerce a director of a painting contractor to ensure that workers engaged by the contractor became union members. The matter was heard in the Federal Court of Australia, with Justice Buchanan presiding. The central issue in the case was the admissibility of prior written statements made by witnesses and adopted in affidavits as true and correct. The respondents argued that these statements were not in proper form and therefore inadmissible, while the applicant contended that they were admissible under relevant provisions of the Evidence Act 1995 and Federal Court Rules.

Justice Buchanan examined the relevant provisions of the Evidence Act and Federal Court Rules, noting that while the statements could be considered hearsay, they might fall within an exception under the Act. The Court also considered the case of Platcher v Joseph, which supported the admissibility of such statements when adopted by a witness in an affidavit. The Court rejected the objection to the admissibility of the statements, allowing them to be part of the evidence in chief but subject to objections on other grounds as they arose. The Court's decision was based on the principle that the approach of calling a witness to adopt a previous statement as true and correct was routine in the Federal Court and was contemplated by the Evidence Act. The Court also noted that the earlier directions for the conduct of the proceedings by affidavit should be followed, and any objections to the statements would need to be dealt with as they arose.

Orders