Australian Building and Construction Commissioner v Abbott (No 2)

[2011] FCA 308

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Abbott (No 2)
[2011] FCA 308

Citation:	Australian Building and Construction Commissioner v Abbott (No 2) [2011] FCA 308
Parties:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v BENJAMIN ABBOTT AND THE PARTIES IN ATTACHED SCHEDULE 1
File number:	WAD 230 of 2008
Judge:	GILMOUR J
Date of judgment:	31 March 2011
Legislation:	Evidence Act 1995 (Cth) s 45
Date of hearing:	31 March 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	16
Counsel for the Applicant:	Mr K Pettit
Solicitor for the Applicant:	Clayton Utz
Counsel for the 218th & 219th Respondents:	Ms K Vernon
Solicitor for the 218th & 219th Respondents:	Construction Forestry Mining & Energy Union
Counsel for Respondents in attached Schedule 1:	Mr R L Hooker
Solicitor for the Respondents in attached Schedule 1:	Gibson & Gibson
Counsel for the 221st Respondent:	Mr R E Lindsay
Solicitor for the 221st Respondent:	Corser & Corser

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 230 of 2008

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant

AND:

BENJAMIN ABBOTT
First Respondent

THE PARTIES IN ATTACHED SCHEDULE 1
Third Respondent to Two Hundred & Twenty Second Respondent

JUDGE:	GILMOUR J
DATE:	31 MARCH 2011
PLACE:	PERTH

RULING AS TO ADMISSIBILITY OF AIRC TRANSCRIPT

1. These reasons relate to the admissibility of part of the transcript of the evidence given by Mr Peter Stuurstraat, a witness for the applicant in this proceeding, during an Australian Industrial Relations Commission (AIRC) hearing on 14 October 2010.

2. The issue arose in this way.  Mr Stuurstraat gave evidence to this Court that he had been told by a security officer at the site of the Phase V Expansion Project in Karratha that a Mr Brad Upton (a CFMEU employee) was trying to get a meeting together.  His relevant evidence-in-chief is as follows:

   Can you tell us how you became aware that there was a meeting that morning?‑‑‑We’d relocated the parking area for the crew to park in and we were having difficulties with logistics with teething problems so I went out there to ensure that people would be able to get in and park in the right areas and so forth with these new logistics that had been arranged, and that’s when the security chap came over and saw us and informed me that something was happening over in the car park.

   What did he inform you?‑‑‑He said that Upton’s trying to get a meeting together.

   And did you check that yourself?‑‑‑Yes.

   By going to the what you have called the overflow car park?‑‑‑Yes, I went over there.  Yes.

   And you spoke to Mr Upton?‑‑‑Yes.

3. During cross-examination, counsel for the CFMEU and Mr Upton sought to have the witness agree that during the relevant conversation the security officer had not in fact mentioned Mr Upton.  The evidence is as follows:

   Well, I’m putting it to you, Mr Stuurstraat, that the security guard never said to you, “Upton is trying to get a meeting going”?‑‑‑Okay.

   What he said to you was, “A meeting is being assembled in the car park.”  Isn’t that what he said to you?‑‑‑Again, I’ll reply:  along those lines is what he said.

   HIS HONOUR:   Mr Stuurstraat, you’ve been given two alternatives, it can’t be both?‑‑‑I’ve made a iteration of what happened along that line, it was along the lines of, “There is a meeting getting together, Upton is getting a meeting together.”  That has been said to me, whether they’re the exact words that he used or not, I’m sorry, I don’t know, but they were along those lines.

   MS VERNON:   Well, was it along the lines of, “A meeting is being assembled in the car park” or was it along the lines of, “Upton is trying to get a meeting going”?‑‑‑I’m sorry, it’s along those lines of both of what you just said, it’s along those – it’s a long time ago and it was a long those lines of what was said to me.

4. Counsel for the CFMEU and Mr Upton then cross-examined Mr Stuurstraat as to evidence he had given in the AIRC hearing on 14 October 2008.  This was an attempt to demonstrate that this evidence constituted a prior inconsistent statement.  That evidence was recorded in the AIRC transcript Paragraph Number (PN) 115, which was read out to the witness.  I required the transcript to be produced to the Court and directed that it be shown to the witness.  The transcript relevantly contained PN 109-PN 123 of the examination-in-chief of Mr Stuurstraat.  I will refer to this transcript in these reasons as “the document”.

5. PN 115 in the following terms:

   Yes, let’s start with that.  You turned up for work in the morning?---Yes, I turned up to work in the morning and was asked to – I was approached by the guards – by the security that a meeting was being assembled at the car park and that they – as far as they were concerned, it was not a meeting that was – had authority to proceed.

6. The relevant cross-examination in this Court of Mr Stuurstraat by counsel for the CFMEU and Mr Upton in respect to the content of the PN 115 was as follows:

   You would agree with me that’s what you said?   Yes, and I – it wasn’t a word for word, it was along those lines, so      

   Well, no, I’m putting to you what you actually said     ?   Okay.

   to the Industrial Relations Commission on that day, you said:

   . . .

   Could you, please, look for PN115?   Yes.

   And then proceed to read it to yourself quietly, so not out loud?   Yes.

   Right, you have read that now?   Yes.

   And that is, you would agree with me, what you said to the Australian Industrial Relations Commission on the morning of 14 October 2008?   Yes, sounds good.

   All right.  Thank you.  You can return that now, please?   Yes.

   So, Mr Stuurstraat, I will ask you again to confirm that what you said on 14 October was, “Yes, I turned up to work in the morning and was asked to - approached by the guards, by the security, that a meeting was being assembled at the car park and that they - as far as they were concerned, it was not a matter that had authority to proceed’?   Correct.

   That’s what you said to the Australian Industrial Relations?   That’s what I said and that wasn’t a quote.

   Thank you.  Sorry?   And it wasn’t a quote.  That’s not a quote in there; that’s what the guard had approached me with.

   You would agree with me, wouldn’t you, Mr Stuurstraat, that you didn’t make any mention in your evidence before the Australian Industrial Relations Commission that Mr Upton was going to get a meeting going, did you?   No, most probably wasn’t asked.

7. Section 45 of the Evidence Act 1995 (Cth) is thereby invoked. Senior counsel for the applicant invited Ms Vernon to tender the document but she declined.

8. The applicant has invited the Court to exercise its discretion to admit part of the document into evidence under s 45(3)(c) of the Evidence Act.  

9. The applicant says that PN 112 to PN 122 should be admitted into evidence.  The CFMEU and Mr Upton say that only PN 115 should be admitted.

10. There are a number of matters which I consider to be relevant in these circumstances to the Court’s discretion under s 45(3)(c).

11. First, it is relevant to consider whether the document or part of it should be admitted by the Court to enable it to fairly consider the cross-examination in this Court of Mr Stuurstraat upon the content of PN 115 and to weigh its effect.  The applicant submits that the Court would be assisted in this respect by admitting into evidence not only PN 115 but also:

    •     PN 112, which introduces Mr Stuurstraat and the issue.

    •     PN 114 which explains the exact setting for the cross-examination.

    •     PN 116-119, and 121 which identify the person who is the subject of the cross-examination, and

    •     PN 113, 120 and 122, which set the context of the questioning in the AIRC.

12. Second, it is relevant to consider whether the document is required in order to decide whether the prior statement was inconsistent in the way asserted by cross-examining counsel.  The applicant submits that the Court will be assisted as to this by PN 115-122, as they show that it was likely that it was Mr Upton who was said to be arranging the meeting, and hence tend to negate the basis of the cross-examination.

13. The CFMEU and Mr Upton submit that there is no basis for the admission into evidence of the entirety of paragraphs PN 112 to PN 122 in the document because:

    (a)those paragraphs other than PN 115 were not put to Stuurstraat;

    (b)those paragraphs go well beyond what was put to Stuurstraat;

    (c)PN 115 is a discrete paragraph containing a question that is answered within the paragraph, and it was put to Stuurstraat as being a prior inconsistent statement with that contained in paragraph 15 of Stuurstraat’s redacted statement and his oral evidence on the same point;

    (d)PN 112-114 and PN 116-122 are not required to make sense of PN 115 because they extend to conduct and conversations with persons other than Stuurstraat and the security officer,;

    (e)the Court does not need any assistance to:

    (i)introduce Stuurstraat because he gave evidence that PN 115 was his evidence, and the AIRC transcript containing PN 115 can be adequately reproduced to indicate PN 115 is his evidence;

    (ii)understand the exact setting for the cross-examination in the AIRC because only the cross-examination in this Court is relevant and that is contained in the Court Transcript;

    (iii)understand the identity and role of Stuurstraat as that is found in his witness statement supplemented by his oral evidence;

    (iv)understand the context of the questioning in the AIRC because the question and answer in PN 115 is clear;

    (f)Stuurstraat gave oral evidence about his recollection of what happened after the conversation with the security officer.  He was not cross-examined on that evidence.  Paragraphs PN 112-114 and PN 116-122 cannot be used to supplement the evidence that Stuurstraat otherwise gave, or fill in gaps in evidence he did not give;  

    (g)Stuurstraat’s evidence in cross-examination was that what he was told by the security officer was “along the lines of “There is a meeting getting together. Upton is getting a meeting together” but he could not recall the exact words used but it was along the lines of both options.  The evidence contained in PN 112-114 and 116-122 is not required to assist in assessing Stuurstraat’s credibility, because he himself admitted he could no longer recall exactly what was said, but both what he said in PN 115 and what he said in evidence was equally correct.

14. I accept the submission of the applicant to the effect that paragraphs other than PN 115 in the document ought be admitted with the purposes of enabling the Court to understand the context in which the question and answer found in PN 115 sits as well as to consider whether in fact the answer given is inconsistent with the evidence given to this Court as to the conversation between Mr Stuurstraat and the security officer.  The submission as to inconsistency is a serious matter affecting as it does the credit of the witness.  Fairness therefore becomes an important consideration.

15. These purposes will, in my opinion, be served by admitting into evidence not only PN 115 but also PN 114, 116, 117, 119 and 121.  These paragraphs record the evidence of Mr Stuurstraat concerning the presence and conduct of Mr Upton in the vicinity of the security guard at the time of the disputed conversation and shortly thereafter.  That additional evidence given to the AIRC is pertinent to assessing the question whether or not the evidence in PN 115 properly understood and in context is inconsistent with the evidence given by Mr Stuurstraat before this Court.  I do not regard the content of PN 112, 113, 118 and 120 to be relevant in this respect and I would not admit them.

16. I will invite counsel for the applicant to arrange for a suitably redacted version of the document to be produced for tender to the Court.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        31 March 2011

SCHEDULE 1 – THE RESPONDENTS

MURRAY ARCARO
Third Respondent

MOSES ASIATA
Fourth Respondent

SERGIO BAEZ
Sixth Respondent

FRANCISCO BARRAZA
Ninth Respondent

ROLAND BAZAEZ
Twelfth Respondent

LEON BECKER
Thirteenth Respondent

PATRICK BIRD
Sixteenth Respondent

TERRANCE BISHOP
Seventeenth Respondent

ROMEO BONCATO
Nineteenth Respondent

DARREN BOXALL
Twentieth Respondent

ROBERT BROWN
Twenty-Fifth Respondent

SLAVO CEKLIC
Twenty-Eighth Respondent

KIM CHENNELL
Twenty-Ninth Respondent

JASON CHROMIAK
Thirty-First Respondent

ROBERT CLARK
Thirty-Second Respondent

DAVID COLLINS
Thirty-Fourth Respondent

DONALD COLYER
Thirty-Fifth Respondent

CHRIS CORRIGAN
Thirty-Seventh Respondent

ALLAN COUTTS
Thirty-Eighth Respondent

LANCE CRONIN
Thirty-Ninth Respondent

ANDREW CROSIER
Fortieth Respondent

RENEE CUMBERS
Forty-First Respondent

KENNETH CUMMING
Forty-Second Respondent

ALASTAIR CUNLIFFE
Forty-Third Respondent

AIDEN DAVEY
Forty-Fifth Respondent

SCOTT DEVINE
Forty-Ninth Respondent

CLAUDE DEVOS
Fiftieth Respondent

JOHN DICKSON
Fifty-First Respondent

NORMAN DODGIN
Fifty-Third Respondent

DANIEL DOYLE
Fifty-Fifth Respondent

MATT DRUMMOND
Fifty-Sixth Respondent

JOHANNES DUPLESSIS
Fifty-Ninth Respondent

WARWICK FAULKNER
Sixty-Fourth Respondent

VICTOR FAUSTINO
Sixty-Fifth Respondent

JOSE FERREIRA
Sixty-Seventh Respondent

GEORGE FITZROY
Seventy-First Respondent

DAVID FRASER
Seventy-Second Respondent

SALVATORE FRONTE
Seventy-Third Respondent

PETER GARDINER
Seventy-Fifth Respondent

LOUIE GEROVICH
Seventy-Eighth Respondent

SIMON GILBERT
Eighty-Second Respondent

TAY GOODALL
Eighty-Third Respondent

DUANE GUYATT
Eighty-Eighth Respondent

JOHN HARVEY
Ninetieth Respondent

QUINTON HEBBARD
Ninety-First Respondent

ROBERT HOLT
Ninety-Fourth Respondent

STEPHEN HONICKE
Ninety-Fifth Respondent

ANDREW HORNBY
Ninety-Sixth Respondent

CHRISTOPHER HOWARD
Ninety-Seventh Respondent

VINCENT HOWES
Ninety-Eighth Respondent

NIKOLA IVKOVIC
One Hundred and Third Respondent

DENIS JACKSON
One Hundred and Fourth Respondent

MARK JOHNSON
One Hundred and Sixth Respondent

RICHARD JONES
One Hundred and Seventh Respondent

RAYMOND JONES
One Hundred and Eighth Respondent

TURIPI KARUTJINDO
One Hundred and Tenth Respondent

EMIN KECAP
One Hundred and Eleventh Respondent

SHAUN KEILY
One Hundred and Twelfth Respondent

LENKO KORLJAN
One Hundred and Thirteenth Respondent

DARRIN LANE
One Hundred and Fifteenth Respondent

SHANE LAVELLE
One Hundred and Sixteenth Respondent

CHRISTINE LEAHY
One Hundred and Seventeenth Respondent

CHARLIE LINESS
One Hundred and Eighteenth Respondent

CLIFFORD LOGAN
One Hundred and Nineteenth Respondent

KENNETH LOGAN
One Hundred and Twentieth Respondent

DONALD MACKAY
One Hundred and Twenty-Third Respondent

JAMES MANN
One Hundred and Twenty-Fourth Respondent

DENIS MARRINER
One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU
One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY
One Hundred and Thirtieth Respondent

PAUL MCGEADY
One Hundred and Thirty-First Respondent

RUSSELL MCGHIE
One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE
One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE
One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE
One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND
One Hundred and Thirty-Seventh Respondent

BRAD MILLER
One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL
One Hundred and Fourtieth Respondent

PASKO MITRESKI
One Hundred and Forty-First Respondent

CHRISTOPHER MOORE
One Hundred and Forty-Third Respondent

LEONARD MUDRI
One Hundred and Forty-Fourth Respondent

DARREN NEWBY
One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU
One Hundred and Forty-Seventh Respondent

JAMES ODIAM
One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY
One Hundred and Fifty-First Respondent

MANDY-LEE PALMER
One Hundred and Fifty-Second Respondent

KEN PAYNE
One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER
One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS
One Hundred and Fifty-Ninth Respondent

SHEREE PIKE
One Hundred and Sixtieth Respondent

JOE PIZZO
One Hundred and Sixth-Second Respondent

JOHN PRATT
One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN
One Hundred and Seventieth Respondent

PHILLIP ROWELL
One Hundred and Seventy-First Respondent

TOM SABINE
One Hundred and Seventy-Third Respondent

MICHAEL SANDERS
One Hundred and Seventy-Fifth Respondent

ANTON SAXER
One Hundred and Seventy-Seventh Respondent

KEITH SHIELD
One Hundred and Eighty-First Respondent

DALE SHIRTLIFF
One Hundred and Eighty-Second Respondent

DUSKO SOBOT
One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN
One Hundred and Eighty-Seventh Respondent

BRAD SPARK
One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT
One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND
One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA
One Hundred and Ninety-Fourth Respondent

KEN THACH
One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST
One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON
One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN
One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA
Two Hundredth Respondent

GREG UCHWAL
Two Hundred and First Respondent

PETER VARIAKOJIS
Two Hundred and Second Respondent

MAREE WAINMAN
Two Hundred and Third Respondent

MITCHELL WEIR
Two Hundred and Fourth Respondent

MICHAEL WRIGHT
Two Hundred and Sixth Respondent

LESLEY YOUNG
Two Hundred and Eighth Respondent

PERO ZUVELA
Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Two Hundred and Eighteenth Respondent

BRADLEY UPTON
Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION
Two Hundred and Twentieth Respondent

JOHN WINDUS
Two Hundred and Twenty-First Respondent

ANDREW HOLDSWORTH
Two Hundred and Twenty-Second Respondent