Australian Building and Construction Commissioner v Albert

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FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Albert [2021] FCA 168  

File number(s): QUD 656 of 2019
Judgment of: COLLIER J
Date of judgment: 3 March 2021
Catchwords:  EVIDENCE – whether paragraphs in affidavit referring to prior written statements of witness admissible – whether prior written statements annexed to affidavit admissible – evidence in chief – relevance of prior written statements – whether credibility evidence within meaning of s 101A Evidence Act 1995 (Cth) – whether s 32 Evidence Act relevant – s 37(3) Evidence Act considered - whether hearsay evidence
Legislation: Evidence Act 1995 (Cth)
Cases cited:

Alfred v Lanscar (2007) 162 FCR 169; [2007] FCA 833

Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2) [2018] FCA 1459

Humphries v The Queen (1987) 17 FCR 182

Spalla v St George Motor Finance Ltd [2004] FCA 470

Temple v Powell (No 1) (2007) FCA 987

Whittaker v Child Support Registrar [2010] FCA 43
Date of hearing: 2 March 2021
Registry: Queensland
Division: Fair Work Division
National Practice Area: Employment and Industrial Relations
Category: Catchwords
Number of paragraphs: 50
Counsel for the Applicant: Mr Y Shariff SC and Mr S Mackie
Solicitor for the Applicant: K & L Gates
Counsel for the Respondents Mr CW Dowling SC and Mr CA Massy
Solicitor for the Respondents Hall Payne Lawyers

ORDERS

QUD 656 of 2019
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant
AND:

TE ARANUI ALBERT

First Respondent

BLAKE HYNES

Second Respondent

MICHAEL RAVBAR (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

3 MARCH 2021

THE COURT ORDERS THAT:

1.Paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, the affidavit of Michael Fischer dated 25 February 2021 are admissible as evidence in this proceeding.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

  1. During the hearing yesterday, the parties sought a ruling by me on certain objections to evidence in this proceeding. These objections are referable, by way of example, to evidence of the applicant’s witness Mr Michael Fischer in paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, his affidavit dated 25 February 2021. In addressing these objections I will, at this stage, concentrate on this evidence of Mr Fischer.

  2. The relevant paragraphs in Mr Fischer’s affidavit are as follows:

    91.On or around 30 July 2018, I prepared a statement outlining my recollection of the events that occurred during the night shift on 24 July 2018, which was true and correct at the time, and which remains true and correct to the extent of my knowledge and belief, except where I have corrected or added to it in this affidavit. Annexed and marked “MF2” is a true copy of this statement.

    …

    93.On 10 September 2018, I signed a statement prepared by Inspector Van Tooren, which was true…

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Details
Case
[2021] FCA 168
Decision Date

CaseChat Overview and Summary

The case of Australian Building and Construction Commissioner v Albert involved a dispute over the admissibility of certain evidence presented by the Commissioner. The respondents objected to the admissibility of two categories of evidence: prior written statements made to the Commissioner (category 1), and prior written statements purportedly written by the deponent after the relevant events (category 2). These objections were made on the basis that the evidence was hearsay and credibility evidence, which is generally inadmissible except in limited circumstances. The respondents argued that the evidence was intended to bolster the credibility of the witnesses and was therefore inadmissible under the Evidence Act 1995 (Cth). In response, the Commissioner argued that the evidence was relevant for reasons other than bolstering credibility and that it was not hearsay.

The court considered the submissions of both parties, focusing on the relevant provisions of the Evidence Act and relevant case law. The court noted that the evidence in category 2, which consisted of file notes annexed to the affidavits, did not fall within the scope of section 32 of the Evidence Act, which relates to the use of documents to refresh memory during oral testimony. The court also found that the evidence in categories 1 and 2 was not necessarily credibility evidence, and that it was admissible for purposes other than bolstering the credibility of the witnesses. The court rejected the respondents' objections and held that the evidence in categories 1 and 2 was admissible.

The court's decision was based on its interpretation of the relevant provisions of the Evidence Act and its assessment of the purpose and relevance of the evidence in question. The court found that the evidence was admissible for reasons other than bolstering credibility, and that it was not subject to the hearsay rule. The court also noted that the evidence had already been made available to the respondents, satisfying the purposes of section 34 of the Evidence Act. The court's decision was a detailed analysis of the relevant legal principles and their application to the facts of the case.

Orders

Orders of the court

1. Paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, the affidavit of Michael Fischer dated 25 February 2021 are admissible as evidence in this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In summary, the respondents object to evidence of this nature as being:·Prior statements made to the applicant (of which paragraphs 93, 94 and 95 and MF-3 and MF-4 are examples) (category 1 evidence); and·Prior statements written, or purportedly written, by the deponent after the relevant events (of which paragraph 91 and MF-2 are examples) (category 2 evidence). The respondents handed up written submissions in Court in support of their objections and made further oral submissions. Counsel for the applicant made oral submissions in response. I understand it to be common ground that the outcome of my ruling in respect of this evidence will be relevant to similar objections by the respondents to other evidence of the applicant. SUBMISSIONS OF THE RESPONDENTS IN SUPPORT OF THE OBJECTIONS In relation to the category 1 evidence, the respondents submitted in summary:·It was clear that the witness was not endeavouring to incorporate the contents of the statements as evidence in the proceeding, but rather to identify that the facts were true at the time the statement was made, except to the extent that they have been corrected or added to by their affidavits.·The purpose of attaching the statements is not to set out the evidence of the events as that evidence is already contained in the affidavit material. ·The purpose of annexing the statements is to bolster the credibility of each witness, and to have the court accept that it is more likely their evidence is true because it is consistent with other statements made. It follows that the statements are clear examples of credibility evidence.·Chief Justice Dixon and McTiernan J in The Nominal Defendant v Clements (1960) 104 CLR 476; [1960] HCA 39 examined the common law position concerning the admissibility of prior statements. Their Honours noted, in summary, that if the credit of a witness is impugned as to a material fact on the ground that his or her account is a late invention or reconstruction, a contemporaneous statement which is consistent with the witness’ account will be admissible. The general rule is that evidence of this type is credibility evidence, and inadmissible, except in limited circumstances to re-establish credit.·The common law position is enacted by ss 101A, 102, 103-108C and 110 of the Evidence Act 1995 (Cth).·The case of Temple v Powell (No 1) (2007) FCA 987 on which the applicant relied is not applicable in this case. In Temple v Powell (No 1) the applicant sought to rely on prior statements of witnesses adopted in their evidence, however, the witnesses had not otherwise given evidence independently on the same matters. Further in Temple v Powell (No 1), no objection was taken on the basis that the evidence was inadmissible because it was credibility evidence. In present proceedings the applicant’s witnesses have otherwise given evidence independently of the prior statements annexed to their affidavits, and seek to bolster their credibility by the annexure of those prior statements.·The applicant has not demonstrated the relevance of this evidence other than to bolster the credibility of its witnesses. Simply seeking to repeat evidence already given did not make the repeated evidence relevant.·The statements are hearsay and not admissible.·The appropriate course is to rule the evidence in categories 1 and 2 inadmissible, and, if an issue arises during cross-examination of the relevant witness as to the credit of that witness and whether his account is a late invention or reconstruction, address any application by the applicant during re-examination for re-admission of that evidence.

Decision

Reasons for decision

Mere annexation of file notes (included category 2 evidence) to the relevant affidavits in these proceedings does not, of itself, give rise to an inference that the witness was, or was intending, to use the document to revive his memory within the meaning of s 32 of the Evidence Act. This is particularly so in a proceeding such as this, where I made case management orders (on 17 April 2020) that evidence was to be by affidavit. As Lindgren J observed in Whittaker v Child Support Registrar [2010] FCA 43 at [334] in respect of s 32 of the Evidence Act, the concern of the section is confined to the giving of oral evidence in Court. I also note his Honour’s comment that:341 In the present case, the affidavits had been made and the deponents’ memories already refreshed out of court before the objection was taken. The documents from which memory had been refreshed had been made available to the other party, copies having been annexed to the affidavits, and so the purpose of s 34 of the Evidence Act had been satisfied.342 It sufficed as the ground for disallowing the objection in the way in which the objection was put, that s 32 simply had no application. CONCLUSION As matters presently stand I am not persuaded that the evidence in categories 1 and 2 is credibility evidence as contemplated by such cases as Clements, such that the proper way forward (as submitted by the respondents) is to refuse its admission, await the cross examination of the relevant witnesses, and then potentially evaluate its readmission in re-examination if leave were sought by the applicant. I reject the respondents’ objections to the evidence of the applicant in categories 1 and 2, being paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, the affidavit of Michael Fischer dated 25 February 2021. For the reasons I have given, in my view this evidence is admissible.

Ratio Decidendi

Legal Principle Established

In relation to the category 2 evidence, the applicant submitted in summary:·The statements were not included in the affidavits as an attempt to bolster the credibility of the respective witnesses.·Section 32 of the Evidence Act was not relevant in this case as the statements were not included in an attempt to revive memory of the witnesses in Court.CONSIDERATION The submissions of the parties were primarily referable to two authorities, namely Clements (on the part of the respondents) and Temple v Powell (No 1) (on the part of the applicant). There are, however, other authorities which in my view are relevant to the admissibility of the evidence currently in dispute. In particular I note Alfred v Lanscar (2007) 162 FCR 169; [2007] FCA 833 and Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2) [2018] FCA 1459. It is useful to have regard these cases in the course of ruling on the objection to the admissibility of the evidence in categories 1 and 2.Clements In Clements the plaintiff claimed damages from the Nominal Defendant pursuant to s 30(1) of the Motor Vehicles (Third Party) Insurance Act 1942 (NSW) for personal injuries sustained by him in an incident involving an uninsured motor vehicle. The trial took place more than four years after the accident, and, inter alia, the plaintiff was cross-examined at the trial to demonstrate that he had no memory of the occurrence, and that his evidence was the result of coaching by his father to give certain answers to questions at the trial. To rebut the suggestion that the plaintiff’s evidence was reconstructed, the plaintiff tendered a statement obtained by a sergeant of police from the plaintiff two months after the accident. The statement was admitted into evidence, and the defendant appealed on the basis that the statement had been wrongly admitted by the trial Judge. Chief Justice Dixon (with whom Kitto J concurred) observed at 479-480:In all the circumstances of the case the contention that the statement ought not to have been admitted seemed a somewhat flimsy ground for a new trial application. On the other hand I have had some doubt whether the conduct of the trial by counsel for the defendant really gave sufficient ground for letting in the statement as evidence. The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance.In the present case counsel for the Nominal Defendant disclaimed any attack on the honesty of the plaintiff's account of the accident. But although upon the evidence as recorded it is difficult to feel assured that a foundation had been laid for an attack upon the boy's story as a late reconstruction it was, I think, fairly open to the judge at the trial to conclude that the defendant would set up a case that the plaintiff's story was the result of the father's coaching and represented no antecedent memory of the events, and that is perhaps enough. But there is yet another difficulty. For after all the statement to the police sergeant says very little and might be explained not altogether unreasonably as the kind of thing a policeman might put down after obtaining but the barest account of the accident from a child, who ex hypothesi had little or no recollection of the event in detail. But that apparently was not the view taken at the trial by either party.