Australian Building and Construction Commissioner v Collier and Ors
[2017] FCCA 1964
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN BUILDING & CONSTRUCTION COMMISSIONER v COLLIER & ORS | [2017] FCCA 1964 |
| Catchwords: PRACTICE & PROCEDURE – Application for leave to re-open – applicant’s case closed – whether applicant should be granted leave to re-open its case and adduce evidence in reply – civil penalty proceeding – penalty privilege – leave granted. |
| Legislation: Corporations Act 2001 Fair Work Act 2009 (Cth), ss.499, 500, 501(3), 539, 793 Federal Circuit Court Rules 2001(Cth), rr.13.03B, 17.02 |
| Cases cited: Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620; (2007) 164 FCR 32 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 |
| Applicant: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| First Respondent: | LUKE COLLIER |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Third Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
| File Number: | SYG 3426 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 20 - 23 March 2017 |
| Date of Last Submission: | 23 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Britt |
| Solicitors for the Applicant: | Bartier Perry |
| Counsel for the Respondents: | Mr I Latham |
| Solicitors for the Respondents: | Taylor & Scott Lawyers |
ORDERS
Leave is granted to the applicant to re-open its case and adduce further evidence relevant to the issue of whether Mr Hackett is a “fully inducted project representative” as that term is used in the Visitor’s Induction document (AE3).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3426 of 2014
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Applicant
And
| LUKE COLLIER |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) |
Third Respondent
REASONS FOR JUDGMENT
As Corrected
This is an application made by the Australian Building and Construction Commissioner (“the applicant”) on 10 December 2014 pursuant to ss.499, 500 and 503(1) of the Fair Work Act 2009 (Cth) (“FWA”). The applicant is seeking declarations that Luke Collier (“the first respondent”) and, by operation of s.793 of the FWA, the Construction, Forestry, Mining and Energy Union (“the second respondent”) and the Construction, Forestry, Mining and Energy Union (NSW Branch) (“the third respondent”) contravened ss.499, 500 and 503(1) of the FWA by action taken by the first respondent at the site of the Barangaroo Headland Park construction project (“the Project”) on 5 March 2014.
The applicant is also seeking that pecuniary penalties pursuant to s.539 of the FWA be imposed on the first and second respondents.
The current issue in this matter involves an application made by the applicant, at the close of the fourth day of the hearing on 23 March 2017, to re-open its case and adduce evidence in reply to the first respondent.
Prior to the hearing of this matter, on 2 March 2017, I made orders, by consent, that pursuant to r.17.02 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), the question of the liability of the first respondent, be determined separately to the liability of the remaining respondents.
The matter came before the Court for hearing on the liability of the first respondent on 20, 21, 22 and 23 March 2017.
The applicant sought, and was granted, leave to read the following affidavits:
a)The affidavit of Ross Murray Barker, Safety Manager, made on 15 July 2015 (at [25] on page 8 of annexure “RMB1”, the word “Clothier” was amended to read “Collier”);
b)The affidavit of Dermot O’Sullivan, General Manager, made on 15 July 2015;
c)The affidavit of Kieron Dominic Little, Construction Manager, made on 17 July 2015;
d)The affidavit of Matthew Owen Clothier, General Superintendent, made on 17 July 2015;
e)The affidavit of Mark Lanigan-O’Keeffe, (no occupation stated) made on 17 July 2015 (at [7] the references to “Barry Murphy” and “Murphy” were amended to read “Kieron Little” and “Little” respectively);
f)The affidavit of Matthew Barr, Assistant Director & Fair Work Building Industry Inspector, made on 14 July 2015;
g)The affidavit of Kevin Joseph Maher, Industrial Relations Manager, made on 15 July 2015; and
h)The affidavit of Barry Finbarr Murphy, Project Director, made on 21 July 2015.
The first respondent’s objections to the applicant’s affidavit evidence and the disposition of those objections are as set out in Schedule 1 to this judgment.
On 20 and 21 March 2017 seven of the applicant’s witnesses were called to give evidence:
a)Mr Barry Finbarr Murphy, Project Director;
b)Mr Matthew Owen Clothier, General Superintendent;
c)Mr Kieron Dominic Little, Construction Manager;
d)Mr Ross Murray Barker, Safety Manager;
e)Mr Dermot O’Sullivan, General Manager;
f)Mr Matthew Barr, Assistant Director and Fair Work Building Industry Inspector; and
g)Mr Mark Lanigan-O’Keeffe, self-employed.
At the hearing, the applicant sought, and was granted, leave to tender the following documents:
a)Applicant’s exhibit 1 – an aerial photograph of the Project site (“AE1”)
b)Applicant’s exhibit 2 – Company Search of Lend Lease Engineering Pty Ltd (“AE2”)
c)Applicant’s exhibit 3 – Visitor Induction document (“AE3”)
d)Applicant’s exhibit 4 – Entry Permit Search (“AE4”)
e)Applicant’s exhibit 5 – WHS-EPH Application for an Entry Permit (“AE5”)
f)Applicant’s exhibit 6 – Training Certificate for Luke Collier (“AE6”)
g)Applicant’s exhibit 7 – Statutory Declaration of Luke Collier dated 13 February 2014 (“AE7”)
On 22 March 2017, the third day of the hearing, the first respondent sought, and was granted, leave to read the following affidavits:
a)The affidavit of Luke Collier, Union Official, made on 21 March 2017 (paragraphs [7] to [11] were not read); and
b)The affidavit of Dean Hackett, Construction Worker, made on 21 March 2017 (at the hearing, the word “Darking”, in the context of Mr Hackett’s address on page 1 of his affidavit, was amended to read “Darling”).
On 22 and 23 March 2017 the first respondent’s two witnesses were called to give evidence:
a)Mr Luke Collier, Union Official; and
b)Mr Dean Hackett, Construction Worker.
The applicant closed its case on 21 March 2017.
Prior to the hearing, the first respondent did not file any evidence on the basis that he asserted he had the benefit of the “penalty privilege” (see Australian Securities and Investments Commission v Mining Projects Group Limited [2007] FCA 1620; (2007) 164 FCR 32 (“Mining Projects Group”)). The applicant did not oppose this approach.
After the applicant had closed its case on 21 March 2017, the first respondent filed a further amended Defence, an affidavit of Mr Luke Collier made on 21 March 2017, and an affidavit of Mr Dean Hackett made on 21 March 2017. On 22 and 23 March 2017, the first respondent called Mr Collier and Mr Hackett to give evidence.
On 22 March 2017, after the cross-examination of Mr Hackett, the applicant raised with the Court the possibility that it would seek leave to recall two of its witnesses to deal with matters that were raised by the evidence of Mr Hackett. These were said to be issues that were not previously addressed in the applicant’s case.
On 23 March 2017, after the examination of Mr Collier, the applicant made an application to re-open its case. The first respondent opposes that application. The question to be determined now is whether that application should be allowed. The applicant made oral submissions. The first respondent filed in Court an outline of written submissions and made oral submissions.
The applicant seeks to recall Mr Clothier and Mr Murphy to deal with two discreet issues arising from the evidence of Mr Hackett, in particular from [8] and [9] of Mr Hackett’s affidavit.
The first issue arises from [8] of Mr Hackett’s affidavit which concerns the policy of Baulderstone Proprietary Limited (which has now been subsumed by Lend Lease, the head contractor on the Project), that visitors must be accompanied while on site by a “fully inducted project representative” (as that term used in the Visitor Induction
document (AE3)).
Paragraph 8 of Mr Hackett’s affidavit is as follows:
“The policy for the site was for a representative of Baulderstone (or LLE) who had been inducted to walk with any non-inducted person who was on site. I always considered myself a representative who could accompany a non-inducted person, like most jobs. Many times I accompanied non-inducted persons on site.”
The applicant contends that while “one witness” (in context, this appears to refer to either Mr Collier or Mr Hackett) was questioned as to whether Mr Hackett was “inducted”, the term “fully inducted project representative”, as it appears in the Visitor Induction document, was not “used”. That is, the term was not employed in questions, nor the answers. The applicant seeks leave to recall Mr Murphy, the Project Director for Lend Lease, to give evidence on this point.
The second issue arises from [9] of Mr Hackett’s affidavit which refers to conversations between Mr Hackett and Mr Clothier, the General Superintendent for Lend Lease, regarding the ability of Mr Hackett to accompany people on the Project site. Paragraph 9 of Mr Hackett’s affidavit is as follows:
“The general practice was for me to call Clothier usually to say that someone was at the site who needed to go on, and should I accompany them. As a matter of course, Clothier would say ‘yep, that’s fine.’ Clothier never refused me permission to accompany people on site. Usually Clothier would come down with me, but not always. There have been several occasions when I accompanied people on site, such as on family day.”
The applicant seeks to recall Mr Clothier to comment on the discussions recounted in [9] of Mr Hackett’s affidavit.
The parties agree that the circumstances in which the applicant is seeking to adduce further evidence in reply, after the conclusion of its case, and before the judgment becomes reserved, in a civil penalty hearing, is “new territory” for the Court to consider.
However, the applicant submits that the relevant principle to the question of whether leave to re-open should be granted is found in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 (“Bradshaw”). This is a matter concerning the re-opening of a case after judgment was reserved, in which her Honour Justice Kenny stated at [24]:
“…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 re-open.”
Her Honour sets out four classes of case in which a Court may grant leave to re-open. The applicant relies on one class, being “mistaken apprehension of the facts” (Bradshaw at [24]). The applicant submits that at the time it closed its case, there was no suggestion arising through the cross-examination of any of its witnesses that Mr Hackett fitted the description of a “fully inducted project representative”, as that term appears in the Visitor Induction document (AE3).
The applicant also relies on The Movie Network Channels Pty Ltd v Optus Vision Ltd [2009] NSWSC 132 per Einstein J (“The Movie Network Channels”) which sets out the principles which inform the exercise of the discretion to re-open, being “the evidence must be credible, highly probative and not previously obtainable by reasonable diligence” and cites the “interests of justice” test from Bradshaw (The Movie Network Channels at [4]). In TheMovie Network Channels (at [8]), his Honour relies on the judgment of his Honour Justice Austin in ASIC v Rich [2006] NSWSC 826; (2006) 235 ALR 587 (“Rich”) (a case on which the first respondent also relies), which lists a range of factors that are relevant to the exercise of the discretion to re-open as follows:
“In ASIC v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18] per Austin J listed the factors that he agreed were relevant to the exercise of the discretion as follows:
i. The nature of the proceeding [See also Woolworth Ltd v Olson [2004] NSWSC 871];
ii. Whether the occasion for calling the further evidence ought reasonably to have been foreseen;
iii. The consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
iv. The extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;
v. The importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
vi. The degree of relevance and the probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
vii. The prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
viii. The public interest in the conclusion of litigation [See also Hawthorn Glen Pty Ltd v Aconex Pty Limited (No 1) [2007] FCA 2010 at [48]]; and
ix. What explanation is offered by the plaintiff for not having called the evidence in chief.”
In relation to these factors, the applicant first submits that the calling of further evidence was not “reasonably foreseeable” (The Movie Network Channels at [8](ii)). Second, it submits that it is “clearly relevant and of probative value” (The Movie Network Channels at [8](vi)). Third, that there is no prejudice to the first respondent in terms of delay, the completion of the proceedings, or consequential costs (The Movie Network Channels at [8](vii)).
Finally, the applicant emphasised that unlike the cases to which it referred to in support of its submissions, the current case is not one where judgment has been reserved.
In his oral submissions, the first respondent submits that when considering whether to give leave to the applicant to re-open its case, the Court must have regard to the nature of the case as a civil penalty proceeding. He refers to the decision of his Honour Justice Flick in Australian Building and Construction Commissioner v Hall [2017] FCA 274 (“ABCC v Hall”) in which his Honour discusses the special character of civil penalty proceedings.
The first respondent also relies on the decision in Rich which dealt with proceedings under the Corporations Act 2001 (Cth), but relies on the same principles. The first respondent relies on [15] – [17] in which the Court says the following:
“[15]…The Court treats an ASIC civil penalty case in which a declaration of contravention is sought as a proceeding subject to the civil rules of evidence and procedure, but when exercising its discretion in evidentiary and procedural matters, the court has regard to the nature of the proceeding as a civil penalty proceeding and the seriousness of the consequences of granting the relief sought (including disqualification orders that have a penal effect).
[16] I doubt whether this approach is substantively different from the criminal procedure, in terms of principles or application. The following principles emerge from the criminal cases:
·the general principle is that the prosecution must present its case completely before the accused is called upon for his defence, and therefore, although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, the prosecution should be permitted to call evidence at that stage only if the circumstances are very special exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen ...
[17] Generally, the same principles govern the exercise of the court's discretion in civil cases. It is said that the court applies the principles about splitting the prosecutor's case ‘less strictly’ to a plaintiff in a civil case, to use the language of the learned editor of Cross on Evidence at [17720], citing Shaw's case at 85 CLR 383 per Fullagar J, or ‘more liberally’, to use the language of Santow J in Adler at [9]. But in a civil penalty case in which disqualification orders are sought, once one has regard to the nature of the proceeding and the seriousness of the consequences attaching to the relief sought, and all of the considerations affecting the particular evidence sought to be adduced, it is unlikely that the injunction to be ‘more liberal’ will have any effect on the exercise of the discretion..."
The first respondent submitted at [4] - [5] of his written submissions, that to read the “privilege against penalty” narrowly would be to “deny” its “importance in the development of the common law”.
In his oral submissions in response to the applicant’s submissions, the first respondent pointed out that at [12] - [13] of the Statement of Claim (“SOC”), the applicant alleges that:
“[12]…The First Respondent proceeded to walk on to the Site unaccompanied by a Project representative of Lend Lease.”
[13] The First Respondent was requested by a representative of Lend Lease not to walk on to the Site unaccompanied by a Project representative of Lend Lease.”
The first respondent says that the issue has been “in play” since the filing of the SOC, and that “all of the witnesses were cross-examined as to whether Mr Hackett was a representative of Lend Lease”. The first respondent says that while the applicant’s witnesses were not asked specifically whether Mr Hackett was a “fully inducted project representative”, they were asked whether he was a “project representative” at the Project site, and whether he was “inducted”.
The first respondent says it did not ask the applicant’s witnesses the specific question of whether Mr Hackett was a “fully inducted project representative”, as it was entitled to rely on the definition of “project” at [4(c)] of the SOC, which states:
“at the Site Lend Lease was, and is, undertaking a building project known as the Barangaroo Headland Park Project (the Project), the Project is due for completion in May 2015.”
From this, the first respondent says that the evidence shows Mr Hackett was inducted, that he was a representative of Lend Lease, and that the word “project” is defined by reference to the “site”, so therefore Mr Hackett was a “project representative” of Lend Lease.
The first respondent also submitted that in adducing further evidence as to whether Mr Hackett was a “fully inducted project representative”, the first respondent would need to “cross-examine” certain witnesses in relation to that point, which may cause significant delay and costs.
The applicant’s application to re-open its case arises from the following. It is to be remembered that the applicant’s case against the first respondent, relevant to the current consideration, is that he variously breached s.499 of the FWA.
One aspect of this allegation was that the first respondent entered the Project site, proceeded around the Project site, and was not accompanied by a person who was a “fully inducted project representative”.
This necessary condition arose out of a particular, and relevant, work health and safety requirement that applied to the Project site.
These are some of the elements that the applicant is required to prove in order to establish a breach of s.499 of the FWA. In evidence before the Court is the Baulderstone Proprietary Limited (now subsumed by Lend Lease) Visitor Induction document (AE3). It provides, amongst other things, that:
“Visitors must always be accompanied whilst on site by a fully inducted Project Representative. Please ensure you follow any instructions and remain with the Project representative at all times.”
Mr Hackett was a witness (for the first respondent) in these proceedings. His evidence was that he was, at the relevant time, employed by Lend Lease. He was the health and safety representative (“HSR”) at the Project site. He was also a delegate of the second and third respondents at the Project site (see [2] - [3] of Mr Hackett’s affidavit).
His affidavit evidence at [8] and [9] is set out above at [19] and [21] respectively.
The evidence that the applicant now wishes to bring in re-opening its case, is evidence from Mr Clothier, General Superintendent and Mr Murphy, Project Director, in relation to what was put in evidence through Mr Hackett, that he considered himself an “fully inducted project representative” who could accompany a non-inducted person on the Project site.
The applicant seeks leave to re-open its case to adduce further evidence. I did not understand that there was any dispute that the overriding principle in the current consideration is “whether the interests of justice are better served by allowing or rejecting the application for leave to re-open” (Bradshaw at [24], citing Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“NWEISER”) at 478 and The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 at [22] and [25]).
In Bradshaw (at [24]) Justice Kenny on review of relevant authorities, found that “broadly speaking there are four recognised classes of case in which a Court may grant leave to re-open…”. As set out above, for current purposes, the applicant relies on one of these: “mistaken apprehension of the facts” (Bradshaw at [24]), with reference to NWEISER at 478).
The applicant’s submission is that at the time when the applicant closed its case before the Court, there was nothing to indicate from the
cross-examination of the applicant’s witnesses that Mr Hackett met the description of a “fully inducted project representative”.
The following matters are of relevance. First, in Bradshaw, the Court was considering an application to re-open after the matter had become reserved. This is not the situation in the current case. In a sense, the current case still remains “open”.
Second, in the current case, the applicant did not know of the first respondent’s case until after it had closed its case, and its witnesses had been cross-examined. The first respondent relied on the fact that the current proceedings involved “civil penalties”. As a natural person who was the “subject” of such proceedings, the first respondent was not required to, and did not, disclose his “defence until the close of the applicant’s case” (see also Mining Projects Group per Finkelstein J).
The first respondent chose to exercise the privilege available to him in this case. Plainly, no criticism can be directed to him for doing so. But his election to press the privilege had, in the current case, the consequence that the applicant, in the absence of any other indicator to the contrary, could not know that the first respondent would put forward that Mr Hackett met the description of a “fully inducted project representative”.
In The Movie Network Channels (a case also relied on by the applicant as mentioned above), the Court considered an application (by the applicant in that case) to re-open its case after the conclusion of the hearing in that matter.
The Court in that case emphasised that “the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application to re-open” (The Movie Network Channels at [4], with reference to Bradshaw). The Court then stated (The Movie Network Channels at [4]):
“An application to re-open is subject to various degrees of scrutiny depending on the stage of the proceedings when the application is made. The test of what is 'just' at this stage of the proceedings is akin to the considerations applicable where leave to rely on fresh evidence is sought on appeal. That is, the evidence must be credible, highly probative and not previously obtainable by reasonable diligence [Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717 at 719 per Young J; Ritchies at [51.51.50]; Australasian Meat Industry Employees' Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 at 493 – 494 per Toohey J; Murray v Figge (1974) 4 ALR 612; Betts v Whittingslowe (No 1) [1944] SAStRp 18; [1944] SASR 163; Hughes v Hill [1937] SAStRp 43; [1937] SASR 285; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 8].”
As set out above, the hearing in the current case had not closed. This is in contrast with the situation in both Bradshaw and The Movie Network Channels. In The Movie Network Channels the Court stated (at [4]) that “an application to re-open is subject to various degrees of scrutiny depending on the stage of the proceedings when the application is made.”
In the current case, the hearing as a whole had not closed when the application was made. However, the circumstances of this case are closer to those in The Movie Network Channels, given that the applicant’s case had closed, in circumstances where the applicant did not know of the evidence to be pressed by the respondent.
I accept the applicant’s submissions that in the circumstances, an analogy can be drawn with what was said in The Movie Network Channels. Therefore, it may be said that this stage of the proceedings, is at least akin to the stage reached in The Movie Network Channels, so that the test of what is in the interests of justice, includes the requirement that the evidence, which the applicant now wishes to adduce, is “credible, highly probative, and not previously obtainable by reasonable diligence” (The Movie Network Channels at [4] and see the cases and sources cited therein).
I agree with the applicant that the further evidence it seeks to adduce from Mr Clothier and Mr Murphy is highly probative given, as set out above, if proven, it has a direct link to one of the bases of the allegation of the breach of s.499 of the FWA by the first respondent.
The matter of the “mistaken apprehension of the facts” includes consideration of whether the occasion of the calling for the further evidence, ought reasonably to have been foreseen (Rich at [18] and The Movie Network Channels at [8]), and to enquire why the evidence was not called at an earlier stage. That is, at a time prior to the applicant closing its case (Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 266 and The Movie Network Channels at [7]).
The first respondent’s submission was that the applicant knew that the question of whether Mr Hackett was a “fully inducted project representative” might be at issue given what was set out in its SOC at [12] and [13].
At [12] and [13] of the SOC, the applicant asserts that the first respondent “proceeded to walk onto the Site unaccompanied by a Project representative of Lend Lease”, and that he was “requested by a representative of Lend Lease not to walk onto the Site unaccompanied by a Project representative of Lend Lease”.
I agree with the first respondent that the applicant would have known, prior to closing its case, of the issue of a non-inducted person needing to be accompanied on the site by a project representative who was inducted for that purpose.
However, I do not respectfully understand what was relevantly said in Bradshaw and The Movie Network Channels to necessarily relate to prior knowledge of an issue. Rather, as is made clear, the relevant class of case where leave may be granted is one where there is a “mistaken apprehension of the facts” (Bradshaw at [24] and The Movie Network Channels at [6]).
In my view, there is a distinction to be drawn between an issue, and the various parts of the substratum of facts relevant to that issue.
In the current case, while the applicant (given what is set out in its SOC), knew of the issue of the need for a fully inducted person to accompany a non-inducted person on the Project site, it could not have reasonably known, or foreseen, the particular “facts” asserted by Mr Hackett in his evidence.
That is, when it closed its case, Mr Hackett’s affidavit had not been served on the applicant. In that circumstance, the applicant could not have known specifically that Mr Hackett would claim to be the “fully inducted project representative” who accompanied the first respondent on the Project site, in that capacity.
The first respondent now submits that the applicant’s witnesses were cross-examined as to whether Mr Hackett was a representative of Lend Lease on the Project site, and, separately, implicitly whether he was “inducted”. Further it is the case that, as the first respondent submits, the word “project” was defined at [4](c) of the SOC.
The witnesses however, were not asked about the matter that goes to the specific factual question of whether Mr Hackett was a “fully inducted project representative” of Lend Lease, on the Project site who was able to accompany non-inducted persons onto the Project site.
That is, while the applicant knew of the general issue of the need for a fully inducted person to accompany the first respondent, it could not have reasonably known that the first respondent would raise, in his Response, and through Mr Hackett’s evidence, that specifically, Mr Hackett was that person.
The first respondent also referred to a number of authorities in support of his submissions.
First, Fair Work Ombudsman v Safecorp Security Group Pty Ltd & Anor [2017] FCCA 348 (per Judge Manousaridis). I do not respectfully see that that case provides assistance in the current circumstances. In that case, leave was sought to re-open the case after the judgment was reserved. Further, declarations had been made pursuant to r.13.03B(2)(c) of the FCC rules, regarding the liability of one of the respondents. I respectfully understood that case to address different issues to the current case, including the matter of the finality of litigation.
Second, ABCC v Hall for the proposition that matters regarding an application for a civil penalty (as in the current case), require a different approach to the running of a “normal” civil case, given what was described as the “quasi-criminal” character of civil penalty proceedings (ABCC v Hall at [18]).
Plainly, that must be accepted. But what the first respondent did not satisfactorily explain before the Court was how that proposition was relevant to the test to be applied in the current consideration, and as that test is derived from Bradshaw and The Movie Network Channels. ABCC v Hall did not involve a consideration of the re-opening of the hearing.
Third, the first respondent submitted that the principle of finality of litigation should be considered. Given the stage of the proceedings now, this does not assist the first respondent.
Further, the first respondent also referred to Rich. The purpose of the reference appeared to be to rely on the principle set out there. That is, in the consideration of the exercise of the discretion to re-open the case.
I do not respectfully understand anything said in Rich to alter the understanding of the principles relevant to the current consideration, and as set out above. I note that the Court in The Movie Network Channels (at [8]) summarised the factors listed in Rich as relevant to the exercises of the discretion.
In all, the applicant should be permitted to re-open its case on the specific matter arising from Mr Hackett’s evidence and with a specific focus on his evidence at [8] and [9] of his affidavit. I will make that order.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 18 August 2017
Corrections
References in this judgment to the “Australian Building and Construction Commission” have been amended to read “Australian Building and Construction Commissioner”.
Schedule 1
| Affidavit | Part | Objection | Disposition |
| Matthew Barr, Assistant Director & Fair Work Building Industry Inspector, made on 14 July 2015 | [10] from “believe” onwards | Opinion (s.76 of the Evidence Act 1995 (Cth) (“the EA”) | Not admitted. |
| Annexure “MB1” | Hearsay (s.59 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Annexure “MB1” [28] | Form | Admitted on the basis the parties will make submissions on the weight of [28]. | |
| Barry Finbarr Murphy, Project Director, made on 21 July 2015 | Annexure “BFM1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred, or did not occur, on 4 March 2014). |
| Annexure “BFM1” [13], last sentence | Form | ||
| Annexure “BFM1” [14] | Opinion (s.79 of the EA) | ||
| Annexure “BFM1” [20] – [21] | Form | ||
| Annexure “BFM1” [22], last sentence | Form | ||
| Annexure “BFM1” [23] | Form | ||
| Annexure “BFM1” [49] | Form | Admitted on the basis that the applicant has leave to call oral evidence in relation to [49]. | |
| Annexure “BFM1” [51] | Form | Admitted. |
| Annexure “BFM1” [52], [54], [61], [63], [66], [67], [98] | Form | Admitted (objection not pressed). | |
| Annexure “BFM1” “BM-002” | Form, hearsay, opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Kieron Dominic Little, Construction Manager, made on 17 July 2015 | Annexure “KDL1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred, or did not occur, on 4 March 2014). |
| Annexure “KDL1” [13] – [15] | Form | ||
| Annexure “KDL1” [16], second sentence | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [17] | Form | ||
| Annexure “KDL1” [20], to the word “minor” | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [21] | Form | ||
| Annexure “KDL1” [22], [23] | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [25], the word “minor” | Opinion (s.76 of the EA) | ||
| Annexure “KDL1” [27] | Form | ||
| Annexure “KDL1” [31] | Form | Admitted (objection not pressed). | |
| Annexure “KDL1” [33], last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [34] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [44], last sentence. | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [45], last sentence. | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [54] | Form | Second sentence not admitted (evidence not pressed). Remainder of paragraph admitted. | |
| Annexure “KDL1” [55] | Form | Not admitted (evidence not pressed). | |
| Annexure “KDL1” [63] | Form | Admitted. | |
| Annexure “KDL1” [74] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “KDL1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred or did not occur on 4 March 2014). | |
| Annexure “KDL1” “KL-02”, page 1 | Relevance (s.55 of the EA) | ||
| Annexure “KDL1” | Form, hearsay, opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. |
| Kevin Joseph Maher, Industrial Relations Manager, made on 15 July 2015 | Annexure “KJM1” [10] | Form | Admitted (objection not pressed). |
| Annexure “KJM1” [32] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Mark Lanigan-O’Keeffe, (no occupation stated), made on 17 July 2015 | [7], last sentence | Form, Opinion (s.76 of the EA) | Not admitted (evidence not pressed). |
| Annexure “MLO-1” | Form, Hearsay, Opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Dermot O’Sullivan, General Manager, made on 15 July 2015 | Annexure “DO1” [35] | Form | Admitted (objection not pressed). |
| Annexure “DO1” | Form | Admitted on the basis that the applicant has leave to call oral evidence in relation to | |
| Annexure “DO1” [52] | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “DO1” [75], last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “DO1” [76], last sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Ross Murray Barker, Safety Manager, made on 15 July 2015 | Annexure “RMB1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred, or did not occur, on 4 March 2014). |
| Annexure “RMB1” [14], third and fourth sentences | Opinion (s.76 of the EA) | ||
| Annexure “RMB1” [14], fifth and eighth sentences | Form | ||
| Annexure “RMB1” [15], [16], [17] | Form | ||
| Annexure “RMB1” [18] | Form, opinion (s.76 of the EA) | ||
| Annexure “RMB1” [19] | Form | ||
| Annexure “RMB1” [25], first sentence | Form | Not admitted (evidence not pressed). | |
| Annexure “RMB1” [25], [fifth] sentence from “it was apparent…by LLE” | Opinion (s.76 of the EA) | Admitted (objection not pressed). | |
| Annexure “RMB1”, [25], seventh sentence from “it is usual practice...while on site.” | Opinion, Hearsay (ss.76, 59 of the EA) | Admitted (objection not pressed). | |
| Annexure “RMB1” [25], eighth sentence, to the words “and tried to reason with them” | Form | The words “and tried to reason with them” not admitted (evidence not pressed). | |
| Annexure “RMB1”, [27], second sentence from “On each occasion… to comply.” | Form | Admitted (objection not pressed). | |
| Annexure “RMB1”, [28] to the words “They didn't understand what was going on.” | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “RMB1” [28], subparagraph beginning “Collier did not say anything” to the words “The workers stopped work…and didn’t know what to do”(the second and third sentences of that subparagraph) | Opinion (s.76 of the EA) | Not admitted, except for the words “the workers stopped work” (evidence in remainder of the subparagraph was not pressed. The objection to the words “the workers stopped work” was not pressed). | |
| Annexure “RMB1” [28], last sentence, “The steelfixers…and continued to work.” | Form | Not admitted (evidence not pressed). | |
| Annexure “RMB1” [38], [third] sentence “The work was disrupted…organiser’s actions.” | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). | |
| Annexure “RMB1” “RB-2” | Form, hearsay, opinion (ss.59, 76 of the EA) | Admitted pursuant to s.60 of the EA. | |
| Matthew Owen Clothier, General Superintendent, made on 17 July 2015 | Annexure “MOC1” | Relevance (s.55 of the EA) | Not admitted (evidence was not pressed on the basis that the respondents do not attempt to lead evidence as to what occurred or did not occur on 4 March 2014). |
| Annexure “MOC1” [27] | Form | Not admitted (evidence not pressed). |
| Annexure “MOC1” [28], [fourth] sentence, “by signing in…by the visitor’s induction.” | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). |
| Annexure “MOC1” [29] | Opinion (s.76 of the EA) | Admitted. |
| Annexure “MOC1” [31] | Form | Not admitted (evidence not pressed). |
| Annexure “MOC1” [32] | Form | Admitted (objection not pressed). |
| Annexure “MOC1” [35], to the words “unescorted in breach of the OHS requirements of the site visitor’s induction.” | Opinion (s.76 of the EA) | The word “unescorted” admitted. The words “in breach of” not admitted. |
| Annexure “MOC1” [38] | Form, hearsay (s.59 of the EA) | Admitted on the basis that the applicant has leave to lead oral evidence on [38]. |
| Annexure “MOC1” [39], final sentence | Opinion (s.76 of the EA) | Not admitted (evidence not pressed). |
| Annexure “MOC1” [42], final sentence | Form | Not admitted (evidence not pressed). |
| Annexure “MOC1” [48] | Form | Admitted (objection not pressed). |
| Annexure “MOC1” [50] | Form | Admitted (objection not pressed). |
| Annexure “MOC1” [51], second sentence | Opinion (s.76 of the EA) | Admitted (objection not pressed). |
| Annexure “MOC1” “MC/01” | Form, hearsay, opinion (ss.59,76 of the EA) | Admitted pursuant to s.60 of the EA. |
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