Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Ors (No.4)

The Australian Building and Construction Commissioner brought proceedings against the Construction, Forestry, Mining and Energy Union and others. The dispute concerned the admissibility of evidence, specifically whether the Commissioner had reasonable grounds to believe that certain evidence would be admissible to support allegations made in proceedings. The matter came before Judge Manousaridis.

The primary legal issue before the court was whether the Commissioner had a reasonable basis for alleging the presence of Mr O’Connor at the Barangaroo site at a relevant time, and whether the Commissioner had reasonable prospects of securing admissible evidence to support this allegation. This involved determining the application of the hearsay rule under section 59 of the *Evidence Act 1995* (Cth) to statements made by Mr Young concerning his observations of a video on the CFMEU Facebook page.

Judge Manousaridis reasoned that evidence of statements made by one person that another person heard would generally be inadmissible hearsay to prove the truth of those statements, unless an exception applied. However, the judge found that the Commissioner was not satisfied that Mr Young’s deposition about Mr O’Connor’s presence did not constitute a reasonable basis for the allegation. The court was not satisfied that the Commissioner had no reasonable prospects of securing admissible evidence. The judge considered that the video itself, if authentic, would be admissible as a document, and evidence of its contents could be adduced by a witness like Mr Young if the video was unavailable. Therefore, Mr Young’s evidence describing the contents of the video would not necessarily be inadmissible hearsay, but rather evidence of the contents of a document under section 48(4) of the *Evidence Act*.