Australian Building and Construction Commissioner v Darnton-Turner (No 2)
[2022] FedCFamC2G 916
Federal Circuit and Family Court of Australia
(DIVISION 2)
Australian Building and Construction Commissioner v Darnton-Turner (No 2) [2022] FedCFamC2G 916
File number(s): CAG 45 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 October 2022 Catchwords: PRACTICE AND PROCEDURE – Industrial law – application for leave to amend statement of claim – whether amendment would be futile – amendment allowed. Legislation: Evidence Act 1995 (Cth) ss 76, 78, 79 Cases cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 Division: Fair Work Number of paragraphs: 22 Date of hearing: 25 October 2022 Place: Sydney Counsel for the Applicant: Ms P Bindon Solicitor for the Applicant: Clayton Utz Counsel for the First and Second Respondents: Mr P Boncardo Solicitor for the First and Second Respondents: Maurice Blackburn Lawyers Counsel for the Third Respondent: Mr J Agius SC Solicitor for Third Respondent: Electrical Trades Union ORDERS
CAG 45 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND: JAMES DARNTON-TURNER
First Respondent
BRIAN WINDSOR
Second Respondent
COMMUNICATIONS, ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING ALLIED SERVICES UNION
Third Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 OCTOBER 2022
THE COURT ORDERS THAT:
1.The applicant has leave to file a further amended statement of claim in the form of the draft amended statement of claim that has been marked MFI-1.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
Yesterday I delivered oral reasons for judgment on the basis of which I concluded that paragraph 22 of the statement of claim is liable to be struck out.[1]
[1] Australian Building and Construction Commissioner v Darnton-Turner [2022] FedCFamC2G 915
After I delivered my reasons for judgment, counsel for the applicant (ABCC) indicated that the ABCC proposed to seek leave to file an amended statement of claim. This was done after I had given the parties time to consider the effect of the reasons I had delivered. I adjourned the proceeding to 10:00 am today on the basis that the ABCC would provide to the respondents and to my chambers before 10:00 am today a draft of the proposed amended statement of claim. A draft amended statement of claim was provided to the respondents and to my chambers before 10:00 am today, and in sufficient time for me to at least look at it and understand it.
When the matter resumed at 10:00 am today, the ABCC applied for leave to file an amended statement of claim in the form of the draft that had been circulated (ASC).[2] The respondents opposed the amendment, and I heard submissions on that application. Although extensive submissions were made, the submissions of the first and second respondents boil down to two basic propositions. The first is that, as a matter of form, the proposed amendment to paragraph 22 of the statement of claim does not cure the deficiencies I had identified in the reasons for judgment I delivered yesterday; and, secondly, and more substantively, the amendments, to the extent they were based on evidence, the evidence is not admissible; and, even if the evidence were admitted, allowing the amendments would be futile.
[2] The proposed amended statement of claim was marked “MFI1”.
Counsel for the third respondent (the Union) adopted the submissions made on behalf of the first and second respondents, but counsel for the Union emphasised the failure of the ABCC to respond to a request for particulars that was made in November of last year, being a request to which I have referred in the reasons for judgment I delivered yesterday.
I will begin with setting out the text of the proposed amendment to paragraph 22, which is as follows:
Darnton-Turner's refusal to move from in front of the distribution board:
(a) obstructed the formworkers who had been erecting formwork in the vicinity of that distribution board from continuing to erect formwork in that area because:
(i) Darnton-Turner's location in front of the distribution board meant that formworkers could not access it to plug in their tools which they required to continue working;
(ii) Darnton-Turner's location in front of the distribution board was in an exclusion zone under a live formwork area and for safety reasons it is not possible for formwork to be erected in a live formwork area while a person is present underneath the live formwork area;
(b) obstructed the members of the group accompanying Darnton-Turner and Windsor to the formwork deck on level 8 of zone D, namely Henning, Haralambous Fowlie and Marotti, from continuing with their work on the Project because whilst Darnton-Turner refused to move from in front of the distribution board:
(i) for safety reasons Henning and Haralambous could not leave DarntonTurner unaccompanied in the live formwork area and were therefore compelled to remain there;
(ii) Henning, Haralambous, Fowlie and Marotti were prevented from moving on to the next suspected safety contravention the officials wished to inspect.
There is substantial merit in the submissions made by the first and second respondents in relation to paragraphs 22(a)(ii) and 22(b) of the ASC that they do not overcome the deficiencies I identified in my reasons for judgment I delivered yesterday. There is less merit, however, to the extent those same submissions were made in relation to paragraph 22(a)(i) of the ASC. On balance, however, the proposed amendment is sufficient to be permitted to go forward as a pleading. The principal basis of this conclusion - and it is a conditional conclusion at this stage of my reasons - is that the ABCC has put forward this proposed amendment on the basis of evidence it says it will rely on, and it has identified that evidence. To the extent that evidence is admissible and is reasonably capable of supporting the allegation made at paragraph 22 of the ASC, it will be difficult to see how paragraph 22 will not fulfil the intended function of a pleading, which is to notify a party of the case the party needs to meet.
Further, if the evidence on which the ABCC relies is admissible and arguably supports the allegations made in paragraph 22 of the ASC, there will be no prejudice to the respondents if the amendment is permitted. Paragraph 22 is directed to a relatively discrete event, being the first of the three alleged incidents on which the ABCC relies; and given that it is directed to a discrete event, the evidence the ABCC has filed, to the extent that it is relevant to that part of the ASC, is easily identifiable, and an assessment could easily be made whether that evidence has weight or merit. In addition, this is not a case where, if an amendment is allowed, the respondents may need to file new evidence, and their inability to do so would cause prejudice to the running of the trial. This is a case where the orders by which I set the matter down for hearing contemplated that at the close of the ABCC’s evidence, the first and second respondents will be given an opportunity to determine how they wish to proceed, one of those options being to elect to put on evidence, in which case they will be given time to do so.
The real issue that arises, therefore, is whether the evidence on which the ABCC relies to support paragraph 22 of the ASC is admissible, and, if admissible, whether it supports the proposed amendments. That leads me to identify the evidence on which the ABCC relies and the objections that have been made.
The evidence on which the ABCC relies is identified in a document titled “Applicant’s submissions on application for leave to amend the statement of claim” which was handed up by counsel for the ABCC this morning in support of the ABCC’s application for leave to amend. The evidence is identified in footnotes 3 and 4, and those footnotes differentiate the evidence relevant to paragraph 22(a) of the ASC from the evidence that is relevant to paragraph 22(b) of the ASC.
The first item of evidence - and I will concentrate on this item of evidence, because the effect of much of this evidence is repeated in the other parts of the evidence on which the ABCC relies - is a paragraph in the affidavit made by Mr Scott Matthew Henning on 10 February 2022, and filed on 21 February 2022. Mr Henning describes himself in his affidavit as a site manager for JWLand Construction Pty Ltd; he has been in that role for approximately two years; and, prior to that role, he worked as a site manager for Morris Property Group. Mr Henning attaches a statement that he made dated 18 March 2021 but signed by an inspector of the ABCC on 14 April 2021. What Mr Henning purports to do in his affidavit is to deal with or expand on the matters that are set out in his statement, the intention being that when the affidavit will be read, that part of the statement that is admissible or not objected to will form part of Mr Henning’s evidence.
Particularly relevant is paragraph 3(l) of Mr Henning’s affidavit, which is as follows:
[A]t [18], I state that the formworkers could not work while Jimmy was standing in his position. The formworkers could not continue their work because they had to stop while we were underneath the live deck. Further, the union officials were standing very close to the power board to look at it, which prevented the workers accessing the board to plug anything in, and they required access to power for their tools.
The emphasised portions are those to which objection has been taken (objected parts). The ground of objection, as stated in a document prepared by the first and second respondents titled “First and Second Respondent’s objections”, is opinion, speculation, and conjecture. In submissions developed orally by counsel for the first and second respondents, it was said that the objected parts conveyed an opinion and are therefore inadmissible under s 76 of the Evidence Act1995 (Cth) (Evidence Act); and there is no exception that applies to the objected parts, and in particular s 78, which, in the ABCC’s response to the respondents’ objections, was a provision which the ABCC submitted applied in any event. Section 78 of the Evidence Act provides:
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
The rule against the admission of opinion evidence is stated in s 76 of the Evidence Act. The word “opinion”, however, is not defined in the Act. That is not surprising, because even under the common law, the first task when dealing with the rule against opinion evidence is coming up with a reasonably clear notion of what an opinion is; and that lack of clarity arises from there being no sharp line between opinion and fact. The very act of perceiving, storing into memory, and retrieving from memory that which has been observed is based on a complex and not entirely understood process or processes, which at every point involves the drawing of inferences. Nevertheless, for the purposes of s 76 of the Evidence Act, there is a definition of “opinion” that has proved workable, and that is the definition Lindgren J gave in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5), namely, that an opinion is “an inference drawn or to be drawn from observed and communicable data”.[3]
[3] Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73, at page 75
So the first question is whether the two objected parts of paragraph 3(l) of Mr Henning’s affidavit constitute opinions. I understood counsel for the ABCC to submit that the objected parts are statements of what Mr Henning observed. Counsel for the first and second respondents, on the other hand, was adamant that the statements are inferences drawn from facts which Mr Henning has not identified in his evidence, but which he could have and should have identified. I think it would be useful to look at the paragraph and see exactly what, in substance, is conveyed.
The first objected part says:
The formworkers could not continue their work because they had to stop while we were underneath the live deck.
In substance, what that conveys is information that while Mr Henning, Mr Haralambous, and Mr Fowlie were underneath the live deck, the formworkers stopped work. That to me is a statement of fact, namely, of what this witness is taken to be asserting he observed. Perhaps the inclusion of the word “because” gives this sentence the appearance of an inference. I am not too sure that merely putting the word “because” renders something an opinion. In any event, this evidence, to the extent it is inferential, is one that this witness, Mr Henning, could give. There is sufficient statements in his affidavit to show that Mr Henning has had some involvement and knowledge of the site, and he would have specialised knowledge which he has acquired by reason of his being on the site to be able to draw such inferences, if it is indeed an inference. In my opinion, the first objected part of paragraph 3(l) of Mr Henning’s affidavit stays in, either because it is not objectionable as an opinion or, to the extent that it is opinion, it is an opinion that falls within s 79 of the Evidence Act.
If I go to the second objected part, I am not satisfied that “which prevented the workers accessing the board to plug anything in” is an opinion. Whether something prevents something or someone else from doing something is a question of fact. If I see a person lying across the doorway, I could say as a fact that that person is preventing access; and it is also a statement of fact to say that somebody requires access to power a use a tool that requires electricity to operate. In fact, you do not even need evidence of that. That is common knowledge. In any event, to the extent the second objected part is an opinion, it is an opinion Mr Henning can give based on the experience he has acquired by being on the site. Whether Mr Henning’s opinion is to be given weight on that basis, of course, is a matter to be determined at trial. The objection to the second objected part, therefore, is overruled.
Next I turn to paragraph 3(e) of the affidavit of Mr Haralambous made on 10 February 2022, and filed on 21 February 2022. The ABCC has accepted some of the objections that have been made, and these are to the second sentence, which states “which is against site rules”; but otherwise the ABCC does not accept the objection to the balance of the paragraph, which is as follows:
Due to Jimmy standing so close to the board no one could access it, which meant formworkers could not plug in their tools to continue working. In addition to preventing workers accessing the board, the formworkers could not continue to erect formwork while Jimmy was at the board. This is because the board was located in an exclusion zone under a live formwork area. For safety reasons, you cannot have people underneath live formwork area while formwork is being erected, so the formworkers had to stop work while Jimmy was located at point ‘B’ as marked on NH2. I recall there were approximately 8-10 formworkers who stopped work.
In substance the evidence that Mr Haralambous gives in this part of his affidavit is similar to the evidence Mr Henning gives in paragraph 3(l) of his affidavit, although it does somewhat go beyond what Mr Henning says. I hold that the first sentence is admissible, either as a statement of what Mr Haralambous observed, or to the extent that it is an opinion, it is one that he could make by reason of his experience as set out in paragraph 1 of his affidavit. I similarly so hold in relation to the second sentence. More questionable is the balance of the paragraph. These express opinion, but they are opinions which Mr Haralambous can give based on his experience on the site and his presumed knowledge of what happens at the site and how the site operates.
Based on my rulings in relation to these two affidavits, I am satisfied that paragraph 22(a) of the ASC has a sufficient foundation in the evidence on which the ABCC intends to rely to permit the ABCC to have leave to rely on it.
I will now deal in a much more shorthanded fashion with paragraph 22(b) of the ASC. The principal and the most substantive and meritorious, if I could say so, attack on paragraph 22(b) of the ASC, was not so much on the absence of evidence to support it, but the absence of clarity in the allegation. In the short time I took to reserve my decision, I looked at the particular paragraphs of the evidence on which the ABCC says it relies for paragraph 22(b) of the ASC; and I have looked at the objections. There are not many objections to the particular paragraphs on which the ABCC relies. I am minded to uphold some of the objections but not all of the objections. I am satisfied that the material - I am not saying it is particularly strong, and I am not even saying it is weak - is sufficient to lead me to conclude and be satisfied that it is appropriate to have regard to that evidence to permit the ABCC to also have paragraph 22 of the statement of claim amended to include subparagraph 22(b) of the ASC.
I will make an order granting the ABCC leave to file an amended statement of claim in the form of the ASC.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 4 November 2022
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