FEDERAL COURT OF AUSTRALIA
Australian Building and Construction Commissioner v Hall [2017] FCA 274
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Details
- Case
- [2017] FCA 274
- Decision Date
CaseChat Overview and Summary
In the case of Australian Building and Construction Commissioner v Hall, the Australian Building and Construction Commissioner sought to hold several respondents, including the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and individuals associated with it, liable for various contraventions related to industrial action taken at a construction site. The court was tasked with determining whether the respondents had indeed contravened the Fair Work Act 2009 (Cth) by taking adverse action against a construction company, Built, and whether the CFMEU could be held vicariously liable for the actions of its members. The case hinged on the credibility of the evidence presented by both the Director and the respondents, particularly that of a key witness, Mr Kivalu, whose testimony was ultimately deemed unreliable.
The court considered several key issues, including the burden of proof required to establish contraventions under the Fair Work Act, the intent behind the industrial action, and whether the action had the effect of coercing the construction company. The court also had to assess the credibility of Mr Kivalu's testimony, who had made an arrangement with prosecutors in a separate criminal case, and whether this affected his reliability as a witness. The reliability of Mr Kivalu's evidence was particularly critical as it directly implicated several of the respondents in the alleged contraventions.
The court concluded that the Director had failed to discharge the onus of proof required to establish the contraventions, primarily due to the unreliability of Mr Kivalu's evidence and inconsistencies in the testimonies of other witnesses. The court emphasised that the demeanour of a witness, while a factor to be considered, was an uncertain measure of reliability. The court found that the respondents had successfully discharged the onus of proof required by section 361 of the Fair Work Act, which shifted the burden to them once the Director established a prima facie case. The court found discrepancies in the testimonies of both the Director's and respondents' witnesses and determined that the Director's case substantially failed due to the lack of credible evidence.
As a result, the court rejected the claims made by the Director against the respondents. The court ordered that the parties prepare Short Minutes of Orders to formalise these findings within fourteen days. This decision underscored the importance of credible evidence in industrial law disputes and highlighted the challenges in assessing witness reliability and the credibility of conflicting testimonies.
The court considered several key issues, including the burden of proof required to establish contraventions under the Fair Work Act, the intent behind the industrial action, and whether the action had the effect of coercing the construction company. The court also had to assess the credibility of Mr Kivalu's testimony, who had made an arrangement with prosecutors in a separate criminal case, and whether this affected his reliability as a witness. The reliability of Mr Kivalu's evidence was particularly critical as it directly implicated several of the respondents in the alleged contraventions.
The court concluded that the Director had failed to discharge the onus of proof required to establish the contraventions, primarily due to the unreliability of Mr Kivalu's evidence and inconsistencies in the testimonies of other witnesses. The court emphasised that the demeanour of a witness, while a factor to be considered, was an uncertain measure of reliability. The court found that the respondents had successfully discharged the onus of proof required by section 361 of the Fair Work Act, which shifted the burden to them once the Director established a prima facie case. The court found discrepancies in the testimonies of both the Director's and respondents' witnesses and determined that the Director's case substantially failed due to the lack of credible evidence.
As a result, the court rejected the claims made by the Director against the respondents. The court ordered that the parties prepare Short Minutes of Orders to formalise these findings within fourteen days. This decision underscored the importance of credible evidence in industrial law disputes and highlighted the challenges in assessing witness reliability and the credibility of conflicting testimonies.
Orders
Orders of the court
1. The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It is concluded that the Application as made by the Director in large part fails. In so concluding, it is respectfully considered that the Director has failed to discharge the onus of proof required to prove the contraventions. THE LOCATION OF THE SITE, THE FACTS AS AGREED & THE ONUS OF PROOF Much turns on the physical location of the Project Site and the means of access to that site. The evidence in the proceeding comprised:·the Statement of Agreed Facts, which was admitted pursuant to s 191 of the Evidence Act 1995 (Cth) (the “Evidence Act”);·affidavit evidence filed on behalf of the Director, being affidavits either sworn or affirmed by Ms Cairns, and Messrs Tonkovic, Nikolic, Walker, Stafford, Moore and Horsham; ·the oral evidence adduced on behalf of the Director, being that of Messrs Moore, Tonkovic, Horsham, Walker, Stafford, Nikolic, Kivalu, Ault and Ms Cairns; ·affidavit evidence filed on behalf of the Respondents, being affidavits either sworn or affirmed by Messrs Vitler, Hall, Hamilton, O’Mara, Brennan, Smith, Miller and Lomax; and·the oral evidence adduced on behalf of the Respondents, being that of Messrs Hall, O’Mara, Brennan, Vitler, Miller, Lomax, Smith and Hamilton.Notwithstanding limited agreement between the Director and the Respondents, it was the affidavit evidence which added “meat to the bones” and set forth the factual basis upon which the central issues in dispute between the parties were to be resolved.The location of the Project Site The building site comprised the Kim Harvey School of Dance at 11 Rosevear Place in Dickson, ACT (the “Project Site”). One access to the Project Site was a gate on Hawdon Place in Dickson (the “Hawdon Place Gate”), access to which was via a block of land owned by Hadwon Pty Ltd (the “Hadwon Land”). Another access was a gate on Rosevear Place, Dickson (the “Rosevear Place Gate”). The following map adequately depicts each of these blocks:On this map:·the Project Site is numbered 28 and labelled the KHSD Project (i.e., the Kim Harvey School of Dance);·the site numbered 27 is the site of the Pinocchio Early Learning Centre; ·immediately to the north of the site occupied by the Pinocchio Early Learning Centre is the Australian Capital Territory Headquarters of the CFMEU; ·the double triangles depict gates; ·the dotted lines depict temporary fencing; and·what became known as the Rosevear Place Gate is located at the boundary between sites numbered 27 and 28. Initially access to the Project Site was gained via the Hawdon Place Gate, with access across that narrow corridor of land numbered 25, occupied by Hadwon Pty Ltd and at one time the location of the Canberra Tradesman’s Union Club (the “Canberra Tradies’ Club”). Once that access route was blockaded on 11 June 2014, access could potentially have been achieved by Built across the land occupied by the Pinocchio Early Learning Centre through the Rosevear Place Gate. But access via that route was blockaded on 12 and 13 June 2014.
Evidence
Evidence Before The Court
Mr Hall either denied the words attributed to him or had no recollection of having said those words. And, again, the other Respondents said to have been present all denied the account given by Mr Kivalu, or had no recollection of those words having been said.The unreliability of Mr Kivalu’s evidence If Mr Kivalu’s account were to be accepted, the case for the Director would significantly be advanced. His evidence, considered alone, may also be considered to have some semblance of reality. Although the Project Site could not be seen from the CFMEU Canberra headquarters, it was very close by. Any heavy machinery required on site – unless it could gain access via Hawdon Place – would necessarily have to travel down Rosevear Place and right outside the Canberra headquarters. But Mr Kivalu’s evidence cannot be relied upon. As the evidence developed, it emerged that:·Mr Kivalu was facing criminal charges for blackmail at the time and entered into an arrangement with the prosecuting authorities which included an agreement to give evidence on behalf of the Director. Although a matter for the sentencing Magistrate, Mr Kivalu sought to avoid a custodial sentence. As Mr Kivalu accepted in cross-examination, “who wants to go to [gaol]?” and he did not go to gaol “thank God”.Moreover, Mr Kivalu’s evidence was:·open to question. There was, for example, no self-evident reason or occasion why in “early 2014 sometime” Mr Hall would suddenly emerge from his office and simply state to those present that “Built are not signing an EBA”; and·either denied by Mr Hall and each of those other persons said to have been present or not supported by any other witness. Those other witnesses (like Mr Hall) either denying that those words were said or having no recollection of those words having been said.Moreover, Mr Kivalu’s evidence was not consistent with:·the evidence (for example) that there was no meeting at 2.00pm on 3 June 2014 – that time being the time of the meeting of the executive;·the evidence that on 10 June 2014 there was no meeting at 3.00pm, that time being “a 38-hour rostered day off” – as supported by a calendar for 2014 indicating rostered days off, public holidays and the like; ·the evidence that Mr Jennings, who was said by Mr Kivalu to have been in attendance, was overseas at the time – as verified apparently by a stamp in his passport; and·the evidence that Ms Benton, who was said by Mr Kivalu to have been in attendance, did not attend the meeting. Such, with respect to Mr Kivalu, is the assessment as to his evidence. But two further points should be expressly made. First, although reference is repeatedly made in judicial decisions to the “demeanour of the witness” as a reason for either accepting or rejecting evidence, “demeanour” is respectfully considered to be a very uncertain touchstone of reliability. Although it is accepted that a trial judge is entitled to make observations relating to the demeanour of witnesses, it has been observed that “it is a notoriously crude and inaccurate methodology”: Craig v Silverbrook [2013] NSWSC 1687 at [140] per Sackar J. See also: Fox v Percy [2003] HCA 22 at [30] to [31], (2003) 214 CLR 118 at 128 to 129 per Gleeson CJ, Gummow and Kirby JJ. In not accepting Mr Kivalu’s evidence, some reliance has nevertheless been placed upon his “demeanour” and in particular his:·apparently “dogged” determination to “stick to” his account of the events and not accept reasons that could well be regarded as reasons for questioning his account; and·apparent unwillingness to agree to the proposition that it was his co-operation with the prosecutors of the blackmail charge that contributed to his not getting a custodial sentence (his response repeatedly being that you would “have to ask my legal team”) and the proposition that it was not a mere “coincidence” that the date of the filing of his defence in the proceeding now before this Court was the same day upon which the criminal proceeding was resolved.
Decision
Reasons for decision
Paragraphs [93] to [110] of the Amended Statement of Claim are thus rejected. CONCLUSIONS It has been concluded that the case advanced on behalf of the Director substantially fails because he has not discharged the onus of proof imposed upon him, being guided by the observations in Briginshaw. It has also been concluded that each of the affected individual Respondents have discharged the onus of proof imposed by s 361 of the Fair Work Act. The present proceeding has exposed (not unexpectedly) a conflict in the evidence of the Director and that of the Respondents but also discrepancies in the evidence even as adduced on behalf of the Director. The resolution of the competing claims has not proved an easy task, especially given the limited need to place some reliance upon such an uncertain touchstone as the demeanour of witnesses and the equally uncertain basis upon which conflicting evidence and internally inconsistent evidence is to be assessed. The Director bore the initial onus of proof, according to the principles established in Briginshaw. The CFMEU respondents bore the onus of proof imposed by s 361 of the Fair Work Act applied upon the balance of probabilities. Notwithstanding such difficulties, such findings as have been made are based upon a consideration of the evidence in its entirety. Mr Kivalu attracts different considerations by reason of his admission of the contraventions.THE ORDER OF THE COURT IS:1.The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
Ratio Decidendi
Legal Principle Established
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