Ballard v Brookfield Multiplex Ltd (No 2)

[2010] NSWSC 1461

CITATION:	Ballard v Brookfield Multiplex Ltd (No 2) [2010] NSWSC 1461
HEARING DATE(S):	9 and 10 November 2010
JUDGMENT DATE :	21 December 2010
JUDGMENT OF:	Smart AJ
DECISION:	Leave refused under s 106(1)(b) of the Evidence Act to the first and second defendants to adduce evidence of previous representation of "contractor" in records produced by National Australia Bank and St George Bank.
CATCHWORDS:	EVIDENCE of LB Anthony - cross-examination on credit - application of credibility rule - leave refused to adduce previous representations going only to the credit of the witness
LEGISLATION CITED:	Evidence Act 1995
CATEGORY:	Procedural and other rulings
PARTIES:	David Ballard (Plaintiff) Brookfield Multiplex Limited (First Defendant) Multiplex Corporate Agency Pty Ltd (Second Defendant) Construction Forestry Mining and Energy Union (Third Defendant) Construction Forestry Mining and Energy Union, NSW Branch (Fourth Defendant) Andrew Ferguson (Fifth Defendant)
FILE NUMBER(S):	SC 2007/266587
COUNSEL:	AJ Bannon SC, J Duncan and E Elbourne (Plaintiff) AS Bell SC and I Pike (First & Second Defendants) BC Oslington QC and J Pearce (Third, Fourth & Fifth Defendants)
SOLICITORS:	Sagacious Legal (Plaintiff) Clayton Utz (First & Second Defendants) Taylor & Scott (Third, Fourth & Fifth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Smart AJ

Tuesday 21 December 2010

2007/266587 David Ballard v Brookfield Multiplex Limited & Ors (No 2)

JUDGMENT – T2258 - Mr LB Anthony – credibility – payments

1 The credibility of the evidence given by Mr LB Anthony is an issue in this case. He deposes to attending a meeting about 9:40 am on 9 November 1996 at the CFMEU’s Sydney office at the request of Mr Andrew Ferguson and meeting with Messrs Ferguson and Stan Sharkey, the Federal Secretary of the Union. I have been told by Mr Oslington that Messrs Ferguson and Sharkey deny that such a meeting took place and accordingly contend that the conversation deposed to by Mr Anthony did not occur. In his statutory declaration of 10 December 1996 Mr Anthony stated in part:

“The meeting with Stan Sharkey and Andrew Ferguson commenced at approximately 9:40 am on Saturday 09 November 1996 and held in the conference room of the unions federal office. They both thanked me for attending and stated that I should not continue to associate with David Ballard or anyone else from Stoneglow Pty Ltd as they had arranged with Multiplex Construction for Stoneglow’s contractual relationships with Multiplex to no longer continue.

Stan Sharkey said words to the effect -
‘We have agreed with Multiplex Construction that Stoneglow’s contractual relationships with them (Multiplex) no longer continue. Stoneglow and David Ballard are finished and we want them permanently out of the industry. We do not want you to be mixed up in this and we would like you to keep out of it.’


I was somewhat amazed at Stan Sharkeys statement considering I was, until the previous day, merely a financial member of the CFMEU employed by Stoneglow Pty Ltd on Multiplex Constructions Grace Bros project in Market Street, Sydney.

Concerned at Stan Sharkeys statement, I enquired as to their real reasons for requesting to meet with me, as I was merely another employee on the site with many years of experience in the building and construction industry, having had quite some difficulty securing employment and intending only to continue working to earn a living.

Neither of them commented much other than to reinforce their point that they wished me to keep out of their arrangement with Multiplex as to Stoneglow and David Ballards exclusion from the building and construction industry.”

2 The Court admitted as Exhibit 1&2D – 26, on the tender of the Multiplex defendants, copy records produced by All Recruiting Services Pty limited of bank records from National Australia Bank (NAB), ANZ Banking Group Limited and St George Bank, subject to a ruling on the use of the word “contractor” (T2259). This was without objection.

3 These documents formed part of a bundle of documents which were tendered by the Multiplex defendants. The Bank records will be dealt with first.

4 The plaintiff did not dispute that the bank records produced were business records within s 69(1) of the Evidence Act 1995. Nor did the plaintiff dispute that the bank records contained previous representations being payments recorded as made by All Recruiting Services Pty Ltd, or its related companies, to Mr Anthony (via their bank accounts).

5 The previous representations (not the subject of objection) were that the sums mentioned in the bank records were paid on or about the dates stated in the bank records from an account of All Recruiting Services Pty Ltd or one of its related companies to the account of LB Anthony. These previous representations were admitted.

6 The first and second defendants pressed the admission of the word “contractor” or “contractors” where it appeared on certain of the copy bank records of NAB and St George Bank produced by All Recruiting Services Pty Ltd, contending that it constituted a previous representation that Mr Anthony was engaged in that capacity by All Recruiting Services Pty Ltd.

7 These copy records of NAB were produced by All Recruiting Services Pty Ltd:

a) pages 12 – 14, 17, 21 of the NAB accounts covering the periods 24 February 2010 to 7 May 2010

These pages show amounts withdrawn from an account named ARS DISCRETI, probably an account of All Recruiting Services Pty Ltd and a deposit to the account of Len Anthony. The descriptions given are “L Anthony” and “Len Anthony”.

b) Pages 24, 25, 26, 27, 28, 29 and 30 cover the period from 7 August 2009 to 6 November 2009 showing amounts withdrawn from an account named ARS DISCRETI – probably an account of All Recruiting Services Pty Limited and a deposit to the account of LB Anthony. The description given is “Contractors”. Against the withdrawal entry in the account named ARS DISCRETI, except on p 29 (where much is blacked out), is the entry “Contractors”. Against the deposit entries in the name of LB Anthony are “Guest Wkr Program”.

These appear to be entries made by a person who prepares the bank records. It does not appear from whence that person obtained the information. The Court will, in final submissions, be asked to infer that this was information supplied by an officer of All Recruiting Services Pty Ltd to the Bank. The first and second defendants wish to be able to put that Mr Anthony was being paid as a contractor and was not just receiving amounts to cover his expenses.


c) Pages 32, 34, 35, 36, 40, 41 and 42 appear to cover the period 1 May 2009 to 17 July 2009. They show amounts withdrawn from an account named ARS DISCRETI are deposited to the account of LB Anthony. Pages 32, 34, 35, 40, 41 and 42 contain the description “guest wkr (or wrk) program”. Page 36 leaves the description blank.

d) Pages 43, 46, 47, 48, 49, 50, 51, 52 and 53 appear to cover the period 15 January 2009 to 23 April 2009 and show amounts withdrawn from the account named ARS DISCRETI and deposited to an account of LB Anthony. On pages 43, 49, 50, 51 and 52, the description given is “contractors”. On pages 46 and 47 the description given is “Guest Wkr Program”. On page 48 the description given is “consultant”. On page 53 the description is left blank.

8 These copy records of ANZ Banking Group Ltd were produced by All Recruiting Services Pty Ltd:

a) Pages 19, 20, 22, 23, 31, 33, 37, 39, 44 and 62 appear to cover the period from 8 April 2009 to 11 March 2010. Page 38 bears date 30 May 2008. Page 62 duplicates page 44. They show withdrawals from an account named “MHS Training General” and deposits into the account of Len Anthony of sums of money. On page 19 the Message/Reference is “Air Fares”. On pages 20 and 38 the Reference or Message/Reference is “K Sheldrick”. He is in a senior management position in All Recruiting Services Pty Ltd. On page 22 the Message/Reference is “All Recruiting”. On pages 23, 31, 44 and 62 the Message/Reference is “KHS”. On page 33 the Reference is “Guest Wrk Program”. On pages 37 and 39 the Reference or Message/Reference respectively is “Guest Wkr Program”.

9 These copy records of St George Bank were produced by All Recruiting Services Pty Ltd – pages 45, 54, 55, 56, 57, 58, 59, 60 and 61.

a) Pages 45, 54 to 57, 58, 59, 60 and 61 appear to cover the period from 3 July 2008 to 10 November 2008. Page 45 may be dated 2 October 2008.

In each case moneys appear to have been sent from an account in the name of All Recruitment Solutions Pty Ltd to an account in the name of Len Anthony or LB Anthony. On pages 45, 54, 55, 56, 57, 58, 60 and 61 the payment details are “Guest Wkr Program”, “Fiji Guest Prog” (page 59) and “Guest Worker Progr” (page 61).

b) On pages 54, 55, 56, 57, 59, 60 and 61 under the heading Payment Details the following reference appears:

Payment
ID … – Tax Invoices - Contractors

10 Three issues were raised:

a) whether there was a previous representation within s 69(2) of the Evidence Act ;
b) whether the admission of that representation was unfairly prejudicial and should be excluded under s 135 of the Act; and
c) whether leave should be granted under s 106 of that Act as the evidence in issue, at most, bore upon the credibility of Mr Anthony.

11 The first and second defendants submitted that, if a company has, over a sustained period, made payments which it has described as being made to a person as a contractor, that is material capable of supporting, together with other evidence in the proceedings, the submission that they ultimately wished to put that Mr Anthony was not being honest or frank with the Court when asked about the character of the payments.

12 As to the first issue, namely, whether there was a previous representation within s 69(2) constituted by the use of the word “contractor” or “contractors”, the plaintiff focussed attention on s 69(2)(b) which provides “the hearsay rule does not apply to the documents (so far as it contains the representation) if the representation was made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact”.

13 “Asserted fact” is defined in s 59(2) of the Evidence Act to mean a fact the existence of which can reasonably be supposed was intended to be asserted in the representation. A representation in the form of an opinion as to the existence of a fact appears to fall within the phrase “asserted fact”.

14 In my opinion it is capable of being inferred, for the purposes of determining the admissibility of the bank records, that an officer of All Recruiting Services Pty Ltd told St George Bank and NAB that Mr Anthony was a contractor. Whether the inference is ultimately drawn is another matter. Similarly, the weight to be attached to the representation is another matter.

15 Section 69 proceeds on the premise that entries made in business records are likely to be reliable if made outside a litigious environment.

16 I would not uphold the plaintiff’s first ground of objection. In my opinion there was an arguable previous representation constituted in substance by the use of the word “contractor” or “contractors”.

17 As to the second issue, the plaintiff submitted that the representation as to Mr Anthony being a contractor should be excluded, under s 135 of the Evidence Act, as unfairly prejudicial. It is unfavourable, but that does not make it unfairly prejudicial. The plaintiff complained that he was unable to cross-examine or adequately investigate in what circumstances the word came to be used. It is not in every case that the inability to cross-examine will give rise to unfair prejudice. Everything depends on the circumstances. In the present case there does not appear to be any sufficient reason for the officers of All Recruitment Services Pty Limited to supply incorrect information to the company’s bank. Mr Anthony was at the office of All Recruitment Services Pty Ltd very recently talking to Mr Sheldrick, a principal of that company. He appears to be available to give evidence as to the correct position but that would involve a diversion.

18 I do not think that the representation of “contractor” or “contractors” is unfairly prejudicial. I would not exclude it.

19 The third issue is whether leave should be granted to the first and second defendants under s 106(1)(b) to adduce the evidence. The hearing of this case has already extended over 40 days. Mr Anthony has been vigorously and extensively cross-examined. I have found that the examination of the bank records produced by the three banks is a time-consuming task.

20 The first and second defendants submitted that the business records contained clear representations, that such representations were directly inconsistent with the evidence Mr Anthony had given and that it would be unfair to shut the defendants out from having the ability to make such a submission. I did not accept the submission of the first and second defendants that no extra time would be taken because there will be a reference in a written submission that sees the description of Mr Anthony as a contractor “in something like 30 bank entries” (T 2254). On my examination of the bank records I did not reach this number of entries, but there were a substantial number of them. I do not think that the exercise would be as simple as the first and second defendants suggest. The plaintiff may wish to call evidence on the point. A close evaluation of the banking records produced by All Recruiting Services Pty Ltd would have to be made. There is no reference to ”contractor” or “contractors” in the ANZ Bank records. There are variable descriptions in the NAB records. In the St George Bank records there are references to “contractors”. The admission of the material the subject of objections runs the real risk of there being a trial within a trial. The hearing has already been extensive and should not be prolonged. I am of the opinion that leave under s 106(1)(b) be refused. The amounts of the payments are in evidence. In this hearing the Court should not pursue further on the credibility issue whether the payments made exceeded the amounts properly payable by way of expenses which cover transport and accommodation, inter alia.

21 Included in the bundle of documents sought to be tendered by the first and second defendants are:

(i) A summary of payments (4 pages) made out of the bank account of All Recruiting Service Pty Ltd into the bank account of LB Anthony during the years 2008, 2009 and 2010 as follows:

2010	(22/02/2010 to 07/05/2010)	$6,757.30
2009	(06/03/2009 to 24/12/2009)	24,700.00
2008	(08/04/2008 to 10/11/2008)	11,920.00
$43,376.30


There was no objection to this summary, on the assumption that it correctly summarised the payments made. It was left to the plaintiff to check and raise any objections.

(ii) Copy documents issued by Travel World Epping to Mr LB Anthony
a) Receipt dated 7 April 2010 for $856.30
b) Itinerary for travel to and from Fiji on 8 April 2010 and 6 July 2010 respectively
c) Itinerary for travel to and from Fiji about 12 – 14 March 2010 and return on 12 June 2010 respectively

I did not understand the admission of these documents to be disputed provided they were not treated as bank records. They will not be so treated. For convenience documents mentioned in (i) and (ii) were included in Exhibit 1&2D – 26 as they were produced by All Recruiting Services Pty Ltd upon subpoena and appear to form part of a continuous record.

22 The third to fifth defendants took substantially the same approach on the issues mentioned as the first and second defendants. The third to fifth defendants separately cross-examined Mr Anthony.

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