Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2)

[2015] VSC 459

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2013 00928

BETWEEN

BORAL RESOURCES (VIC) PTY LTD (ACN 004 620 731) AND OTHERS	Plaintiffs
and
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2015
DATE OF RULING:	1 September 2015
CASE MAY BE CITED AS:	Boral Resources (Vic) Pty Ltd v CFMEU (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 459

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EVIDENCE – statements made to plaintiff by its customers about cancellation of concrete supply contracts due to union industrial bans– customers not called to give evidence – whether admissible as exception to hearsay rule – whether statements constituted contemporaneous representations about customers’ intentions and state of mind – Evidence Act 2008 (Vic) s 66A.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr S Wood QC with Mr E Gisonda	Herbert Smith Freehills
For the defendant	Ms R Doyle SC with Mr J Gurr and Ms P Knowles	Slater and Gordon

HIS HONOUR:

1. The union objects to the admissibility of evidence to be given on behalf of Boral by Neil Phillips.  Mr Phillips is a Boral account manager with responsibility for customers in the Ballarat region.  He managed the account of Town and Country, a concrete placer, in relation to construction projects at Werribee Plaza and Ballarat Aquatic Centre.  The evidence concerns two groups of conversations between him and representatives of Town and Country.

1. In the first group of conversations, Mr Phillips evidence would be that the part-owner of Town and Country, Liam Kinniburgh, and its estimator, Tim Knowles, told him that the concrete supply contract for the Werribee Plaza had all but been awarded to Boral.  After the quotation process was completed, Mr Kinniburgh said that Boral had offered the best price and finalisation of the sale was underway.  After the union bans were implemented, Mr Kinniburgh said that Town and Country could not use Boral because of the bans.  The contract was awarded to another supplier.  Mr Phillips would also depose that Mr Kinniburgh told him that Mr Kinniburgh had been told by a shop steward of the site builder not to use Boral and he told the shop steward that he would not do so.  It can be seen that Mr Phillips’ evidence in this respect contains double-hearsay.

1. The second group of conversations concern the Ballarat Aquatic Centre.  Mr Phillips’ evidence would be that Mr Kinniburgh told him that Boral would be awarded the concrete supply contract.  Just prior to the commencement of the pour, Mr Kinniburgh told Mr Phillips that Town and Country would not be using Boral because the union did not want it on site.   This contract too was awarded to another supplier.

1. Boral witnesses have given, and will be giving, some evidence of this kind without objection in circumstances where it will be leading direct evidence from the customers about them not using Boral because of the union bans.  The union is not objecting to evidence of Boral witnesses about what customers told Boral in this respect where the customers themselves will be giving evidence.  It is only objecting to evidence of this kind from Boral witnesses where the customer will not be doing so.

1. The ground of objection is hearsay and, in the one case, double-hearsay.

1. Boral relies upon the exception to the hearsay rule specified in s 66A of the Evidence Act 2008 (Vic). Section 66A provides

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

1. The exception in this provision applies in civil and criminal proceedings to first-hand hearsay evidence of contemporaneous representations by persons about their health etc.  The operation of the exception is well illustrated by the classic case of evidence of fears expressed by a murdered wife about her husband’s violence and her intention to leave him.  First-hand hearsay evidence of the words and actions of the deceased expressing these feelings and intentions are usually admissible in the trial of criminal charges against the husband.  The fact that the evidence is hearsay evidence goes to weight, not admissibility.  The evidence might be subject to discretionary exclusion, but that is not relevant here.

1. Boral submits that Mr Phillips’ evidence would be of the contemporaneous intention and state of mind of Town and County with respect to the awarding of the concrete supply contracts to Boral and then not doing so because of the union bans.  It relies upon this evidence in relation to the issues of causation and quantum.  It does not do so as evidence of the bans as these are taken to have been admitted by reason of the default judgment.

1. The evidence of the conversations in the two groups would be of what Town and Country representatives told Mr Phillips about both its intention to award the contracts to Boral and its intention not to do so by reason of the bans. In terms of s 66A, the evidence would be of Town and Country’s contemporaneous intention and state of mind in relation to awarding and not awarding the contracts to Boral. Despite being first-hand hearsay, that provision would apply to make the evidence admissible if it is relevant to issues in the trial. It would be so relevant because causation and quantum are issues in the trial. As I have said, that the evidence is hearsay goes to weight, not admissibility, and discretionary exclusion does not arise.

1. On analysis, the conversation containing the double-hearsay stands in the same category but upon the basis that the evidence is admissible in relation to Town and Country’s intention and state of mind, not in relation to what the shop steward said. Mr Phillips’ evidence of what Mr Kinneburgh told him was said to Mr Kinniburgh by the shop steward is not covered by s 66A because it is double hearsay. But Mr Phillips’ evidence of what Mr Kinniburgh told him is further first-hand hearsay evidence of Town and Country’s intention and state of mind with respect to not awarding the contract to Boral by reason of the union bans and, in that respect, is covered by s 66A. It too is relevant to causation and quantum.

1. I therefore overrule the objections and admit the evidence.

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