Construction, Forestry, Maritime, Mining and Energy Union v Andrade Holdings Pty Ltd
[2021] FCCA 213
•8 FEBRUARY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v Andrade Holdings Pty Ltd [2021] FCCA 213
File number(s): PEG 129 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 8 February 2021 Catchwords: PRACTICE AND PROCEDURE – Application in a case – Application for hearing of witness’ evidence via video link Legislation: Evidence Act1995 (Cth), s 69
Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 42, 64(4) and (6), 69 (1) and (2)
Federal Circuit Court Rules 2001 (Cth), rr 1.03, 25.11
Cases cited: Auken Animal Husbandry Proprietary Limited v 3RD Solutions Investments Proprietary Limited [2020] FCA 1153
Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504
Australian Securities and Investments Commission v Rich [2004] NSWSC 467, (2004) 49 ACSR 578, (2004) 22 ACLC 1125
Australian Securities and Investments Commission v Wilson [2020] FCA 873, (2020) 146 ACSR 149
Capic v Ford Motor Co of Australia Limited [2020] FCA 486
Ellis v Burswood Nominees Trading as Crown Resorts & Anor [2019] FCCA 1819
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Reynolds v JP Morgan [2011] FCA 489, (2011) 193 FCR 507, (2011) 280 ALR 612
Rooney v AGL Energy (No 2) [2020] FCA 942
Division: Fair Work Division Number of paragraphs: 39 Date of last submission/s: 8 February 2021 Date of hearing: 8 February 2021 Place: Perth Counsel for the Applicants: Mr J Moss Counsel for the Respondents: Mr A Prime ORDERS
PEG 129 of 2019 IN THE MATTER OF CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION V ANDRADE HOLDINGS PTY LTD
BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
First Applicant
BRADLEY HARVEY
Second Applicant
JACOB ROLLINSON (and others named in the Schedule)
Third Applicant
AND: ANDRADE HOLDINGS PTY LTD
First Respondent
GABRIEL ANDRADE
Second Respondent
WILLIAM ANDRADE
Third Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
8 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Applicants’ oral application in a case for leave pursuant to s.66(1) of the Federal Circuit Court of Australia Act 1999 (Cth) for the Third Applicant, Mr Rollinson, to give evidence by video link be dismissed.
2.The transcript of the Court’s ex tempore reasons in relation to the application in a case referred to in Order 1 be made available to the parties, if requested by a party.
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE LUCEV
These are the Court’s ex tempore reasons in relation to what can now be described as an oral application in a case for leave pursuant to s.66(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) for leave for Mr Rollinson, the Third Applicant in these proceedings, to give evidence by way of video link. This matter was listed for a hearing beginning today by an order of the Court dated 3 December 2019, an order repeated in a consent order of the Court dated 28 February 2020. That listing of the matter, therefore, occurred the best part of 13 months ago.
On 2 February 2021, last Tuesday, being the second day of a COVID-19 lockdown for the Perth area, a five-day lockdown, the First Applicant, the Construction, Forestry, Maritime, Mining and Energy Union (“CFMMEU”), forwarded to Chambers by email form FRM.278 requesting a telephone or video link attendance and seeking that the Third Applicant, Jacob Rollinson, give his evidence by way of video link. The reason given in the form for the appearance by video link is as follows:
Mr Jacob Rollinson is currently working on a remote mine site in WA where he is rostered to remain on site during the trial dates for shutdown work as a crane operator. Mr Rollinson will have a laptop in his possession and will be able to join a Microsoft Teams meeting or other video conferencing determined by the Court.
On 4 February 2021, last Thursday, being the fourth day of the lockdown, the Respondents forwarded to Chambers an email objecting to Mr Rollinson’s evidence being taken by video link and indicating the bases for that objection. There were evidently subsequent emails from the parties until the early morning of 5 February 2021 directed to my Associate, setting out their respective positions. It is neither necessary nor appropriate to deal with such extra-curial correspondence in any further detail; it suffices to observe that no agreement was reached as to the request for a video link appearance by Mr Rollinson.
The parties were advised by Chambers on the morning of 5 February 2021 that the Court would deal with the video link request as a preliminary matter when the hearing commenced.
In support of the application in a case for Mr Rollinson to appear by video link, the Applicants have submitted that he is:
(a)working on a remote site on a shutdown as a crane operator;
(b)that he is rostered to remain on site during the hearing; and
(c)that he has a laptop in his possession and is able to join a hearing or part thereof conducted by Microsoft Teams and it is said that the relevant link has been tested by Counsel for the Applicants and it has not been found wanting. It is also said that Mr Rollinson has his affidavit and a copy of the Court Book accessible to him.
The Court notes that Counsel for the Applicants agrees that the assessment of credit is important but says that that importance is diminished by the requirement arising from State health directives to wear a face mask whilst giving evidence. As the Court has noted in the course of submissions by Counsel for the Applicant, the Court has made an order that witnesses whilst giving their evidence do not need to wear a mask and it is also not apparent, in any event, that the place at which Mr Rollinson is engaged in his work on the shutdown is a place at which there is a requirement to wear a mask. As the Court understands it, that requirement is one which is now quite limited in its geographical application within Western Australia.
In opposing the application in a case, the Respondents have submitted that:
(a)the matter was listed for hearing a considerable period of time ago and that Mr Rollinson would have known of the requirement to attend the Court for the hearing;
(b)the Court Book is substantial. So too, and in particular, the annexures to Mr Rollinson’s affidavit, and that would give rise to practical issues when cross-examining by video, and;
(c)issues of credibility are better assessed when a witness gives evidence in person.
The Court notes that, in this case, there is no evidence, whether by way of affidavit or otherwise, tendered either in support or opposition to the application in a case for Mr Rollinson’s evidence to be heard by way of video link.
Relevantly, s. 66(1) of the FCCA Act provides that:
The Federal Circuit Court of Australia or a judge may for the purposes of any proceeding direct or allow testimony to be given by video link or audio link.
Section 69 of the FCCA Act also sets out conditions precedent for the use of video and audio links going to the basis upon which and the nature of the video link to be used by the person in a remote place. The Court will take as read the provisions of s. 69(1) and (2) of the FCCA Act.
Section 66(1) of the FCCA Act imports a discretion as to whether the Court directs or allows the giving of evidence by video link, a discretion exercisable by reference to the provisions in ss. 3 and 42 of the FCCA Act and also r. 1.03 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and subject, as the Court has already indicated, to the provisions of s. 69(1) and (2) of the FCCA Act.
The legislative provisions make it apparent that the Court is intended to operate in a manner that:
(a)is as informal as possible in the exercise of judicial power;
(b)that is not protracted in its proceedings;
(c)which resolves proceedings justly, efficiently and economically;
(d)which uses streamlined procedures, and;
(e)that avoids undue delay, expense and technicality,
see Goodall v Nationwide News Pty Ltd [2007] FMCA 218 (“Goodall”) at [20]-[22] per Lucev FM.
There have been, on the decided cases, differing approaches adopted to the giving of evidence via video link and it can be said that there is generally a line of cases in favour of the use of audio or visual evidence, and those cases which take a more cautious approach.
Those cases have been analysed in Australian Securities and Investments Commission v Rich [2004] NSWSC 467, (2004) 49 ACSR 578, (2004) 22 ACLC 1125 (“Rich”) at [17] and [18] per Austin J, and referred to and analysed in a number of subsequent cases. Those differing approaches can still be seen in recent cases in the Federal Court in determining whether or not video link evidence ought to be given, particularly during the COVID-19 lockdowns and circumstances which have occurred over the last 12 months. Without detailing the approach in each of the cases the Court has had regard to all of, and will refer to some of, the following cases: Auken Animal Husbandry Proprietary Limited v 3RD Solutions Investments Proprietary Limited [2020] FCA 1153 (“Auken”); Australian Securities and Investments Commission v Wilson [2020] FCA 873 (“Wilson”); Capic v Ford Motor Co of Australia Limited [2020] FCA 486; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504; and Rooney v AGL Energy (No 2) [2020] FCA 942 (“Rooney”).
The reasons for the exercise of the Court’s discretion must be made out, and made out by the party seeking the favourable exercise of that discretion, here, the Applicants and, in particular, the Third Applicant: Wilson at [6] per Jackson J, and that is an assessment which is made in each case depending upon the particular circumstances of the case: Wilson at [24] per Jackson J.
There are a number of factors for consideration as outlined in Rich, including the nature of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties, and the length of cross-examination, to which might be added, the nature of the case. There is no suggestion that these factors are intended to be exhaustive: Goodall at [25] per Lucev FM.
It is relevant to note that although it does not involve significantly large sums of money in an absolute sense, this is a case in respect of which there are alleged underpayments running to tens of thousands of dollars in relation to a crane operator. It is a case in which serious misconduct appears to be alleged, and it is a case where that conduct gives rise to a civil penalty, and that is a factor to be considered in conjunction with questions of cross-examination and assessment of credit: Wilson at [17] per Jackson J.
In relation to the nature of the evidence, this case is distinguishable from one such as Goodall where the evidence was straightforward. In that case, a journalist had moved from Perth to Los Angeles and was required to give evidence about whether two photos appearing as part of a newspaper article were the subject of a licence agreement or not, or whether some other licence to use the photos had been given by the copyright owner, and the Court considered in that case that video link evidence was suitable: Goodall at [22] per Lucev FM.
The length of cross-examination is also a factor to be considered, both as to the length of cross-examination of individual witnesses and the number of witnesses to be cross-examined by video. Here, there is only one such witness to be cross-examined by video. The Court is also required to have regard to the volume of documents in determining whether or not there can be an orderly cross-examination of the witness or whether giving the evidence by video link might make the task of cross-examination, in particular, more difficult.
The Court notes that there is a Court Book which has been prepared by order of the Court and which is said to be available to Mr Rollinson and that obviously that is intended to prevent document management becoming an issue at the hearing. The difficulty with the evidence in this case is that it is detailed. The Rollinson Affidavit alone has annexures which include Mr Rollinson’s timesheets and Mr Rollinson’s payslips. The timesheets alone are 714 pages and there are 116 pages of payslips covering a period of greater than two years and upon which Mr Rollinson may have to be cross-examined.
This is a case in which the detail on the timesheets and the payslips will probably require a relatively microscopic forensic examination in order to determine liability. Liability cannot be determined in this case without the Court, as it presently apprehends it, determining the time at which the non-organisational Applicants, Mr Harvey, Mr Rollinson, Mr Kurrle and Mr Adams worked, and whether those times were within or without their ordinary working hours. Whether on particular days they were entitled to meal allowances again requires a determination of times at which they worked.
That could involve a day-by-day analysis of relevant timesheets. There is no indication in the submissions of the Applicants or the Respondents, and the Court deduces from what it heard from the Counsel for the Respondents this morning, that there is no specification before the Court about which days and which hours the particular Applicants have worked at what particular times for the purpose of the alleged contraventions. At present, and without any further evidence, the timesheets present, for relevant purposes, a mass of unexplained, and therefore at this time, meaningless detail.
Cross-examination for each of the Applicants is therefore likely, the Court suspects, to be detailed and lengthy, and in those circumstances, the Court takes the view that a video link between the Court and a website somewhere, it is said, in remote Western Australia, is likely to render on balance the process of adducing evidence unsatisfactory. The Court notes that there is a very large bundle of documents in the Court Book, as the Court has already indicated. It is evident that the meaning of the entries in the timecards in particular, it would appear, and the detail of those entries, both as to the time worked and as to some of the commentary in relation to what the Applicants allege are unlawful amendments, and what are said by the Respondents to be lawful amendments, to the timesheets, are hotly contested.
To delve into the detail of some 830-odd pages of Mr Rollinson’s timesheets and payslips with a witness who is not in Court, not able to be assisted necessarily by Counsel, the Associates or the Judge in a direct manner, when as is so often the case, the witness requires assistance to find a particular page or a particular detail, or, again, as often happens, the Court Book pages appear to be missing or out of order, has the potential both to effect the smooth running of the hearing, to prolong it and to make the witness, to the witness’s disadvantage, appear clumsy. Certainly, there is much also to be said for the submission which is one which was, in effect, made by the Respondent’s Counsel, that the video link would inhibit the forensic benefit derived from cross-examination in person: Rooney at [18] per Snaden J
That, of course, is something which also affects the assessment of credit and this is not a case where the evidence is sufficiently brief and straightforward to be able to effectively tick off on a video link appearance, but is one where the matter is contentious, requires cross-examination on documents, the meaning and content of which is contested between the parties, and is a matter in respect of which credit will be in issue, and one in which, therefore, the Court is of the view that a video link is not appropriate.
The nature of the case, as the Court has already adverted to, is also one which is serious. It is an allegation of a statutory contravention. It is an allegation, effectively, to put it in contemporary parlance, of wage theft. It also involves an allegation of alteration of records required to be lawfully kept. That activity is said to be unlawful by the Applicants, but the Respondents say it is lawful and that it was required by the law to make those alterations. In those circumstances, the Court is of the view that the case is of a type which it is better the witness appear in person: Rooney at [19] per Snaden J. The central issues here in relation to credit involve questions of who the Court has to believe as to hours or time worked, meals taken or not taken, whether documents have been altered or not altered, and to a lesser degree, whether there have been certain discussions concerning those issues to which the Court has just adverted.
This is a case where credit assessment will be critical, where issues to be determined cannot necessarily, given the contentions on each side, be determined by reference solely to the documents in issue, which one side says have been unlawfully altered, the other side says have been lawfully altered, and whether the basis for the alteration is whether or not particular individuals have worked time or not. That issue of whether particular times or days have been worked or not is therefore critical. And in the Court’s view, it is an issue about which it is preferable to hear in person from the witnesses and, in particular, the opposing witnesses in relation to the video link evidence, here Mr Rollinson and Mr Andrade, on the same stage and under the same circumstances, as near can be, in the Court environment. To do otherwise would be to lose the benefit of some of those matters, for example, the assessment of demeanour, which are likely to be important or influential in the proper assessment of credit in a hotly contested case: Wilson at [27]-[28] per Jackson J. This is a case in which, in the Court’s view, all witnesses should perform on the same stage.
In relation to the integrity of the evidence, there is no evidence as to where precisely it is intended that Mr Rollinson give his evidence, or the conditions or the surrounds in which it is proposed that he gives evidence, or who else might be present or have access to the place at which is proposed that Mr Rollinson give evidence. The Applicant has failed to provide any evidence, and as a consequence, the Court is not persuaded and simply cannot be satisfied, or know, under what conditions it would be possible for Mr Rollinson to give his evidence, and whether he could give his evidence in a quiet undisturbed environment free from external influence or disruption, and the Court refers in that regard to Auken. The Court is conscious, of course, that the arrangements need not be that sophisticated; by contrast, for example, to Auken where there were multiple Chinese witnesses to give evidence from the offices of a major law firm in Shanghai, and the Court appreciates the environment in which Mr Rollinson is working may have some difficulties attached in that regard. But there simply has to be some evidence as to the suitability of the arrangements in the particular environment so that the Court knows under what conditions the evidence is to be given. Here there is no such evidence. There is an assertion from Counsel for the Applicants that the technology does work, but, again, there is no evidence as to that. And, again, on that basis, there is simply nothing which would pass the threshold with respect to satisfying the Court that the integrity of the evidence will be maintained, or that there will be no technological difficulties if Mr Rollinson were to give evidence by video link.
The Court is conscious of the need to proceed informally without delay efficiently and economically in ss. 3 and 42 of the FCCA Act and r. 1.03 of the FCC Rules. The caveat, and it is a caveat expressed in cases such as Wilson and Rooney for example, and expressed in almost all of the cases in fact, is that the Court must always proceed justly, or act in the interests of justice, in the conduct of the case. The Court notes, and not disregarding the fact that Mr Rollinson is but one of four witnesses, that his evidence would probably only be slightly shorter if given in person than if given by video. The Court also notes the fact that his appearance as a witness by video link does not preclude him from still appearing in person, either voluntarily or upon subpoena, which would require the Court to reduce certain timeframes and make alternative arrangements to the usual personal service of a subpoena. But those are matters which could be accommodated. The Court also notes, and it is an important consideration in deciding not to grant leave to Mr Rollinson to appear by video link, that his affidavit could still be admitted into evidence under s. 64(6) of the FCCA Act, if the appropriate request has been made under s. 64(4) of the FCCA Act by the Respondents.
Alternatively, the documents annexed to the affidavit relating to time worked and the payslips of Mr Rollinson may, and the Court puts it no higher than that at this stage, be admissible as business records under s. 69 of the Evidence Act1995 (Cth). As the Court has said, the Court notes that there are other means by which some or possibly all of Mr Rollinson’s evidence might be admitted into evidence, and that is a factor which might ameliorate the refusal to grant leave for Mr Rollinson to give evidence by video link.
In relation to some of the specific submissions made by the Applicants, the Court observes, again, that no evidence was tendered and the case is based on assertion. There was also no evidence, for example, of where Mr Rollinson was working, the nature of the work that he was performing, any of the arrangements which required him to perform that work on this day, or whether or not any arrangements might have been made with his employer, or whether any inquiries were made of his employer, to alter his shifts, swing or roster to facilitate his attendance. Obviously, that might depend on whether it is a short shutdown or a long shutdown. But, again, that is a matter about which there is simply no evidence at all, and there is no evidence in relation to Mr Rollinson’s working arrangements.
It remains the case in the Court’s view that the attendance of witnesses to give evidence in person is the primary and desirable means by which evidence is to be given. There are, obviously, exceptions to that, but evidence in person remains the norm and the video link provisions in the FCCA Act are not intended to make video link evidence the norm. There are particular circumstances in the present COVID-19 crisis, which does not particularly touch this matter, other than on the periphery, which means in certain circumstances video link evidence may become the norm for a time. But where, as here, it appears that the basis for the application revolves, in part, around an election by Mr Rollinson to work, that election amounts to no more than a means to avoid the Courtroom, and if acceded to too readily, would be a means by which a majority of people could avoid the Courtroom with all of the forensic benefits that accrue in a Courtroom in a witness facing both Counsel and the Court: Rooney at [18] per Snaden J and Wilson at [27]-[28] per Jackson J.
In the absence of evidence, the Court has no basis on which the Court can properly draw conclusions which would enable the Applicant to satisfy the Court that it is appropriate to grant leave for Mr Rollinson to give his evidence by way of video link.
The Court also notes that the request to give evidence by video link was made late in the day with only four days left before the hearing and during a period of COVID-19 lockdown in Western Australia, and in circumstances where it would appear to be conceded by Counsel for the Applicants that Mr Rollinson was aware well in advance that it was likely that he would be working on this shutdown and that it would conflict with the hearing.
The Court also notes that the request for the video link for Mr Rollinson to give evidence was made on a particular form, form FRM.278. That form is not part of any curial process, nor is it evidence of what is asserted in the forms content, and the form itself is not part of an application or process in the Court, merely a request, and in that regard, is no more than an administrative aid: see Reynolds v JP Morgan [2011] FCA 489, (2011) 193 FCR 507, (2011) 280 ALR 612 at [17] and [24] per Rares J, and Ellis v Burswood Nominees Trading as Crown Resorts & Anor [2019] FCCA 1819 at [29] per Lucev FM in relation to forms used in human rights proceedings in Federal Court and in this Court.
The Court further notes that the particular form used here is itself a form related to family and child support proceedings. It appears to relate to rule 25.11 of the FCC Rules which deals with attendance at family law and child support hearings by way of electronic communication. The Court notes there is no equivalent form or rule with respect to general federal law or fair work proceedings.
The Court has concluded that in all the circumstances in this case it would not be just to allow Mr Rollinson to give his evidence by video link.
There will therefore be an order that the oral application in a case for leave pursuant to s. 66(1) of the FCCA Act for Mr Rollinson to give evidence by video link be dismissed.
The Court will also make a further order that the transcript of the ex tempore reasons for judgment be made available to the parties upon request at any time. And the Court should just say that there have been problems in other Registries with ex tempore reasons being settled some time after they were given, and that has apparently given rise, in some cases, to transcripts not even being available when substantive matters have gone on appeal to the Federal Court and there have been issues as to both the availability of transcript per se and the capacity for it to be produced to the Federal Court, and that is why the Court makes that order. If there is some issue that arises with respect to the judgment the parties can have available the transcript of the ex tempore judgment pursuant to the order, as well as a settled written judgment in due course. There will be orders in those terms.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 February 2021
SCHEDULE OF PARTIES
PEG 129 of 2019 Applicants
Fourth Applicant:
DARREN KURRLE
Fifth Applicant:
STEPHEN ADAMS
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