Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner

In the case of Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner, the applicants sought to appeal a decision of the primary judge that refused to grant a certificate to a party witness under section 128 of the Evidence Act 1995 (Cth). The primary judge had ruled that the witness was not compellable to give the evidence objected to, and therefore, section 128 was not engaged. The applicants argued that the primary judge erred in finding that section 128(1) was not engaged because the witness was not compellable to give the evidence objected to, and that Song v Ying [2010] NSWCA 237; 79 NSWLR 442 was plainly wrong. The legal issues before the court were whether the primary judge erred in his construction of the defined term "objects" in section 128 of the Evidence Act 1995 (Cth), and whether the primary judge erred in his conclusion that the second applicant was not a witness who "objects" within the meaning of s 128(1) of the Evidence Act 1995 (Cth).

The court held that the argument that Song was wrongly decided could not be sustained, and that the decision was plainly correct and should be followed. The court found that there was no error in the primary judge's decision. The appeal was dismissed, and there was no order as to costs. The court found that the appellants faced significant obstacles to success, and that the persuasive weight of the legislative history and case law supported the primary judge's decision. The court held that the appellants' construction of section 128 was incorrect, and that the provision required consideration of whether the witness was otherwise compellable to give the evidence objected to. The court also held that the primary judge's construction of the defined term "objects" was correct, and that the word "objects" did require that the witness be compellable to give the evidence objected to. The court found that the second applicant was not a witness who "objects" within the meaning of s 128(1) of the Evidence Act 1995 (Cth), and that the primary judge's conclusion was correct.