Coote v Mainline Access Pty Ltd

[2017] FCCA 1524

FEDERAL CIRCUIT COURT OF AUSTRALIA

COOTE v MAINLINE ACCESS PTY LTD & ANOR [2017] FCCA 1524

Catchwords:
PRACTICE AND PROCEDURE – Application under r.15.29 of the Federal Circuit Court Rules 2001 (Cth) for an order that three affidavits filed on behalf of the applicant be struck out on the ground that they are inadmissible – whether affidavits contain evidence that is relevant; whether evidence that is relevant is hearsay – whether exception to the hearsay rule applies – whether evidence is relevant as tendency evidence – whether tendency evidence has significant probative value – application dismissed.

Legislation:

Evidence Act 1995 (Cth), ss.55, 55(2)(a), 59, 64, 64(1), 64(3), 97, 97(1)(a), 101A, 135
Fair Work Act 2009 (Cth), ss.44, 45, 90(1), 99, 116, 357, 535, 536, 570

Federal Circuit Court Rules 2001 (Cth), rr.15.29, 15.29(1)(a), 15.29(1)(b)

Cases cited:

Hughes v The Queen [2017] HCA 20

Applicant: MARK COOTE

First Respondent: MAINLINE ACCESS PTY LTD (ACN 146 159 346)

Second Respondent: SHAUN WHELAN

File Number: SYG 1493 of 2016

Judgment of: Judge Manousaridis

Hearing date: 27 June 2017

Date of Last Submission: 27 June 2017

Delivered at: Sydney

Delivered on: 30 June 2017

REPRESENTATION

Counsel for the Applicant: Mr M Scott

Solicitors for the Applicant: JFM Law

Counsel for the Respondents: Mr G Boyce

Solicitors for the Respondents: Marrawah Law Pty Ltd

ORDERS

1. The application in a case filed on 20 June 2017 is dismissed.

2. The costs of the application in the case are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1493 of 2016

MARK COOTE

Applicant

And

MAINLINE ACCESS PTY LTD (ACN 146 159 346)

First Respondent

SHAUN WHELAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application in a case brought by the respondents for an order under r.15.29(1)(a) and (b) of the Federal Circuit Court Rules 2011 (Rules) that three affidavits filed on behalf of the applicant be struck out from these proceedings and removed from the Court file. Rule 15.29 is as follows:

   (1)The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:

   (a)is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or

   (b)contains opinions of persons not qualified to give them.

   (2)Unless the Court or a Registrar otherwise directs, any costs caused by the material struck out must be paid by the party who filed the affidavit.

2. The respondents claim that each of the three affidavits, or at least the greater proportion of each, contains irrelevant and inadmissible evidence. The applicant, on the other hand, submits that each affidavit, or at least the greater portion of each affidavit, contains evidence that is admissible.

3. Before I set out the contents of each of the three affidavits, and the grounds on which the respondents submit their contents are inadmissible as evidence, it will be necessary to describe the claims the applicant makes in these proceedings, the issues that arise on those claims, and the contents of the affidavits that have been filed by the applicant but which the respondents do not apply to strike out.

The applicant’s claims in the proceedings

1. In his statement of claim, the applicant alleges as follows: he commenced his employment with the first respondent (Mainline Access) in early 2014 as a casual employee at the hourly rate of $35; on about 18 March 2014 he started working as a full time employee in the role of rope access specialist and foreman at the rate of $42.50 (18 March 2014 Agreement); the terms of the Building and Construction General Onsite Award 2010 applied to his employment; from about 18 March 2014 to about October 2014 Mainline Access failed to pay the applicant the amount it was required to pay to the applicant under the 18 March 2014 Agreement; from about October 2014 to April 2015, the applicant was paid only on five occasions; in about August 2015 the applicant resigned from Mainline Access because it failed to pay the applicant amounts owing under the 18 March 2014 Agreement; during his employment with Mainline Access the applicant frequently worked in excess of 40 hours per week and sometimes in excess of 70 hours a week; and Mainline Access misrepresented to the applicant that he was engaged pursuant to a contract for services under which the applicant provided services to Mainline Access. The statement of claim further alleges that, because of these matters, Mainline Access contravened s.44, s.45, s.90(1), s.99, s.116, s.357, s.535 and s.536 of the Fair Work Act 2009 (Cth) (FW Act) and the Superannuation Guarantee (Administration) Act 1992 (Cth).

2. In their defence, the respondents admit the applicant commenced employment with Mainline Access on a casual basis at the hourly rate of $35; the applicant ceased his employment with Mainline Access on or about 30 March 2014 by mutual agreement; at the request of the applicant, Mainline Access agreed to engage the applicant as an independent contractor commencing on 1 April 2014 (Contractor Agreement); under that agreement, the applicant agreed to be responsible for running his own jobs and submitting tax invoices to Mainline Access for payment for any services performed; the Contractor Agreement ended in or about April 2015; Mainline Access paid the applicant $46,888.50 gross during the period of the applicant’s being an employee and a contractor.

3. In addition to the matters alleged in the defence, Mainline Access relies on a cross claim against the applicant in which Mainline Access makes two claims. The first is that the applicant failed to pay to Mainline Access rent totalling $27,300 under an agreement by which Mainline Access agreed to provide accommodation to the applicant. The second claim is that the applicant misused two credit cards that were provided to him to purchase materials for work he was performing for Mainline Access by using the cards for personal or non-business purposes.

4. The applicant filed two affidavits that he has made. In his affidavit of 10 June 2016, the applicant deposes as follows: he commenced employment with Mainline Access in early 2014 as a casual employee; on about 18 March 2014 he started working as a full-time employee; he worked as a rope access specialist/foreman which required him to use ropes to access elevated areas on commercial and residential buildings to carry out tasks which included industrial and residential painting, rendering, brickwork, window replacements, gutter installations and safety inspections; he worked at a variety of locations; he frequently worked in excess of 40 hours a week; the applicant worked under the direction of the second respondent; the applicant was paid an hourly rate for the work he carried out in response to employee timesheets the applicant submitted every fortnight; Mainline Access did not provide the applicant with pay slips or group certificates and failed to make superannuation contributions, despite the applicant’s many requests; on or about 18 March 2014 the applicant, at the request of the second respondent, agreed to be engaged as a contractor on the basis Mainline Access would pay him $42.50 an hour; between 18 March and October 2014 the applicant continued to work as he had previously worked in that he continued to submit to Mainline Access employee timesheets, and Mainline Access paid the applicant at an hourly rate, but failed to pay bonuses discussed at the meeting of 18 March 2014; Mainline Access was generally late in paying the applicant, and it paid the applicant less than the amount they agreed to on 18 March 2014; in October 2014 the applicant noticed he was not being paid at all which resulted in the applicant making many requests of the second respondent that he be paid; the applicant was only paid on five occasions between October 2014 and April 2015, and only after the applicant complained about not being paid; in August 2015 a business associate of the second respondent said the second respondent would pay the applicant $15,000, but he did not do so; and the applicant resigned a week later. In his affidavit made on 4 June 2017, the applicant provides further details about the matters he deposed to in his first affidavit.

Affidavit of Grant Coote

1. Mr Grant Coote deposes he is the brother of the applicant. The bulk of the matters about which Mr Grant Coote deposes in his affidavit may be divided into three classes: conversations with the applicant in which the applicant makes statements relating to his employment with Mainline Access;[1] matters relating to Mr Grant Coote’s employment with Mainline Access;[2] and statements and opinions about the applicant’s employment with Mainline Access.[3] I will consider each class of evidence.

   [1] Affidavit of G Coote, [3], [4], [5], [7], [8], [9], [14], [15]

   [2] Affidavit of G Coote, [4], [10], [12], [13], [14], [15]

   [3] Affidavit of G Coote, [11], [12], [13], [16]

Prior consistent statements

1. When determining the admissibility of evidence, the first question is the purpose for which the evidence is being tendered. That question is usually asked at trial at the point at which the evidence is tendered, but I am required to address that question in advance of the hearing. In the case of the first class of matters referred to in Mr Grant Coote’s affidavit (prior consistent statements), there are two potential purposes. One is that the conversations with the applicant are proposed to be tendered as evidence of the truth of the matters asserted by the applicant to Mr Grant Coote. The other is that the statements the applicant made to Mr Grant Coote are relevant to the applicant’s credibility because the statements, if they were made, would be consistent with the matters the applicant has deposed in his affidavit.

2. The next question is whether the prior consistent statements are relevant within the meaning of s.55 of the Evidence Act 1995 (Cth) (E Act). In my opinion they are. The prior consistent statements, if accepted, could rationally affect directly or indirectly the assessment of the probability of a fact in issue, those facts in issue being whether the applicant was not paid his entitlements. The prior consistent statements are capable of affecting such assessment in two ways. First, if accepted, it is open to infer from the statements the applicant made to Mr Grant Coote the truth of the matters the applicant intended to assert by making the statements. The matters asserted relate to the applicant’s not being paid by Mainline Access. If such inference is drawn, the evidence would directly support the applicant’s claims that Mainline Access failed to pay to the applicant his entitlements. The second way in which, if accepted, Mr Grant Coote’s evidence of the prior consistent statements are capable of rationally affecting the assessment of the probability of a fact in issue is that it is capable of supporting the credibility of the applicant. That is, that the applicant said to Mr Grant Coote matters that are consistent with what the applicant deposes occurred, could enhance the credibility of the applicant’s evidence. Subsection 55(2)(a) of the E Act provides that evidence is not taken to be irrelevant only because it relates only to the credibility of a witness.

3. Accepting the prior consistent statements are relevant, the next question is whether they are inadmissible for one or both of the purposes for which they are likely to be tendered. Because one of those purposes relates to credibility, it is necessary first to consider whether the prior consistent statements fall within the meaning of “credibility evidence” as defined in s.101A of the E Act. That is so because if the prior consistent statements are “credibility evidence” within the meaning of s.101A, their admissibility must be determined by applying the provisions of Part 3.7 of the E Act.

4. Section 101A provides:

   Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:

   (a)is relevant only because it affects the assessment of the credibility of the witness or person; or

   (b)is relevant:

   (i)because it affects the assessment of the credibility of the witness or person; and

   (ii)for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

5. Paragraph (a) of the definition of “credibility evidence” does not apply because the prior consistent statements are not relevant only because they affect the assessment of the credibility of the applicant. The question is whether, because of a provision of Parts 3.2 to 3.6 of the E Act, the prior consistent statements are not admissible for the second of the two purposes I have identified. That purpose is to prove the truth of the matters asserted by the applicant to Mr Grant Coote. The use of the prior consistent statements for this purpose renders evidence of the prior consistent statements as hearsay within the meaning of s.59 of the E Act, which relevantly provides:

   (1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

   (2)Such a fact is in this Part referred to as an asserted fact.

   (2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.

6. Each of the statements Mr Grant Coote deposes the applicant made to him is a “previous representation” as that expression is defined in the Dictionary to the E Act, namely, a representation made other than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be presented; and Mr Grant Coote’s deposing to the statements is evidence of previous representations made by the applicant to prove the existence of facts that it can reasonably be supposed the applicant intended to assert by the representations. If I were to stop there, the prior consistent statements would fall within the definition of “credibility evidence” because s.59(1) of the E Act renders inadmissible the evidence to which it applies. There are, however, exceptions, to the rule stated in s.59(1); and counsel for the applicant submits that the prior inconsistent statements are admissible, even though they are hearsay, under the exception provided by s.64(3) of the E Act.

7. Subsection 64(1) provides that s.64 of the E Act applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact. In relation to Mr Grant Coote’s evidence of the prior consistent statements, the applicant is the person who made the previous representation and, I will assume, he will be available at the hearing to give evidence of the matters asserted by the prior consistent statements. Subsection 64(3) of the E Act provides:

   If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

   (a)that person; or

   (b)a person who saw, heard or otherwise perceived the representation being made.

8. Given these provisions, I am not satisfied Mr Grant Coote’s evidence of the prior consistent statements made by the applicant is inadmissible. It is evidence that falls within the prohibition of s.59(1) but which also falls within the exception to that prohibition provided by s.64(3) of the E Act. Mr Grant Coote’s affidavit, therefore, cannot be struck out under r.15.29 of the FCC Rules only because it contains evidence of the prior consistent statements.

Mr Grant Coote’s employment with Mainline Access

1. The second class of evidence about which Mr Grant Coote deposes relates to Mr Grant Coote’s employment with Mainline Access. He deposes he was paid from August 2014 to December 2014 but not what he should have been paid; Mr Grant Coote and the applicant worked over Christmas 2014 but they were not paid again until May 2015, and that Mr Grant Coote was not paid superannuation.

2. In my opinion, these items of evidence are inadmissible because they are expressed as conclusions without the underlying facts being stated or identified.

Mr Grant Coote’s observations

1. These form a small proportion of Mr Grant Coote’s affidavit, and are inadmissible.

Conclusion

1. Although there are some paragraphs of Mr Grant Coote’s affidavit that are inadmissible, most of his affidavit contains admissible evidence. The respondents do not submit I should strike out a part or parts of the three affidavits that are the subject of the application before me; they seek an order that the affidavits be struck out in their entirety. Given that I have concluded that most of Mr Grant Coote’s affidavit contains admissible evidence, I do not propose to order that his affidavit be struck out.

Affidavit of Mr Z. Murray

1. Mr Murray deposes he did some work for Mainline Access as an employee in 2013 for a few months as a rope access specialist;[4] he returned to work with Mainline Access in 2014 as a contractor for a few months;[5] he was aware the applicant worked at Mainline Access;[6] Mr Murray submitted invoices for the work he did;[7] Mr Murray had a conversation with the applicant in which the applicant said the second respondent wanted the applicant to be a contractor, but the applicant said he wanted to stay as an employee;[8] Mr Murray does not recall the applicant submitting an invoice and it was Mr Murray’s view that the applicant was an employee;[9] while Mr Murray worked with Mainline Access in 2014, there was always difficulty getting paid;[10] he recalls overhearing conversations between the applicant and the second respondent in which the applicant said he had not been paid and he does not have money to buy food;[11] Mr Murray overheard such conversations on a regular basis;[12] Mr Murray had a conversation with the applicant in which the applicant said he had not been paid;[13] Mr Murray ceased work after a few months’ work because he was owed approximately $3,900 for work he performed, and he recalls a conversation with the second respondent in which Mr Murray asked when he was going to be paid;[14] and he expressed the view that it was too difficult to deal with Mainline Access and the second respondent.[15]

   [4] Affidavit of Z Murray, [1]

   [5] Affidavit of Z Murray, [2], [3]

   [6] Affidavit of Z Murray, [4]

   [7] Affidavit of Z Murray, [5]

   [8] Affidavit of Z Murray, [6]

   [9] Affidavit of Z Murray, [6]

   [10] Affidavit of Z Murray, [7]

   [11] Affidavit of Z Murray, [7], [8]

   [12] Affidavit of Z Murray, [9]

   [13] Affidavit of Z Murray, [10]

   [14] Affidavit of Z Murray, [11]

   [15] Affidavit of Z Murray, [12]

2. It will be seen that Mr Murray’s affidavit deals with three matters – prior consistent statements, Mr Murray’s employment with Mainline Access, and observations about the applicant’s employment with Mainline Access. For reasons I have given in relation to Mr Grant Coote’s affidavit, evidence of prior consistent statements made by the applicant is admissible under s.64(3) of the E Act.

3. The evidence Mr Murray gives about his relationship with Mainline Access is mostly in admissible form. The first question is whether the evidence is relevant within the meaning of s.55 of the E Act. In my opinion it is relevant, whether considered alone or with the matters deposed to by the applicant in his affidavit, to showing the second respondent, and therefore, Mainline Access, had a tendency to act in a particular way, namely, not to pay persons whom Mainline Access engaged to perform work.

4. Accepting that evidence is relevant, s.97 of the E Act must be considered. Subsection 97(1) provides as follows:

   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

   (a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

   (b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

1. The High Court recently considered s.97 of the E Act in Hughes v The Queen.[16] The plurality said:[17]

   The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.  Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.  The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings.  The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove.

   [16] [2017] HCA 20

   [17] [2017] HCA 20 at [16]

2. Speaking in the context of a criminal trial, the plurality also said:[18]

   The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters.  The first matter is the extent to which the evidence supports the tendency.  The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. 

   [18] [2017] HCA 20 at [41]

3. In my opinion, Mr Murray’s evidence that he had performed work at the request of Mainline Access, and that he has not been paid after making demands that he be paid, considered either alone or with the evidence in the applicant’s affidavit, supports to a significant extent proof of a tendency on the part of the second respondent, and hence Mainline Access, not to pay persons whom it engages to perform work; and the existence of that tendency, to a significant extent, supports proof of a fact in issue, namely, that Mainline Access did not pay to the applicant the amount to which he was entitled to be paid. In my opinion, therefore, Mr Murray’s evidence has significant probative value.

4. Counsel for the applicant accepted that the applicant had given no notice of his intention to rely on Mr Murray’s evidence as tendency evidence. He submitted, however, that the time for giving reasonable notice has not yet passed because what is reasonable notice is to be assessed by reference to the date on which the hearing is to take place. The matter has been set down for hearing on 25, 26 and 27 September 2017 and the applicant still has time within which to give the reasonable notice required by s.97(1)(a) of the E Act. I agree.

5. There is left that part of Mr Murray’s evidence concerning the applicant’s employment with Mainline Access, and Mr Murray’s opinion about Mainline Access. This evidence, at least in the form in which it is presented in Mr Murray’s evidence, is not admissible.

6. Although there are some paragraphs of Mr Murray’s affidavit that are inadmissible, most of his affidavit contains admissible evidence. As I have already noted, the respondents do not submit I should strike out a part or parts of the three affidavits that are the subject of the application before me. I do not propose, therefore, to order that Mr Murray’s affidavit be struck out.

Affidavit of C Jefferys

1. In his affidavit Mr Jefferys deposes to his having worked for six months with Mainline Access in 2011;[19] Mainline Access did not pay him the correct amounts;[20] Mr Jefferys left Mainline Access because he was concerned about not being paid;[21] in mid-2014 the second respondent encouraged Mr Jefferys to return to work for Mainline Access;[22] when he returned the second respondent told Mr Jefferys he was going to be a contractor;[23] Mr Jefferys worked “massive” hours, and so did the applicant;[24] and Mr Jefferys had difficulty getting paid and had not been paid outstanding amounts.[25]

   [19] Affidavit of C Jefferys, [1]

   [20] Affidavit of C Jefferys, [2]

   [21] Affidavit of C Jefferys, [2]

   [22] Affidavit of C Jefferys, [3]-[4]

   [23] Affidavit of C Jefferys, [5]

   [24] Affidavit of C Jefferys, [6]-[7]

   [25] Affidavit of C Jefferys, [8]

2. That part of Mr Jefferys affidavit that refers to his and the applicant’s having worked “massive hours”, and Mr Jefferys not being paid due amounts are not admissible because they are stated as conclusions without reference to the underlying facts on which they are based. That part of Mr Jefferys’ affidavit that refers to his returning to work with Mainline Access on the basis that he would be a contractor is relevant to showing a tendency on the part of the second respondent, and hence, Mainline Access, to engage, or purport to engage persons to perform work on behalf of Mainline Access as subcontractors, and that this tendency is relevant to proving a fact in issue, namely, that the respondents represented to the applicant that he had been engaged under a contract for services rather than as an employee.

3. That then requires consideration of s.97 of the E Act. In my opinion, Mr Jefferys’ evidence, if accepted, would have significant probative value in relation to the applicant’s claim that Mainline Access represented to the applicant that he was engaged under a contract for services, rather than as an employee.

4. Although there are paragraphs of Mr Jefferys’ affidavit that are inadmissible, a substantial part of his evidence is admissible. As I have already noted, the respondents do not submit I should strike out a part or parts of the three affidavits that are the subject of the application before me. I do not propose, therefore, to order that Mr Jefferys’ affidavit be struck out.

Other matters

1. Apart from submitting the three affidavits were inadmissible, counsel for the respondents submitted that to permit the applicant to read the three affidavits would unreasonably expand the scope and costs of the proceedings.

2. It is true that the admission of tendency evidence often gives rise to the risk of widening the scope of litigation. That, however, is not a matter that is relevant to whether tendency evidence is admissible under s.97 of the E Act. The potential of tendency evidence to widen the scope of litigation is a matter that may be dealt with under s.135 of the E Act. Under that section the Court may refuse to admit evidence, which would include tendency evidence, if the probative value of the evidence is outweighed by the danger that the evidence might, among other things, cause or result in undue waste of time.

3. In any event, in the circumstances of the case before me, it is reasonable to suppose that if, during the period the applicant claims he performed work for Mainline Access, Mainline Access maintained proper records concerning the persons it engaged and the payments it made to those persons, it should prove a reasonably simple exercise for Mainline Access to adduce at the hearing those records, and be in a position for itself to rely on tendency evidence to show, if it be the case, that it paid persons whom it engaged the amounts such persons were legally entitled to be paid.

Disposition

1. I propose to order that the application in a case filed on 20 June 2017 be dismissed. Although counsel for the applicant submitted I should order costs against the respondents, I do not propose to consider the question of costs without giving the parties an opportunity to make submissions about whether s.570 of the FW Act applies to the making of an order for costs on the application in a case and, if so, whether an order for costs should be made under that section.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 July 2017