CPSU v University of Western Sydney

[2009] FMCA 1176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CPSU v UNIVERSITY OF WESTERN SYDNEY [2009] FMCA 1176

INDUSTRIAL LAW – PRACTICE & PROCEDURE – EVIDENCE – Admission of alleged admission against interest.

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317

Applicant: COMMUNITY AND PUBLIC SECTOR UNION (SPSF GROUP) NEW SOUTH WALES BRANCH

Respondent: UNIVERSITY OF WESTERN SYDNEY

File Number: SYG 1561 of 2009

Judgment of: Raphael FM

Hearing date: 16 November 2009

Date of Last Submission: 16 November 2009

Delivered at: Sydney

Delivered on: 16 November 2009

REPRESENTATION

Counsel for the Applicant: Mr D Shoebridge

Solicitors for the Applicant: W. G. McNally Jones Staff

Counsel for the Respondent: Mr P J Newall

Solicitors for the Respondent: Truman Hoyle

ORDERS

1. Evidence of Professor hereto admitted on penalty.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1561 of 2009

COMMUNITY AND PUBLIC SECTOR UNION (SPSF GROUP) NEW SOUTH WALES BRANCH

Applicant

And

UNIVERSITY OF WESTERN SYDNEY

Respondent

REASONS FOR JUDGMENT

1. The proceedings involve an allegation that certain terms of a general staff agreement 2006 to 2008, concerning the University of Western Sydney and its staff, were not complied with. The University says that the terms referred to were not binding terms but were expressions of intent. They were exhortatory and not mandatory. Because the Court ordered pleadings in the case, the nature of this issue has been narrowed, the University having admitted certain facts. Those admissions come very close to the acknowledgment that things which the University says it was committed to doing in the agreement, it did not do. But to say that does not answer the question whether or not the agreement was breached.

2. The applicant now seeks to have admitted evidence of what occurred at a meeting between a person of professorial status and a number of others, following the events which were the subject of the admissions in the pleadings.  It is said that the professor apologised for “bypassing the agreement”.  The applicant presses this statement, or the admission of this statement, on the basis that it confirms certain facts which appear to me to have already been admitted and which would have some relevance if I come to the view that what occurred was a breach that required being penalised by the imposition of a civil penalty.  If the conversation is allowed in, then I will be able to say (as the evidence stands at this moment) that on 2 May 2008 the University, through the Professor, was aware that what they had done was not consistent with the agreement.  I am not sure how much weight that would have in the assessment of any penalty but then the case has only just begun.

3. The respondent takes issue with the admission of this evidence and cites, with considerable vigour, the decision of the High Court in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 and, in particular, the views expressed by the Chief Justice at [17] and [25] and those expressed by Gummow J with whom the Chief Justice agreed at [66] et seq.

4. As I explained to Mr Newall, who appears for the respondents, it never occurred to me that if I admitted the fact of this conversation, it could influence me in coming to a conclusion as to whether or not there had been a breach of the agreement.  That is a matter for the Court to decide.  Any expression by a lay witness of what might or might not be the law, is of no relevance whatsoever.  On the other hand, as the Dovuro case confirms, an admission of a fact is perfectly acceptable. 

5. I take the word “bypass” to mean that certain things set out in the agreement as proposed to be done in the circumstance which obtain here of a vacancy in a position within the University may not have been done.  It is a very vague description.  I would not take it as meaning that none of them were done but I have little need to go much further than that because I would rely upon the admissions already made in the pleadings as to what was done and what was not done. 

6. So to that extent, I think the statement would be admissible in accordance with the dicta of Dovuro, because it is no more than a statement of fact.  It might not be admissible to prove anything because of its vagueness and in the context of the pleading admissions, irrelevant.  On the other hand, I do think that the statement would be admissible as to penalty.  I propose to allow it in on that basis, making it clear that, as things stand, it does not appear to me to go very far given that by the time the so-called admission was made, all the events which are the subject matter of the complaint were over.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  26 November 2009