FEDERAL COURT OF AUSTRALIA
Darlaston v Parker [2010] FCA 771
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Details
- Case
- [2010] FCA 771
- Decision Date
CaseChat Overview and Summary
In the case of Darlaston v Parker and Others, the Applicant, Mr Peter Darlaston, an Australian Building and Construction Inspector, sought to enforce compliance with occupational health and safety requirements against several Respondents, including Mr Brian Parker, Mr Hanlon, Mr Kera, and Mr Mitchell, all of whom were associated with unions within the building and construction industry. The dispute arose from events at a construction site where the Respondents allegedly hindered and obstructed the Applicant in carrying out his duties and failed to comply with safety inductions. The legal issues before the Court involved interpreting and applying sections 758(3) and 767(1) of the Workplace Relations Act 1996 (Cth), determining whether the Respondents had contravened these provisions, and assessing the admissibility of a statement from a non-attending witness, Mr Wattie Johnston.
The Court considered whether the Respondents had hindered or obstructed the Applicant in the performance of his duties under section 767(1) and whether they had failed to comply with occupational health and safety requirements under section 758(3). The Court also examined the admissibility of Mr Wattie Johnston's statement under the Evidence Act, focusing on the requirement for reasonable notice to rely on hearsay evidence. The Court concluded that the Respondents had contravened section 758(3) by not undergoing safety inductions and obstructing the Applicant. However, the Court found that merely refusing to provide particulars of any alleged safety breach did not necessarily constitute an improper manner under section 767(1). Regarding the evidence, the Court held that the Applicant's failure to call Mr Wattie Johnston, despite serving a subpoena, precluded reliance on his statement without reasonable notice, as required by the Evidence Act.
The Court stood over the proceeding for further directions to determine the quantum of penalties and appropriate declaratory relief. The costs of the proceeding to date were reserved. This decision highlighted the importance of compliance with occupational health and safety laws and the procedural requirements for admissibility of evidence in industrial law cases.
The Court considered whether the Respondents had hindered or obstructed the Applicant in the performance of his duties under section 767(1) and whether they had failed to comply with occupational health and safety requirements under section 758(3). The Court also examined the admissibility of Mr Wattie Johnston's statement under the Evidence Act, focusing on the requirement for reasonable notice to rely on hearsay evidence. The Court concluded that the Respondents had contravened section 758(3) by not undergoing safety inductions and obstructing the Applicant. However, the Court found that merely refusing to provide particulars of any alleged safety breach did not necessarily constitute an improper manner under section 767(1). Regarding the evidence, the Court held that the Applicant's failure to call Mr Wattie Johnston, despite serving a subpoena, precluded reliance on his statement without reasonable notice, as required by the Evidence Act.
The Court stood over the proceeding for further directions to determine the quantum of penalties and appropriate declaratory relief. The costs of the proceeding to date were reserved. This decision highlighted the importance of compliance with occupational health and safety laws and the procedural requirements for admissibility of evidence in industrial law cases.
Orders
Orders of the court
1. The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.
2. The costs of the proceeding to date are reserved.
Note:
Background
Background to the litigation
A contravention of s 767 on the basis of acting in an “improper manner”, however, is not made out merely by reason of a refusal on the part of those seeking access to premises to identify the particulars of any occupational health or safety concern that they may have in mind: Hogan v Riley [2010] FCAFC 30. Finn, Lander and Jessup JJ there concluded: [22] The essence of the Federal Magistrate’s conclusion that Messrs Kivalu and O’Mara had contravened s 767(1) of the WR Act seems to have been their refusal to provide particulars of the “safety breach” which they alleged, other than to say that there had been an “incident”. In so ruling, however, his Honour was implicitly imposing upon the organisers an obligation to which they were not subject under the OHS Act. …Their Honours then set out the terms of s 78 of the Occupational Health and Safety Act 1989 (ACT), which conferred a right of entry “without notice” and a right not to “tell the occupier of the premises that the representative is on the premises if … to do so would defeat the purpose for which the premises were entered”. They then continued: ... On the facts of the present case, therefore, the organisers were entitled to enter the Convention Centre site without providing Iqon with particulars of the safety matter which they wished to investigate. Section 767(3) of the WR Act takes the provisions of the OHS Act as its starting point. Save in a much more obvious case of hindrance or obstruction than the present one was, we would not regard s 767(1) as concerned to qualify or to reduce the underlying entitlement to enter upon the existence of which subs (3) is based.Notwithstanding the difference in language between the language of this provision within the Australian Capital Territory legislation and ss 77 and 78 of the New South Wales Act, it may similarly be concluded that a contravention of s 767 would not be made out merely by reason of those seeking access not informing an occupier of the safety concerns they had in mind.THE PARTIES — SOME AGREEMENT AS TO THE FACTS The Applicant, Mr Peter Darlaston, is an Australian Building and Construction Inspector duly appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth). The following facts in respect to the Respondents were also the subject of agreement. The First Respondent, Mr Brian Parker, was at all material times an officer and an employee of the Fifth Respondent, the Construction, Forestry, Mining and Energy Union, within the meaning of s 826 of the Workplace Relations Act1996 (Cth). He was also at all material times an officer and an employee of the Sixth Respondent, the Construction, Forestry, Mining and Energy Union (NSW Branch), within the meaning of s 826 and was at all material times acting within the scope of his actual or apparent authority. He was the holder of a permit issued under Part 15 of the Workplace Relations Act and the holder of a permit issued under Part 7 of the Industrial Relations Act1996 (NSW) (“Industrial Relations Act”).
Evidence
Evidence Before The Court
To the extent that further evidence could have been called on behalf of the Applicant, but was not called, it is not considered that any such further evidence could have assisted in the resolution of the factual matters in dispute and no inference should be drawn by reason of the failure to call such evidence. MATTERS OF EVIDENCE — THE ABSENT WATTIE JOHNSTON One of the witnesses upon whom a subpoena had been served failed to attend – Mr Wattie Johnston. No application was made to enforce compliance with the subpoena. He had provided a statement to the Office of the Australian Building and Construction Commissioner dated 12 March 2009. That statement addressed the events on 3 and 4 December 2008. He recounted Mr Parker saying to him: Senior Counsel for the Applicant sought to rely upon Mr Wattie Johnston’s statement even though he did not attend in answer to the subpoena and was not available for cross-examination. Senior Counsel called in aid ss 63 and 67 of the Evidence Act. Section 63 provides as follows:Exception: civil proceedings if maker not available (1)This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2)The hearsay rule does not apply to: (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Clause 4 of Part 2 to the Act’s Dictionary further supplements as follows what is meant by the “unavailability of persons”:Unavailability of persons (1)For the purposes of this Act, a person is taken not to be available to give evidence about a fact if: (a) the person is dead; or (b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact; or (c) it would be unlawful for the person to give evidence about the fact; or (d) a provision of this Act prohibits the evidence being given; or (e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.(2)In all other cases the person is taken to be available to give evidence about the fact.Section 67 provides as follows:Notice to be given (1)Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence. (2)Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3)The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and (b) if subsection 64(2) is such a provision–the grounds, specified in that provision, on which the party intends to rely. (4)Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice. (5)The direction: (a) is subject to such conditions (if any) as the court thinks fit; and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.Order 33 r 16 of the Federal Court Rules requires that a notice under s 67(1) is to be in accordance with Form 144 and may have attached to it an affidavit that sets out evidence of “the previous representation”. Compliance with r 16(3)(a) may be dispensed with if the Court is satisfied, having regard to all the circumstances, that the purpose of the paragraph has been satisfied: O 33 r 16(4).
Decision
Reasons for decision
Section 824 has no application where the person seeking costs is not a party to the proceeding: Standen v Feehan (No 2) [2007] FCA 1865 at [15] per Lander J.CONCLUSIONS For the reasons expressed, it is concluded that:·Messrs Parker, Hanlon and Kera contravened s 758(3) by failing to undergo the safety induction as requested on 3 December 2008;·Mr Mitchell contravened s 758(3) by failing to come down from the scaffolding when requested on 3 December 2008;·Mr Parker on 3 December 2008 contravened s 767(1) by both hindering and obstructing Lend Lease, Upgrade, SPP and each of the carpenters and renderers by making the statements he did to persons on site;·Mr Parker on 4 December 2008 contravened s 758(3) by failing to move the vehicles when requested but that he did not also contravene s 767(1) by reason of that conduct;·Mr Mitchell on 4 December 2008 by driving at the gate behind which Mr Tsitsios was standing contravened s 767(1) by acting “in an improper manner”;·Messrs Parker, Hanlon, Kera and Mitchell did not seek entry for the improper purpose alleged and did not thereby contravene s 767(1); and·both the Fifth and Sixth Respondents also assume liability for such contraventions as have been established as against the individual Respondents by operation of s 826(2) of the Workplace Relations Act. The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of penalties to be imposed and the making of such declaratory relief as is appropriate.ORDERS The Orders of the Court are:1.The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.2.The costs of the proceeding to date are reserved.
Ratio Decidendi
Legal Principle Established
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