Fair Work Ombudsman v Valuair Limited - [2014] FCA 404

FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Valuair Limited [2014] FCA 404

Citation: Fair Work Ombudsman v Valuair Limited [2014] FCA 404

Parties: FAIR WORK OMBUDSMAN v VALUAIR LIMITED (200302952W), TOUR EAST (T.E.T) LTD (31629391) and JETSTAR AIRWAYS PTY LTD (ACN 069 720 243)

File number(s): NSD 719 of 2012

Judge: BUCHANAN J

Date of judgment: 29 April 2014

Catchwords: EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence

Legislation: Evidence Act 1995 (Cth), ss 59(1), 59(2), 81, 81(2)(b), 87(1)

Cases cited:
Jack v Smail (1905) 2 CLR 684
Lopes v Taylor (1970) 44 ALJR 412
Mahmood v State of Western Australia (2008) 232 CLR 397
Mule v R (2005) 221 ALR 85
Spence v Demasi (1988) 48 SASR 536

Lexis Nexis Butterworths, Cross on Evidence (at Service 165) [33455]

Date of hearing: 7, 8, 15, 16, 22 April 2014

Place: Sydney

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: Mr JJE Fernon SC, Ms E Raper, Mr D Chin

Solicitor for the Applicant: Baker & McKenzie

Counsel for the First and Second Respondents: Dr CS Ward, Mr A Macauley

Solicitor for the First and Second Respondents: Arnold Bloch Leibler

Counsel for the Third Respondent: Mr F Parry QC, Mr R Dalton, Mr J Darams

Solicitor for the Third Respondent: Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

FAIR WORK DIVISION

NSD 719 of 2012

BETWEEN:
FAIR WORK OMBUDSMAN
Applicant

AND:
VALUAIR LIMITED (200302952W)
First Respondent

TOUR EAST (T.E.T) LTD (31629391)
Second Respondent

JETSTAR AIRWAYS PTY LTD (ACN 069 720 243)
Third Respondent

JUDGE:

BUCHANAN J

DATE:

29 APRIL 2014

PLACE:

SYDNEY

REASONS FOR RULING ON EVIDENCE
BUCHANAN J:

For the purpose of the present judgment, which concerns a ruling on evidence made on 15 April 2014, the factual position described briefly hereunder has been derived from the pleadings and the affidavit evidence as filed. This judgment does not state final conclusions about factual matters which remain for debate in the proceedings.
The first and second respondents are each foreign corporations. The first respondent is incorporated in Singapore; the second respondent is incorporated in Thailand. The third respondent is an Australian corporation which operates both international and Australian domestic airline services, under the name “Jetstar”.
The first and second respondents each employ cabin crew who are provided to the third respondent for its international services. The proceedings concern allegations that the first and second respondents breached an Australian award applying to aircraft cabin crew and that the third respondent was (at least) knowingly concerned in those breaches.
The cabin crew employed by the first and second respondents are permanently based in Singapore (in the case of the first respondent) or Bangkok…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCA 404
Decision Date

CaseChat Overview and Summary

The case of Fair Work Ombudsman v Valuair Limited was heard in the Federal Court of Australia. The Fair Work Ombudsman brought proceedings against Valuair Limited concerning alleged breaches of workplace laws. The central issue was the admissibility of certain statements made by Valuair Limited's employees under the Evidence Act 1995 (Cth). Specifically, the court had to determine whether the whole statement, including both admissions and self-serving portions, could be admitted under the exceptions to the hearsay and opinion rules.

The legal question before the court was whether the whole of a document or record containing admissions and self-serving statements should be admitted into evidence, as per the established rule of fairness, or whether only the adverse admissions should be admitted as per the statutory provisions of the Evidence Act. The court examined the statutory language of sections 59, 81, and 87 of the Evidence Act and compared it with the common law rule requiring the admission of the entire statement. The court also considered the principle that the weight to be given to different parts of the statement is a matter for the trier of fact.

The court found that while sections 59 and 81 of the Evidence Act provide exceptions to the hearsay and opinion rules for admissions and related representations, the longstanding practice in criminal trials supports the admission of the whole relevant document or record unless there is agreement to the contrary or exclusions can be made on the ground of relevance. The court held that the statutory provisions do not preclude the application of the common law rule, which mandates the admission of the entire statement, including both admissions and self-serving portions. The court concluded that the trier of fact is entitled to consider the entire statement, with the understanding that the weight to be given to different parts of the statement is a matter for their determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Sections 59(1) and (2), 81 and 87(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”) provide: 59 The hearsay rule—exclusion of hearsay evidence(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. …81Hearsay and opinion rules: exception for admissions and related representations(1)The hearsay rule and the opinion rule do not apply to evidence of an admission. (2)The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a)that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b)to which it is reasonably necessary to refer in order to understand the admission. …87 Admissions made with authority(1)For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a)when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or (b)when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or (c)the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. “Admission” is defined in the Dictionary to the Evidence Act as follows: admission means a previous representation that is: (a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b)adverse to the person’s interest in the outcome of the proceeding. On one view, s 81 of the Evidence Act provides that the representations which are admissible as exceptions to the hearsay and opinion rules are those representations of asserted fact which are adverse to the interest of a party and only those additional representations which are identified in s 81(2)(b). However, a pre-existing and longstanding practice has established a rule of fairness, which is routinely applied in criminal trials, which requires admission of the whole of the relevant document or record, unless there is agreement to the contrary or exclusions may safely be made on the ground of relevance. The general rule is set out in Cross on Evidence at [33455], which provides: C — Reception of the entire statement[33455]… When a statement contains items favourable to a party’s case in addition to the admission, the party relying on the latter cannot prevent the other items from being provided, though what weight is to be given to the favourable items is entirely a matter for the trier of fact. Accordingly, the debit side of an account may be tendered as an admission against one party, but this will mean that the credit side may be treated as evidence against his adversary. The self-serving nature of the parts of a statement that are favourable to the maker of an admission will no doubt affect their weight but there seems to be no reason why the jury should not treat them as evidence of the truth of that which they assert. … … The whole statement, including both admissions and self-serving portions, must be left to the trier of fact who may attach different weight to different parts of it. The principle only applies to a single statement, not to what are in truth statements which are separate because of temporal considerations or other circumstances. It is a live question how far it is open to the tendering party to refuse to tender more than the admissions and self-serving portions closely related to them. It has been said that if in a statement there is a qualification and an admission inextricably bound together so that they cannot be separated into different components, then the trier of fact must accept the whole or reject the whole; but if it is possible to fragment the statement, the trier of fact might accept part and reject another part. … (Citations omitted.) (Emphasis added.)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citation:	Fair Work Ombudsman v Valuair Limited [2014] FCA 404
Parties:	FAIR WORK OMBUDSMAN v VALUAIR LIMITED (200302952W), TOUR EAST (T.E.T) LTD (31629391) and JETSTAR AIRWAYS PTY LTD (ACN 069 720 243)
File number(s):	NSD 719 of 2012
Judge:	BUCHANAN J
Date of judgment:	29 April 2014
Catchwords:	EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence
Legislation:	Evidence Act 1995 (Cth), ss 59(1), 59(2), 81, 81(2)(b), 87(1)
Cases cited:	Jack v Smail (1905) 2 CLR 684 Lopes v Taylor (1970) 44 ALJR 412 Mahmood v State of Western Australia (2008) 232 CLR 397 Mule v R (2005) 221 ALR 85 Spence v Demasi (1988) 48 SASR 536 Lexis Nexis Butterworths, Cross on Evidence (at Service 165) [33455]
Date of hearing:	7, 8, 15, 16, 22 April 2014
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Applicant:	Mr JJE Fernon SC, Ms E Raper, Mr D Chin
Solicitor for the Applicant:	Baker & McKenzie
Counsel for the First and Second Respondents:	Dr CS Ward, Mr A Macauley
Solicitor for the First and Second Respondents:	Arnold Bloch Leibler
Counsel for the Third Respondent:	Mr F Parry QC, Mr R Dalton, Mr J Darams
Solicitor for the Third Respondent:	Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 719 of 2012

JUDGE:	BUCHANAN J
DATE:	29 APRIL 2014
PLACE:	SYDNEY