Hanlon v Australian Building and Construction Commissioner

Case [2021] FCAFC 221

FEDERAL COURT OF AUSTRALIA

Hanlon v Australian Building and Construction Commissioner [2021] FCAFC 221    

Appeal from: Australian Building and Construction Commissioner v Hanlon [2020] FCCA 3409; Australian Building and Construction Commissioner v Hanlon (No 2) [2021] FCCA 787
File number(s): NSD 463 of 2021
Judgment of: RARES, BROMWICH AND BANKS-SMITH JJ
Date of judgment: 23 November 2021
Catchwords:  COURTS AND JUDGES – judge’s delay of over four years from hearing witnesses to delivery of reasons – where delay not explained in reasons – where reasons made detailed credibility findings based on oath against oath evidence and contemporaneous document of one witness – whether judge’s consideration of minor unread part of affidavit sufficient to vitiate reasons – Held: appeal dismissed
Legislation: Fair Work Act 2009 (Cth) ss 478, 480, 484, 487, 489, 500, 518
Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Others (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473

Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

Regina v Lawrence [1982] AC 510
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 47
Date of hearing: 23 November 2021
Counsel for the Appellant: Mr I. Latham
Solicitor for the Appellant: Taylor & Scott Lawyers
Counsel for the Respondent: Mr Y. Shariff SC and Mr M. Seck
Solicitor for the Respondent: Bartier Perry Pty Limited

ORDERS

NSD 463 of 2021
BETWEEN:

REBEL HANLON

Appellant
AND:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Respondent

ORDER MADE BY:

RARES, BROMWICH AND BANKS-SMITH JJ

DATE OF ORDER:

23 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

  1. The focus of this appeal is the unfortunate and unexplained 4 year, 4 month delay of the trial judge in giving his reasons for finding that the appellant, Rebel Hanlon, an organiser of the Construction, Forestry, Mining and Energy Union (CFMEU), had contravened s 500 of the Fair Work Act 2009 (Cth) on 11 August 2014 by entering a construction site at Riverbank Drive, The Ponds, in New South Wales, and having sought to exercise rights under Pt 3–4 of the Act remained on the site without giving notice of entry and failing to produce his entry permit.

  2. The first ground of the amended notice of appeal asserted that that the trial judge erred in finding that Mr Hanlon had been requested to provide an entry permit but had not done so, in circumstances where the evidence as to the making of any request had been contested and his Honour had been required to make a credit finding in relation to competing versions of the event.  The basis of this ground was the delay that occurred between…

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AGLC
Hanlon v Australian Building and Construction Commissioner [2021] FCAFC 221
Case
[2021] FCAFC 221
Decision Date

CaseChat Overview and Summary

The appeal was brought by Hanlon against the Australian Building and Construction Commissioner. The central dispute involved the commissioner's decision that Hanlon had contravened a provision of the Building and Construction Industry Improvement Act 2005 (Cth). The case was heard in the Federal Court of Australia. The primary issue was whether the judge's delay of over four years from hearing witnesses to delivering reasons, without adequate explanation in the reasons, vitiated the decision. This was particularly relevant given that the judge made detailed credibility findings based on oath against oath evidence and a contemporaneous document of one witness.

The court needed to determine whether the judge's consideration of a minor unread part of an affidavit was sufficient to invalidate the reasons. The appeal hinged on whether the undue delay had affected the judge's ability to properly assess the evidence and make a fair decision. The court referenced previous cases that emphasised that delay alone is not a ground for vitiation unless it contributed to an error or made the decision unsafe. The trial judge's reasons were scrutinised to see if they demonstrated full consideration of all evidence despite the delay.

The court concluded that the delay, though significant, did not vitiate the judge's reasons. The reasons demonstrated that the judge had considered all evidence, including the conflicting testimonies, and made detailed findings on credibility. The minor error in referencing an unread part of an affidavit was deemed insubstantial and unlikely to have influenced the decision. The court found that the judge's reasons were comprehensive and satisfied the need for full consideration of the evidence, despite the delay. Consequently, the appeal was dismissed.

Orders

Orders of the court

1. The appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 473 – 474 [5] – [6] Gleeson CJ said (and see also at 493–494 [78], and 496 [85]–[86] per Kirby J, and at 524–525 [166]–[167] per Callinan and Heydon JJ):Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare…. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself (See Monie v The Commonwealth (2005) 63 NSWLR 729, and the authorities there collected).The context in which delay occurs will affect any legal consequences that may flow.(emphasis added) In Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 at 32 [69], 33 [73], 35 [81] Carr, Emmett and Gyles JJ said:[69] Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.…[73] Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge’s advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998)).…In the absence of some special circumstances where his Honour rejected the evidence of the witnesses on grounds of lack of credit, one would expect him to explain how, despite the delay, he was well­able to recollect the oral testimony. Also, as a general rule, if part of that rejection depended upon contemporary documents or the lack of such contemporary documents, his Honour should, in his reasons, have gone to those documents and, (in the latter case), stated with the requisite satisfaction that there were no such contemporaneous documents. Statutory Context

Ratio Decidendi

Legal Principle Established

Mr Hanlon contended that the trial judge fell into error in his findings that Mr Buchanan had made a request of Mr Hanlon, or in his presence, that he produce his entry permit. Mr Hanlon argued that his Honour had not made any express references in his reasons about the witnesses’ demeanour but had needed to explain in detail, particularly, by reason of his lengthy delay in giving judgment, why he had preferred Mr Buchanan’s and Mr Ward’s evidence, to the extent that the latter was other than merely corroborative, to Mr Hanlon’s and Mr Parker’s. Initially, he contended that the delay in giving judgment was so extreme that it was reasonable to infer that there had been a real and substantial risk that his Honour had overlooked relevant aspects of the impressions each witness gave, and that this was supported by his mistake in summarising Mr Ward’s evidence. He submitted that on that basis, his Honour’s finding that Mr Hanlon had contravened s 500 should be set aside. He argued that the part of the declaration that Mr Hanlon had failed to produce his entry permit, when requested, was not justified. During the course of argument, Mr Hanlon accepted that the declaration could be corrected, if that error were established, by deleting the last clause, namely, “and refused to produce his entry permit”.Consideration The trial judge’s reasons reveal that he first made a detailed examination of the evidence at the trial. His Honour set out the evidence-in-chief of the protagonists, relevant aspects of their cross-examination and the contentions of the respondents as to why Mr Buchanan and Mr Ward’s evidence ought not to be accepted. He then came to his findings that rejected the respondents’ evidence where it substantively conflicted with that of Mr Buchanan and Mr Ward. While it is unfortunate that his Honour referred erroneously to the part of Mr Ward’s affidavit that was not read, having regard to the context of the contest and all of the circumstances, that error is insubstantial and unlikely to have played any role in the ultimate resolution of the contest. As Mr Ward had said, in his Honour’s quotation from his evidence (in [25] above), Mr Buchanan had responded to Mr Parker’s request to round up all the workers on the site to have a meeting: “We can’t do that. You haven’t given us 24 hours’ notice. You haven’t provided the proper paperwork”. And Mr Ward backed him up, saying: “Guys, this is a government job. You know the rules. We can’t give you access”. It is impossible to think that these experienced industrial protagonists on both sides were speaking in a vacuum in such a conversation. While it is true that Mr Buchanan and Mr Ward did not say in terms, “Could you please show us your entry permit or give us your entry notice”, Mr Parker understood, in Mr Ward’s account of the conversation, exactly what the statements about the paperwork were about, for, as Mr Ward deposed, Mr Parker stated:You’re asking for one piece of paper from me, when there are guys out there working on the wrong visas.