Ponzio v Multiplex Limited - [2005] FCA 1410

FEDERAL COURT OF AUSTRALIA
Ponzio v Multiplex Limited [2005] FCA 1410
INDUSTRIAL LAW – alleged contravention of s 170NC of the Workplace Relations Act 1996 (Cth) – whether action taken with intent to coerce sub-contractor to enter into agreement with a union – whether action could be described as coercive – whether “other action” in s 170NC only concerned with the conduct of parties to the bargaining process – absence of agreement a substantial and operative factor in the decision to exclude sub-contractor
EVIDENCE – admissibility of recorded conversation and interviews – whether evidence obtained illegally or improperly – whether evidence obtained in contravention of s 6(1) of the Surveillance Devices Act 1999 (Vic)
Workplace Relations Act 1996 (Cth) ss 3(c), 170L, 170NC
Evidence Act 1995 (Cth) s 138
Surveillance Devices Act 1999 (Vic) ss 3, 6(1)
Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337, cited
Al-Kateb v Godwin (2004) 208 ALR 124, [2004] HCA 37, cited
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia (2001) 184 ALR 73, [2001] FCA 456, followed
Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530, applied
Laing v Construction, Forestry, Mining and Energy Union [2005] FCA 765, considered
National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114, followed
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41, applied
GARY PONZIO v MULTIPLEX LIMITED
VID 381 OF 2004
MARSHALL J
5 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 381 OF 2004

BETWEEN:

GARY PONZIO
APPLICANT

AND:

MULTIPLEX LIMITED
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

5 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The application is dismissed.
2.        Costs reserved.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 381 OF 2004

BETWEEN:

GARY PONZIO
APPLICANT

AND:

MULTIPLEX LIMITED
RESPONDENT

JUDGE:

MARSHALL J

DATE:

5 OCTOBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The Building Industry Taskforce, through its inspector Gary Ponzio, complains about certain conduct of Multiplex Limited. It asserts that Multiplex took action with intent to coerce No Bolt Operations Pty Ltd, a scaffolding sub-contractor, to enter into an industrial agreement with the Construction, Forestry, Mining and Energy Union, known as the CFMEU. Multiplex denies the complaint.
Multiplex says that it had no intent to coerce No Bolt. It claims that it was indifferent to whether No Bolt entered into an agreement with the Union. It says that it replaced No Bolt on a construction site because of likely delays which No Bolt’s involvement on the site would cause.
The Taskforce alleges that Multiplex breached s 170NC of the Workplace Relations Act 1996 (Cth). Multiplex denies any breach.
The critical issues
The critical issues for determination in this proceeding are:

Did Multiplex…

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: [2005] FCA 1410
Decision Date: 5 OCTOBER 2005

CaseChat Overview and Summary

The case of Ponzio v Multiplex Limited involved a dispute regarding the admissibility of certain evidence in proceedings before the Australian court. The defendant, Multiplex Limited, sought to exclude some evidence filed on behalf of Mr Ponzio, arguing it was obtained illegally or improperly. The evidence in question included tape recordings and transcripts of telephone conversations and interviews. Multiplex argued that the recordings were made without the consent of the parties involved and that the interviews were conducted without proper cautions being given. The court had to decide whether the evidence should be excluded under the discretion provided by section 138 of the Evidence Act 1995 (Cth).

The court examined whether the evidence was obtained improperly or in contravention of Australian law, and if so, whether the desirability of admitting it outweighed the undesirability of its acquisition. The court took into account the probative value of the evidence, its importance in the proceedings, and the gravity of the impropriety. The court also considered whether the impropriety was deliberate or reckless, and whether it contravened any recognised rights under the International Covenant on Civil and Political Rights. Ultimately, the court found that while the evidence was obtained without consent, the overall importance and probative value of the evidence in the case outweighed the undesirability of its acquisition.

The court ruled that the application to exclude the evidence was dismissed, allowing the evidence to be admitted in the case. The court reserved the decision on costs, indicating that the matter would be addressed at a later stage. This decision highlighted the balance the court must strike between ensuring the integrity of the legal process and the need to admit relevant and important evidence in the interest of justice.

Orders

Orders of the court

1. The application is dismissed.

2. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Having regard to the foregoing, the application is bound to fail. Even if, contrary to my view, Multiplex had the necessary intent to coerce No Bolt to make a certified agreement, and that such coercive conduct occurred, such conduct is not industrial action or other action for the purposes of s 170NC(1).Ruling on the admissibility of evidence alleged to be obtained illegally or improperly Multiplex sought the exclusion of some of the evidence filed on behalf of Mr Ponzio, pursuant to the exercise of the Court’s discretion under s 138 of the Evidence Act 1995 (Cth). Essentially, the impugned evidence consisted of tape recordings and transcripts of four telephone conversations and two records of interview. The relevant telephone conversations were:·At 8.15 am on 28 January 2004, between Mr Baharis and Mr Padgett that was recorded by Mr Baharis, without Mr Padgett’s knowledge. Mr Baharis used a hands free device for his mobile telephone to conduct the conversation while seated in his motor vehicle, accompanied by Mr Ponzio. Mr Padgett had no knowledge that Mr Ponzio was present during the conversation. Mr Baharis recorded the conversation by using a digital recorder belonging to Mr Ponzio, which Mr Baharis had requested that he borrow from Mr Ponzio for the purpose of recording the conversation.·At 9.00 am on 28 January 2004, between Mr Baharis and Mr Padgett, in materially identical circumstances to the previous conversation at 8.15 am.·At 9.50 am on 28 January 2004, between Mr Baharis and Mr Cordell that was recorded by Mr Baharis, without Mr Cordell’s knowledge, while using a hands free mobile telephone to conduct the conversation while seated in his motor vehicle and accompanied by Mr Ponzio.·At 1.14 pm on 28 January 2004, between Mr Padgett and Mr Baharis, in respect of which Mr Baharis made a diary note at the end of the conversation. The relevant records of interview occurred on 10 February 2004 between Mr Ponzio and Mr Padgett and Mr Ponzio and Mr Slater. In interviewing Mr Padgett, Mr Ponzio relied on material obtained in the taped telephone conversations of 28 January 2004. In the course of interviewing Mr Slater, Mr Ponzio failed to caution him that he had a right to remain silent and also relied on the contents of the recorded conversations. Section 138 of the Evidence Act provides“(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and(e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”(i) no contravention of Australian law

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 381 OF 2004

BETWEEN:	GARY PONZIO APPLICANT
AND:	MULTIPLEX LIMITED RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	5 OCTOBER 2005
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	5 OCTOBER 2005
PLACE:	MELBOURNE