Radisich v Construction, Forestry, Mining and Energy Union & Ors
[2010] FMCA 150
•3 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADISICH v CFMEU & ORS | [2010] FMCA 150 |
| EVIDENCE – Witness – application to cross-examine own witness under s.38 of the Evidence Act 1995 (Cth) – purpose of s.38 – evidence unfavourable to the party calling the witness – meaning of “unfavourable” – whether evidence unfavourable, neutral or inconsistent – discretionary considerations under ss.38(6) and 192(2) of the Evidence Act 1995 (Cth). INDUSTRIAL LAW – Penalty proceeding. WORDS AND PHRASES – “unfavourable”. |
| Building and Construction Industry Improvement Act 2005 (Cth), ss.36, 37, 38, 52(1)(e), 57 Evidence Act 1995 (Cth), ss.38(1)(a), (6)(a) and (b), 135, 192(2)(a), (b), (c), (d) and (e) Workplace Relations Act 1996 (Cth), ss.420, 494(1) |
| Mirvac Constructions (WA) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 |
| Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 Bonan v Hadgkiss (2006) 160 FCR 10; [2006] FCA 1334 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Hadgkiss v CFMEU (2006) 152 FCR 560; [2006] FCA 941 Klewer v Walton [2003] NSWCA 308 Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 237 R v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v Le [2001] NSWSC 174 R v Lozano (unreported, New South Wales Court of Criminal Appeal, 10 June 1997) R v Parker [2003] NSWCCA 12 R v Souleyman (1996) 40 NSWLR 712 R v Taylor [2003] NSWCCA 194 R v Velevski (No 2) (1997) 93 A Crim R 420 Radisich v Molina & Ors [2009] FMCA 1121 |
| JD Heydon, Cross on Evidence (7th Australian Edn), (Chatswood: Lexis Nexis Butterworths, 2004) |
| Applicant: | JEFFREY RADISICH |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS |
| Third Respondent: | JOSEPH MCDONALD |
| File Number: | PEG 167 of 2009 |
| Judgment of: | Lucev FM |
| Hearing dates: | 2 & 3 March 2010 |
| Date of Last Submission: | 3 March 2010 |
| Delivered at: | Perth |
| Delivered on: | 3 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Snaden |
| Solicitors for the Applicant: | Blake Dawson |
| Counsel for the First and Second Respondents: | Mr K Bonomelli |
| Solicitors for the First and Second Respondents: | Construction, Forestry, Mining and Energy Union |
| Counsel for the Third Respondent: | Mr G MacLean |
| Solicitors for the Third Respondent: | Gavin MacLean |
ORDERS
Leave be granted to the applicant to cross-examine:
(a)Mr Royle under section 38 of the Evidence Act 1995 (Cth); and
(b)limited to cross-examination on the following passages in the Australian Building and Construction Commission transcript of the Examination of Glenn Charles Royle under section 52 of the Building and Construction Industry Improvement Act 2005 dated 30 October 2008:
(i)page 32, lines 10-20;
(ii)page 35, lines 43-45;
(iii)page 37, lines 10-13; and
(iv)page 39, lines 9-11, lines 26-28, lines 39-43.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 167 of 2009
| JEFFREY RADISICH |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS |
Second Respondent
| JOSEPH MCDONALD |
Third Respondent
REASONS FOR JUDGMENT
(Edited from Reasons for Judgment delivered orally)
Introduction – the application
At about 4.30pm yesterday afternoon, the first day of this hearing, the applicant had seemingly almost completed examination of his third witness, Mr Glenn Royle, which, by that time had lasted about 40 minutes, when he made an application to cross-examine Mr Royle. That application was made under s.38(1)(a) of the Evidence Act 1995 (Cth),[1] and the Court had the benefit of submissions on the application before reserving judgment on it to this morning.
Sections 38 of Evidence Act
[1] “Evidence Act”.
Section 38 of the Evidence Act provides as follows:
Unfavourable witnesses
(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross‑examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party; or
(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c)whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross‑examination for the purposes of this Act (other than section 39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.
(4)Questioning under this section is to take place before the other parties cross‑examine the witness, unless the court otherwise directs.
(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:
(a)whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b)the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.
(7)A party is subject to the same liability to be cross‑examined under this section as any other witness if:
(a)a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and
(b) the party is a witness in the proceeding.
Grounds of application
The application was made on the basis of s.38(1)(a) of the Evidence Act, supported by reference to discretionary considerations in ss.38(6) and 192(2) of the Evidence Act. Essentially, the applicant says that evidence given by Mr Royle is unfavourable to the applicant.
The substantive application
The substantive application is for declaratory relief and the imposition of pecuniary penalties for, at least, alleged contravention of each of s.494(1) of the Workplace Relations Act 1996 (Cth)[2] and s.38 of the Building and Construction Industry Improvement Act 2005 (Cth),[3] brought by the applicant who is an inspector appointed under s.57 of the BCI Act. The application is brought against:
a)the first respondent: the Construction, Forestry, Mining and Energy Union – the federally registered union;[4]
b)the second respondent: the Construction, Forestry, Mining and Energy Union of Workers – the state registered union;[5] and
c)Joseph McDonald, an officer and employee of both the CFMEU and CFMEUW.
[2] “WR Act”.
[3] “BCI Act”.
[4] “CFMEU”.
[5] “CFMEUW”.
Section 494(1) of the WR Act provides as follows:
(1) From the day when:
(a) a collective agreement; or
(b) a workplace determination;
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination).
Section 38 of the BCI Act provides as follows:
A person must not engage in unlawful industrial action.
For the purposes of s.494(1) of the WR Act, “industrial action” is defined in s.420 of the WR Act as follows:
(1)For the purposes of this Act, industrial action means any action of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees;
but does not include the following:
(e)action by employees that is authorised or agreed to by the employer of the employees;
(f)action by an employer that is authorised or agreed to by or on behalf of employees of the employer;
(g)action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(2) For the purposes of this Act:
(a)conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and
(b)a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Meaning of lockout
(3)For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).
Burden of proof
(4)Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g)(i) applies.
For the purposes of s.38 of the BCI Act “unlawful industrial action” is defined in s.37 of the BCI Act as follows:
Building industrial action is unlawful industrial action if:
(a) the action is industrially‑motivated; and
(b) the action is constitutionally‑connected action; and
(c) the action is not excluded action.
Relevant definitions of “building industrial action” and “industrially motivated” appear in s.36 of the BCI Act, and are as follows:
(1) In this Chapter, unless the contrary intention appears:
"building industrial action" means:
(a)the performance of building work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i)the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii)the work is performed, or the practice is adopted, in connection with an industrial dispute (within the meaning of subsection (4)); or
(b)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c)a ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)); or
(d)a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work;
but does not include:
(e) action by employees that is authorised or agreed to, in advance and in writing, by the employer of the employees; or
(f) action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or
(g)action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe for the employee to perform.
…
"industrially-motivated" means motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:
(a)supporting or advancing claims against an employer in respect of the employment of employees of that employer;
(b)supporting or advancing claims by an employer in respect of the employment of employees of that employer;
(c)advancing industrial objectives of an industrial association;
(d)disrupting the performance of work.
The employer referred to in paragraphs (a) and (b) need not be the employer whose employees do the work to which the action relates.
The allegations in the application relate to persons working (both employed and sub-contracted) for a builder and developer, Mirvac Constructions (WA) Pty Ltd,[6] on a construction project known as The Peninsula, in the inner southern Perth suburb of Burswood,[7] and alleged “industrial action” and “building industrial action” at that site on 12 September 2008. There is no dispute that building work on Site was covered by, and that each of the CFMEU and Mirvac were bound by, the Mirvac Constructions (WA) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008.[8] The material facts alleged by the applicant as to the events on the morning of 12 September 2008 appear in the Points of Claim, in the following terms:
[6] “Mirvac”, but referred to as “MCPL” in the Points of Claim.
[7] “Site”.
[8] “the Enterprise Agreement”.
11.Between approximately 7:20am and 8:30am on Friday 12 September 2008, McDonald and Pallot:
(a)attended at the Site; and
(b)convened and attended a meeting that:
(i) consisted of MCPL employees who were employed, and employees of building contractors engaged by MCPL who were employed to work at the Site in connection with the Construction Works (the Workers); and
(ii) took place in an area at the Site known as the amenities area (the Amenities Area),
hereafter, (the Unauthorised Meeting).
12.On Friday 12 September 2008, each of the Workers was required to attend for and commence work at the Site at 7:00am.
Particulars
The Applicant refers to and repeats the particulars subjoined to paragraph 6 above.
13.During the Unauthorised Meeting and as a consequence of it, each – or, alternatively, most or some – of the Workers did not perform work that they were engaged to perform in connection with the Construction Works (the Initial Stoppage).
14.During the Unauthorised Meeting, McDonald, in the presence of Pallot:
(a)spoke to those present about the following issues, namely:
(i) the progress, nature and/or effects of legal proceedings against an official of the CFMEU, Noel Washington;
(ii) the then pending CFMEUWA office-bearer elections; and
(iii) the appointment of a deputy or stand-in union delegate or “shop steward”,
collectively, (the Union Issues); and
(b)conducted, oversaw, organised, coordinated and/or facilitated a ballot of those present for the appointment of a union delegate or, alternatively, a deputy union delegate, hereafter, (the Steward Ballot).
15.At approximately 8:10am on Friday 12 September 2008, McDonald, Pallot and an employee of MCPL, Phillip Milne (Milne), left the Amenities Area for a short period to attend a meeting – or, alternatively, to speak – with an MCPL manager, Mr Craig Prebble (Prebble).
16.Immediately or shortly after their meeting or discussion with Prebble, McDonald, Pallot and Milne returned to the Unauthorised Meeting at the Amenities Area.
17.At or shortly prior to the conclusion of the Unauthorised Meeting:
(a)McDonald, in Pallot’s presence, said to those present words to the effect that:
(i) they would be docked four hours’ pay on account of having attended it;
(ii) as a consequence of being so docked, they should – or, alternatively, “may as well” – go home for the day (the Strike Proposal); and
(iii) as a consequence of being so docked, they should collectively choose between either waiting until four hours passed before returning to work (Option One), or leaving the Site immediately and not working at all for the remainder of the day (Option Two);
(b)McDonald, in Pallot’s presence, conducted, oversaw, organised, coordinated and/or facilitated a ballot of those present as to which of Option One or Option Two they collectively favoured (the Ballot);
(c)those present, or, alternatively, those of them who participated in the Ballot, subsequently voted, by a show of hands, in support of Option Two (the Vote); and
(d)McDonald, immediately after the Ballot and in Pallot’s presence, said to those present words to the effect that:
(i) the result of the Ballot was that Option Two had majority support (the Ballot Declaration); and
(ii) as a consequence, they should all immediately leave the Site (the Strike Direction).
18.Immediately following the Unauthorised Meeting and as a consequence of it, the Strike Proposal, the Ballot, the Vote, the Ballot Declaration and/or the Strike Direction, each – or, alternatively, most or some – of the Workers:
(a)left the Site; and
(b)for the remainder – or, alternatively, for the majority of the remainder – of that day, did not perform any work that they were employed or engaged to perform in connection with the Construction Works (the Strike).[9]
[9] Points of Claim, paragraphs 11 to 18.
The alleged contraventions are denied by the three respondents, and the alleged material facts are largely not admitted, save for paragraph 15, which is admitted, and a few other minor admissions. Most notably there are pleas that:
a)in relation to paragraph 11 of the Points of Claim, Mr McDonald alleges that he had the implied consent of Mirvac to attend the meeting, or that there was acquiescence by Mirvac in his doing so;
b)in relation to paragraph 13 of the Points of Claim, Mr McDonald alleges that the meeting was authorised and the workers (or some of them) ceased working as a consequence of a decision by Mirvac not to pay the workers for a four hour period; and
c)in relation to paragraph 18 of the Points of Claim, by the CFMEU and CFMEUW and Mr McDonald that there was no requirement to remain at work following the decision by Mirvac not to pay the employees for a four hour period.
Mr Royle’s evidence
Mr Royle’s evidence-in-chief thus far has relevantly been:
a)that he attended a meeting on the Site on the morning of 12 September 2008;
b)that he recalls Mr McDonald being in attendance at the meeting;
c)that he does not recall specific issues discussed at the meeting;
d)that he recalls that Mr McDonald addressed the meeting after it had been addressed by the Safety Officer/Representative, Mr Hogan;
e)that he cannot remember the first thing that was said by Mr McDonald;
f)that he does not specifically recall anything said to the meeting by Mr McDonald (save for matters referred to below);
g)that Mr McDonald was standing “up the front” which was where people normally stood when addressing this type of meeting;
h)that some employees, Mr Royle thinks they were electricians and plumbers, left the meeting when Mr McDonald addressed it, and he is not sure why they left;
i)that he recalls that Mr McDonald left the meeting at some stage and then came back, but he does not remember why Mr McDonald left, what he said before leaving, or when he came back to the meeting;
j)that all the workers went home eventually, but he does not remember why they went home or what happened at the meeting to result in the meeting ending or the workers going home, save that he remembers that “[Mr McDonald] told us to go home”, but not why Mr McDonald said that;
k)he was interviewed the same day by an officer of the Australian Building and Construction Commission;[10]
l)he was subsequently required to attend at a hearing before the ABCC[11] where he was questioned and a written record of the questions and answers was produced,[12] and provided to him, but which he had not read until about a week ago;
m)he was careful to tell the truth at the ABCC Hearing;
n)he cannot say if the ABCC Hearing Transcript is an accurate record because he does not now remember what happened in the ABCC Hearing; and
o)that he does not remember much of what happened on Site on 12 September 2008 because he does “not want to know about it”.
[10] “ABCC”.
[11] “ABCC Hearing”.
[12] “ABCC Hearing Transcript”.
The ABCC Hearing was an examination under s.52(1)(e) of the BCI Act, conducted on 30 October 2008, that is, a little over six weeks after the alleged events of 12 September 2008. A copy of the ABCC Hearing Transcript was produced to the Court for the purposes of arguing the application. The Federal Court has held, in Bonan v Hadgkiss,[13] that the relevant ABCC Commissioner or delegate, who is conducting those proceedings has power in an ABCC Hearing to make directions with respect to the integrity of the evidence in those hearings, and to regulate and control the conduct of proceedings in such a hearing. It is apparent from the judgment in Bonan that the Federal Court came to the view that that was a power which was implied and not express.
[13] (2006) 160 FCR 10; [2006] FCA 1334 (“Bonan”).
In this case, there was a non-disclosure order – obviously, in the circumstances, exercised pursuant to the implied power – and that non-disclosure order was withdrawn on 16 September 2009.[14] There is therefore no issue with the Court having access to the ABCC Hearing Transcript.
[14] See Exhibit A7.
ABCC Hearing Transcript
The applicant relies on the following passages of the ABCC Hearing Transcript:
a)MR DUGGAN: Any other issues that he raised? Perhaps I can ask this question, Mr Royle. Did Mr McDonald mention the name Noel Washington during the course of this meeting?
MR ROYLE: Yeah, that would probably – could have been the name he mentioned. He did say a person.
MR ROYLE: And what did he say about that person?
MR ROYLE: Well, virtually just an update. That he was going to go to court or whatever. I don’t know.[15]
[15] ABCC Hearing Transcript, page 32, lines 10-20.
b)MR DUGGAN: And what did he say?
MR ROYLE: “We’ll see whether we’ll be paid for that meeting.”[16]
c)MR ROYLE: Because Joe said it was an illegal meeting before it started.
MR DUGGAN: So Joe said, before the meeting started, it was an illegal meeting?[17]
d)MR DUGGAN: Okay. And when Joe returned, what did he say?
MR ROYLE: No, you’re not going to be paid.
MR DUGGAN: And did Graeme say anything at this stage?[18]
e)MR DUGGAN: And what did he say, Mr Royle?
MR ROYLE: “Well, you may as well go home for the day.”[19]
f)MR DUGGAN: Now, before it was all over, did Joe ask for a motion to be put forward as to whether workers go home?
MR ROYLE: Yep.[20]
[16] ABCC Hearing Transcript, page 35, lines 43-45.
[17] ABCC Hearing Transcript, page 37, lines 10-13.
[18] ABCC Hearing Transcript, page 39, lines 9-11
[19] ABCC Hearing Transcript, page 39, lines 26-28.
[20] ABCC Hearing Transcript, page 39, lines 39-43.
The distinction between the oral evidence-in-chief of Mr Royle in this hearing and the evidence in the ABCC Hearing Transcript appears to be that in the ABCC Hearing Transcript Mr Royle specifically recalls what Mr McDonald said:
a)concerning court proceedings arguably involving a person called Noel Washington;[21]
b)before the meeting started;[22]
c)immediately before he left the meeting for a short time;[23] and
d)after he returned to the meeting, having left it for a short time,[24]
whereas he now says he does not now remember what was said about those issues at those times or concerning any issues discussed at those times.
[21] ABCC Hearing Transcript, page 32, lines 10-20.
[22] ABCC Hearing Transcript, page 37, lines 10-13.
[23] ABCC Hearing Transcript, page 35, lines 43-45.
[24] ABCC Hearing Transcript, page 39, lines 9-11, 26-28 and 39-43.
The evidence given by Mr Royle in the ABCC Hearing relates to alleged factual elements of the Points of Claim critical to the applicant’s case, namely what was said and done by Mr McDonald at the meeting, and particularly whether Mr McDonald:
a)said that the meeting was illegal at its outset;
b)said he would seek payment for the meeting from Mirvac;
c)said that Mirvac had said that there would be no payment; and
d)put a motion to the meeting concerning the workers going home.
Purpose of s.38 of the Evidence Act
In Radisich v Molina[25] this Court said:
13. The purpose said to underlie s.38 of the Evidence Act has been said to be to enable a “truer picture” to be presented to a court.[26] It seeks to ensure that, in an appropriate case, a court has capacity:
…not [to] be denied evidence as to any relevant issue and not to be denied the opportunity for that evidence to be appropriately tested.
14.The purpose can also be seen as to not necessarily require a witness to be found to be hostile or adverse before allowing that witness to be cross-examined by a party calling the witness.[28] The underlying purpose is to be considered when determining the outcome of this application.[29]
[25] [2009] FMCA 1121 (“Molina”).
[26] R v Parker [2003] NSWCCA 12 at para.83, per Ipp J (“Parker”).
[28] R v Lozano (unreported, New South Wales Court of Criminal Appeal, 10 June 1997) (“Lozano”); JD Heydon, Cross on Evidence (7th Australian Edn), (Chatswood: Lexis Nexis Butterworths, 2004), para.17-405 (“Cross on Evidence”); Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 430 per Wilcox, O’Connor and Sackville JJ (“Colonial Mutual Life Assurance”).
[29] Molina at paras.13-14 per Lucev FM. The preceding two footnotes are footnotes in the quoted passage in Molina.
Likewise here, the underlying purpose is to be considered when determining the outcome of this application.
Evidence unfavourable to a party
In Molina this Court analysed numerous cases concerning the meaning of “unfavourable”.[30] The Court will not repeat that analysis, but indicates that it is relied on for purposes of these Reasons for Judgment.
[30] See Molina at paragraphs 15-33 and the following cases there cited: R v Souleyman (1996) 40 NSWLR 712 (“Souleyman”); Lozano; Colonial Mutual Life Assurance; R v Kneebone (1999) 47 NSWLR 450 (“Kneebone”); Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 (“Adam”); Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 237 (“Nortex”); R v Velevski (No 2) (1997) 93 A Crim R 420 (“Velevski”); R v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83 (“Glasby”); R v Taylor [2003] NSWCCA 194 (“Taylor”); Hadgkiss v CFMEU (2006) 152 FCR 560; [2006] FCA 941(“Hadgkiss”); Klewer v Walton [2003] NSWCA 308 (“Klewer”).
In Molina the Court observed as follows:
34.It is fair to observe that the boundaries of s.38(1)(a) of the Evidence Act have not yet been completely mapped.[31] Where the issue has, however, been considered by the courts it is fair to observe that the predominant view is that “unfavourable” in s.38(1)(a) of the Evidence Act means “not favourable”.[32] In each case whether the evidence is unfavourable is a matter of fact for assessment by the court hearing the case.[33]
[31] Kneebone, Glasby and Adam.
[32] Souleyman, Lozano, Taylor, Velevski, Nortex and Colonial Mutual Life Assurance.
[33] Molina at para.34 per Lucev FM. The preceding two footnotes are footnotes in the quoted passage in Molina.
With respect to the issue of inconsistency, a matter which arose in the submissions on behalf of Mr McDonald, the Court observed in Molina as follows:
36.In submissions, it was also suggested that a relevant test might be whether or not there was significant inconsistency between the evidence which had been given by a party and the evidence to which the Court might otherwise be taken. It is not in the Court’s view, necessary for the purposes of s.38(1)(a) of the Evidence Act for there to be inconsistency. Firstly, because that is the role in respect of prior inconsistent statements that is given to s.38(1)(c) of the Evidence Act. Secondly, because evidence can be unfavourable without being inconsistent, as well as being unfavourable and inconsistent, and the question of consistency is one which is not necessarily always in issue, but it is enough, in the Court’s view, if a witness does not come up to proof or does not come up to a prior statement.[34] In the Court’s view that is consistent with the purpose behind the enactment of s.38 of the Evidence Act as outlined above.[35]
[34] Velevski.
[35] Molina at para.36 per Lucev FM. The preceding footnote is the footnote in the quote from Molina.
The Court adopts what was said by it in paragraphs 34 and 36 of Molina.
In relation to the evidence, and as indicated earlier, Mr Royle says he does not now remember:
a)what occurred on the morning of 12 September 2008; or
b)the evidence that he gave concerning those events at the ABCC Hearing, but says that he was careful to tell the truth at that hearing.
Is that evidence unfavourable to the applicant? It was argued by the respondents that Mr Royle’s evidence was not unfavourable, but rather favourable, because he gave evidence that broadly fell within the framework of some of the factual allegations made in the Points of Claim, namely that:
a)there was a meeting;
b)Mr McDonald was at the meeting;
c)the electricians and plumbers left the meeting when Mr McDonald addressed the meeting; and
d)Mr McDonald left the meeting and came back a short time later, and then told the workers to go home.
There is a superficial attractiveness to such an argument, as might be evident from the exchange between the Court and the applicant’s Counsel during submissions. But a deeper analysis shows that on the truly critical issues, that is, those that might be relevant and essential to proof of the alleged contraventions, Mr Royle says he remembers nothing. And, it is in the context of those particular issues, and their overall effect, that the question of unfavourableness falls to be considered. In that regard:
a)the applicant clearly had an expectation that Mr Royle would have given evidence of what Mr McDonald said or did:
i)concerning Court proceedings allegedly involving a person called Noel Washington;[36]
[36] ABCC Hearing Transcript, page 32 lines 10-20.
ii)immediately before he left the meeting for a short time;[37]
[37] ABCC Hearing Transcript, page 35 lines 43-45.
iii)before the meeting started;[38] and
[38] ABCC Hearing Transcript, page 37 lines 10-13.
iv)after he returned to the meeting, having left it for a short time;[39]
[39] ABCC Hearing Transcript, page 39.
b)by not giving the evidence referred to above, Mr Royle had not come up to the statements made in the ABCC Hearing Transcript;
c)the evidence now given by Mr Royle is of significantly less assistance to the applicant in proving its case in relation to, put broadly, the alleged involvement in or organisation of alleged unlawful industrial action by the CFMEU, CFMEUW and Mr McDonald, than the evidence Mr Royle might have been expected to give, in circumstances where Mr Royle might have been expected to give evidence about the critical issues and what was said and done, and, as such, his evidence detracts from the applicant’s case;
d)is not simply neutral, because it is not just “I do not remember” but “I do not remember, and further I do not remember what I said at the ABCC Hearing, but whatever I did say at the ABCC Hearing was the truth”; and
e)the evidence is unhelpful in that it:
i)detracts from the applicant’s case; and
ii)is not simply neutral, both:
(A)for the reasons outlined above; and
(B)because it leaves open the possibility that relevant evidence which is available, and which might be tested, and which might enable a truer picture of the facts to be presented to the Court, is not so presented.
The Court therefore considers that the evidence given by Mr Royle is unfavourable to the applicant.
Exercise of the discretion under s.38(6) of the Evidence Act
In relation to s.38(6)(a) of the Evidence Act, the Court notes what was said in Hadgkiss; namely, that until there is a commitment to evidence of some importance, it is premature for the application to be made.[40] In any event, the applicant gave notice in opening of the possibility of a s.38 application being made. In those circumstances, it is the Court’s view that the applicant gave notice at the earliest opportunity.
[40] Hadgkiss FCR at 561 per Graham J; FCA at para.2 per Graham J.
In relation to s.38(6)(b), the matters about which Mr Royle might be questioned, and the extent of that questioning, are matters which go to the critical issues. As such, the grant of leave to cross-examine would, in all likelihood, prolong the cross-examination, but in an overall context is unlikely to prolong the hearing. In any event, a grant of leave to cross-examine can be tailored, or limited, to prevent unnecessary prolongation, and the Court always retains a discretion to disallow unnecessary examination.
In the circumstances, there is no reason to exercise the discretion under s.38(6) in such a manner as to preclude leave to cross-examine being granted.
The discretion under s.192 of the Evidence Act
Section 192(2) of the EvidenceAct sets out a series of matters which are to be taken into account when the Court exercises its discretion as to whether to grant leave. Each of the factors is considered hereunder.
In respect of s.192(2)(a) of the Evidence Act, the grant of leave will not shorten the hearing, but nor will it necessarily lengthen it, and for reasons outlined above with respect to s.38(6)(b) does not militate against the grant of the application for leave to cross-examine.
In relation to s.192(2)(b) of the Evidence Act, the Court does not necessarily consider that it would be unfair to the first to third respondents to grant leave to cross-examine. It needs to be borne in mind that:
a)the evidence to date is not directly inconsistent with matters adverted to in the ABCC Hearing Transcript; and
b)that each respondent still has an entitlement to cross-examine and deploy all the weapons of cross-examination to attack the witness and his evidence when it is given.
Thus, for example, any alleged inconsistencies can be cross-examined on, and mere existence of inconsistencies does not favour a finding of prejudice.
Fairness is even-handed. Fairness must be accorded to both parties and given the evidence that Mr Royle has given – that what he has said in the ABCC Hearing Transcript was the truth – it would arguably be unfair to the applicant not to grant leave to cross-examine. As the Court observed in Molina:
Fairness also must have regard to the policy purposes behind s.38 of the Evidence Act, to which the Court has already referred, and those purposes would support the exercise of discretion in favour of, rather than against, the application.
In all the circumstances, and on balance, the fairness considerations do not preclude the exercise of the discretion but favour its exercise in support of the application.
In relation to s.192(2)(c) of the Evidence Act, as to the importance of the evidence, there is no dispute that the evidence in respect to which leave is sought is both relevant and important. The Court bears in mind that:
a)Mr Royle can give direct evidence as to what occurred, and the matters in relation to which he is to be cross-examined relate to what he may have heard and seen; and
b)it is manifestly relevant evidence which ought not be shut out.
The Court again refers to the policy considerations behind the enactment of s.38 of the Evidence Act.
The importance of the evidence in relation to which leave is sought supports the exercise of the discretion in favour of the application.
Section 192(2)(d) of the Evidence Act refers to the nature of the proceedings. The proceedings are civil penalty proceedings. They are not criminal proceedings. In that regard, although the consequences are still serious, they are not as serious as in a criminal proceeding and although the Court should and will still be cautious, the degree of caution and extent of its exercise is likely to be somewhat less in a civil penalty proceeding than in a criminal proceeding.
The nature of the proceedings does not therefore, in the Court’s view, militate against the grant of leave.
The factors under s.192(2)(e) of the Evidence Act have no particular importance in this case, save to say again that the Court can tailor orders or directions in an appropriate manner to ensure that proceedings are not protracted.
The discretion under s.135 of the Evidence Act
In relation to s.135 of the Evidence Act, the Court’s view is that those discretionary considerations do not warrant further consideration at this stage of the proceeding, and indeed s.135 has not been raised by the parties.
Conclusion
In conclusion, the Court proposes to grant leave to the applicant to cross-examine Mr Royle. Leave will be restricted to those matters referred to in the ABCC Hearing Transcript set out above.[42]
[42] See para.15 above.
There will be orders accordingly.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 8 March 2010
[27] R v Le [2001] NSWSC 174 at para.15 per McClelland J (“Le”).
[41] Molina at para.47 per Lucev FM.
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