Stuart v Pitt - [2009] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STUART v PITT & ORS

[2009] FMCA 355

INDUSTRIAL LAW – Freedom of association – false or misleading representation – standard of proof – hearing on liability – application dismissed.

Workplace Relations Act 1996 (Cth) ss.749, 790, 824, 826
Evidence Act 1995 (Cth) s.140
Building and Construction Industry Improvement Act 2005 (Cth) ss.4, 57

Briginshaw v Briginshaw (1938) 60 CLR 336
Hadgkiss v Construction Forestry, Mining and Energy Union (No.3) (2007) FCA 87
Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346
Hadgkiss v CFMEU [2008] FCAFC 22
Employment Advocate v Williamson (2001) 111 FCR 20

Applicant:

KAREN STUART

First Respondent:

BRENDAN PITT

Second Respondent:

BOB MATES

Third Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

MLG 550 of 2008

Judgment of:

O'Sullivan FM

Hearing dates:

20 & 21 April 2009

Date of Last Submission:

27 May 2009

Delivered at:

Melbourne

Delivered on:

5 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr M. Biviano

Solicitors for the Applicant:

Blake Dawson

Counsel for the Respondents:

Mr C. Dowling

Solicitors for the Respondents:

Slater & Gordon

ORDERS

The application filed 13 May 2008 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 550 of 2008

KAREN STUART

Applicant

And

BRENDAN PITT

First Respondent

BOB MATES

Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern events on a building site at the Austin Hospital in Melbourne, Victoria on 15 May 2007.
Karen Stuart (“the Applicant”), an inspector appointed under the Building and Contractors Industry Improvement Act 2005 (“the BCII Act”), commenced these proceedings in May 2008.
The Applicant alleged conduct on the part of Brendan Pitt (“the First Respondent”) and Bob Mates (“the Second Respondent”) in breach of s.790 of the Workplace Relations Act 1996 (“the WR Act”) and that the Construction, Forestry, Mining and Energy Union (“the Third Respondent”) was liable for same.
The application was filed on 13 May 2008. An initial directions hearing was held on 11 June 2008. The Applicant filed an amended statement of claim on 19 June 2008. A defence was filed 21 July 2008 and the matter was referred to mediation. On 4 December 2008 directions were made programming the matter for hearing.
At the hearing on 20 April 2009 Mr Biviano of Counsel appeared on behalf of the Applicant and Mr Dowling of Counsel appeared on behalf of the respondents.
At the commencement of the hearing the Court was told the parties had agreed the hearing would be confined to a consideration of liability.
The hearing on the issue of liability proceeded over 2 days. At the conclusion of the evidence orders were made for the parties to file submissions.
By the time the matter proceeded to hearing almost 2 years had passed since the events in question and from the evidence of the parties before the Court at least it seemed those events had become lost in the mists of time.

Background

Before turning to consider the evidence it is timely to note some of the background matters (which were not contentious) and then set out the position of each of the parties in relation to the events in question on

15 May 2007
.
The following matters, taken from the amended statement of claim appropriately summarise the background to these proceedings.
In or about 2006 Kane Constructions Pty Ltd (Kane) commenced work at the Austin Hospital, Heidelberg, in the State of Victoria (“Site”) to construct a new loading dock and refurbish the existing site (“Project”).
In or about 2007, Kane contracted with ACE Contractors and Staff Pty Ltd (“Ace”) to lay crushed rock for the purpose of laying a slab at the Project.
On or about 14 May 2007, Ace contracted with Kingston Plant Hire Victoria Pty Ltd (“Kingston”) to provide machinery and an operator to spread crushed rock and compact certain areas on 15 May 2007.
On or about 14 May 2007, Kingston contracted the works to Wayne Martin (“Martin”) of Martin’s Earthmoving to work at the Site and operate machinery and spread crushed rock.
On 15 May 2007, Martin who was not a member of the Third Respondent, attended the Site and was inducted onto Site by Daniel Glanfield, the Site Manager for Kane.
The Applicant was appointed under s.57 of the BCII Act and able to make an application under the WR Act in relation to a building industry participant.
The First Respondent was an organiser and officer of the Third Respondent and a building industry participant for the purposes of s.4 of the BCII Act.
The Second Respondent was an organiser and officer of the Third Respondent and a building industry participant for the purposes of s.4 of the BCII Act.
The Third Respondent was an industrial association registered pursuant to the provisions of Schedule 1 of the WR Act and a building industry participant for the purposes of s.4 of the BCII Act.
On 15 May 2007 the First and Second Respondents went to the Site and whilst there they spoke to Martin.

Allegations

The basis of the claimed breach of s.790 was contained in the amended statement of claim filed 19 June 2008 as follows:
“13.On 15 May 2007, while Martin was on Site and performing works on the Site:
(a)The First Respondent and Second Respondent, who were both members and organisers of the CFMEU entered onto the Site without seeking or obtaining approval from Kane; and
(b)The First Respondent and Second Respondent approached Martin while he was working and the First Respondent asked him whether he was considering being a member of the CFMEU, to which Martin replied that he had considered it but did not want to do anything about joining the Union, whereupon the First Respondent and Second Respondent represented to him:
i.      that he had 2 options; he would pay up the Union membership fees immediately and work on the Site or; if he didn’t pay up the Union membership fees, he could not work on the Site (“the First Representation”);
ii.     that if he didn’t pay the Union membership fees immediately he had to get off the Site (“the Second Representation”); and
iii.     that if he joined the CFMEU and paid the Union membership fees he could work on any site (“the Third Representation”); and
iv.     that if he joined the CFMEU and paid the Union membership fees he could work on more sites (“the Fourth Representation”).
(collectively, “the Representations”)
Particulars
The First Representation was made to Martin by the First Respondent by the First Respondent saying words to that effect on 15 May 2007 at approximately 9.30 am on Site in a conversation between the First Respondent, the Second Respondent and Martin.
The First Representation was impliedly made to Martin by the Second Respondent by his conduct in being present during the conversation and being silent during the making of the statements by the First Respondent compromising the First Representation, and not correcting such statements.
The Second Representation was made by each of the First Respondent and Second Respondent saying words to that effect during the conversation on 15 May 2007 at approximately 9.30 am on Site between the First Respondent, the Second Respondent and Martin.
The Third Representation and/or the Fourth representation were:
(a)    made by the First Respondent to Martin by the First Respondent saying words to that effect on 15 May 2007 at approximately 9.30 am on Site in a conversation between the First Respondent, the Second Respondent and Martin; and
(b)    impliedly made to Martin by the Second Respondent by his conduct in being present during the conversation and being silent during the making of the statements made by the First Respondent comprising the Third Representation and/or Fourth Representation and not correcting such statements.
Alternatively, the Third Representation and/or the Fourth Representation were:
(a)    Made by the Second Respondent to Martin by the Second Respondent saying the words to that effect on 15 May 2007 at approximately 9.30 am on Site in a conversation between the First Respondent, the Second Respondent and Martin; and
(b)    impliedly made to Martin by the First Respondent by his conduct in being present during the conversation and being silent during the making of the statements made by the Second Respondent comprising the Third Representation and/or Fourth Representation and not correcting such statements.
…
16.    The Representations were:
(a)false and misleading, in that:
i.      if Martin did not join the CFMEU he would not have to get off the constructions it at the Austin Hospital in Heidelberg;
ii.     if Martin did not pay the CFMEU union membership fees he could continue to work on the site;
iii.     if Martin did not join the CFMEU or did not may the CFMEU union fees, it would not preclude him from working on any site; and
iv.     if Martin joined the CFMEU and paid the CFMEU union fees, he would not be entitled to work on any mores than if he had not joined the CFMEU.
(b)about the obligation of Martin to be a member of an industrial association, namely the Third Respondent;
(c)made in breach of s.790 of the WR Act.
17.In the circumstances, by reason of making the Representations, the First and Second Respondents had made representations about another person’s obligation to become a member of an industrial association, which representations were false and misleading.
18.By reason of the Representations, the First and Second Respondents engaged in conduct in breach of s.790 of the WR Act.
19.In making the Representations, the First and Second Respondents made the Representations on behalf of the Third Respondent and the Representations were made within their authority as CFMEU organisers.
20.In the circumstance, by operation of s.826 of the WR Act, the Representations were made by the Third Respondent.
21.In the premises, by reason of making the representations, the Third Respondent had made representations about another person’s obligation to become a member of an industrial association which were false and misleading.
22.By reason of the Representations, the Third Respondent engaged in conduct in breach of s.790 of the WR Act.” (“emphasis added”)
In the defence filed 21 July 2008 the respondents whilst admitting the First and Second Respondents were organisers, and entered the Site on 15 May 2007, otherwise denied the allegations set out above.

The WR Act

The amended statement of claim alleged conduct by the First and Second Respondents and (by virtue of the operation of s.826) also the Third Respondent in breach of s.790 of the WR Act which provides:
“False or misleading statements about membership
(1)A person must not make a false or misleading representation about:
(a)another person's obligation:
(i)     to be, or become, an officer or member of an industrial association; or
(ii)    not to be, not to become or to cease to be, an officer or member of an industrial association; or
(b)another person's obligation to disclose whether he or she, or a third person, is, or has been, an officer or member of an industrial association or of a particular industrial association; or
(c)the need for another person to be, or not to be, an officer or member of an industrial association, or of a particular industrial association, in order for the other person to obtain the benefit of an industrial instrument.
(2)    Subsection (1) is a civil remedy provision.”
The liability of the Third Respondent for the actions of the First and Second Respondents was said to arise by reason of s.826 of the WR Act which provides:
“Conduct by officers, directors, employees or agents
(1)Where it is necessary to establish, for the purposes of this Act or the BCII Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a)that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b)that the officer, director, employee or agent had the state of mind.
(2)Any conduct engaged in on behalf of a body corporate by:
(a)an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b)any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;
shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.
(3)A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person's reasons for the intent, opinion, belief or purpose.”
In Hadgkiss v Construction, Forestry, Mining and Energy Union (No.3) (2007) FCA 87 (“Hadgkiss”) Graham J considered the meaning of false and misleading in what was section 298SC of WR Act.

At paragraph 288 His Honour said:
“False can mean merely ‘untrue’ or ‘wrong’ or it can involve both subjective and objective elements and mean ‘purposely untrue’…
In the context in which it is used, I am satisfied that ‘false’ means no more than erroneous in fact. Similarly, no element of intent is required under s298SC before a representation that are misleading.
Section 298SC proscribes the making of representations which are false in the sense of being untrue and, what might be thought to be a lesser form of transgression, representation can be found to have been misleading.
In Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346 at paragraph 9-11 it was said:
“9 The civil standard of proof applies and the Court must be satisfied that a case has been proved on the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides:
‘(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)     the nature of the cause of action or defence; and
(b)    the nature of the subject-matter of the proceeding; and
(c)     the gravity of the matters alleged.’
10 And in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 362) Dixon J said that:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences following from a particular finding are considerations which must affect the answer to the question whether the issue has been proved.’
11 The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171; [1992] HCA 66; 110 ALR 449 at 449-450 and see Employment Advocate v Williamson (2001) 111 FCR 20; [2001] FCA 1164 at [42]. As their Honours pointed out in Neat Holdings [1992] HCA 66; 67 ALJR 170, statements that clear, cogent or strict proof is required in cases such as fraud are not directed to the standard of proof. They reflect a conventional perception that people do not ordinarily engage in fraudulent or criminal conduct and a court should not lightly make a finding to that effect in civil litigation. In Employment Advocate [2001] FCA 1164; 111 FCR 20, that approach was applied to proceedings under Part XA of the WRA. The view was there expressed that it is not common in Australian society for people to engage in conduct proscribed by legislation. An allegation that someone has done so is ordinarily a grave allegation, particularly where it might lead to a significant penalty (Branson J at [67], Kenny J agreeing).”
Also in Hadgkiss, Graham J had said:
“142.…In addressing questions of reasonable satisfaction in these proceedings I have been conscious of Dixon J’s observation in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The fact that pecuniary penalties may be exacted is a material matter to be borne in mind.”
As was noted in submissions filed on behalf of the respondents an allegation such as that the subject of the representations in this case is a grave allegation particularly where it might lead to a significant penalty (Employment Advocate v Williamson (2001) 111 FCR 20).
In this case a finding of a contravention of s.790 should not be made lightly and clear, cogent and strict proof is required (Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346).

Evidence of the parties

The Applicant led evidence from the following witnesses who were (under subpoena and) all cross examined:
·   Mr Martin;
·   Mr Grummett;
·   Ms Stuart;
·   Mr Glanfield; and
·   Mr King.
The respondents filed a witness statement from Mr Dredge. At the start of the hearing the Court was told the First and Second Respondents reserved their position as to whether they would give evidence until the close of the Applicant’s case. Ultimately the respondents led evidence from the following witnesses who were all cross examined:
·   Mr Dredge;
·   The Second Respondent; and
·   The First Respondent.
Finally an issue arose at the hearing regarding evidence being used in other proceedings about claimed breaches of the right of entry requirements under the WR Act. This was resolved by the Applicant through her Counsel undertaking not to rely on any such evidence for that purpose.
In canvassing the evidence led at the hearing in relation to the alleged representations I will do so by reference to people involved at the Site on 15 May 2007.

Mr Martin’s evidence

Mr Martin was the contractor who the Applicant alleged had been the subject of the representations.
In his statement filed 19 December 2008. Mr Martin had made clear he had not worked on a union site before and had been told the Site was a strong union site before attending. Mr Martin had also said inter alia:
“11.On 15 May 2007, at about 7.40am I attended to work on the Austin Logistics Project (“Project”) at the Austin Hospital in Heidelberg in the State of Victoria (“Site”).
12. I did not have proper directions and could not find the Site within the hospital premises. So I was parked outside the hospital from about 7.40 am. I made several telephone calls to Kingston for a contact person at the Site and I was given Daniel Glanfield’s telephone number at Kane Constructions, who was the Site Manager. I telephoned Daniel Glanfield (“Glanfield”) and he gave me directions to get to the Site.
…
14.When I arrived on Site, I was met by Glanfield, who took me to the Site Office. Glanfield then took me through an induction that took about 20 minutes…
15.During the induction with Glanfield, I completed the Site Induction Record, except for the superannuation scheme membership number, which Glanfield completed later because I did not have my TWU Superannuation membership card on me at the time of the induction…
…
17.At the induction, I said to Glanfield that my only involvement with the union, was that I was a member of the TWU Superannuation Scheme.
…
19.After the induction, I left the Site office and commenced walking to the Site to unload the bobcat and start work. As I was leaving the Site office, a male who I did not know, came out of a nearby portable office close to the main Site shed where the induction had been held. I later discovered that this male was Mr Tony Dredge (“Dredge”). Dredge approached me and said, "How was the induction?"

I replied "It was okay. It is done so I am ready to go to work." He then said asked me, "Are you financial?" I did not know what this meant and so I asked him "What do you mean?" Dredge said "Have you got your union fees paid up?" and I replied "No, I am not a member of the union".

I do not recall him making any specific reply to my response but he gave me a strange look.
…
21.Glanfield came up to me shortly after I had the conversation with Dredge and said, "What was the hold up?" I replied, "Someone asked me whether I was financial or not." I then kept walking to the truck to unload the bobcat.
…
25.Around 20 or 30 minutes later, I saw two other males walk onto the Site. I did not know either of them, but I later discovered that they were Bob Mates (“Mates”) and Brendan Pitt (“Pitt”). I assumed that there were from a union because they had union stickers on their hard hats, and some of their clothing had the CFMEU logo on them.
26.I saw that both Pitt and Mates were walking towards me, so I stopped the bobcat. I did not get down from the bobcat but I opened the door to the bobcat. While Pitt and Mates were walking towards me, they stopped and spoke to Eric and had a short conversation with him.
…
30.After they introduced themselves, we had a conversation. Pitt, the male in the black jacket, did most of the talking and Mates added to the conversation at times.
Pitt asked, "Are you a member of the union?"
I said: "No, I'm not".
Pitt asked, "Are you thinking about becoming a member?"
I replied, "I have thought about it, but I haven't looked into it. So I'm not going to join. I don't want to do anything now."
Pitt asked, "Why are you thinking about joining?"
I said, "I thought it might open up more doors for me to work on commercial sites and I would like to get more work for plant hire companies, because it opened more opportunities to work on bigger jobs and sites."
Pitt asked me, “Can you join now. Can you pay your fees now?”
I said, “No, I don’t want to join.”
Pitt said, "Well, you've got two options."
I asked Pitt, "What are they?"
Pitt said, "Well, if you pay your membership up now you can work here, and if you don't pay your membership up now you can't work on site."
I said, "Fair enough, I'll go home."
Either Mates or Pitt asked me, "Who are you working for - who are you subcontracting for?"
I said, "Kane Constructions and Kingstons."
Mates asked, "How did you get the job here?"
I said, "I was texted by Kingstons to come work here."
Either Mates or Pitt asked, "Did you know it was a union site?"
I said, "Yes that was mentioned in the text. I texted Kingston that I was not a member and they said that it was fine."
Either Mates or Pitt asked, “How do you go about getting work?”
I said, “I rang the Plant Hire Company the day before and told them I was available to work the next day. That is how I got the job.”
Pitt then asked: "Well, you should join. Are you in a financial position to pay your dues now?"
I said, "No, I'm not. I do not have that kind of money on me."
Mates then said, "You have two choices – if you don't pay you've got to get off the site."
I said, "Okay, I'll go home."
At this point of our conversation, I was ready to leave the Site because I was not a member of the union and I believed from what I was told by both Pitt and Mates that I could not work at the Site unless I joined the union. I did not want to pay the union fee and I believed that I had to leave the Site.
31.At around this time, I noticed that Dredge had joined us and both Pitt and Mates starting telling me about the benefits of joining the union. Pitt said “If you joined the union, it would open more doors up for you to work on commercial sites”.

I understood this meant that I could get more work on commercial sites if I was a member of the union. He also told me that the union would give me backing in any disputes or issues I had.
32.At this point, Glanfield approached Pitts, Mates, Dredge and I. I was still sitting on the bobcat. I cannot recall the exact words he said to Pitt and Mates, but it was words to this effect "I have spoken to my superior and you two are not supposed to be on the Site. You can you get off my site now?" Either Mates or Pitt said in reply, "We are speaking to a potential member."

Mr Martin’s evidence was central to the Applicant’s case. Mr Martin had no experience in the commercial building sector. Mr Martin was also clearly inexperienced in industrial issues. His evidence made clear he was unsure about the role of unions under the WR Act and on a commercial building site.
Mr Martin’s evidence left the clear impression that not only had the passage of time dimmed his memory of the conversations in question but he appeared to be perplexed at the turn of events since the day in question. At times he appeared to regard the events the subject of the allegations as not important.
Ultimately Mr Martin retreated from his witness statement in his oral evidence before the Court. An example of this in my view was the following evidence in cross examination:
“No one said you must leave the site now Mr Martin.
Mr Dredge didn’t say it – No.
Mr Mates didn’t say it – No.
Mr Pitt didn’t say it – No.
…they didn’t say I have to leave the Site.”[1]
[1] P48, LL31-41
Mr Martin acknowledged in cross examination no one told him to stop work or leave the Site. He also gave evidence there were no threats made and he was never told he had to be a union member. His evidence in cross examination was the discussions he had with the First and Second Respondents were about the benefits of union membership.

He admitted he could have misconstrued statements made by the First and Second Respondents.
As Mr Martin acknowledged it was possible he misunderstood what was said by the First and Second Respondents.[2] It was also acknowledged by Mr Martin that it was possible there was no reference to 2 options in the conversation and also that the account given to

Mr Glanfield later that day did not refer to 2 options.
[2] P46, LL39-30
Critically for the purposes of the disposition of the Applicant’s case and notwithstanding what was in his witness statement, his evidence was that (whilst he believed they wanted him to become a member of the Third Respondent) he could not be sure any of the statements forming the basis of the alleged representations were said by either the First or Second Respondent.

Mr Grummett’s evidence

Mr Grummett gave evidence and was cross examined. Mr Grummett was the construction supervisor for Ace at the Site on 15 May 2007.
In his statement filed 9 January 2009 Mr Grummet had said:
“1. Since 1965, I have worked in the building and construction industry. During that time I have worked predominantly on building sites and at subdivisions, performing civil engineering works.
2.I have mostly worked as a supervisor since 1969.
3.Since 1993, I have worked as a supervisor for ACE Contractors and Staff Pty Ltd (ACN 007 256 242) (“ACE Contractors”) and I am I currently employed in that position.
…
7.On 15 May 2007, I was working at the Site as supervisor.
…
14. I met Tony Dredge who worked on the Site. He worked as a labourer for Kane Constructions Pty Limited (ACN 007 354 396) (“Kane Constructions”), the Builder on the Site.

He was also the shop steward for the CFMEU at the Site.
15.On 15 May 2007, Tony Dredge was working on the Site. Late in the morning, at around 11.00 am, Tony Dredge came up to me, while I was working in the West Loading Dock at the Site. He appeared unhappy. He said to me, “The bobcat operator is not in the Union, and I have to speak to an organiser about it”. I said in reply, “I don’t think you need to be in the Union”.
16.About ten to fifteen minutes after my conversation with Tony Dredge, I saw two men come onto the Site. I did not recognise either of them, but they were both wearing jackets and black safety helmets which were covered with stickers. I cannot recall the exact words on the stickers, but I recognised the stickers as promoting trade unions. In my experience it is usual for the union organisers to wear black safety helmets onto building sites.
…
18.The two men both approached me with Tony Dredge while

I was working in the West Loading Dock at the Site. I do not recall if they were introduced to me. One of the men, and

I cannot recall which one, said words to me, “We want to speak to the bobcat operator”. I didn’t want any trouble and I didn’t want to get involved in any dispute with the CFMEU. I replied by saying, “This is not my Site. I cannot say who comes and goes on the Site.
…”
Mr Grummett was a credible witness. The only other evidence he could give was he told Martin the First and Second Respondents wanted to talk to him and that he didn’t have to join the union. I have no reason not to accept the rest of his evidence. However Mr Grummett could give no direct evidence of the conversations where the alleged representations occurred.

Ms Stuart’s evidence

The Applicant gave evidence and was cross examined concerning the background to the notification received by the Australian Building and Construction Industry Commission (“the ABCC”) of the incidents on 15 May 2007 at the Site. It was clear from the Applicant’s evidence that the investigation that led to these proceedings was initiated as a result of a conversation she had with Mr Glanfield and Mr King on
[3] See also paragraph 129 of Respondent’s submissions
16 May 2007. Ultimately the Applicant’s evidence made clear that the allegations the subject of this application were not made at first instance by Mr Martin. The Applicant’s evidence also left the impression Mr Martin was by no means a willing participant in her investigation.[3]

Mr Glanfield’s evidence

Mr Glanfield gave evidence and was cross examined. Mr Glanfield was the site manager for Kane at the Site on 15 May 2007.
In his statement filed 19 December 2008 Mr Glanfield had said:
“…
19.I completed an induction with Mr Martin (“Martin”).

This involved, amongst other things, requiring Martin to go through the Site Induction Record and to sign it once it had been completed and also produce his Plant Operator Card and OHS Red Card. A copy of the Site Induction Record completed by Martin on 15 May 2007 and Plant Operator Card is attached to this statement and marked "DG3".
20. The induction also required Martin complete the first part of a document titled ‘Plant Operation Checklist’ and also to operate the bobcat. After Martin started work on the Site,

I went out on to the Site and witnessed Martin operating the bobcat. I filled out the second part of the Plant Operation Checklist under the headings Operation, Shut down and Security of Plant, and Certification, which is attached to this statement and marked "DG4".
…
22. I had a conversation with Martin after induction.

I approached Martin as I noticed that he was a little late in getting to the bobcat and commencing work. We had a ten tonne truck coming to the Site later in the morning to dump the crushed rock. However, some preparation was required before the crushed rock arrived. I wanted to know why Mr Martin was held up. I said to Martin words to the effect that "I noticed you were a little late with starting the preparation work. What happened?" Martin replied with words to the effect "Yeah, I got held up. Tony Dredge came up to me soon after we finished the induction and he asked me if

I was financial. I told him that I was not financial.”
...
24.Mr Martin would have been working for just under an hour before I saw Mates come to Site. I initially saw him at the top of the ramp with another person. I did not know the other person, but he was later identified to me by Mates as Brendan Pitt, a CFMEU organiser (“Pitt”). A short time later, I heard Mates, Pitt and Tony Dredge talking and they were in my line of sight, from the office, standing at the entrance to the Site sheds. I expected that Mates was just stopping by to say hello to Mr Dredge and that they would proceed to report to me at the Site office, which was normal Site procedure. This would have been around 9.00 am.
…
27.I left the Site office and I commenced walking to the Site.

I saw that Mates and Pitt had approached Martin, and Martin had stopped work on his bobcat. Martin was on his bobcat in the middle of the Depression. King followed behind me. When I reached Mates, Pitt and Martin, they were in a discussion and Mates introduced Pitt to me and said, "Daniel this is Brendan Pitt. Brendan is an organiser of the CFMEU". I then asked, with words to this effect, "What are you doing on Site?" Mates replied with words to this effect, "I am on Site to visit a potential union member".
28.I replied with words to this effect, "That's not good enough, you'll have to leave the Site", Mates then replied with words to this effect, "We're not going anywhere. If you have a problem, you can call John Chambers or do whatever you have to do".
…
30.It was at this point that I turned around and walked towards King who was then a few metres behind me.
…
33. After I concluded my conversation with Mr Chambers,

I informed King, who was standing next to me, what Mr Chambers had said. King and I then approached Mates, Pitt and Dredge.
34.I said to Pitt and Mates words to the effect "I have spoken with John Chambers. What are you doing is illegal.

The ABCC have been notified and we require you to leave the site immediately". Pitt then said words to the effect "Good on ya". Mates, Pitt and Dredge, and then King and

I then walked back up the ramp to the main gate. Martin remained on his bobcat and went back to work.”
Mr Glanfield was relatively young and certainly did not appear to have the experience of the First and Second Respondents in the commercial construction industry. Whilst that in and of itself would not render him unable to deal with industrial issues (nor disqualify him from contemporaneously and accurately recording what he had heard and remembered about the conversations on 15 May 2007) that lack of experience (as with Mr Martin) did inform at least part of his evidence. Indicative of this was the issue of right of entry which his evidence left the impression was the focus of his concerns that day and how as Site Manager he dealt with two experienced organisers on that issue by calling the head of Kane Constructions. In my view that lack of experience may also explain why he reacted the way he did to the presence of the First and Second Respondents on the Site. His evidence of what he recollected of those events ultimately doesn’t assist in establishing the representations were made.
Mr Glanfield too retreated from his witness statement in his evidence before the Court. In his evidence before the Court Mr Glanfield confirmed that given the passage of time it was difficult to recollect events and the account he gave was to the best of his recollection. Mr Glanfield’s evidence was he never asked about anyone’s union membership as it was of no interest to him. Mr Glanfield acknowledged that it was possible that Mr Martin had blamed the delay starting work on 15 May 2007 due to conversation he had with Mr Dredge. Mr Glanfield confirmed he had made assumptions about what was said during the conversation between the First and Second Respondents and Mr Martin as he had not heard that conversation. Mr Glanfield confirmed that the conservation between Mr Martin and the First and Second Respondents had finished by the time he had arrived. Finally his evidence left the impression that his notes taken after the event were his best attempt to recreate the passage of events rather than the actual words used or what he was told were the words used.

Mr King’s evidence

Mr King gave evidence and was cross examined. Mr King was the contractors supervisor for Kane Constructions at the Site on the

15 May 2007
.
In his statement filed 19 December 2008 Mr King had said:
“…
13.On 15 May 2007, at about 9.00 am I was sitting at my desk in the Site office. My office is adjoining Glanfield’s office in the same Site office shed. There is a full height partition wall separating the two offices and a doorway in the wall between the two offices but no door. Glanfield came into my office and said words to this effect "Bob Mates and another guy are on Site." I looked out of the window of the Site Office which looked onto the Site and the Depression. I saw 2 men at the base of the ramp to the West Loading Dock.

I recognised Mates as one of the men. I did not know the other person with Mates, but he was later identified to me by Glanfield as Brendan Pitt, an organiser for the CFMEU (“Pitt”).
…
18.As I walked out of the office, I saw Mr Glanfield ahead of me speaking with Mates. Pitt was standing next to Mates.

At this point I was about 30 metres by direct line of sight away from where Glanfield was standing and speaking to Mates. I did not hear the conversation between Glanfield and Mates. I walked along the path adjoining the Depression and then down the ramp into the Depression.
19.Once Glanfield had finished his conversation with Mates he turned around and walked towards me. I met Glanfield approximately 20 metres away from where Mates, Pitt and Martin were standing. Glanfield said to me words to this effect "Bob is on site to see a potential member. I asked them what they were doing on Site and said that if they weren’t here for a proper purpose then they should leave the Site. They said no and told me to call John Chambers if we had a problem". John Chambers is the Construction Manager and Director of Kane Constructions.
20. I then gave Glanfield my mobile phone and he called John Chambers in front of me. He told Chambers that Mates and Pitt were on Site to talk to a potential member and despite being asked to leave the Site they had not left the Site. Once Glanfield had concluded his conversation with Mr Chambers, Glanfield said to me words to this effect "John said that he is going to contact the ABCC. He told me that we have to tell them to leave Site and that the ABCC would be notified".
21. Glanfield and I then walked over to where Mates, Pitt and Dredge standing with Martin, who was still seated on the bobcat. Glanfield turned to Mates and Pitt and said words to the effect "I have just spoken with John Chambers. The ABCC have been notified and you have to leave Site immediately". Mr Pitt then said, "Good on ya".
22. Glanfield and I stood there for a couple of minutes and we were a couple metres away from where Pitt, Mates, Dredge and Martin were positioned. I could hear Mates and Pitt speak to Martin about the benefits of being a union member.
23. I heard Martin respond with words to the effect that "I don’t usually work on commercial sites", and Pitt replied by saying, "You can work on any site if you are a member". Martin said in reply, “I will think about it”.
…
25. Glanfield and I were still standing with Martin, who was still seated in the bobcat. A conversation between us to this effect took place:
Glanfield said words to the effect, "Don't worry. You do not have to be a member of the Union to work on this Site".
I said words to the effect "This is not a Union site, it is a Kane Site. As long as you've got your insurances up to date and are covered in respect of your statutory obligations you are allowed to work on this Site".
Martin said words to the effect, "Well, that's what I thought. They wouldn’t have sent me out if I couldn’t work".
Mr King was also relatively inexperienced in industrial issues and it was clear from both his witness statement and also his oral evidence before the Court he was very keen to make sure there was no contraventions of the WR Act at the Site involving contractors for which was responsible. As Mr King’s evidence in cross examination makes clear he acknowledged the evidence he did give of what occurred in conversations that he witnessed was explicable by way of alternative and innocent explanations.
Mr King acknowledged he had not been present during the conversation between the First and Second Respondents and Mr Martin when the first and second representations were alleged to have been made. Mr King gave evidence he had only overheard the last part of the conversation between the First and Second Respondents and Mr Martin as they left the site. Mr King confirmed that conversation was not aggressive. He was, in his words, the “standard, normal, informative sort of conversation you’d expect of the benefits of joining the union.” Mr King could not explain why that was not in the statement that had been prepared for him for these proceedings. Mr King confirmed that there may have been innocent explanations for the conversations he had overheard and that he didn’t actually hear the First or Second Respondents make statements in terms of any of the alleged representations. In this regard I note the evidence of Mr King referred to in the respondents note and in particular the evidence he gave at (P106, L15) and (P105, L31-106, L15).

Mr Dredge’s evidence

Mr Dredge gave evidence and was cross examined. Mr Dredge has been a shop steward for the Third Respondent since 1998 and had worked in the construction industry for almost 30 years.
In his statement filed 16 March 2009 Mr Dredge had said:
“5.In May of 2007 I was a labourer for Kane at the Austin Hospital (‘the site’). During that time Kane was engaged in a project known as the Austin Logistics Project (“the project”). Whilst working on that project I was the CFMEU shop steward as well as the elected OHSR.
…
7.I usually arrive at site at around 7am. On the day Mr Martin attended the site, I recall that he arrived early in the day but sometime after I arrived at the site. I recalled that, upon arrival, he attended the office of Daniel Glanfield who was the Kane Site Manager for the project. I assumed that he was inducted onto the site by Mr Glanfield as this is the usual process with Kane when someone new commences work at the site. I am aware that, at many construction sites, the OHSR performs the induction. In my experience, however, Kane allocates this duty to the Site Manager rather than the elected OHSR. I have previously conducted inductions on Kane jobs but Kane removed this responsibility from OSHRs a few years ago.
…
9.After Mr Martin left Mr Glanfield’s office I approached him and introduced myself. I confirmed with him that he had been inducted as I understand this to part of my OHSR role. To perform my role effectively, I need to know who is on site at any given time and be satisfied that they have been properly inducted regarding safety on site. I also asked whether he was a financial union member. He said that he was not and continued towards where he was to commence work on the site.
10.Part of my role as shop steward on site is to assist workers who express an interest in becoming members to join the union. On this occasion Mr Martin did not enquire further about membership and I did not pursue the matter further with him. I was aware that he was only required on the site for one day so I did not see his membership status as a big issue.
…
13.After my discussion with Bobby and Brendan, I walked with them to the area where Mr Martin was working. Mr Martin was operating a bobcat at the time. When we reached the area where his bobcat was operating, he stopped his bobcat and a short conversation between Bobby, Brendan and Mr Martin followed. I was present during the whole conversation but, as far as I recall, I did not say anything.

I estimate that the discussion was for no more than two to three minutes. I recall all parties to the conversation being polite and friendly throughout the conversation.
14.…Bobby and/or Brendan informed Mr Martin that he could join on the spot if he wanted to. Mr Martin appeared to me to be interested in joining but said words to the effect that he couldn’t afford to join up on the spot but would think about becoming a member. At no time did Bobby or Brendan say that he had to become a member to remain at the site or get access to any other site.
15.During the conversation, Mr Glanfield arrived and told Bobby and Brendan that they shouldn’t be on site and that they had to leave immediately. A bit of an argument followed where Bobby indicated to Mr Glanfield that he believed he was entitled to speak to a potential member and told him he should call John Chambers a Kane Director, if he had a problem. Mr Glanfield then spoke to Mr Chambers on the phone while Bobby and Brendan finished their discussion with Mr Martin. Bobby and Brendan then proceeded to leave the site after Mr Glanfield insisted on them doing so.

I recall that Mr Glanfield said something about Kane notifying the ABCC.
…”

Each of the alleged representations was put to directly to Mr Dredge during the course of his evidence and he categorically denied that the alleged representations were made.

Mr Mates’ evidence

Mr Mates gave evidence and was cross examined. On 15 May 2007 Mr Mates was an organiser for CFMEU. Mr Mates has worked in the construction industry for over 20 years and is currently a shop steward on another building site. Having regard to Mr Mates’ experience in both the construction industry, and as an organiser with the Third Respondent, it was not surprising that his evidence regarding the alleged representations was given in a definitive and categorical manner. Mr Mates denied making or hearing any of the alleged representations.

Mr Pitt’s evidence

Mr Pitt gave evidence and was cross examined. On 15 May 2007 Mr Pitt was an organiser for the CFMEU and is now a working delegate on another construction site. Mr Pitt has over 30 years experience in the construction industry. As with Mr Mates’ approach to his evidence Mr Pitt categorically denied in his evidence before the Court that the representations the subject of the allegations in this matter were ever made.
The evidence given by both Mr Mates and Mr Pitt made plain, understandably, they have very firm views about the benefits of union membership. I can imagine they would be steadfast in carrying out what they saw as their jobs but I am not persuaded I should not believe their evidence.

Applicant’s submissions

In opening Counsel for the Applicant contended the elements of s.790 were that there must be a false and misleading representation about another person’s obligation to be or become an officer or member of an industrial association.
Counsel for the Applicant put the case on behalf of his client as follows. On the morning of 15 May 2007 there was a discussion between Mr Martin and Mr Dredge. Following this Mr Dredge called the Second Respondent who, within half an hour, arrived at the Site with the First Respondent and without reporting to the site office went directly to see Mr Dredge.
It was the Applicant’s case that the Second Respondent, the First Respondent and Mr Dredge approached Mr Martin and a discussion ensued. The Applicant’s position was it was during this discussion that the first and second representations were made.
The Applicant’s position was that Mr Glanfield and Mr King approached the group and a discussion ensued between Mr Glanfield, the Second Respondent and the First Respondent.
The Applicant contended and it is not contentious Mr Glanfield was told by the Second Respondent to call the head of Kane Construction and whilst he stepped away to do this the Second Respondent and First Respondent continued a discussion with Mr Martin. The Applicant alleged it was during this discussion that the third and fourth representations were made.
The Applicant’s position was each alleged representation was false and misleading and contrary to the freedom of association provisions of the WR Act. As already noted the respondents denied any of the representations were made.
In submissions filed after the hearing the Applicant acknowledged the onus fell to her to establish the representations to the requisite standard[4] and reviewed the evidence given by Mr Martin.[5]
[4] paras 39-44
[5] paras 7-26
In those submissions the Applicant was critical of Mr Dredge’s recollection,[6] discounted the evidence given by the First and Second Respondents on the basis they had a “vested interest” in the proceedings and in my view given the amended statement of claim impermissibly sought to recast the representations.[7]
[6] paras 25-26
[7] applicant’s submissions at para 29 and criticism by respondent in submissions – paras 61-67
In submissions one of the high points of the Applicant’s case was put in the following way:
“14.Given that Martin twice said that he would go home, then the only reasonable inference that can be drawn is that he made those statements in reply to the statements made by Pitt and Mates that if he didn’t pay the membership fees he could not work on the site or he would have to leave the site, being the terms of the First and Second Representations.
15.Neither Pitt or Mates offered any reasonable explanation as to why Martin would have otherwise said that he would go home despite being questioned. (p-153 lines 35-39, p-179 lines 3-10 and p-186 lines 9-24)”
In submissions and in the face of the absence of direct evidence of the third and fourth of the alleged representations contained in the amended statement of claim filed 19 June 2008 by the First and Second Respondents the Applicant contended the representations “need not necessarily be in … words and can be implied.”
The Applicant made submissions in support of that contention but did not point to any authority to support its position that s.790 could be breached on such basis.[8] Finally the Applicant maintained the Third Respondent was liable for the representations.
[8] paras 61-67

Respondents submissions

In submissions filed 21 May 2009 the respondent’s addressed each of the alleged representations in turn.
In relation to the first representation the respondents analysed the manner in which it was put in the amended statement of claim and how the Applicant’s submission sought to recast it.[9]
[9] see paras 23-25
The respondents’ submissions reviewed the evidence of the first representation.[10] The respondents submissions noted of Mr Martin’s evidence that:
“31.Although Mr Martin’s evidence was that his concern regarding the ‘strong union site’ text message was somewhat allayed by further communication with Kingston his evidence was clear that after speaking to Mr Glanfield and Mr Dredge and seeing Mr Dredge on the phone he had that concern again (P33 LL7-8). It is therefore clear that prior to speaking to Mr Pitt and Mr Mates, Mr Martin held the concern that he had to be a union member to work on the site.
32.Shortly after commencing work Mr Martin was approached by Mr Pitt and Mr Mates (the First and Second Respondents). Mr Martin’s evidence was that when he saw Mr Pitt and Mr Mates approaching he assumed that their reason for approaching had something to do with union membership (P34 LL21-25, P34 LL42-3).
33.In all of the circumstances above it is clear that Mr Martin assumed, prior to Mr Pitt and Mr Mates talking to him, that he was going to be told he had to be a union member to work on the site. Mr Martin himself conceded that was possible (P46 LL29-30). It is that assumption, or preconception, that colours Mr Martin’s evidence. That is especially so in the circumstances of Mr Martin’s inexperience on commercial sites and this being the first time he has dealt with such an issue (P32 LL21-28).
34.What Mr Martin describes as the first and second representation are what he personally and mistakenly understood the conversation to be about rather than evidence of what was said.
35.Further, it is Mr Martin’s express evidence that neither Mr Pitt nor Mr Mates said to him he had to leave the site (P48 L40-41). That evidence is not consistent with the making of the first representation.
36.Mr Martin’s evidence is that the conversation was friendly and commenced and ended with a handshake (P35 LL39-42). Again that evidence is not consistent with the making of a threat in the nature of the first representation.”
[10] see paras 26-41
Importantly for the disposition of the applicant’s case the respondents submissions noted:[11]
“…for the Applicant to succeed in establishing this representation he (sic) must establish that it was said by [the First Respondent]. That is what is alleged in the Amended Statement of Claim and the submissions (at [2]). Mr Martin’s evidence was that he could not recall which of the Respondents had made the first representation. That clear evidence was given in re-examination (P55 L15-16). Further, when giving evidence about the representations Mr Martin regularly used the expression “they” and did not identify which of the Respondents made the representations. (see for example P3 L33, P38 L37, P39 L4, P39 L23, P40 LL17-18, P40 L30 and P46 L2).”
[11] para 38 of respondents submissions
The respondents also contended in submissions that Mr Martin’s evidence lacked clarity as:
“40.…
(a)He could not recall the circumstances of his arrival at the site (P27 LL19-20 and P27 LL23-25;
(b)He was at first unsure whether Mr Glanfield asked him about union membership (P28 L17) and later conceded he was asked (P29 LL33-34 and P34 L38);
(c)He gave evidence that union membership was raised by a question on the induction form and later conceded that was not correct (P29 LL30-31);
(d)He was not sure who started the conversation with Mr Pitt & Mr Mates (P36 L22);
(e)He could not recall what he said to Mr Glanfield or Mr King (P45 LL9-10);
(f)He conceded it was possible that the ‘two options’ statements might not have been said (P46 LL24-40 and P48 LL22-27);
(g)He conceded that his recollection was not 100 per cent (P46 LL24-40);
(h)He could not recall which of the Respondents made the alleged representations (P55 LL15-16).”[12]
[12] para 40 submissions
Contrary to the Applicant’s submissions referred to at paragraph 67 above the respondents noted:
“41.The Applicant submits that the only reasonable inference that can be drawn from Mr Martin saying words to the effect of ‘I’ll go home’ is that the first or second representations were made (Applicant’s submissions at [14]). That is not the only reasonable inference. Based on the matters set out above the Respondents say it is open to the Court to infer that Mr Martin misunderstood the conversation based on his pre-existing concern that that he had to be a union member to work on the site (P33 LL7-8).”
The respondents’ submissions then went onto review the evidence of the other witnesses in relation to the first representation.[13] The respondents noted none of those witnesses described Mr Martin alleging the first representation was made. The respondents noted:
“46.It is inconceivable that had Mr Martin received an ultimatum in the form of the first representation he would not have mentioned it to one or all of Mr King, Mr Glanfield or Mr Grummett. The first time Mr Martin uses the expression ‘two options’ is in discussion with the Applicant (see further the paragraphs under the heading ‘The investigation’
[13] paras 42-56
…
50.The Applicant relies upon the concession by Mr Mates and Mr Pitt that Mr Martin said words to the effect of ‘I’ll go home’ to make out the first representation. That statement by Mr Martin is consistent with his assumption or preconception that he had to be a union member to work on the site (P33 LL7-8). It does not make out the first representation, especially in circumstances where Mr Martin concedes that nobody told him to leave the site (P48 L30-41).
51.The acceptance by Mr Pitt and Mr Mates that Mr Martin said words to the effect of ‘I’ll go home’ is significant in establishing the veracity of their evidence. If the denials of Mr Pitt and Mr Mates about the making of the first representation were not truthful it is not logical or plausible that they would then accept that Mr Martin said words effect of “I’ll go home’.
52.The evidence of Mr Pitt and Mr Mates is that the words to the effect of ‘I’ll go home’ may have been said by Mr Martin because of his own perception rather than anything that was said (Mr Pitt: P186 LL18-22, Mr Mates: P153 LL35-38). Mr Pitt’s evidence is ‘Lord knows’ why he formed that perception (P186 L22) and Mr Mates’ evidence is very clear that: ‘I didn’t put the idea in his head. He put the idea in his head himself’ (P153 LL37-38).”
The respondents’ submissions on the first representation concluded that:
“57.In all of the circumstances set out above including:
(a)the assumption or preconception held by Mr Martin, that he had to be a union member to work on the site, prior to his conversation with Mr Pitt and Mr Mates;
(b)Mr Martin’s concession that it was possible that he had such an assumption;
(c)Mr Martin’s inexperience on such sites and in such matters;
(d)Mr Martin’s evidence that nobody told him to leave the site;
(e)Mr Martin’s evidence that he could not be sure who made the representation;
(f)the express denial by Mr Pitt;
(g)the express denial by Mr Mates;
(h)the express denial by Mr Dredge;
(i)the lack of any evidence of any attempt to follow through on the alleged ultimatum;
(j)the evidence of Mr King, Mr Glanfield and Mr Grummett that Mr Martin said nothing of the first representation in conversations immediately after the conversation involving the representation;
The Court cannot be satisfied, to the requisite standard required by s140 of the Evidence Act and Briginshaw, that the first representation was made.”
In relation to the second representation the respondents contrasted the way the allegation was put in the amended statement of claim against how it was advanced in submissions.[14]
[14] see paras 60-64 & para 71
In relation to Mr Martin’s evidence regarding the representation the respondents noted:
“66.In all of the circumstances above it is clear that Mr Martin assumed, prior to Mr Pitt and Mr Mates talking to him, that he was going to be told he had to be a union member to work on the site. Mr Martin himself conceded that was possible (P46 LL29-30). It is that assumption, or preconception, that colours Mr Martin’s evidence. That is especially so in the circumstances of Mr Martin’s inexperience on commercial sites and this being the first time he has dealt with such an issue (P32 LL21-23).
67.What Mr Martin describes as the second representation is what he personally and mistakenly understood the conversation to be about rather than evidence of what was said.
…
71.Further, as set out above, for the Applicant to succeed in establishing the second representation she must establish that it was said by Mr Mates. That is what is alleged in the Amended Statement of Claim and the submissions (at [3]).
Mr Martin’s evidence was that he could not recall which of the Respondents had made the second representation. That clear evidence was given in re-examination (P55 L15-16).
Further, when giving evidence about the representations Mr Martin regularly used the expression “they” and did not identify which of the Respondents made the representations (see for example P38 L33, P38 L37, P39 L4, P39 L23, P40 LL17-18, P40 L30 and P46 L2).”
The evidence of Mr Martin, the respondents noted, was far from clear. It was submitted there were:
“40.…numerous occasions when Mr Martin’s evidence lacked clarity, for example:
(a)He could not recall the circumstances of his arrival at the site (P27 LL19-20 and P27 LL23-25;
(b)He was at first unsure whether Mr Glanfield asked him about union membership (P28 L17) and later conceded he was asked (P29 LL33-34 and P34 L38);
(c)He gave evidence that union membership was raised by a question on the induction form and later conceded that was not correct (P29 LL30-31);
(d)He was not sure who started the conversation with Mr Pitt & Mr Mates (P36 L22);
(e)He could not recall what he said to Mr Glanfield or Mr King (P45 LL9-10);
(f)He conceded it was possible that the ‘two options’ statements might not have been said (P46 LL24-40 and P48 LL22-27);
(g)He conceded that his recollection was not 100 per cent (P46 LL24-40);
(h)He could not recall which of the Respondents made the alleged representations (P55 LL15-16).”
The respondents submissions then reviewed the evidence of the other witnesses[15] and said:
[15] see paras 74-88
“89. In all of the circumstances set out above including:
(a)the assumption or preconception held by Mr Martin, that he had to be a union member to work on the site, prior to his conversation with Mr Pitt and Mr Mates;
(b)Mr Martin’s concession that it was possible that he had such an assumption;
(c)Mr Martin’s inexperience on such sites and in such matters;
(d)Mr Martin’s evidence that nobody told him to leave the site;
(e)Mr Martin’s evidence that he could not be sure who made the representation;
(f)the express denial by Mr Pitt;
(g)the express denial by Mr Mates;
(h)the express denial by Mr Dredge;
(i)the lack of any evidence of any attempt to follow through on the alleged ultimatum;
(j)the evidence of Mr King, Mr Glanfield and Mr Grummett that Mr Martin said nothing of the second representation in conversations immediately after the conversation involving the representation;
The Court cannot be satisfied, to the standard required by s.140 of the Evidence Act and Briginshaw, that the second representation was made.”
In relation to the third representation the respondents in submissions noted the differences between the way the alleged representation was set out in the amended statement of claim and the Applicant’s submissions.[16]
[16] see paras 92-94
The respondents submissions then noted:
“98.The Applicant relies only on the evidence of Mr King. Tellingly, Mr Martin gave no evidence that the third representation was made. That is despite Mr Martin being the person to whom the alleged representation was made.”
Having reviewed the evidence on this issue in its submissions the respondents contended:
“103.In all of the circumstances including:
(a)Mr King’s concession that he did not hear the words;
(b)the lack of any evidence from Mr Martin that the words were said;
(c)the lack of any evidence from Mr Glanfield that the words were said;
(d)Mr Mate’s express denial;
(e)Mr Pitt’s express denial;
(f)Mr Dredge’s express denial,
the Court cannot be satisfied, to the standard required by s.140 of the Evidence Act and Briginshaw, that the third representation was made.”
Finally, in relation to the fourth representation and as with the other representations, the respondents submissions took issue with the differences between the manner in which the case had been pleaded (which was the case they were asked to meet) and the way it was advanced in submissions after the event.[17]
[17] see paras 105-107
The respondents reviewed Mr Martin’s evidence on this issue[18] and that it was him who had first said that joining the union would open more doors up. Having canvassed the evidence of the other witnesses[19]the respondents submitted:
[18] see paras 109-113
[19] see paras 113-119
“120.In all of the circumstances including:
(a)The certainty that the words were said by Mr Martin and the uncertainty about whether they were also said by Mr Pitt;
(b)Mr Pitt’s express denial;
(c)Mr Mates express denial;
(d)Mr Dredge’s express denial;
(e)The lack of any evidence from Mr King, Mr Glanfield and Mr Grummett;
The Court cannot be satisfied, to the standard required by s.140 and Briginshaw, that the fourth representation was made.”
In submissions the respondents’ resisted the Applicant’s claim that the facts as established by the evidence may not correlate with the facts as particularised but that the Court may nevertheless find the contraventions established on the evidence. The respondents joined the issue with the Applicant’s submission on this matter and said:
“131.At paragraph [59] the Applicant asserts that ‘while the facts that the Court finds may not necessarily correlate to the facts as particularised, the Court may find the contraventions established on the evidence before the Court’. That proposition is not correct. The Applicant relies upon Stuart-Mahoney v CFMEU and Anor (No. 2) [2008] FMCA 1015 at paragraph 107. That decision is under appeal. Further, that decision relies upon the decision of Hadgkiss v CFMEU (2008) 166 FCR 376. That decision does not stand for that proposition. The Applicant relies on paragraph [74] of that decision. That paragraph includes a conclusion that the relevant matters ‘fell comfortably within the scope of the allegations pleaded’. Whilst Justice Buchanan found that the full terms of the representation as pleaded were not ultimately established he did conclude that the established contravention was ‘within the ambit of the pleaded case’. It is clear than any representations alleged must be within the ambit of the pleaded case.”

The respondents position was that:
“132.In the present case four specific representations are pleaded at paragraph 13 of the Amended Statement of Claim. That is the case met and challenged by the Respondents in this proceeding. It is not open to the Court to find some other representation not alleged, not pleaded in the Amended Statement of Claim and not submitted in the submissions of the Applicant dated 6 May 2009.
133.Further, if the Court cannot be satisfied, to the requisite standard, that the first to fourth representations were made it cannot be satisfied that some amalgam or variation of those representations was made.”
On the issue of the Applicant’s claim regarding implied representations the respondents noted:
“135.…The case pleaded and submitted by the Applicant is:
(a)that the first representation was made by Mr Pitt and impliedly by Mr Mates because he was present and remained silent (see Amended Statement of Claim at paragraph 13 and Submissions at paragraph [2]);
(c) (sic) that the third representation was made by Mr Pitt and impliedly by Mr Mates being present and remaining silent (see Amended Statement of Claim at paragraph 13 and Submissions at paragraph [4]);
(d)that the fourth representation was made by Mr Pitt and impliedly by Mr Mates by being present and remaining silent (see Amended Statement of Claim at paragraph 13 and Submissions at paragraph [5]).
136.The pleadings do not contain an allegation that the second representation was impliedly made by Mr Pitt or Mr Mates.
137.The Applicant’s case for implying the representations to the person who was present and silent is dependent upon it establishing that the representations were made. As is pleaded the Applicant must establish that the representation was made and only then can it be argued that it was impliedly made by the other person present and silent.”
I accept the respondents’ submission[20] that in the event the Court is not satisfied the alleged representations were made as pleaded it cannot be satisfied that “some amalgam or variation of those” were made and cannot be satisfied that on the evidence the representations were implied.
[20] see inter alia paras 135-143
In relation to the Applicant’s submission referred to at paragraph 69 above as to the liability of the Third Respondent, the respondents submissions, which I accept, were:
“153.For the Applicant to succeed under s826 the Court must first be satisfied that there was “conduct engaged in”. These are the words of s826(2). In all of the circumstances set out above the Respondents submit that the Court cannot be satisfied that the relevant conduct was engaged in.
154.The Respondents’ submissions at paragraphs [77] to [82] ignore the fundamental proposition that the Court must first be satisfied that conduct was engaged in. The section conspicuously uses the verb “engaged” in the past tense. For the section to operate so much must be established.”

Submissions in reply

In submissions in reply the Applicant acknowledged Mr Martin believed the First and Second Respondents were approaching him to discuss joining the union.[21]
[21] para 19 submissions in reply
The Applicant in submissions in reply contended that the evidence:
·the First and Second Respondents never told Martin to leave the Site;
·the conversation was friendly and ended in a handshake;
·Martin expressed interest in joining the union; and
had to be examined in the context of the totality of the evidence.[22] In those submissions the Applicant then went into contend the making of the first and second representation was “consistent with the First and Second Respondents pressuring Mr Martin to join the union.”[23]
[22] para 22 submissions in reply
[23] para 23 submissions in reply
In those submissions the Applicant refers to the “nub of the Respondents’ case” as “the imagined representations arise because of the pre-existing concern held by Mr Martin.”[24]
[24] para 28 submissions in reply
The Applicant then moved to deal with the respondents’ submissions criticising the accounts of the other witnesses, claimed there had been a “consistent” account of the Applicants witnesses and that the submissions of the respondents were inherently unlikely or should not be accorded any weight.[25]
[25] paras 29-32 submissions in reply
In relation to the third representation the Applicant in submissions in reply acknowledged Mr King did recall hearing it, noted the First and Second Respondents denied the words used amounted to a representation about an obligation or requirement to be a member to work on any other or more sites and agreed the interpretation of the effect of the words was a matter for the Court.[26]
[26] paras 39-41 submissions in reply
There were no further submissions made in relation to the fourth representation.
Finally, the Applicant contended if it were accepted responsibility for the representations “cannot be fixed to the First or Second Respondents” then there was nonetheless no “bar to the liability of the Third Respondent.”
The difficulty facing this submission is the recognition implied therein that it was open to the Court to come to the conclusion that it could not be satisfied on the evidence the representations as pleaded in the amended statement of claim were made.
The respondents filed a ‘note’ on 29 May 2009 in response to the Applicant’s submissions in reply which I have also taken into account.

Conclusion

There were serious allegations made in this matter. In Hadgkiss v CFMEU [2008] FCAFC 22 at [27] it was said:
“In determining whether a statement is false or misleading, it is necessary to consider the context within which the statement was made. (Citations omitted) In this case, as the appellant correctly recognised, the task of the primary judge was to make findings not only as to the particular words used…but also as to the implications to be drawn from those words.”
In light of all the evidence I am not satisfied that the First and Second Respondents contravened s.790 of the WR Act and am not satisfied that what was said conveyed (or what was conveyed represented) that there was an obligation upon Mr Martin to be or become a member of the Third Respondent. In coming to that conclusion I have carefully considered the allegations, the witness statements, the evidence given before the Court, the robust nature of the industry and the demeanour of the witnesses as they gave their evidence.
In relation to the first representation the respondents’ submissions noted Mr Martin’s lack of experience in the commercial construction industry (and with unions at such sites) and said this had contributed to the disjunct between what he assumed the conversation with the First and Second Respondents may have been about (and how he reacted) and what actually had been said. Having had an opportunity to see Mr Martin give evidence I accept that submission.
The respondents’ submissions noted:
“34. What Mr Martin describes as the first and second representation are what he personally and mistakenly understood the conversation to be about rather than evidence of what was said.
…
41. The Applicant submits that the only reasonable inference that can be drawn from Mr Martin saying words to the effect of ‘I’ll go home’ is that the first or second representations were made (Applicant’s submissions at [14]). That is not the only reasonable inference. Based on the matters set out above the Respondents say it is open to the Court to infer that Mr Martin misunderstood the conversation based on his pre-existing concern that that he had to be a union member to work on the site (P33 LL7-8).
…
50. The Applicant relies upon the concession by Mr Mates and Mr Pitt that Mr Martin said words to the effect of ‘I’ll go home’ to make out the first representation. That statement by Mr Martin is consistent with his assumption or preconception that he had to be a union member to work on the site (P33 LL7-8). It does not make out the first representation, especially in circumstances where Mr Martin concedes that nobody told him to leave the site (P48 L30-41).”
Another difficulty for the Applicant in advancing her case was identified in the respondents’ submission as follows:
“38.Further, as set out above, for the Applicant to succeed in establishing this representation he (sic) must establish that it was said by Mr Pitt. That is what is alleged in the Amended Statement of Claim and the submissions (at [2]). Mr Martin’s evidence was that he could not recall which of the Respondents had made the first representation. That clear evidence was given in re-examination (P55 L15-16). Further, when giving evidence about the representations Mr Martin regularly used the expression “they” and did not identify which of the Respondents made the representations (see for example P38 L33, P38 L37, P39 L4, P39 L23, P40 LL17-18, P40 L30 and P46 L2).”
In relation to the second representation the same criticisms can be made out of the basis of how the evidence unfolded before the Court.[27]Critically in relation to this representation (as with others) and as the respondents’ submissions noted the Court could not be satisfied it was made as pleaded where Mr Martin’s evidence was he could not recall who made it.[28]
[27] see paras 66-73, 76-78 & 81-84
[28] see para 91
Moreover, as the respondents noted in submissions Mr Martin did not give an account to Mr Glanfield after the event consistent with the first and second representations being made.
The difficulty facing the Applicant’s submissions in reply in relation to the first and second representation is that the evidence isn’t sufficient for the purposes of the burden of proof the Applicant was required to meet.
The third representation was alleged to have been made by the First Respondent and the Applicant only relied on Mr King’s evidence in this regard. However Mr King said in cross examination, “I accept that
[29] P106, L15
I didn’t hear him say it.”[29]
Given this, in relation to the third representation as the respondents submissions noted Mr Martin did not give evidence that representation was made and Mr King’s evidence[30] meant it could not be made out.
[30] see paras 96-98
The fourth representation was that the First Respondent said words to the effect if you join the union it would open up more doors for Mr Martin to work on commercial sites. However when viewed in context it is Mr Martin who introduced that issue to the conversation.
Given this, in relation to the fourth representation I accept the respondent’s submission it cannot be made out on the evidence particularly given Mr Martin’s evidence about the whole of the conversation.
Neither Messrs Grummet, Glanfield or King were present during the conversation when the Applicant alleged the first and second representations were made.
In relation to the third representation Mr King’s evidence was it was possible the statements he did give evidence of were taken out of context and he didn’t hear the First Respondent make the alleged representation. In relation to the fourth representation Mr Martin’s own evidence was it was not about the obligation to be a union member.
The evidence given by Mr Martin did not corroborate that given by Mr King and Mr Glanfield and (whilst this is not surprising given the passage of time) was inconsistent on a number of issues such as the conversation after induction, or the meeting later in the day at the Site.
As the respondents noted in submissions in light of the matters set out earlier it is open to find (and more likely) that Mr Martin misunderstood the conversation regarding the first and second representations based on his pre-existing concern that he had to be a union member to work on Site and his lack of experience in the commercial building industry.
Contrary to the submissions of the Applicant I am not satisfied the third and fourth representations can be made out on the evidence or that it is appropriate to find such representations were implied. The Applicant does not refer to other conduct or circumstances in the evidence that it says would imply the representations were about an obligation to join. In this case unfortunately I am not satisfied it is appropriate to draw the inferences the Applicant asks the Court to make from the evidence and this does not allow her to meet the burden that confronts her case.
In the circumstances (and contrary to the Applicant’s submissions) I am unable to find that the representations (or any of them) were made. In the circumstances I also reject the Applicant’s submission that in the event the Court so found (contrary to the above) a finding could then be made that they were expressly made by one of the First or Second Respondent (and or implicitly by the other).
On the basis of Mr Martin’s evidence I am unable to find that what was said in the conversation with the First and Second Respondents contained the meanings (i.e. the representations) for which the Applicant contended. In coming to that conclusion I have had regard to my observations of
Mr Martin as he gave his evidence and taken into account he had not had experience dealing with unions.
Having regard to the context in which the statements were made, the reaction of Martin, Glanfield and King at the time and the evidence as a whole the Applicant has not made out a case to the requisite standard that the alleged representations were made.
For the reasons set out in the respondents’ submissions at paragraphs
57, 89, 103 and 120 the Court is not satisfied to the standard required by s.140 of the Evidence Act 1995 (“the Evidence Act”) that the alleged representations were made. The evidence given of conversations after the event with Mr Martin about the alleged representations did not clear the mists of time or ultimately assist in the Applicant meeting the burden of establishing the alleged representations given their serious nature.
Finally as a result of the above I do not need to consider the issue of the liability of the Third Respondent.
In light of the conclusions reached above, and the provisions of s.140 of the Evidence Act, the application must be dismissed.
These are proceedings to which s.824 of the WR Act applies.

The Applicant had sought costs and the respondents had reserved their position in relation to costs. Given this I will hear the parties in relation to any application for costs.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM

Associate: Rachelle Lombardo

Date: 5 June 2009