Welfare v Birdon Sands Pty Ltd

[1997] IRCA 185

DECISION NO:185/97

CATCHWORDS

INDUSTRIAL LAW - Appeal from decision of single Judge - Extension of time in which to file and serve notice of appeal - Whether appeal raises issue of substance - No point of principle

CONTEMPT - Disclosure of material contained in subpoenaed documents

Workplace Relations Act 1996
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)

No. DI 1222R of 1995

ROBERT JAMES WELFARE v BIRDON SANDS PTY LTD

MOORE J
SYDNEY
5 June 1997

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. DI 1222R of 1995
  )
NORTHERN TERRITORY DISTRICT REGISTRY)

BETWEEN:            Robert James WELFARE

Applicant

AND:                BIRDON SANDS PTY LTD

Respondent

JUDGE:    Moore J

PLACE:    Sydney (heard by phone with Darwin)

DATE:        5 June 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application for the extension of time in which to file a notice of appeal against the judgment of Wilcox CJ of 29 November 1996 is dismissed.

1. The notice of motion filed by Mr Welfare on 23 January 1997 is dismissed.

NOTE:       Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA              )     No. DI 1222R of 1995
  )
NORTHERN TERRITORY DISTRICT REGISTRY)

BETWEEN:            Robert James WELFARE

Applicant

AND:                BIRDON SANDS PTY LTD

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:        5 June 1997

REASONS FOR JUDGMENT

Introduction

This judgment deals with two matters which are, in a sense, related. On 29 November 1996 Wilcox CJ gave an ex tempore judgment in proceedings brought under s 377 of the Workplace Relations Act 1996 (“the Act”) by Mr Robert Welfare. His Honour dismissed an application by Mr Welfare for the review of a decision of a Judicial Registrar of 13 September 1996. The Judicial Registrar had declared that the proceedings brought by Mr Welfare under s 170EA of the Act had been settled on the basis that Mr Welfare would be paid $4,000 by the respondent, Birdon Sands Pty Ltd, (“Birdon”) and that he would execute a deed of release.

The central issue in the review was whether the application under s 170EA had been settled which, in turn, depended on whether the party acting for Mr Welfare, Mr Roberts of the Construction, Forestry, Mining and Energy Union, had had instructions to settle. Wilcox CJ answered both questions affirmatively.

On 12 December 1996 an application was filed in the Queensland District Registry by Mr Welfare seeking an extension of time in which to file and serve a notice of appeal against the judgment of Wilcox CJ.  This was well within the time in which a notice of appeal may be filed:  see O52r15, namely 21 days from the date judgment was pronounced.  However no notice of appeal was filed and it is thus necessary for Mr Welfare to secure an extension of time in which to file it.

Extension of time of appeal

In determining whether to extend time, the initial issue, it appears to me, is whether Mr Welfare seeks to raise any issue of substance in the appeal.  While I had earlier directed a draft notice of appeal be filed so as to identify the grounds of appeal, no draft notice was filed.  It is likely that Mr Welfare did not fully understand what this document should be and nothing turns on his failure to file it.  This is so because the grounds of appeal Mr Welfare proposes to rely on were set out in an affidavit of his of 20 March 1997.  Both Mr Welfare and the solicitor appearing for Birdon, Mr Henwood, were content that I proceed on the basis that the grounds identified in the affidavit were the grounds sought to be relied on in the appeal if time was extended.

I have concluded that none of the grounds identifies an issue of substance and, accordingly, I do not propose to extend time.  I will briefly explain my reasons for reaching this conclusion. 

What appears in following section of these reasons for judgment is each contention of Mr Welfare, being a ground identified in one of Mr Welfare’s affidavits of 20 March 1997 (I have reproduced what Mr Welfare says), an extract, where relevant, from the transcript of the proceedings before Wilcox CJ to which the contention relates and my reasons for viewing the contention as one lacking substance.

Contention 1

“On the 29 November, 1996 I had a hearing before Wilcox C.J. and I produced two witnesses by video link, a Mr. Donnelly and Mr. Laferla.  The technology did not operate properly and His Honour could not hear either witness clearly.  When their testimony was transcribed there were large areas that were indecipherable.  The extensive errata have been corrected and the transcript is now readable.  These errata have considerable bearing on my case as they changed witness testimony from positive to negative.”

The assertion by Mr Welfare that there were problems with the video link has substance. Indeed on 20 February 1997 Auscript issued a corrected transcript and a covering letter from the Branch Manager noted that the sound quality was poor. However the partial failure of the technology does not found a basis for impinging the judgment of the Chief Justice.  At the very least, Mr Welfare must demonstrate that an erroneous finding of fact was made by Wilcox CJ or a finding was not made that should have been made, as a result of the partial failure of the technology.  This he has not done.

Contention 2

“His Honour denied me natural justice in that he directed that I desist from a line of questioning with Mr. Laferla (line 30 p 28) claiming that Mr Donnelly had not given the matter in evidence earlier that day.  In fact, however, he had given that evidence. (line 15 p 13).”

The following is the transcript referred to in this contention. The responses were given by Mr Laferla in examination-in-chief.

Page 28:

His Honour: Wait a minute.  Since this is a statement between the witness and Mr Donnelly, or are you talking about the witness and Mr Byrnes?

Mr Welfare: Donnelly.

His Honour: Well, no, I will not allow you to ask questions about the statement between the witness and Mr Donnelly.  That is not evidence affecting the present respondent.

Mr Welfare: All right.  Can I ask him about the settlement and me and Marty?

His Honour: Well, you can ask him questions that relate to it, yes.

Mr Welfare:     Did you ever discuss our settlement that we were going to have with Mr Donnelly? --- I was aware that there was some sort of discussion happening there and Mary pointed out that he was approached to do a settlement - - -

Mr Coleman: I object to that.

His Honour: So this is a conversation, Mr Welfare , is it, between Mr Laferla and Mr Donnelly?

Mr Welfare: Yes.

His Honour: Well, how can that affect - you see - - -

Mr Welfare: I am trying to show that Mr Donnelly was influenced by these medical records because he spoke with James about them.

His Honour: Well, I do not think you can show it that way.  Mr Donnelly did not give that evidence and you cannot prove something by saying somebody said something to another person out of court about it.  But even anyway whether Mr Donnelly was affected by the medical records, that does not go to the issue as whether you agreed yourself. It is your agreement that is in issue, not Mr Donnelly’s.

Mr Welfare: Okay.

Page 13: Earlier evidence of Mr Donnelly during examination by Mr Welfare.

Mr Welfare: ... Okay, Marty, and your occupation? --- Master.

I want to talk to you about 6 June and 7 June.  Where were you on 6 June and 7 June of this year, Marty? --- I think at the Industrial Relations Court in Darwin.  That’s correct.

You were there on 6 and 7 June according to the court records.  Can you recall on 6 June, that is the first day of the Full hearing we had, did you spend all day in the court that day? --- No, I didn’t.  Most of my day was actually spent outside up until late afternoon until I was called to go and give evidence.

Did you have any conversations with a Mr Byrnes during the course of that day? --- Yes, I did, just outside in the main doors of the court, like on the steps there, and he mentioned he had your medical records and that you were a bit of a nut, and then my thoughts there was - I thought that this was supposed to be an Industrial Relations Court and not that - like a hangman’s court and so up to that point there I was actually prepared to walk away and catch the next plane home again.

His Honour: I am sorry, Mr Donnelly, I just did not follow that.  This is a conversation with Mr Byrnes, the solicitor?

Mr Welfare: Mr Byrnes, who was the solicitor, and Mr Coleman were in court but Mr Byrnes was speaking directly to Martin and myself during the day and, as Mr Donnelly has just indicated - could I just get you to repeat it, Martin?  The sound system is pretty bad here.  Mr Byrnes - you said he said, “I’ve read Robert’s medical records and he’s a bit of a nut”, is that what you said? --- That’s correct.

And did he say where he got this information, or what? --- During the course of the ...(indistinct) ... clearly mentioned that most of the government - the departments also thought that - - -

It appears Mr Welfare wanted to ask a witness, Mr Laferla, about a conversation he had with another witness, Mr Donnelly. The topic they discussed was a conversation Mr Donnelly had had with Mr Byrnes, the solicitor who had acted for Birdon in the proceedings before the Judicial Registrar.  Mr Laferla was being asked about these matters to demonstrate something about factors that had influenced Mr Donnelley to act in a particular way.  This was plainly a matter about which Mr Lafela could not give relevant admissible evidence.

Contention 3

“His Honour misdirected himself because he was unaware that all subpoenas in my case were prepared, filed and served by myself. Mr. Roberts’ evidence was given orally so His Honour could hear clearly.  On line 5 p.41 Mr. Roberts said it was a matter of the court’s records that he had issued subpoenas on my behalf. Court records show that all subpoenas in my case were, as stated, prepared, filed and served by myself.”

The following is the transcript referred to in this contention. The answers were given by Mr Roberts in examination-in-chief.

Page 41-42:

Mr Welfare: ... Right.  So that letter that you have got there is in response - no, sorry.  I will go back.  Could you just repeat again the fact that you issued subpoenas on my behalf? --- Well, I mean it is a matter of the court’s record, I would have thought, that there were a number of subpoenas issued in the proceedings below which were - some of them, I understand, or recollect were issued by you before I became involved. Others were issued or prepared and issued by me after discussions with you.

Could you name any ---

His Honour: Why are we going into this, Mr Welfare; what has this got to do with?

Mr Welfare: It has got to do with the court rules, your Honour.  I thought that ---

His Honour: I am not concerned with court rules here.  I am concerned with the question as to whether or not there was an agreement for the settlement of this case.   We are not having an inquest into the issue of subpoenas and whether they were properly issued.

Mr Welfare: Well, we will move along then.

Mr Welfare now says he was precluded from cross examining Mr Roberts about his assertion in evidence that he, Mr Roberts, caused subpoenas to issue which, it was said by Mr Welfare, was a matter going to Mr Roberts’ credit. Mr Welfare asserts that all subpoenas issued on his behalf were issued as a result of his actions and not Mr Roberts.  Such cross-examination may well have been relevant to the issue of Mr Roberts’ credit. However Mr Welfare never said this was the purpose of the cross-examination.  In my opinion he had an opportunity to say so after the reference by the Chief Justice to “an inquest into the issue of subpoenas”.  However Mr Welfare then simply abandoned the point.  This contention does not raise an arguable issue in an appeal.

Contention 4

“Mr Roberts disputed the essentials of Mr. Byrnes’ affidavit, (that my refusal to accept settlement was the fact that I wanted more money). (line 15 p.54).”

The following is the transcript referred to in this contention. The anwers were given by Mr Roberts in cross-examinatio

Page 54:

Mr Coleman ... I would ask you to look through it and read it with particular attention to paragraphs 14-17.  Firstly, is that the affidavit you have seen and read before? --- Yes, I believe it is one of the affidavits I have seen before.

Would you just read it with particular reference to paragraphs 14-17? --- Yes, I think I’ve read all that before.

Just paying attention to paragraphs 14-17 is there anything there that you disagree with? --- Some of the detail of the conversation doesn’t precisely accord with my recollection and in paragraph 14 it says:  I rang back to Mr Roberts on his mobile phone approximately 15 minutes later which would have been around 8 pm on Thursday evening.  I don’t believe that’s correct, I think it was later than that and I think the phone records, although they obviously don’t show Mr Byrnes’ call to me and my recollection of the sequence of phone calls from my own records would indicate that, in fact, it was later than 8 pm on Thursday evening.  It was more like 8.45.  As I said earlier Mr Byrnes said he said: okay, I will see you at 7.30 at breakfast.  My recollection is that we had arranged for both yourself and Mr Byrnes to meet me for breakfast at 7.30.  Paragraph 15, Mr Byrnes says the hand written terms were prepared by yourself and I recall that he said that to me on the morning.  Paragraph 16 is consistent with my recollection.  Paragraph 17, I have to say I have no recollection of saying:  he wants more money.  In fact I would say that I didn’t say that.  What I said was: he refuses to accept that there is a settlement or words to that effect.  I don’t recall saying to Mr Byrnes: look will you have a talk to him, maybe you can get him to see reason. Although during the adjournment there was a general free ranging discussion with all the parties present in an effort to settle the matter.  I don’t recall using the words:  I’m really bloody angry bout this, he’s a bloody liar. Particularly the second sentence, I would say that I did not say that.  I may well have said:  I’m bloody angry about this.  14-17, you said, is that?

The fact that one witness gives an account which is not consistent with the account of another does not constitute an arguable ground of appeal.  It would, at the very least, be necessary to demonstrate that one witness’s account was implausible, the other’s was plausible and the trial judge had preferred the evidence of the former to the latter and had made a material finding by reference to the evidence of the latter which, arguably, was not based on the benefit the trial judge had of seeing the witnesses and hearing them give their evidence.  Mr Welfare has not demonstrated that this is so.

Contention 5

“On page 11 of the Extempore Reasons For Judgement His Honour says “I was impressed with Mr. Roberts’ evidence.”  His Honour was not sufficiently aware of significant contradictions in Mr. Robert’s evidence.  His statements as to the reason for his resignation from representing me in the middle of a hearing are contradictory.  (line 25 p 46); (line 38 p 55).”

The following is the transcript referred to in this contention. Mr Roberts provided answers in examination-in-chief (at 46) and in cross-examination (at 55).

Page 46:

Mr Welfare: ...  However, we were prepared to make, or I was prepared to make a final effort to have the matter settled.  In the event that they couldn’t be settled the union would no longer appear on behalf of either yourself or Mr Donnelly on the following day.  I think there were two phone calls that I made at that stage to you because as I say my recollection is that the battery on my phone gave up so I called again on Mr Hambesis’ phone and conveyed that proposition to you.

This is “we’re resigning but we are going to help settle the matters”? --- Yes, essentially that was what I was putting to you that as a result of discussions between ourselves and between myself and Mr Hambesis that that was the union’s position, but we were prepared to make an effort during the course of the evening to see if the matter could be settled and that is what I did.

So you had resigned from representing me in court but you were prepared to be my agent and act in negotiations? --- No, I hadn’t resigned from representing you in court at all.

You intended to resign? --- I intended to resign and I made that quite clear to you and to Mr Donnelly that the union had taken a decision that we would no longer be appearing on either your behalf or Mr Donnelly’s behalf in the proceedings on Friday but if we could settle the matter that evening then that was what we would do, and that is what we proceeded to do.

Page 55:

Mr Coleman:  Prior to that decision, was it your intention on the understanding that you would represent him in the Local Court proceedings the following week? --- I have to say that that - the details of that weren’t finalised 100 per cent.  I mean, we were obviously focusing on the Industrial Relations Court matter.  Once our application had both matters dealt with together had been rejected but - and because of the course of events it was never discussed between us but I went up there with a view to either having the matters dealt with at once, which was rejected or dealing with the Local Court matter the following week unless I was instructed otherwise by either Mr welfare of Mr Donnelly. So, whilst the details of it weren’t finalised I intended either to stay over the weekend or return Friday and go back to Darwin again on Monday.

Did the union’s decision on the Thursday night in relation to future representation was that based in any way on the way the matter had proceeded on the Thursday in Court? --- No.

There is nothing, in my opinion, manifestly contradictory in this evidence.  It appears from the submission made to me that Mr Welfare seeks to establish that Mr Roberts gave contradictory evidence having regard to statement he made to a Judicial Registrar on 7 June 1996.  However the transcript of those proceedings was not in evidence before Wilcox CJ nor was Mr Roberts cross-examined about it.  No arguable ground of appeal is made out.

Contention 6

“His Honour erred in not examining thoroughly the subpoenaed telephone records of Mr. Byrnes and Mr. Roberts before delivering judgement.  These records contradict the oral evidence of Mr. Byrnes and Mr. Roberts as to the sequence and nature of events.”

The subpoenaed telephone records were in evidence.  The time of phone calls and the identity of parties to them was an issue of some significance in determining whether Mr Welfare had given instructions to Mr Roberts to settle which led to settlement.  However Mr Welfare has two obstacles in relation to this contention.  The first is that he made no detailed submissions to Wilcox CJ based on those records.  The second is that my analysis of them does not reveal any material inconsistency with the evidence of Mr Roberts or, more importantly, the findings of Wilcox CJ.  The number of phone calls Mr Roberts indicated were made or received by him and the approximate time of these calls evidence a similar pattern of time and frequency to calls on the accounts in evidence.

Contention 7

“His Honour denied me natural justice in that I was prevented from examining Mr. Roberts (line 10 p 53) and Mr. Byrnes extensively and by not allowing me sufficient time because I was asked to make my submissions after normal adjournment time; (line 10 p 68).”

The following is the transcript referred to in this contention. Mr Roberts answered questions in examination-in-chief (at 53).

Page 53:

Mr Welfare:  The deed of release, Marty’s? --- My recollection is that after we had gone as far as we could in the court that morning we went back to the union office, when I say we, Mr Byrnes, Mr Donnelly, myself and Mr Hambesis, and there were some - I think there was some further discussion about the deed of release.  Ultimately, I believe, the deed of release was signed at the union office by both parties and I made a photocopy of that document for Mr Donnelly.  I gave it to him and Mr Byrnes kept a copy.

You do not recall waiting for Mr Byrnes to go off and draw up another document?

His Honour: Mr Welfare, why are we concerned with this?  I am very anxious about the time.  I appreciate you are trying to get it in a methodical way, but it is not coming out quickly.

Mr Welfare: I will stop.

Page 68:

His Honour:  Mr Welfare, look would you look at the clock please.  It is 4.20. Normal adjourning time is 4.15 and I appreciate you have come a long way and therefore I want to get this case finished, but I do not want to waste time while your and Mr Byrnes exchange insults of irrelevant matters and that is where we are getting to.  The critical things in this case are 1) was there an agreement binding you: 2) if there was and it was subject to a condition, was that condition fulfilled.  As far as I can see - I appreciate there is a huge amount of overlay in this case.  You have many grievances which may or may not be justified. Probably going back to what happened on the job, certainly seems to involve what happened with medical records and so on.

I have got no idea who is right and who is wrong about that, it is not my business because it is not the subject of this case and similarly, there is a bit of an overlay between the two of you as to what happened after 7 June.  I am not concerned with any of that either.  I do not propose to form any opinions about it or express anything. I am only going to deal with those two matters.  Now, can you focus on that and see if you have got any further questions of Mr Byrnes on that.  You do not? ...

Mr Welfare:  I will sit down.

...

His Honour: Now, Mr Welfare, that being the evidence, is it?  Mr Welfare, you have the opportunity to put submissions to me if you wish.  As I say I want you to confine them to those particular matters.

After Wilcox CJ made the statement last appearing in the transcript quoted above, there were a series of exchanges between his Honour and Mr Welfare.  During those exchanges Mr Welfare had put to him by his Honour a version of the facts that, as his Honour saw it, probably emerged from the evidence. Mr Welfare was invited to comment and say, if he wished, why that version should not be accepted. 

It is true that his Honour had made plain that it was late and that the matter should conclude with expedition.  It is also true that the exchange was one that could, potentially, have gone on very much longer.  However I am not satisfied that there is an arguable basis for saying that Mr Welfare was not given an adequate opportunity to put his case. 

During the exchange, it emerged that Mr Welfare’s contention was that he accepted that Mr Byrnes and Mr Roberts did have a conversation about settlement but, notwithstanding what Mr Roberts said about settlement in that conversation, Mr Roberts did not have Mr Welfare’s instructions to say it. However Mr Welfare’s substantial complaint about being hurried along related to his cross-examination of Mr Byrnes.  I do not see how Mr Byrnes’ credit assumes any significance if the gravaman of his case was that Mr Roberts was being untruthful in saying he had Mr Welfare’s instruction to settle. 

For the preceding reasons Mr Welfare’s appeal appears to me to lack substance and I propose to dismiss the application for an extension of time.

Contempt

I now turn to consider the proceedings Mr Welfare is seeking to bring against Mr Byrnes alleging contempt.  They flow from the evidence given by Mr Donnelly at page 13 which I have set out under contention 2. The gist of the evidence is that Mr Byrnes, Birdon’s solicitor, had subpoenaed medical records relating to Mr Welfare and, by implication, had then inspected them.  Mr Byrnes had disclosed, in a summary way, their contents to Mr Donnelly. 

Limits exist on the disclose and use of documents produced in litigation:  see Alterskye v Scott [1948] 1 All ER 469 at 471; Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 QB 613; Church of Scientology of California v Department of Health and Social Security [1979] 1 WLR 723; Riddick v Thames Board Mills [1977] 1 QB 881 at 896. The irregular disclosure of the contents of documents produced under compulsion to a court or during preparation for trial may constitute contempt: see Ainsworth v Hanrahan (1991) 25 NSWLR 155.

However whether Mr Byrnes made such a disclosure to Mr Donnelly and whether it constitutes contempt is a matter I need not consider in detail.  The proceedings for contempt were sought to be brought by a notice of motion filed on 23 January 1997.  While accompanied by an affidavit, the affidavit did not contain relevant admissible evidence.  A direction I later gave to file an affidavit setting out the evidence relied upon did not result in the filing of any further affidavit containing relevant admissible evidence before the hearing on 17 April 1997 which has given rise to this judgment.  At that hearing an application was made on Mr Byrnes’ behalf that the notice of motion be summarily dismissed as there had not been compliance with the direction I had earlier given or with O40r6 and r7.  Both points, at the time they were made, were well made.

I am aware that since the hearing on 17 April 1997 further documents have been filed in the Northern Territory Registry of the Industrial Relations Court of Australia (“IR Court”) including a further notice of motion.  Effectively on 25 May 1997, the jurisdiction of the IR Court vested in the Federal Court of Australia and, as a consequence, different administrative arrangements may well emerge in relation to the disposition of matters arising under the Workplace Relations Act 1996 thought, strictly speaking, contempt proceedings do not arise under that Act: see Gregory v Philip Morris (1987) 74 ALR 300 at 308. In those circumstances, and having regard to the submission made on behalf of Mr Byrnes about the deficiencies in the documentation filed on 23 January 1997, I propose to order that the notice of motion filed that day be dismissed. Subject to any issues arising concerning the operation of the transitional provision of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) the fate of the later notice of motion will be a matter to be determined by a Judge of the Federal Court of Australia. I dismiss the application for an extension of time in which to appeal and the notice of motion filed on 23 January 1997.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:   

Alexandra George  

Dated:  5 June 1997  

APPEARANCES

Mr Welfare appeared in person.       

Solicitor for the Respondent:        Cridlands Solicitors        

Dates of Hearing:                17 April 1997          

Date of Judgment:                5 June 1997