Australian Building and Construction Commissioner v Roach

BETWEEN: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Second Respondent

WHEELAHAN J: 1 The applicant alleges that on 20 April 2020 the respondents contravened s 348 and s 349 of the Fair Work Act 2009 (Cth) by words spoken by the first respondent, Mr Jason Roach, to two workers engaged by a sub-sub-subcontractor, Melbourne Caulking Pty Ltd (Melbourne Caulking), in a luncheon room at a building site in Melbourne. A primary question in issue is whether the first respondent spoke the words that are alleged. 2 There is evidence that Melbourne Caulking had been engaged to work at the site by Geschke Pty Ltd (Geschke), which was a plumbing sub-contractor at the site. There is evidence that Mr Shannon Silver was the project manager employed by Geschke, and that Mr Bradley Golz was the site foreman employed by Geschke. 3 Counsel for the applicant has called the two workers, Mr Watterston and Mr Simone, who have given evidence about the words spoken to them by Mr Roach. Counsel for the applicant has called a third witness, Mr Golz. I apprehend that Mr Golz's evidence-in-chief is largely complete. Mr Golz gave evidence about the following (inter alia) - (a) his telephone conversations with Mr Watterston on 20 April 2020; (b) his telephone contact with his superior, Mr Silver on 20 April 2020; and (c) a telephone conversation that he had with Ms Ruth Dunsby, an inspector employed by the Australian Building and Construction Commission on 21 April 2020. 4 Counsel for the applicant has made an application to the court under s 38(1)(a) and (c) of the Evidence Act 1995 (Cth) for leave to question Mr Golz as though he were cross-examining Mr Golz. Section 38 of the Evidence Act relevantly provides as follows: (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. … 5 Section 38(6) provides for some considerations that are to be taken into account in determining whether to give leave - (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. 6 The term "prior inconsistent statement" appearing in s 38(1)(c) is defined in the Dictionary as follows - prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by a witness. 7 As s 38(1) enables the court to give leave under the Act, it is necessary to refer also to s 192 - (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or to a witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 8 Counsel for the applicant sought leave to cross-examine Mr Golz, about four matters - (1) Mr Golz gave evidence that he did not speak to Mr Silver on 20 April 2020 until after Mr Watterston and Mr Simone had left the site, and at a time that he did not recall, whereas telephone records that are in evidence are capable of supporting an inference that the Mr Golz spoke to Mr Silver earlier, and before Mr Watterston and Mr Simone left. Mr Golz stated that he did not recall the substance of what he told Mr Silver, whereas it will be the applicant's case that Mr Silver was told by Mr Golz that Melbourne Caulking was not permitted onto the site by Mr Roach, as they were not in the union. (2) The applicant seeks to argue for a finding that Mr Watterston and Mr Simone left the site on the morning of 20 April 2020 after Mr Watterston had spoken to Mr Golz at 9:01am in which Mr Golz told Mr Watterson that it looked like the union were not going to let them work. That case is capable of being supported by a statement in writing by Mr Watterston that is in evidence, together with entries in a statement of agreed facts that record the time and length of telephone calls between Mr Watterston and Mr Golz on 20 April 2020. For his part, Mr Golz has given evidence that when he spoke to Mr Watterston at a time after he said he had spoken to Mr Roach in person, and before he had spoken to Mr Silver, Mr Watterston stated that he had left the site. The applicant says that this sequence is not supported by the telephone records, and is contrary to the case theory which, by reference to other evidence, he seeks to advance. (3) The third matter is that Mr Golz has given evidence that is capable of being understood as being that Mr Watterston told him that he was told by Mr Roach that he had to pay $200 to the Union, or that he had paid $200 to the Union, whereas it is the applicant's case that Mr Watterston did not mention any figure to Mr Golz, and that Mr Golz must have gained learned of a figure of $200 from speaking to Mr Roach. (4) The fourth matter is that Mr Golz gave evidence that on 21 April 2020 he received a telephone call from an inspector employed by the Commission, recalled that the inspector was female, but could not remember her name, could not recall what she said, and had no recollection at all of what he told her. The applicant proposes to call the inspector, Ms Dunsby, and to tender her note of her telephone conversation with Mr Golz. 9 Counsel for the applicant submitted that all four matters engaged s 38(1)(a) on the ground that Mr Golz had given evidence about those matters that was unfavourable to the applicant, and that this was the primary basis on which the application was made. As to matter (4), counsel submitted that it also engaged s 38(1)(c) on the ground that Mr Golz had made a prior inconsistent statement, namely the representations to the inspector, Ms Dunsby, whom the applicant proposes to call. 10 Counsel for the respondents accepted that matter (2) engaged s 38(1)(c), and that matter (3) engaged s 38(1)(a), but submitted that leave should not be given having regard to discretionary considerations. As to matters (1) and (4), counsel submitted that the relevant thresholds were not met. 11 It was a material element of the submission of counsel for the respondents that there were two different approaches in the authorities to the proper construction of s 38(1)(a), and its reference to "evidence given by a witness that is unfavourable to the party". On one approach, which was taken by Graham J in Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941; 152 FCR 560 (Hadgkiss), "unfavourable" evidence must be evidence that detracts from the case of the party calling the witness, and has to have an unhelpful quality about it. Graham J preferred this approach, citing the decision of the New South Wales Court of Appeal in Klewer v Walton [2003] NSWCA 308 at [20] and [30] (Hodgson JA, Meagher JA agreeing) to a more liberal interpretation of the word "unfavourable" taken by Smart J in R v Souleyman (1996) 40 NSWLR 712 at 715, and which had been followed in other New South Wales appellate decisions. Smart J considered that "unfavourable" simply meant "not favourable". 12 All the main authorities on the question were reviewed by the Victorian Court of Appeal in DPP v Garrett [2016] VSCA 31; 257 A Crim R 509 at [42]-[63] (Maxwell P, Redlich and Beach JJA). DPP v Garrett was an appeal from a pre-trial ruling pursuant to s 192A of the Evidence Act 2008 (Vic), refusing leave to the Crown under s 38(1)(a) of the Act to cross-examine one of its own witnesses. The Court cited but did not apply the formulations in Hadgkiss and Klewer v Walton. Instead, the Court preferred those authorities, of which there are many, that take a more liberal view of what is "unfavourable". The Court concluded at [64]-[69] - [64] The word "unfavourable" is not defined in the Act. It is an ordinary English word and, on accepted principles of interpretation, should be given its ordinary meaning. Perhaps unsurprisingly, the principal dictionary definition of "unfavourable" is "not favourable". Other meanings given include "disadvantageous", "adverse" and "ill-disposed". In turn, the word "favourable" is defined to mean "affording aid, advantage, or convenience" and "advantageous, convenient; facilitating one's purpose or wishes; helpful, suitable". [65] Nothing in the context, either of s 38 or of the Act as a whole, requires any departure from that approach to interpretation. As the High Court said in Spencer v Commonwealth: "The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase … is to be avoided." [66] Axiomatically, it is the words of the statute themselves which must govern the interpretation. As the authorities have made clear, "unfavourable" means simply "not favourable". [67] This being a uniform provision applying in several jurisdictions, principles of comity mean that the interpretation adopted by other intermediate appellate courts should be applied in Victoria. The predominant line of authority in all relevant jurisdictions dictates that the phrase "unfavourable to the party" must be taken to mean unfavourable to the case which the party is seeking to advance in the proceeding. Whether evidence is unfavourable to the case that the party is seeking to prove will depend upon the circumstances of each case. [68] The party's case may be discerned from its opening, its pleadings and/or the evidence which the court has already heard or which is proposed to be called. If the evidence of the witness called by that party is inconsistent with, or "likely to be contradictory" of, that identified case, it will ordinarily satisfy the description of "unfavourable". [69] The inconsistency or contradictory nature of the evidence may arise because the witness asserts a fact - or fails to give evidence of a fact - in circumstances that permit the conclusion that his evidence is unfavourable. Evidence may be unfavourable even if the witness whom it is sought to cross-examine gives no evidence that actually detracts from the case of the party by whom he or she is called. If the party calling the witness contends that the witness should be able to give evidence supportive of that party's case, and the witness does not give such evidence, that may suffice to make the evidence given by the witness "unfavourable" within the meaning of s 38. (Footnotes omitted.) 13 The Court in DPP v Garrett further concluded at [72]-[73] - [72] For the reasons we have given, on the proper construction of s 38(1)(a) the only conclusion reasonably open was that the evidence given by KB was "unfavourable" within the meaning of s 38 of the Act. [73] Where the party's case is clearly identifiable, the evidence of a witness called by a party will not cease to be unfavourable simply because there is other evidence inconsistent with that party's case. In order to determine the threshold question, a judge is not called upon to ascertain whether the preponderance of the evidence will substantiate the party's case, nor to make some objective assessment of all of the evidence to ascertain where the truth lies. The trial judge was wrongly persuaded that she should undertake such an assessment. 14 Counsel for the respondents submitted that the adoption of the more liberal or broader view of "unfavourable" in DPP v Garrett was obiter dicta, and that therefore I should follow the decision of Graham J in Hadgkiss. In support, counsel cited R v Abbas [2019] VSC 855 at [655] where Beale J stated that the construction adopted by the Court of Appeal in DPP v Garrett was obiter because in Garrett it was held that the witness's evidence was plainly adverse to the Crown's case. 15 I reject the submission that the construction of s 38(1)(a) adopted by the Court of Appeal in DPP v Garrett was obiter. The fact that the question before the Court of Appeal might have been decided in the same way having regard to the narrower meaning of "unfavourable" does not mean that the Court of Appeal did not state, authoritatively, the principles on which it decided the appeal. Those principles are the ratio decidendi of the case, whether or not the appeal might have succeeded on some other construction of s 38(1)(a) which the Court of Appeal did not adopt, and must be taken to have rejected. Further, it is clear from [72] of the Court of Appeal's reasons (extracted at [13] above) that the construction of s 38(1)(a) that the Court adopted was at the heart of its decision, because on that construction "the only conclusion that was reasonably open" was that the evidence of the witness was "unfavourable". 16 The result is that I should follow DPP v Garrett. There is substantial uniformity between the Commonwealth evidence statute and the evidence statutes of Victoria and New South Wales, and I am bound to follow DPP v Garrett unless convinced that it was plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [446]. In the event that I rejected, as I have, the respondents' submission that the construction of s 38(1)(a) adopted in DPP v Garrett was obiter, counsel for the respondents did not submit that I should not follow it on the ground that it was plainly wrong. Moreover, DPP v Garrett, which cited Hadgkiss, was followed in this court without question by Bromberg J in Australian Workers' Union v Registered Organisations Commissioner (No 6) [2019] FCA 194. And if any further support were needed, the approach of Smart J in R v Souleyman was cited with approval by the Full Court in Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 430 (Wilcox, O'Connor and Sackville), which was not cited by Graham J in Hadgkiss. 17 As to each of matters (1) to (4), I accept that the evidence given by Mr Golz was unfavourable to the applicant in the sense explained in DPP v Garrett. In respect of each of the four matters there were material deviations from a case theory that is open on other evidence, including inferences that may arise from evidence that, if accepted, would be objective evidence. As the evidence unfolds, it is becoming apparent that the interrelationship between events will likely be relevant in assessing the reliability of the witness evidence, including the prior oral and written representations of the witnesses. I elaborate on this further below when addressing the discretionary consideration in s 192(2)(c), relating to the importance of the evidence. 18 Counsel for the respondents submitted that the applicant failed to give notice of the application under s 38(1) at the earliest opportunity, thereby directing attention to the mandatory consideration in s 38(6)(a). I do not accept this submission. I do not accept that there was any occasion for the applicant to make the application before Mr Golz gave his evidence. Counsel for the respondents submitted that those acting for the applicant must have had a conference with Mr Golz before calling him. The evidence does not support that inference. Mr Golz attended the court under subpoena, and the contents of the outline of evidence filed by the applicant's solicitors do not support an affirmative finding that the outline was prepared as a result of a conference. It is more likely that the outline reflects the expectations as to Mr Golz's evidence that arise from documents that are in evidence, including Ms Dunsby's file note to which I have referred. 19 As to s 38(6)(b), no submission was developed that the consideration in that paragraph was a reason leave should not be given. I have given consideration to it nonetheless. The only other parties to this proceeding are the respondents, and counsel for the respondents is hardly likely to cross examine Mr Golz in a way that is calculated to support the applicant's case theory. 20 As to the discretionary considerations in s 192(2) - (a) the proposed cross-examination is unlikely to shorten the length of the hearing, but I do not consider that it will add unduly to the length of the hearing; (b) no unfairness to the respondents or to the witness was claimed; (c) I address below the importance of the evidence; (d) there is nothing about the nature of the proceeding which bears upon the exercise of the discretion one way or the other; and (e) no party submitted that the power of the court to adjourn the hearing or to make another order was a relevant consideration in this case. 21 As to the discretionary consideration that directs attention to the importance of the evidence, this favours the giving of leave. The objective evidence that has been received in the form of telephone records, if accepted, may form a framework by reference to which the evidence of the witnesses, and representations in documents such as emails, might be evaluated. Further, findings about what was said, and to whom, and when, and the identification of the sequence of the connected circumstances may all be material in making an appraisal of the entire picture that is portrayed by the evidence in relation to the critical issue, which is what was said by Mr Roach. This involves what Atkin LJ described in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 at 152 as "the value of comparison of evidence with known facts" which is "worth pounds of demeanour": see also the comprehensive discussion by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; 160 ALR 588 at [88]. It sometimes happens that some evidentiary components of a case are like three legged stools. If one leg is removed, the evidence falls away. In a case such as the present which is likely to invite careful attention to the accumulation of the detail of the evidence, I do not accept the submissions on behalf of the respondents that the subject of any of the four matters is peripheral. 22 There was some force in the submission of counsel for the respondents that leave should not be given in relation to matter (4), essentially because if Ms Dunsby gives evidence and produces her file note of her conversation with Mr Golz, then her evidence would be uncontradicted by Mr Golz, who has said he has no recollection of what he said. However, there was at least equal force in the submissions of counsel for the applicant that Mr Golz's evidence of his absence of recollection would not be the only evidence that might potentially fall to be weighed against the diary note, and that it was conceivable that by reference to other evidence, submissions might be made about the weight to be attached to what Mr Golz is recorded as saying. I accept the submissions of counsel for the applicant, and exercise my discretion in favour of giving leave to cross-examine about matter (4). In the event, it is unnecessary that I consider whether leave should be given to cross examine on the more limited basis contemplated by s 38(1)(c). 23 Finally, counsel for the respondents submitted that in relation to some matters the application was precipitous, because counsel for the applicant had not sought leave under s 32(1) of the Evidence Act to have Mr Golz revive his memory by reference to documents that were in evidence. The problem with this submission is that the documents referred to for the purposes of the submission, such as Ms Dunsby's notes and some emails, were not documents written or made by Mr Golz, and there is no reasonable prospect that I would give leave. 24 For the above reasons, I give leave to the applicant to cross-examine Mr Golz about the four matters that I identified at [8] above. Ruling accordingly. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.