Australian Building and Construction Commissioner v Roach

Introduction 1 Counsel for the respondents has called the first respondent, Mr Roach, as a witness. So far, Mr Roach has given evidence that he was employed as a labourer by Lendlease at its site at 2 Melbourne Quarter and was so employed on 20 April 2020. 2 Mr Roach has given evidence that he was the elected health and safety representative of the relevant work group under the Victorian Occupational Health and Safety Act, and was also a delegate of the second respondent union. An outline of evidence filed and served on behalf of the respondents foreshadows that Mr Roach proposes to give evidence as to the relevant events of 20 April 2020 which are the subject of the applicant's claims in this proceeding. 3 Counsel for the respondents has asked Mr Roach what his practices were in relation to new workers at the site. Counsel for the applicant has objected on the ground that the question is calculated to adduce tendency evidence which is prima facie inadmissible unless the conditions in s 97 of the Evidence Act 1995 (Cth) are satisfied. Section 97 provides - 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. 4 Section 97 of the Evidence Act was considered in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51 (Jacara). In that case, Sackville J, with whom Whitlam and Mansfield JJ agreed, referred at [58] to an article by Cowen and Carter titled The Admissibility of Evidence of Similar Facts, A Re-examination, published in Essays on the Law of Evidence (1956), and stated at [61] to [65] - 61 The critical question in a case in which the tendency rule stated in s 97(1) is said to apply to evidence of conduct is whether the evidence is relevant to a fact in issue because it shows that a person has or had a tendency to act in a particular way. To adopt the language of Cowen and Carter, the question is whether the evidence of conduct is relevant to a fact in issue via propensity: insofar as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question? 62 This approach is consistent with the manner in which the Commission used the term "propensity" in its reports on Evidence. It defined the word this way (Interim Report, Vol I, par 785): "Propensity. This word is defined by the Concise Oxford Dictionary to mean 'inclination or tendency'. It seems that this is the way it is used in the law, a tendency to act, think or feel in a particular way. Usually the propensity will be evidenced by specific conduct, leading (like character) to the inference that the person will behave in conformity with that propensity." 63 In my opinion, it is clear in the present case that the evidence tendered by Jacara was relevant (if at all) to the fact in issue (whether Ms Kelly had made any of the representations alleged to Mr Williams) only because it tended to establish a propensity on her part to act in a particular way (to make representations of a particular kind to prospective tenants of the Centre). The tendered evidence was therefore within s 97(1) of the Evidence Act. Assuming it satisfied the relevance requirement of s 56 of the Evidence Act, it was not admissible if the primary judge formed the view that the evidence would not have significant probative value. 64 In reaching this conclusion I recognise that it may be difficult in any given case to determine whether the evidence of conduct is relevant "via propensity" and in no other way. Mr Moshinsky suggested that, in drawing the line, it is necessary to distinguish between evidence that attempts to prove the terms of representations by relying on the striking similarity of other instances of representations and evidence which tends to prove that a system was in fact in existence that allowed or encouraged such representations. He pointed out that just such a distinction had been drawn in cases involving alleged misrepresentations to prospective tenants, although none had involved s 97(1) of the Evidence Act: see, for example, Turner v Jenolan Investments Pty Ltd [1985] ATPR 40,571 at 46,635, per Beaumont J; Dayteck Pty Ltd v Glen Centre (unreported, Supreme Court, Vic, Eames J, 8 May 1995). Mr Moshinsky submitted that the evidence of the five tenants in this case was relevant because it suggested that Perpetual or Ms Kelly had a system or business practice in place involving the making of representations to prospective tenants. 65 In my view, evidence of conduct does not become relevant for a purpose other than proving that a person had a tendency to act in a particular way merely by asserting that the evidence tends to establish a system or business practice. Whether it is relevant for another purpose depends on whether or not proof of the tendency of a person to act in a particular way is a necessary link in the reasoning making the evidence relevant to a fact in issue. 5 Sackville J continued at [67], in a passage relied on by all parties - 67 By contrast, there will be cases where evidence of conduct is relevant to a fact in issue independently of its tendency to show that a person had a propensity to act in a particular way. If, for example, the evidence in a shopping centre misrepresentation case shows that the lessor's agent gave instructions that particular representations should be communicated to prospective tenants, that evidence would be admissible independently of s 97(1) of the Evidence Act. The evidence, if accepted, would go beyond proving that the agent had a propensity to make representations of the kind alleged. Rather, it would establish that the agent had set in place a system which, if implemented in the particular case, would have resulted in the representation being made to the applicant. The existence of the system, in the absence of evidence to the contrary, readily supports an inference that it was implemented in the particular case. The evidence of the system makes it more likely that the fact in issue (the making of the representation to the applicant) occurred, independently of the agent's propensity to act in a particular way. 6 As can be seen, one of the conditions for the admission of tendency evidence is notice, and counsel for the respondents accepted that no notice had been given, as required, if s 97 of the Evidence Act was engaged. 7 Counsel for the respondents responded by submitting that the evidence was not adduced to prove that Mr Roach had a tendency to act in a particular way and was relevant to an independent fact in issue, namely that Mr Roach had a system or practice, which had he followed it on 20 April 2020, had the consequence that particular events that are alleged to have occurred are unlikely to have occurred. Counsel relied for this submission on [67] of Sackville J's reasons in Jacara set out above to submit that the evidence sought to be adduced would go beyond proving that Mr Roach had a propensity to act in a certain way, but would establish a system that would support an inference that the system was followed on the day in question in these proceedings. 8 Counsel for the respondents also relied upon a ruling of Campbell J in R v Gordon (No 4) [2016] NSWSC 312, and referred the court to [2] and [11] to [18]. However, that ruling concerns the question of relevance of evidence of a practice, and was not concerned with whether s 97 of the Evidence Act was engaged. 9 The submissions of counsel for the respondents indicate that the purpose of the admission of the evidence is to show that Mr Roach was likely to have acted in a particular way on the day in question. At the present point in time, it was not put that the evidence was relevant for another purpose. In my judgment, evidence of Mr Roach's normal practice is evidence about the conduct or tendency of Mr Roach that engages s 97 of the Evidence Act. This directs attention to the conditions for admissibility. As I have said, no notice has been given. This appears to be so not only as a matter of form (see Evidence Regulations 2018 (Cth), s 7), but also as a matter of substance. 10 Counsel for the respondents made an application that the notice requirement be dispensed with pursuant to s 100(1) of the Evidence Act - 100 Court may dispense with notice requirements (1) The court may, on the application of a party, direct that the tendency rule is not to apply to particular tendency evidence despite the party's failure to give notice under section 97. 11 Counsel for the applicant opposed a direction under s 100 on the ground that one of the principal objects of s 97 was the giving of notice, and that the applicant had been deprived of the opportunity of investigating the subject matter of the proposed evidence, including, for instance, by taking instructions from Lendlease. 12 A further condition of admissibility is that under s 97(1)(b) the evidence must have significant probative value. The term "probative value" is defined in the dictionary of the Evidence Act - probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. 13 What is "significant" probative value is not defined, but it is accepted that what is required is more than mere relevance but something less than a substantial degree of relevance; it must be significant or important: see R v Lockyer (1996) 89 A Crim R 457 at 459 (Hunt CJ at CL). 14 It is clear, therefore, that more is required than mere relevance so as to be admissible under s 55 of the Evidence Act. What is also required is that the court thinks that the evidence will have significant probative value: cf s 55 of the Evidence Act which, in the context of relevance, refers to evidence that could rationally affect the probability of the existence of a fact in issue. The open-textured provision of s 97(1)(b) requires an estimation to be made by the trial judge: Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [42] (Kiefel CJ, Bell, Keane and Edelman JJ). The matters relevant to that estimation will obviously vary from case to case. 15 As I have mentioned, an outline of evidence of Mr Roach has been filed. That outline gives notice of the evidence that will be adduced from Mr Roach and goes into some detail. However, all that is said about the practices of Mr Roach is that: Roach and Jones, in accordance with their ordinary practice following the inductions, addressed the group about a number of safety matters of the project, including - … 16 The outline then foreshadows evidence of what Mr Roach actually did on 20 April 2020. The outline is at the very least ambiguous, but the main point is that it does not give notice of what the practice was, but of what was actually said and done on the day in question. 17 I am not persuaded that the evidence sought to be adduced will have significant probative value. In coming to this view, I consider that in circumstances where Mr Roach proposes to give evidence of what actually occurred at the relevant time on 20 April 2020, evidence about his usual practice on other occasions taken at its highest is not likely to be significant or important. 18 I have considered s 97(1)(b) of the Evidence Act before considering whether to exercise my discretion under s 100 to permit the evidence to be adduced, notwithstanding no notice has been given. I have done so because it is conceivable that the probative value of the evidence might be relevant to the exercise of the discretion under s 100 if the evidence was at least of significant probative value. However, I have come to the view that even if I were satisfied that the evidence was of significant probative value, I would refuse to exercise my discretion under s 100 of the ground that the applicant has not been given adequate notice of the evidence sought to be adduced. I accept that the applicant is likely to suffer prejudice as a result of the absence of notice, and I consider that the prejudice is likely to bear a relationship to the extent to which the evidence might have probative value, such that the more probative the evidence, the greater the possible prejudice. 19 Accordingly, I uphold the objection. Ruling accordingly. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.