Did the primary judge deal with the appellants' submission concerning their intentions?
41 I now turn to the question raised by the appeal.
42 In substance, as the Ombudsman recognised, the appeal is concerned with the adequacy of the primary judge's reasons, although, as the appellants submitted, it may also raise a question as to whether the reasoning exposes error. A convenient summary of the relevant principles appears in the judgment of the Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR (2019) 54 WAR 222 at [112]:
(1) Reasons for decision need not be lengthy or elaborate.
(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3) It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.
(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.
(Footnotes omitted.)
43 I apprehend that the principle invoked by the appellants is the fourth one listed above. The same point was made by Nettle JA in Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130 at [21] (Batt and Vincent JJA agreeing). His Honour said in the course of a lengthier discussion of the principles that:
[W]hile it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.
(Footnotes omitted.)
44 The submission the appellants made about their intentions concerned a central element of their case. But I am not persuaded that the primary judge did not deal with it or explain why it failed.
45 It was common ground that the primary judge was alive to the submission. He expressly referred to it at [140] of his reasons and to the passage in the Kiama Aged Care Centre Case upon which the appellants had relied. While he did not repeat the submission verbatim, his Honour summarised its central point:
On behalf of the respondents it was submitted that all they intended to do was ensure that the workplace was safe. It was submitted that they did not intend to obstruct or hinder. They only sought that Seymour White perform its ordinary duties to ensure the safety of the site: (see; ABCC v CFMMEU (Kiama Aged Care Centre Case) [2021] FCA 920 at [168]).
46 The appellants did not contend that his Honour's summary was inaccurate or misleading.
47 It is true that his Honour did not explicitly reject the submission. But it was also common ground that no appealable error arises if the submission was dealt with in substance, if not in terms. His Honour's finding at [148] cannot be considered in isolation. Reading the reasons fairly and as a whole, in the context of the evidence his Honour accepted and that which he rejected or did not accept, there is little room for doubt that his Honour did deal with the substance of the submission.
48 First, immediately after his reference to the submission the subject of the appeal, his Honour proceeded to consider the evidence "with [the appellants' submissions] in mind" (at [141]).
49 Second, his Honour noted (at [144]) that the union officials admitted that they had positioned themselves behind the concrete agitator and acknowledged their claim that they did so in an attempt to force the site managers to address their concern that a spotter was not in place to guide the concrete truck as it was reversing but found that the spotter could not signal to the truck driver to reverse into the pour because the union officials and the Seymour Whyte managers were in the way. Later, at [156] his Honour found, in effect, that the only reason the spotter was not in place, was that the union officials were impeding him.
50 Third, his Honour rejected the foundation for the appellants' submission about their intentions, and, consequently, the proposition that the appellants were actuated by their concerns about non-compliance with the safety policies on the site (at [149]-[156]). The foundation for the submission was a claim made by Mr Rielly that the truck had reversed on several occasions without a spotter in place, putting him and the workers in imminent danger. His Honour observed that Mr Rielly was the only witness to give this evidence and emphatically rejected it.
51 His Honour found that the truck had remained stationary at all relevant times, including when the union officials first stood behind the agitator to impede the concrete pour (at [149]). In doing so, he accepted "without reservation" the evidence of Paul Jordan that "the usual work practice for the pour that day" was that "the tester came to the truck and the truck did not reverse into the pour without a [s]potter" (at [150], [155]). He noted (at [149]) that Mr Rielly's claim was not supported by any other witness including Mr Fitzpatrick. He also relied on contemporaneous photographic evidence which he concluded clearly indicated that the truck had not moved at any relevant time (at [152]); the denial by Seymour Whyte's project engineer, James Fleetwood, that the truck had reversed (at [153]); and the absence in the s 117 notice signed by the union officials and served on Seymour Whyte of any mention of the spotter requirement or the truck reversing and endangering Mr Rielly (at [154]), having earlier referred to the right conferred on permit holders by s 118 of the WHS Act to warn any person whom the permit holder "reasonably believes to be exposed to a serious risk to his … safety emanating from an immediate or imminent exposure to a hazard, of that risk" (at [136]-[137]). With respect to the last matter, his Honour said at [154]:
The Court draws further comfort in this conclusion in that the s 117 WHS Act Notice served on Seymour White, makes no mention of a truck reversing without Spotter or that it nearly ran Mr Rielly over. This would have been such a significant matter that it would reasonably have warranted specific attention in the Notice. Instead, the best that can be said is a box relating to "traffic management" is ticked. The Court does accept however, that there was reference to the reversing in the subsequent meeting notes at the Tyndale compound.
52 In any case, on the facts as found by the primary judge, the only thing hindering or obstructing the concrete pour from being performed safely was the presence of the union officials behind the concrete agitator. His Honour concluded (at [156]) that the agitator was ready to reverse if called upon to do so but could not reverse because of the union officials' decision to position themselves in its path and to refuse to move when asked.
53 The appellants had claimed that the agitator had reversed a number of times while the spotter, Padraig Smith, was in the pour area, in a position where he could not signal to the agitator driver. They maintained this claim on the appeal. But on the evidence his Honour accepted, the spotter was not Padraig Smith but Paul Jordan. Mr Jordan deposed in his first affidavit that at about 12.30 pm Mr Smith was acting as the spotter for the concrete agitator and was wearing the pink vest the spotter is required to wear (at para 9). The primary judge found (at [155]) that Mr Jordan's times were out by about an hour and it was common ground on the appeal that I should read the 12.30 pm time as 11.30 am. Mr Jordan went on to depose (at para 21) that at some point during the discussions with the union officials Mr Smith left to obtain supplies and he (Mr Jordan) took over the spotter's role, putting on the pink vest so that he would be ready to act as the spotter "if and when the pour began". When the concrete agitator arrived, he said (at para 23):
I acted as a spotter for the agitator. However, I could not signal the agitator to reverse into position at the pour as the group of union officials and SWC managers were in the way. The agitator remained stationary during this time.
54 Mr Jordan identified himself (at para 26) in a photograph annexed to his affidavit as PJ-02, taken at 12.12 pm, in which the two union officials can be seen standing behind the agitator with Gareth Morison, a leading hand employed by Seymour Whyte. He also said that he heard Mr Lawson ask the union officials to move out of the way so that the agitator could reverse into the pour and one of the union officials (Mr Rielly) continually refusing to move over a 20 to 30 minute period (at para 24-9).
55 Mr Jordan's account was supported by Mr Morison. His evidence, as summarised by the primary judge at [26] of his reasons was that at the time the agitator was ready to be moved into position to commence the pour but before it moved, the union officials positioned themselves directly behind the agitator, between the agitator and the pour site. In a supplementary affidavit Mr Morison deposed:
17. I recall all spotters at my working area that day, wearing a pink vest. It is common for spotters to change throughout the day but there will only ever be one spotter at a time who is wearing the pink vest.
18. I recall Paul Jordan being the spotter and wearing the vest at the time of the incident.
19. In preparing this affidavit I have been shown a photo. In looking at the photo I can see that it was the site of the pour on 22 August 2019. The photo shows another spotter (not Paul Jordan) who is wearing the pink vest. Because of the stage of the concrete in the photo, and the fact that a 'stop end' has been inserted to preserve the concrete already poured - I know that this photo was taken after the incident with the union representatives. Putting in a stop end is rare as you would not normally stop a concrete pour half way. I do not recognise the person in the photo well enough to know their name. Attached and marked Annexure GJM-04 is a copy of the photo.
I take the reference to "time of the incident" to mean the time the union officials were considered (and found) to be interfering with the concrete pour.
56 Another photo, upon which the appellants relied and which was annexed to Mr Jordan's affidavit as PJ04, appears to have been taken at a similar point in time. Mr Jordan identified the man in the pink vest in that photograph as Padraig Smith at para 40 of his affidavit.
57 Mr Latham submitted that the primary judge did not identify Mr Jordan as the spotter who was in place to guide the agitator through the pour. I cannot accept that submission. It is contrary to his Honour's findings at [144], [150] and [159] and to the evidence his Honour accepted.
58 At [144] of his reasons his Honour said:
The Union Officials admitted that they positioned themselves behind the concrete agitator. They claimed that this was in an attempt to force the safety concerns regarding a Spotter being addressed. Mr Jordan stated that he could not signal the agitator to reverse into the pour position as a group of Union Officials and SWC managers were in the way. Further, Mr Jordan stated that he heard the Union Official in the orange shirt state "I do not have to go anywhere". The Court accepts this evidence.
59 It is evident that his Honour found that Mr Jordan was the spotter at the time the agitator arrived and the pour was due to begin. That is because Mr Jordan deposed that the spotter's role was to signal to the agitator driver when to move and stop (at para 9) and explained that he took over the spotter's role from Mr Smith before the agitator arrived, donned the pink vest so that he would be ready to be the spotter if and when the pour began, and his Honour accepted "without reservation" Mr Jordan's account of the work practice (at [155]). His Honour considered that Mr Jordan's error with respect to times did not affect the reliability of his other evidence (at [155]). The obvious inference to be drawn from the evidence the primary judge accepted is that Mr Smith was not the spotter at any relevant time and that Mr Jordan was the spotter in place at that time.
60 The appellants conceded that, if the primary judge found that there was a spotter in place at the relevant time, their submissions (and, inferentially, the appeal) cannot succeed.
61 In the Kiama Aged Care Centre Case at [168], upon which the appellants relied below, I said:
It is correct, as the union officials submitted, that Crookes had a duty to ensure, as far as reasonably practicable, the health and safety of its workers: WHS Act, s 19. It is also true that the union officials had a right to enter the site for the purpose of inquiring into suspected contraventions of the WHS Act that affected relevant workers: WHS Act, s 17. But the rights the union officials could exercise while at the site were relevantly limited to inspecting the site, consulting with relevant workers and the person conducting the business, and giving warnings to any persons reasonably believed to be exposed to serious safety risks: WHS Act, s 18. Danalis's conduct went beyond the scope of his authority. He was not just inspecting the site and consulting with the workers or warning those he reasonably believed to be exposed to serious risks to their safety. He attempted to interfere with the work that was being undertaken and the conduct of the business. He tried to switch off the agitator and he instructed the driver not to continue with the pour. To paraphrase a concession from his counsel, things got out of hand. As a direct result of Danalis's intervention, against his own will and the instructions given by Rees, the driver eventually did as he was told. The concrete pour was stopped and the concrete spoiled. That meant that not only was the driver of the First Truck obstructed from completing his delivery but the project workers on level 1 were prevented from continuing with the concrete pour and completing it on schedule. Danalis's actions also hindered Thomas and Rees from discharging their duties on the project. Unlike the actions of the union officials in John Holland, Danalis's actions went beyond requiring Crookes to perform its ordinary duties to ensure the safety of the site.
62 I fail to see how this passage supported the appellants' argument in the present case. On the facts as found by the primary judge, which are not challenged on the appeal, it was the actions of the union officials in deliberately placing themselves behind the agitator that hindered the continuation of the concrete pour. There could be no doubt that was their intention, having regard to their persistent refusal to move when asked. The appellants' submission, the subject of the appeal, was concerned with the motives of the union officials, not their intentions, and the Commissioner was not obliged to prove their motives. Although the extent of their intervention was not as extreme as the intervention in the Kiama Aged Care Centre Case, it, too, exceeded the scope of their authority under the WHS Act. Furthermore, on the facts as found by the primary judge, the occasion to warn of a serious safety risk did not arise.
63 It follows that, even if I am wrong in concluding that the primary judge dealt with the substance of the appellants' submission about their intentions, there would be no point in a remittal. On the facts as found and having regard to the way in which the case was argued, the appellants were bound to lose: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 (Meagher JA).