The evidence
12 In support of its application for interlocutory injunctions, CPB relied upon affidavits of Malcolm Davis (a solicitor) and Jessica Allam and Alicia Wood (employees of a company associated with CPB). The Union Parties objected to certain passages in and annexures to those affidavits. I upheld the objections and ruled that those passages and annexures were inadmissible. These are my reasons for so ruling.
13 In respect of Mr Davis' affidavit, the Union Parties objected to paras [43] and [44] and annexures "MD-5" and "MD-6". Mr Davis deposed that two of CPB's employees who are members of the Union had provided statements concerning the conduct of Union delegates and organisers but had asked that their identities not be revealed. At paras [43] and [44], Mr Davis summarised the contents of the employees' statements and, at annexures "MD-5" and "MD-6", annexed the statements. The names of the employees and any other identifying information were redacted from the statements. The statement at annexure "MD-5" asserted that two Union delegates had engaged in conduct which the employee found intimidating and made them uncomfortable, including attempting to look over the employee's shoulder to see which way they were voting and asking if they were going to be smart about their choices. The statement at annexure "MD-6" asserted that Union organisers and delegates told the employees to get their phones out and tick all the boxes together (to vote yes), and intimidated and coerced employees and tried to influence how they voted.
14 In respect of Ms Allam's affidavit, the Union Parties objected to paras [5] and [11] and annexures "JA1" and "JA2". At para [5], Ms Allam deposed that a site superintendent told her he had been approached by two employees who said they had been subjected to harassment in relation to casting their votes. At para [11], Ms Allam annexed the employees' statements, which she said had been, "redacted to protect their identity at this time". The statement at annexure "JA1" indicated that during a meeting, a Union organiser had asked the employees to get their phones out and vote "yes", and that the maker of the statement felt pressured into voting "yes". The statement at annexure "JA2" also asserted that a Union organiser or delegate asked the employees to pull their phones out so they could vote "yes".
15 Ms Wood provided two affidavits. The Union Parties objected to paras 8, [9], [16], and annexures "AW1", "AW2" and "AW3" of Ms Wood's first affidavit. At para 8, Ms Wood deposed that a site manager told her he understood that the reason for the Union delegates arranging a meeting was to ensure that all the voters voted together. Ms Wood deposed at para [9] that the site manager later said that some of the voters had told him they felt bullied about the conduct of the vote and wanted to make a statement. Three employees subsequently provided statements. At para [16], Ms Wood deposed that she had typed up the statements because the employees did not, "wish their statement to be provided in evidence in its original form for fear that their handwriting may be recognised".
16 In the statement at annexure "AW1", an employee asserted that they were instructed by Union delegates to "do the ballot together" (as the delegates stood around watching) and the employee felt under pressure to do so and was made to feel uncomfortable by the delegates' conduct. The employee also asserted that the Union delegates said that the ballots would mean nothing and that they would be doing a "hands up vote" at the Union office. In the statement at annexure "AW2", an employee said that they were "coerced into another room" and instructed that they should all vote "yes", and that the employee felt uncomfortable about being coerced to vote in that way. In the statement at annexure "AW3", an employee asserted they felt pressured into voting "yes", and was told that they should have voted with the Union and was questioned about their vote.
17 The Union objected to paras [3], [8], [9] and [10] and annexure "AW4" of the second affidavit of Ms Wood. Ms Wood deposed at para [3] that the third of the employees referred to in her previous affidavit said they were only happy for their statement to be used if their name and personal details were redacted; and she understood that the employee was afraid that their name and personal details would be disclosed to the Union. At para [4], she said that the employee was willing to provide the statement based on her assurance that the details would be kept confidential. Ms Wood deposed at para [8] that the second and third employees told her that they were afraid that Union delegates would be able to find out which employees had provided the statements. She said at para [9] that the third employee said that the Union delegates had told a number of employees that they would find out who submitted the redacted statements that had been filed in the Federal Court. Ms Wood deposed at [10], that the third employee said he was afraid that the Union would get a copy of the handwritten statements and post them on their Facebook page and was concerned that they would be harassed and intimidated if they were identified.
18 Ms Wood also annexed at "AW4" a, "work health and safety Psychosocial Hazard Risk Assessment", prepared by a CPB employee. That document was based upon the statements of the unnamed employees of being intimidated and threatened and made to feel uncomfortable.
19 Section 59(1) of the Evidence Act 1995 (Cth) (the Evidence Act) provides:
59 The hearsay rule - exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
20 CPB accepted that the evidence of Mr Davis, Ms Allam and Ms Wood objected to by the Union Parties was hearsay and inadmissible under s 59(1) of the Evidence Act. However, it sought to rely on s 75 of the Evidence Act, which provides:
In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.
21 CPB argued that it was apparent from the affidavits that the sources of the information were persons who were employees of CPB and members of the Union who worked on the Cross River Rail Project, and that this was adequate to satisfy the requirement of s 75 of the Evidence Act to adduce evidence of the sources.
22 CPB relied upon the judgment of McCallum J (as her Honour was then) in Liu v Age Co Ltd [2010] NSWSC 1176 (Liu) at [45]. It is convenient to also set out the passages at [44] and [46], as they give context to [45]:
44 The failure to adduce evidence of the source of the hearsay evidence was not due to any exigencies of time in the present case. It was deliberate, for the perfectly acceptable reason that to identify the source would defeat any resistance to Ms Liu's application. Nonetheless, I think the simple result is that the evidence is inadmissible.
45 I note that it would have been open to the defendants to seek to adduce the evidence in admissible form by tendering the relevant correspondence with the sources, masking the names of the sources and any other identifying information. I do not mean to rule pre-emptively that the evidence would be admissible in that form, but it is a course that could have been pursued.
46 In any event, I am satisfied that the evidence of Mr Bartlett objected to by Mr McClintock does not fall within the exception under s 75 and, accordingly, that the evidence must be rejected.
23 CPB submitted that McCallum J at [45] contemplated that a source might be identified for the purpose of s 75 without their name being given, and that such redaction is apt in this case in circumstances where the employees fear repercussions from the Union.
24 CPB argued that the evidence of Mr Davis, Ms Allam and Ms Wood is specific about dates, the Union delegates involved and what conduct occurred. It submitted that since the Court would not be asked to make findings on contested evidence, but only that a prima facie case existed, the Union ought to be able to respond satisfactorily to that evidence. It submitted that no prejudice is likely to result from redaction of the employees' names.
25 The Union Parties submitted that second-hand accounts from anonymous sources do not satisfy the requirements of s 75 of the Evidence Act. They submitted that Liu is not authority for the proposition that attaching correspondence with the names of the relevant persons redacted would have been sufficient. They also observed that her Honour indicated that at [47] that even if the evidence were admissible, it would have been excluded pursuant to the discretion under s 135 on the basis that its probative value was extremely low and outweighed by the danger that it might be unfairly prejudicial.
26 The Union Parties pointed to a number of cases in support of the proposition that the source of the information must be identified, or be identifiable, for the operation of s 75 of the Evidence Act.
27 The Union Parties submitted that even if the evidence they objected to were ruled to be admissible under s 75 of the Evidence Act, such evidence should be excluded under s 135 of that Act.
28 The purpose of s 75 of the Evidence Act was explained by Palmer J in Wily v Terra Cresta Business Solutions Pty Ltd [2006] NSWSC 949 (Wily v Terra), as follows at [11]:
The purpose of s 75 of the Evidence Act is to facilitate the conduct of interlocutory proceedings in circumstances where it is often difficult, at short notice, to adduce evidence in direct and admissible form. For that reason, evidence on information and belief is accepted. However, the requirement of the section that the source of the information be revealed goes some way to assisting the Court in assessing the reliability of that evidence. Without any indication of the source of the evidence proffered on information and belief, the Court is unable to assess its weight nor can the opponent test the evidence or make any sensible submissions as to its weight.
(Cited with approval in New South Wales Crime Commission v Vu [2009] NSWCA 349 at [45].)
29 In Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158 (Ahern), the Full Court of the Queensland Supreme Court was concerned with O 41 r 3 of the Rules of the Supreme Court, which provided that in an interlocutory application, "statements as to the belief of the deponent, giving the sources of his information and the grounds of his belief, may be admitted". In that case, Thomas J (Ryan and de Jersey JJ agreeing) explained at 163:
The object of the disclosure is to provide some specified source which can, if necessary, be followed up by the adversary or the court.
30 Section 75 of the Evidence Act requires that the party adducing the evidence also adduce, "evidence of its source". While CPB submits it is sufficient to describe the sources as persons who are employees of CPB and Union members who are eligible to vote in respect of the protected action ballot orders, the Union Parties submit that there is a strong line of authority in this Court that what is required is identification, ordinarily by naming, of the source.
31 In Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404, R D Nicholson J held at 414:
The absence of a particular identification of a person acting on behalf of the Australian Federal Police and giving the knowledge means the source of the knowledge has not been identified: the source has only been identified institutionally and that is an inadequate identification of source.
(The report of this case at (1995) 58 FCR 125 omits this passage.)
32 In Levis v McDonald (1997) 75 FCR 36 (Levis), Lindgren J held at 44 that in the absence of identification of the informant, there was no evidence of the source of the representation, and the terms of s 75 were not satisfied. In that case, it was conceded that one paragraph of an affidavit was not admissible because there was no evidence as to the identity of the maker of the statement, but his Honour also ruled that paragraphs where the deponent had merely described the sources as his "customers" without naming the customers were inadmissible.
33 In Di Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) (2011) 200 FCR 253, certain statements contained in a transcript of an examination before a court were objected to as inadmissible hearsay, such as a statement by an unidentified person from the Shareholders' Association. Justice Stone held that such evidence was inadmissible, holding at [40]:
Section 75 provides that there be evidence of the source of the otherwise hearsay evidence. This requires that the person who made the representation be identified.
34 In Prior v Wood [2017] FCA 193, Dowsett J also held at [77] that s 75 was not engaged where the source had not been identified.
35 In other jurisdictions, rules allowing the admission of hearsay statements in interlocutory applications where the deponent discloses their sources of their information and their grounds of belief have been considered in a number of cases.
36 In Proctor Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183, a lawyer's affidavit made a number of assertions (such as, that no relevant documents in certain categories had been located despite extensive searches having been conducted), based on information provided by seven named employees. The lawyer did not distinguish between what information had been obtained from which employee. Justice Hunter held at [55]:
I think the requirements of s 75 have been satisfied, notwithstanding the failure of [the lawyer], in respect of each of the hearsay statements in paragraph 4 of his January affidavit, to particularise who, among the persons referred in paragraph 3 of that affidavit, was the source of his instructions. I think it is sufficient compliance with the section to identify the source of the hearsay statements in the compendious way [the lawyer] has expressed himself in paragraph 3 and paragraph 4 of his affidavit.
37 In Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521, Walsh J stated at 558-559:
I am of opinion that a further submission that a great deal of the hearsay evidence upon which the respondent relied was not admissible in accordance with O.39, r.3, of the Rules of this Court or at all should not be accepted. Some of this evidence would have had greater weight if the "sources and grounds" of the deponent's information and belief had been stated more specifically but, in my opinion, the defects in the form of the evidence did not render it inadmissible.
38 In Ahern, Thomas J observed at 162 that Walsh J's expression, "more specifically", suggested that some degree of disclosure of the source existed, but that greater specificity would have been desirable. His Honour continued:
This introduces a question of degree, and it is impossible to lay down any rule which will determine what is a sufficient disclosure of sources and grounds to overcome the hurdle of admissibility and enter the area where weight is assessed. However, I find nothing in Walsh J.'s remarks which gives a general discretion to a court to admit evidence which would be otherwise inadmissible.
39 His Honour continued at 164:
If an affidavit does not comply with the rule, it is not right to say that a further power exists in the court to excuse the non-compliance and to admit evidence which it would not on any direct application of the law be permitted to receive. I do not think that non-compliance with the enabling rule (O.41 r.3) creates a power to widen the ambit of the exception.
40 Justice Thomas observed at 163 that there were two requirements of O 41 r 3: first, that the source material itself must be admissible; and, second, that the source be identified.
41 Justice Thomas concluded at 167:
In circumstances of great urgency a court may accept a general statement of sources as sufficient compliance with the rule, although this will more readily happen in the case of an interim rather than an interlocutory injunction. The question as to what is a sufficient disclosure of sources must be decided according to the exigencies of each particular case, and the court's discretion is not to be fettered. In the present case there were no apparent circumstances of urgency justifying the absence of disclosure of sources, and the bulk of the material may fairly be described as oppressive and embarrassing.
42 In this passage, Thomas J's reference to, "the court's discretion", was to evaluation of whether the disclosure of the source is sufficient to make the evidence admissible. The passage does not suggest there is any general discretion to admit evidence where there is no disclosure or insufficient disclosure of the source, his Honour having specifically ruled at 164 against such a proposition.
43 In New South Wales Crime Commission v Vu [2009] NSWCA 349 (Vu), Spiegelman CJ (Allsop P and Hodgson JA agreeing) observed at [47]:
There is authority for the proposition that, where hearsay evidence is admissible, it is not necessary to name an informant with respect to every source of information. (See Hardie Rubber Co Pty Ltd v General Tyre & Rubber Co (1971) 129 CLR 521 at 536; Proctor Gamble Australia Pty Ltd v Medical Research Pty Ltd [2001] NSWSC 183 at [54]-[56].)
44 The Chief Justice at [48] then quoted the passage set out above from the judgment of Thomas J in Ahern at 167 with approval.
45 In DP World Melbourne Ltd v Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) [2019] FCA 1209, in a case involving an application for interim relief, Snaden J held at [27], that the description of the source as being an employee of the applicant was sufficient for the purposes of s 75 of the Evidence Act in the circumstances of urgency involved in that case. In the present case, the Union Parties submitted that his Honour's view was erroneous. However, Snaden J's approach was consistent the view expressed by Thomas J in Ahern at 167 that in circumstances of urgency, a court may accept a general statement of the source of information as sufficient compliance. His Honour granted interim orders restraining the respondent from organising industrial action.
46 In DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331, when the matter returned for consideration of whether the interim injunction should be discharged, Snaden J again ruled that the evidence was admissible under s 75 of the Evidence Act. His Honour held at [25]:
Evidence that attributes a prior representation to an unnamed member of an identified group is, in my view, sufficient to qualify as evidence of the source of that representation.
47 CPB relied upon this passage to submit that it was sufficient that the affidavits revealed the unnamed employees to be members of an identified group. However, the opinion expressed in such absolute terms by Snaden J as to what amounts to sufficient evidence of the source for s 75 of the Evidence Act does not, with respect, seem to be supported by earlier decisions of intermediate appellate courts. As was held in Ahern (approved in Vu), the sufficiency of the disclosure depends on the exigencies of each particular case and is a matter for a court's discretion. Where the source of the information is attributed to an unnamed member of an identified group, a relevant factor must be the breadth of the identified group, bearing in mind that an object of disclosure is to allow the opposing party to test the evidence and make sensible submissions as to its weight. It could not be thought, for example, that it would be sufficient to describe an unnamed source as a member of a group identified as consisting of residents of Queensland. However, it can be accepted that s 75 does not require that the person who is the source of the information be named in every case, and that a description of an unnamed person as a member of an identified group may suffice depending on the exigencies of the case.
48 CPB contended that it had sufficiently identified the sources as its employees who were also members of the Union and eligible to vote in respect of the protected action ballot orders. CPB also argued that it had provided further information by naming the Union delegates and organisers who allegedly engaged in the relevant conduct and identifying the meetings at which the conduct occurred.
49 There were 212 CPB employees who were eligible to vote in respect of the protected action ballot orders. Accordingly, the unnamed employees who are said to have given statements were seven from a group of up to 212. Plainly, CPB's refusal to name the persons who provided the statements limits the Union Parties' ability to investigate the allegations made against them and respond to those allegations. A matter that underlies the requirement for the party relying on evidence that would otherwise be inadmissible hearsay to adduce evidence of its source is the need for the opposing party to be provided with procedural fairness. CPB's refusal to name the employees who provided statements would mean that the Union Parties would have to address a case that a prima facie case of contravention of s 462 of the FWA had been demonstrated without knowing who was making the allegations against them. While it is true that the organisers and delegates denied the conduct alleged against them, the Union Parties were unable to investigate whether, for example, the makers of the statements were in fact in attendance at the meetings, or whether they might have some motivation to make up the allegations. That created prejudice to the Union Parties in defending the application for interlocutory injunctions.
50 I did not regard the asserted fears expressed by the sources as providing a basis for concluding that CPB has adduced sufficient evidence of the sources of the hearsay statements it sought to rely upon. CPB's argument first involved accepting the truth of the assertions by the unnamed persons that they did not want their identities disclosed because of their fears, and then using that asserted fear of disclosure as a basis for accepting the statements of the unnamed persons as evidence of the truth of what they asserted. That seemed to be a "bootstraps" argument which would prevent the Union Parties from fully investigating and addressing not only the substantive allegations, but the assertions that the unnamed persons feared revelation of their identities.
51 While it is well documented in cases in this Court that officials of the Union have engaged in thuggish behaviour on occasions, CPB made no suggestion that it was notorious that workers who give evidence against the Union's interests would be targeted or fear being targeted. If it is assumed that the employees in fact held the fears claimed, there appeared to be no realistic prospect that they would change their minds about disclosure of their identities at trial. It would be incongruous and unfair to admit evidence of unnamed persons in support of the application for interlocutory injunctions, and potentially grant the interlocutory injunctions, based on that evidence, when there is no realistic prospect of that evidence being converted into admissible form at trial. Allowing the use of evidence of unnamed sources whose identities are known but deliberately withheld in such circumstances would be inconsistent with the purpose of s 75 of the Evidence Act explained in Wily v Terra as being to facilitate the conduct of interlocutory proceedings in circumstances where it is often difficult "at short notice" to adduce evidence in direct and admissible form.
52 It may be noted that CPB did not contend that it was unable to produce evidence of the sources of the statements. Rather, it declined to do so on the basis of the sources' asserted fears of repercussions if their identities were revealed to the Union. CPB has not pointed to any case where evidence has been admitted under s 75 or an equivalent provision in circumstances where the identity of the source has been deliberately withheld. In Levis, it was conceded that hearsay evidence was inadmissible in circumstances where the deponent had agreed to keep the source's identity confidential, and Lindgren J seemed to have regarded the concession as properly made. In Liu, where failure to adduce evidence of the source of the hearsay evidence was deliberate, McCallum J held that "the simple result" was that the evidence was inadmissible.
53 It must be acknowledged that CPB was in a difficult position, but one that might not necessarily have been incapable of being overcome. In support of the proposition that the evidence of the presently unnamed employees who provided statements might be willing to have their identities disclosed at trial, CPB submitted that an application could be made for an order that their identities be made known to the Union Parties' legal representatives and a further order that the legal representatives not disclose such identities to their clients, which might then induce the employees to give direct evidence. If it is assumed that such an application might feasibly be made in respect of the final hearing, there seems to be no reason why such an application could not have been made when seeking interlocutory relief.
54 I considered that the exigencies of the case did not support a conclusion that CPB had adduced sufficient evidence of the relevant sources. I ruled that the parts of the affidavits objected to by the Union Parties were not admissible under s 75 of the Evidence Act.
55 In any event, I would have accepted the Union Parties' alternative submission that the evidence of statements attributed to the seven employees of CPB should be excluded under s 135 of the Evidence Act. That section provides:
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
56 The hearsay statements were unfairly prejudicial to the Union Parties, and their probative value was also diminished, in the absence of the employees being named. I would have been satisfied that the probative value of that evidence was so substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Union Parties that it ought to be excluded.