CPSU, The Community and Public Sector Union v State of Victoria

(i) informed the Second Applicant that "some of the casuals" were suing SESG in relation to matter arising out of their alleged "casual" status; and

(ii) instructed the Second Applicant to ascertain who were the staff suing SESG; and

(iii) informed the Second Applicant that Daley had instructed Maloney to "find out who [the staff] are and we'll just f***ing sack them."" 5 Each and every allegation in par 42 of the amended statement of claim was denied by the respondent in its defence. 6 In an interlocutory judgment given on 23 June 1999 (see CPSU, The Community & Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 948), I dealt with a notice of motion in which the applicants sought, inter alia, to restrain the respondent from threatening to terminate the employment of Mr Murrell and Mr Hutchins. 7 At pars 6 and 7 of those reasons the following was said: "6. In an affidavit in support of the notice of motion the second applicant (Mr Murrell) alleged that Mr Maloney, the operations manager at Barwon Prison, approached him and informed him that Mr Maloney's superior, Mr Daley, had said the following to Mr Maloney: "find out who the staff are and just fucking well sack them". That statement was allegedly said in reference to the staff involved in this proceeding. 7. Mr Maloney, in his answering affidavit, denied that he said the words the second applicant (Mr Murrell) attributed to him. Mr Maloney was called for cross-examination on his affidavit but was not cross-examined on that denial. Equally the second applicant (Mr Murrell) was not challenged on his account of the conversation." 8 The dates of the hearing of the interlocutory application were 15 and 18 June 1999. Mr Murrell's affidavit raising the issue of the alleged threat was sworn and filed on 9 June 1999. 9 Although par 42 of the amended statement of claim refers to the alleged conversation as having occurred on 8 March 1999, par 44 of Mr Murrell's affidavit of 9 June 1999 has the conversation occurring on 11 March 1999. Paragraph 44 of that affidavit was in the following terms: "On Thursday, 11 March 1999 Maloney approached me and said there was an article in the newspaper that day stating that CPSU … was planning legal action regarding the use of casual labour at Barwon Prison. Maloney said that Tim Daley, the Assistant Secretary of CORE, had told him in relation to the article that if the use of casuals was challenged then CORE would sack the SESG Perimeter staff and privatise the Barwon gatehouse. Maloney said that Daley had told him to "find out who the staff are and we'll just fucking sack them."" 10 Mr Murrell swore three further affidavits in the proceeding, none of which addressed this issue. 11 Mr Maloney's affidavit in reply to Mr Murrell's first affidavit replied to par 44 of Mr Murrell's affidavit in par 14 thereof in the following way: "I refer to paragraph 44 of Murrell's Affidavit. I deny that such a conversation took place. I have never seen any article in the newspaper concerning legal action over the use of casual labour at Barwon Prison. Further I have met Tim Daley once for 20 minutes in 1998. I have had no discussion with him about the sacking of perimeter staff because of the challenge by the union. Insofar as Murrell says I said this was the case in paragraph 44 it is simply not true." 12 The trial of the proceeding commenced on 4 August 1999. Mr Murrell was the first witness called. He reaffirmed his reliance upon his affidavit of 9 June 1999 which accordingly was adopted as part of his evidence in chief at the trial. Counsel for the applicants, Ms Doyle, sought permission to ask Mr Murrell additional questions in chief. Her request was granted. 13 The only reference to the matters the subject of these reasons for judgment in that examination in chief was made in the following manner (at t/s p64): "Sorry, Mr Murrell, can you go back to the first affidavit. Firstly, if you just look at paragraph 44 for a moment. In 44 and 45 you set out conversations occurring on 11 March and 12 March, discussions with Mr Maloney. Since those dates - sorry, there's the next one, paragraph 47, you also refer to one on 8 April. Now, since that date of 8 April, have you discussed the proceedings or the claim with Mr Maloney?---Sorry, what was the last part of your question? Since that last date, 8 April, where you refer to a conversation, have you discussed the proceedings with Mr Maloney, or your claim in these proceedings?---No. Have you had any discussions with Mr Maloney about your position or your job?---No, I haven't." 14 In cross-examination, Mr Murrell was asked the following questions (at t/s pp68-9) by Mr Parry of counsel, who then appeared for the respondent: "Those claims that you make against your employer rely very heavily on what Mr Maloney, you say, has said to you?---To some degree. Can I suggest to you that what Mr Maloney has said to you in April, May and June has been much more important than what Mr Maloney has said to you prior to that?---Yes, that's the case." 15 Further (at t/s p84) Mr Parry asked Mr Murrell the following question: "At no time have you, up until the present - apart from in the affidavits and court documents - told SESG management that you're a member of the CPSU?" Mr Murrell answered: "No, I haven't." 16 On the second day of the hearing (5 August 1999) Mr Parry was still cross-examining Mr Murrell. Mr Murrell accepted that there was no record in the gatehouse book kept at the perimeter of Barwon Prison of Mr Maloney being on the station on 11 March 1999. 17 He also accepted that there was no record of a conversation with Mr Maloney in the gatehouse book on that day. Mr Murrell said, in answer to a question from the Court, that he believed he made an entry in his diary about his conversation with Mr Maloney on 11 March 1999. In answer to a further question from Mr Parry, Mr Murrell said that he believed he would have made the diary entry on 11 March 1999 but could not be definite about that. 18 Mr Parry looked through two diaries belonging to Mr Murrell whilst cross-examining him. Mr Parry referred (at t/s p146) to an entry in one (orange) diary for 12 March 1999. 19 Mr Murrell was unable, after further questioning, to recall when he made that entry for 12 March 1999, but said that it would have been very soon after the day in question. Mr Murrell also gave evidence of complaining to Mr Dickson, a union official, about Mr Maloney's alleged conversation with him on 11 March 1999. He believed that he complained to Mr Dickson on the following Saturday ie. 13 March 1999. Mr Murrell was unable to remember what he said to Mr Dickson. 20 Mr Murrell said (at t/s p151) that he made "notes" of his conversation with Mr Maloney in his diary and faxed the relevant entries to his solicitor. Mr Parry called for those notes. Ms Doyle undertook to make "the best inquiries" she could. 21 Mr Murrell agreed with Mr Parry that Mr Maloney would not have known on 11 March 1999 that he, Mr Murrell, was a member of the Union or an applicant in this proceeding. 22 On the third day of the hearing (ie. 9 August 1999) Ms Doyle produced a photocopy of a diary entry. That document did not strictly answer the call as the call was for the faxed entry which would have disclosed the date the document was faxed to the applicants' solicitors and assisted the Court to determine if the relevant entry was actually made in mid-March 1999 or on some later date to bolster a claim for interlocutory relief. In the end, the Court was left with the impression that the best evidence of when the diary entry was made and forwarded to the applicants' solicitors was not offered by the applicants who were in the best position to do so. 23 In re-examination, Mr Murrell (at t/s p171) said that the gatehouse book does not record "each time someone comes in and out of the gatehouse". 24 The relevant part of the orange diary was part of Ex E before the Court. The entry for 11 March 1999 reads "Spoke to me 08.30 hours said "article p3 Sun Daily says just tender out to private group or just sack 'em"". The words "or just sack 'em" appear in lighter ink than the foregoing words and seem to have been added after the quote originally ended at the word "group". Those matters raise a suspicion whether those words were added on a later day after the rest of the entry was made. Mr Murrell did not seek to explain the apparent different biros used to make the entries for 11 March 1999. In fact, he had no recollection of making the relevant entries. Ms Doyle did not seek to further re-examine Mr Murrell on this issue. 25 Mr Dickson was called to give evidence on the fifth day of the hearing, ie. 16 November 1999. Ms Doyle did not seek to ask him additional questions in chief concerning Mr Murrell's alleged complaint to him on Saturday 13 March 1999 about Mr Maloney's alleged threat to him and the third applicant, Mr Hutchins. Given that none of Mr Dickson's affidavits filed in the proceeding referred to a complaint made to him by Mr Murrell on or about 13 March 1999 about Mr Maloney's alleged threat, one would have expected Mr Dickson to give evidence in chief about such a complaint if it had been made. 26 Mr Maloney was called to give evidence on 18 November 1999 (day 7 of the trial). He was cross-examined by Ms Doyle. He agreed that he visited the gatehouse on a regular basis. He also agreed that his presence at the gatehouse on any particular day would not necessarily be recorded. The cross-examination continued into the next day (the final day of the hearing - 19 November 1999). During the later part of the cross-examination (at t/s p419) Mr Maloney denied discussing the topic of "this litigation" with Mr Daley. Shortly afterwards, he was asked the following question: "But on 11 March you saw Mr Murrell at work and you said to him that Daley, the assistant secretary of CORE, had told you, "There's an article in the paper. The union is going to run a case," and Daley went on to say to you, "Find out who the staff are and we'll just fucking sack them." You said that to Mr Murrell, didn't you?" 27 His answer was, "I certainly did not". 28 Later (at t/s p420) Mr Maloney gave evidence that he was "never aware of any plans to privatise the perimeter of Barwon". 29 Mr Maloney denied being concerned that this litigation might have the result of CORE being privatised. He was never seriously challenged on his denial that the alleged conversation of 11 March 1999 with Mr Murrell ever took place. 30 In her oral submissions (at t/s p451) Ms Doyle made brief reference to "Mr Maloney's threats to "sack them" or "find out who they are and sack them"". However, there was no aspect of her address which in any way dealt with the strengths or weaknesses of the competing evidence on this issue. It was rather a side-wind which was overwhelmed by the issues which were examined in the earlier judgment.

31 By this stage of the hearing Mr Bourke had replaced Mr Parry as counsel for the respondent. In his final address Mr Bourke commenced his submissions on the "s298K claim" by saying (at t/s pp468-469):

"We carry the onus on intention but they carry the onus on conduct." 32 In relation to Mr Maloney's denial of certain conduct attributed to him by the applicants, including the alleged conversation of 11 March 1999, Mr Bourke submitted (at t/s p469) that: "You should not be nervous about accepting a denial but readily unless you've good cause to the contrary." 33 Mr Bourke focussed his submissions on the "knee-capping" allegation dealt with in the earlier judgment, not troubling himself with what I have described as the "side-wind" issue the subject of these reasons. 34 The applicants carry the onus of proving that the alleged threat to Mr Murrell and Mr Hutchins occurred. See Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at pars 220 and 221. See also Jones v Thiess Bros Pty Ltd (1977) 30 FLR 422 at 426 and Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 at 69. 35 In my opinion the applicants have not satisfied their onus of proof concerning par 42 of the amended statement of claim. On the balance of probabilities (which is the relevant standard of proof, see Geraldton at par 208) I am not satisfied that Mr Maloney made any threat to Mr Murrell or Mr Hutchins. I am not satisfied that the alleged conversation occurred. Although it is strictly unnecessary to determine, I consider it more likely, on the totality of the evidence, that Mr Murrell sought to embellish the applicants' claim against the respondent by making a post-dated diary entry shortly before the claim for interlocutory relief. In coming to that view, I take into account my observations of Mr Maloney as a witness of the truth. I have less confidence that Mr Murrell's evidence was truthfully given in all respects especially on the topic of whether the alleged conversation with Mr Maloney occurred on 11 March 1999, whether it was diarised shortly afterwards and whether any complaint was made about it to Mr Dickson. In my view, the analysis of the evidence contained earlier in these reasons for judgment supports such an approach. 36 Accordingly, I will order that the application, insofar as it concerns the issue raised at par 42 of the amended statement of claim, be dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Respondent: Mr F Parry (for 4, 5 and 9 August 1999)

Solicitor for the Respondent: Victorian Government Solicitor (for 4, 5 and 9 August 1999)

Counsel for the Respondent: Mr J Bourke (for 16, 17, 18 and 19 November 1999)

Solicitor for the Respondent: Corrs Chambers Westgarth (for 16, 17, 18 and 19 November 1999)

Date of Hearing: 4, 5 and 9 August 1999 16, 17, 18 and 19 November 1999 Remitted from the Full Court: 8 June 2000