Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union

REASONS FOR JUDGMENT 1 This is an interlocutory application by the Director of the Fair Work Building Industry Inspectorate seeking an order that evidence be taken from a Mr Michael Alister Nunweek by audiovisual link from New Zealand. The application is made under s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) ("the Act"). That Act gives this Court the power, on the application of a party, to give leave for the giving of evidence and the examination of a person giving evidence from New Zealand by a remote appearance medium which term includes an audiovisual link (s 50(1) of the Act). Subsection (2) of the Act provides as follows: (2) The Australian court or tribunal must not give leave unless it is satisfied that: (a) the evidence, examination or submission, can more conveniently be given or made from New Zealand; and (b) if the court or tribunal intends to specify a remote appearance medium - that remote appearance medium is, or can reasonably be made, available; and (c) if the court or tribunal does not intend to specify a remote appearance medium - both remote appearance mediums are, or can reasonably be made, available; and (d) it is appropriate to give leave. 2 The Director is the applicant in the proceeding and he brings the proceeding against the Construction, Forestry, Mining and Energy Union, Mr Aaron Cartledge and Mr Michael McDermott. The applicant seeks a declaration that the first respondent contravened s 343 of the Fair Work Act 2009 (Cth) on 22 November 2013 pursuant to the operation of s 363 of the Fair Work Act because of the action taken by the second respondent, and a declaration that the first respondent contravened s 343 of the Fair Work Act on 22 November 2013 pursuant to the operation of s 363 of the Fair Work Act because of the action taken by the third respondent. The applicant also seeks a declaration that the second respondent contravened s 343 of the Fair Work Act on 22 November 2013, and a declaration that the second respondent contravened s 343 of the Fair Work Act on 22 November 2013 pursuant to s 550 of the Fair Work Act as a person involved in the third respondent's contravention of s 343 of the Fair Work Act. The applicant also seeks a declaration that the third respondent contravened s 343 of the Fair Work Act on 22 November 2013, and a declaration that the third respondent contravened s 343 of the Fair Work Act on 22 November 2013 pursuant to s 550 of the Fair Work Act as a person involved in the second respondent's contravention of s 343 of the Fair Work Act. The applicant seeks orders that each of the respondents pay a pecuniary penalty that the Court considers is appropriate in respect of each of their contraventions of s 343 of the Fair Work Act, and an order that the pecuniary penalties be paid to the Commonwealth. 3 The factual gravamen of the applicant's claims are contained in paragraphs 4 and 5 of his Further Amended Statement of Claim. Those paragraphs are in the following terms: Events of 22 November 2013 4. On 22 November 2013, during a meeting at the new Royal Adelaide Hospital construction site, located at the junction of West Terrace, North Terrace and Port road, Adelaide, South Australia, the Second and Third Respondents each verbally threatened to organise or take industrial action and/or other action against the joint venture partners Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd (HYLC) (the Threats). Particulars of the Threats 4.1 the Second Respondent made a threat in words to the effect that there would be industrial action on HYLC's jobs if HYLC took steps to enforce the order made by Senior Deputy President O'Callaghan of the Fair Work Commission on 26 September 2013, the terms of which are as corrected by the correction order made on 27 September 2013, in action number C2013/1442 (the Order); 4.2 the Third Respondent made a threat in words to the effect that there would be industrial action on HYLC's jobs if HYLC took steps to enforce the Order; 4.3 the Second Respondent made a threat in words to the effect that all hell would break loose and the First Respondent would take action on a national scale if HYLC took steps to enforce the Order; 4.4 the Third Respondent made a threat in words to the effect that there would be Armageddon if HYLC took steps to enforce the Order. 5. The Second and Third Respondent made the Threats with the intent to coerce HYLC, through its employees who were present at the meeting, to not exercise a workplace right within the meaning of section 341 of the FW Act, namely the right to initiate or participate in a process or proceedings to enforce the Order. 4 The respondents' defence to the allegations in paragraphs 4 and 5 are contained in paragraphs 4 and 5 of the Further Amended Defence. Those paragraphs are as follows: 4. The allegations in paragraph 4 are denied, save that the Respondents admit that the Second and Third respondents attended a meeting at the new Royal Adelaide Hospital construction site on 22 November 2013. The respondents otherwise deny the matters set out in paragraph 4, and in particular deny that they made any threat as alleged therein or at all. Insofar as the applicant alleges that the threat was to organise or take industrial action and / or other action against HYLC, the second and third respondents deny that the particulars of threats (particulars) set out in paragraph 4 constitute a threat within the meaning of section 343 of the Fair Work Act 2009. Further, in relation to the words referred to in the particulars, even if such were said, such words do not constitute a threat to take industrial action. 5. The allegations in paragraph 5 are denied. Insofar as the applicant alleges that threats were made with intent to coerce HYLC to not exercise a workplace right, namely to enforce the Order, the respondents say that HYLC had no right to initiate or participate in proceedings to enforce the Order because the Order was not a valid Order. 5 The proceeding is listed for trial commencing at 10.15 am on 27 July 2015 (five days set aside). Pursuant to orders I have made for the filing of the affidavits to be relied on at the trial, the applicant has filed (among other affidavits) an affidavit of Mr Nunweek sworn on 12 September 2014, and a second affidavit of Mr Nunweek sworn on 19 May 2015. The respondents have filed an affidavit of Mr Cartledge sworn on 5 June 2015 and, by further leave, a second affidavit of Mr Cartledge sworn on 11 June 2015. 6 The respondents oppose the application for an order that evidence be taken from Mr Nunweek by audiovisual link from New Zealand. 7 In support of his application, the applicant has filed two affidavits of Emily Nicole Haar, a lawyer employed by the firm of solicitors acting for the applicant. 8 In her first affidavit sworn on 28 May 2015, Ms Haar deposes to her belief that Mr Nunweek is a material witness to the matters in dispute and is likely to be required by the respondents to attend for cross-examination. She deposes to the fact that as at the time she swore her affidavit Mr Nunweek was employed by the HYLC joint venture which is a joint venture between Hansen Yuncken Pty Ltd and Leighton Contractors Pty Limited established for the design and construction of the new Royal Adelaide Hospital in Adelaide as a crane and logistics manager. She deposes to the fact that she attended the HYLC new Royal Adelaide Hospital site office on 7 May 2015. Whilst at the site, Ms Haar was advised by Mr Steve Jarman who is the Human Resources Manager for the project, that Mr Nunweek would be finishing up at the project on 12 June 2015, and that it was understood that he would be returning to New Zealand. The applicant subsequently instructed his solicitors to seek leave to issue a subpoena to require Mr Nunweek's attendance at the trial. She deposes to her belief that Mr Nunweek was personally served with the subpoena on 22 May 2015 by Inspector James Mathers of the Fair Work Building Industry Inspectorate. She deposes to the fact that she met with Mr Nunweek to discuss his evidence on 18 May 2015. Mr Nunweek confirmed that he would be returning to New Zealand after 12 June 2015. She advised him that an application for a subpoena had been made, and that the applicant would pay for his expenses to come to Australia to give evidence. Mr Nunweek advised her that even with a subpoena and his expenses being paid, he did not see how he could return to Australia to attend the trial to give evidence. He said that he would be back in New Zealand at the time of trial and would be working for a new company which was not likely to allow him to take time off work to give evidence. On 19 May 2015, Ms Haar met with Mr Nunweek at the site to take his second affidavit. She explained to him that it might be possible for him to give evidence from New Zealand by audio or video link. He said to Ms Haar that his new employer might find this "more acceptable". Mr Nunweek explained to her that he would be working in Auckland in New Zealand. Ms Haar then deposes to the inquiries she made as to the availability of audiovisual links with the Auckland District and High Courts, and various private businesses for the purpose of Mr Nunweek providing evidence in the proceedings by remote means. The upshot of her inquiries is that there are at least two options available in Auckland for Mr Nunweek to provide his evidence at trial by audiovisual link which Ms Haar states are compatible with this Court's requirements. 9 In her second affidavit sworn on 18 June 2015, Ms Haar deposes to the fact that she met with Mr Nunweek on 12 June 2015. The purpose of that meeting was to obtain instructions from Mr Nunweek about the matters raised in the affidavits filed by the respondents in the proceeding. In the course of obtaining those instructions, Mr Nunweek advised Ms Haar that 12 June 2015 was his final day of work at the new Royal Adelaide Hospital project and he said words to the effect that his "voluntary involvement" in the proceeding ended with his employment ending on 12 June 2015. He advised Ms Haar that he was leaving Australia to return to New Zealand to live on 13 June 2015. He declined to provide her with a forwarding address or contact details in New Zealand. He declined to say whether he would be willing to provide evidence by video link voluntarily. He confirmed that he was aware of the subpoena to give evidence which was served on him on 22 May 2015. He said that he was concerned by the fact that he could be arrested if he did not comply with the subpoena and then returned to Australia. 10 The respondents filed two affidavits in support of their opposition to the application. The affidavits were sworn by Mr Peter Russell who is a lawyer employed by the firm acting for the respondents. Those affidavits deal with the flight times from Auckland to Adelaide, and the time that Mr Nunweek would be away from Auckland in order to give evidence in Adelaide. 11 It is apparent from Mr Nunweek's affidavits filed in the proceeding that he was present at the meeting on 22 November 2013 when the alleged threats were made. It is apparent from the affidavits of Mr Cartledge that there were a series of events prior to the meeting on 22 November 2013 which the respondents contend are relevant in terms of the context in which the discussions took place on that day. The respondents will contend that important safety issues concerning the use of cranes on the site are relevant to the context in which the discussions took place on 22 November 2013. The respondents will contend that they did not make the threats they are alleged to have made. 12 Mr Nunweek is an important witness. There was debate in the course of submissions made on the application as to the extent of the respondents' likely cross-examination of Mr Nunweek. I do not think that I can resolve that issue in any precise way at this stage. Doing the best I can and without foreshadowing in any way a view as to the scope of the permissible cross-examination of Mr Nunweek, I think it appropriate to conclude that the cross-examination of Mr Nunweek may be substantial. 13 The Court's general power to allow testimony to be given by video link, audio link or other appropriate means in s 47A of the Federal Court of Australia Act 1976 (Cth) does not apply if the person giving testimony is in New Zealand (s 47A(5)). Before the Trans-Tasman Proceedings Act, the relevant Act for the taking of evidence from New Zealand by video link or telephone was the Evidence and Procedure (New Zealand) Act 1994 (Cth). Section 25 of that Act was in similar but not identical terms to s 50 of the Act. The similarity was that both Acts referred to whether the evidence could be more conveniently given from New Zealand, and the difference was that the Trans-Tasman Proceedings Act also refers to whether the Court is satisfied that it is appropriate to give leave. The Explanatory Memorandum for the Trans-Tasman Proceedings Bill 2009 (Cth) refers to a purpose of the Act as being to implement the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, signed on 24 July 2008. Furthermore, the Explanatory Memorandum states that one of the things the Bill will do is facilitate the greater use of technology to enable parties and lawyers to appear remotely in proceedings in the other country. In those circumstances, it is not to be supposed that the reference to it being appropriate to grant leave in the Trans-Tasman Proceedings Act was intended to impose a higher "onus" on a party seeking an order for evidence to be given by remote means than that which applied under the Evidence and Procedure (New Zealand) Act, or that which applies under s 47A of the Federal Court of Australia Act. 14 Before leaving the Explanatory Memorandum, I note that it contains the following statements in relation to Clause 50: 107 The Australian court or tribunal cannot give this leave unless it is satisfied that the evidence can more conveniently be given remotely, and the necessary facilities for the remote appearance can be provided. This may include consideration of the availability of the witnesses, the cost of the witness attending in Australia as compared with using the audio or audiovisual link facilities, the nature of the evidence to be given and whether the credibility of the witness is likely to be an issue. 15 The applicant referred me to the two broad approaches to the discretion in s 47A of the Federal Court of Australia Act as providing guidance on the exercise of the discretion in s 50 of the Act. Those two broad approaches were described by Gordon J in Kirby v Centro Properties Ltd and Others [2012] FCA 60; (2012) 288 ALR 601 at 603, [4]-[5] in the following way: The first is that given the advanced state of video link technology and also because of the convenience of the procedure and the savings in time and cost, a substantial case needs to be made out to warrant the court declining to make an order for evidence to be taken by video link: see Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance Ltd (in liq) [2002] FCA 1549 at [10]-[11] (Reinsurance Australia Corp); Versace v Monte [2001] FCA 1454 at [16] and Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25]. The other approach has been described as more cautious, and requires good reason to be shown before leave to give evidence by video link is granted: Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303; [2002] FCA 526 at [7]; Sunstate Airlines (Qld) Pty Ltd v First Chicago Australian Securities Ltd (unreported, NSWSC, Giles CJ, 11 March 1997, BC9700538) at 6 (Sunstate Airlines (Qld)); Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1; [2001] NSWSC 651 at [27] (Australia Medical Imaging). The applicant urged me to adopt the former approach and the respondents the latter. 16 Neither approach gives rise to a presumption or prima facie case as to the way in which the discretion will be exercised in the absence of countervailing considerations. I agree with Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd and Another [2011] FCA 107; (2011) 192 FCR 71 at 75, [11], 76, [16] that the discretion is a broad one with the determining consideration being the interests of justice. At the same time, I think that within those broad parameters the considerations identified by Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) and Another [2009] FCA 1306; (2009) 181 FCR 152 ("Campaign Master"), and Perram J in Blackrock Asset Management Australia Services Limited v Waked (No 2) [2011] FCA 479 ("Blackrock Asset") are powerful considerations. 17 In Campaign Master, Buchanan J said (at 171, [78]): I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain "chemistry" in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. I do not share the view expressed by Katz J. My own view and, I think, the weight of authority, is to the contrary. 18 In Blackrock Asset, Perram J said (at 14, [46]: A trial is, in fact, a public event in which witnesses are confronted by their cross-examiners and in which they give evidence in front of the very people who are involved in the case. The giving of evidence by video link is unsatisfactory in a number of ways. That is not to say that in some cases it is not appropriate. 19 In my opinion, this application should be refused for the reasons which follow. 20 There is no evidence from Mr Nunweek as to the precise difficulties he will encounter with his employer if he takes time off work to return to Australia to give evidence. Nor is there any evidence from his employer on this topic. The only evidence before me are the hearsay statements from Mr Nunweek to Ms Haar that his new employer is not likely to allow him to take time off work to give evidence, and that his employer may find the prospect of Mr Nunweek giving evidence by audiovisual link from New Zealand "more acceptable". 21 The position is made even more difficult from the applicant's point of view by the evidence in Ms Haar's second affidavit. Mr Nunweek states that his voluntary involvement in the proceeding ended with his employment ending on 12 June 2015 and he declined to provide a forwarding address or contact details in New Zealand to Ms Haar. The applicant has quite properly put before the Court evidence that Mr Nunweek declined to say whether he would be willing to provide evidence by video link voluntarily, and that he was concerned by the fact that he could be arrested if he did not comply with the subpoena and then returned to Australia. It is difficult to know what to make of this evidence. On one view, the application should be dismissed because it is far from certain that Mr Nunweek will provide evidence by audiovisual link voluntarily. Furthermore, I think Mr Nunweek's uncooperative attitude reflects on the weight I can give the earlier reason he advanced in support of the applicant's application, namely the alleged difficulties with his employer. 22 Even if I put these concerns to one side, I think this application should be refused by reference to the principles identified in the authorities. This proceeding is a proceeding for civil penalties and it may have serious consequences for the respondents. Mr Nunweek is an important witness and it is likely he will be subject to a fairly substantial cross-examination. On present indications, his credit will be put in issue. These matters outweigh the rather vague and imprecise hearsay evidence of difficulties that Mr Nunweek will experience with his employer if he comes to Adelaide to give evidence, the fact that although there are documents, they do not seem to loom large in Mr Nunweek's cross-examination, and the ever present possibility that cross-examination of Mr Nunweek may not be as substantial as present circumstances suggest. 23 The application is dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.