Analysis of the evidence
196 On its own, there is no reason not to accept the thrust of the evidence of Mr Watterston and Mr Simone as to their recollection of what occurred following the induction at the site on 20 April 2020, namely that Mr Roach told Mr Watterston that he was unable to work on the site unless he paid money to the Union. It was not suggested that either witness was deliberately lying as to that recollection. Rather, the challenges to their evidence were to point to some claimed internal consistencies, to admitted flaws in recollection, and at least in the case of Mr Watterston, to suggest that his perception of what had occurred was incorrect, as it had been coloured by his apprehension about having to deal with the Union, and a preconception that he would not be allowed onto the site if he did not have a Union ticket. On the other hand, I have the evidence of Mr Roach and Mr Jones which on the central issues was markedly different from that given by Mr Watterston and Mr Simone. The applicant's case was squarely put on the basis that Mr Roach and Mr Jones were lying and had concocted a story around the relevant exchanges. In accordance with the guidance in the authorities to which I have referred, the marked differences require that I look to other surrounding evidence to determine what weight I give to the oral evidence, and to determine whether or not I am satisfied that the applicant has proven the pleaded case.
197 Counsel for the applicant submitted that Mr Watterston and Mr Simone had no motive to lie. In criminal cases, a submission relying on the absence of a motive to lie is deprecated where the existence of a motive to lie is not put in issue: R v Jovanovich (1997) 42 NSWLR 520. It has been held that to ask the rhetorical question "why would they lie" is to invite a jury to engage in illegitimate speculation: R v Jovanich at 521 (Priestley JA); R v Uhrig (unreported, NSW Court of Criminal Appeal, 24 October 1996) at 15-16 (Hunt CJ at CL).
198 In this case any question of motive of Mr Watterston or Mr Simone to lie does not squarely arise, because that was not the basis on which they were cross-examined. The tenor of the respondents' case was not that they were lying, but that at least in the case of Mr Watterston, his perception of events was clouded, and his evidence was unreliable. Further, I find that both Mr Watterston and Mr Simone were honest witnesses, and that their evidence to the Court was their best recollection of their perception of what had occurred in the lunchroom at the site on 20 April 2020. I find that the core elements of their evidence were consistent, and were not substantially undermined by cross-examination. By core elements, I am referring to the following -
(a) that there was no health and safety "spiel";
(b) that Mr Roach asked Mr Watterston and Mr Simone for their cards, and that Mr Roach checked Mr Simone's card first and told Mr Simone that he was "good", or something to that effect which conveyed that there was no issue with Mr Simone;
(c) that Mr Roach made a telephone call concerning Mr Watterston's membership of the Union, which is confirmed by the objective evidence that Mr Roach made a call to the Union office at 8.24 am;
(d) that upon completing the telephone call Mr Roach told Mr Watterston that he had to organise a payment of fees with the Union office; and
(e) upon Mr Watterston engaging with the issue with Mr Roach, Mr Roach stated that he could not come onto the site and work until after he had paid his union fees.
199 In these essential respects, the evidence of Mr Watterston and Mr Simone was consistent with the statements that they had provided to Ms Dunsby, and supported the allegations made in [8] of the statement of claim. This is not to say that there were not some areas of uncertainty in the evidence of Mr Watterston and Mr Simone on some issues. Those areas of uncertainty included -
(a) whether, after Mr Watterston and Mr Simone were directed to take a seat at one of the tables in the lunchroom, Mr Roach went off somewhere for a short period before returning to them;
(b) whether Mr Watterston stated to Mr Roach that he had recently paid an amount to the Union;
(c) whether Mr Watterston mentioned a sum of $200 to Mr Roach;
(d) if he did, whether the conversation about the $200 occurred before or after Mr Roach made his telephone call to the Union office;
(e) whether Mr Roach told Mr Watterston that he owed $500, or $515;
(f) the precise words otherwise used by Mr Watterston and Mr Roach in their exchanges; and
(g) the content of the telephone conversations between Mr Watterston and Mr Golz at 8.28 am, 9.01 am, and 9.41 am on 20 April 2020.
200 As I have mentioned, the respondents' case did not involve a claim that Mr Watterston or Mr Simone gave false evidence to the Court. Rather, the respondents' case included a submission that Mr Watterston and Mr Simone had a coloured perception of the events that occurred in the lunchroom. Having observed both Mr Simone and Mr Watterston give evidence, I consider it unlikely that they misconceived what they saw and heard. This observation applies especially to Mr Simone who, as I have said, impressed me as a witness. The weight that I give to Mr Simone's evidence is enhanced by the fact that there was no challenge to his honesty as a witness, and no case was squarely put to Mr Simone in cross-examination that his perception of events was so coloured that he had misunderstood what went on. No serious challenge was made to Mr Simone's evidence apart from a suggestion that he had spoken to Mr Watterston about the case, which is hardly remarkable, and formal puttage of the central contested elements of the respondents' case. The cross-examination of Mr Simone concluded with the question and answer that I have set out at [56(9)] above, by which he affirmed his evidence.
201 While Mr Watterston's evidence was in some respects imprecise, and he did admit to flaws in his recollection, I am of the view that these concessions favour acceptance of his evidence because of his frankness. There were also some respects in which Mr Watterston's evidence was more comprehensive than the statement that he provided to Ms Dunsby. The leading example is his evidence that he turned around to Mr Roach and sought clarification that he was not permitted to work on the site until he paid money to the Union. I do not place much significance on this feature, because Mr Watterston's statement, extracts from which I have set out at [37] above, does refer to the fact that he sought clarification from Mr Roach by asking, "So you're telling me that unless I pay that $500, I can't work on site?", to which Mr Roach responded "Nope". A substantially similar account appears in Mr Simone's statement to which I referred at [55] above. Mr Simone also gave evidence-in-chief to this effect which he was asked in cross-examination to affirm, and which was not squarely challenged.
202 There were some elements of Mr Watterston's evidence on collateral issues which were not supported by objective evidence. An example is Mr Watterston's evidence that Mr Golz telephoned him when he was outside the site, when the objective evidence is that Mr Watterston called Mr Golz, which is an issue to which I refer below. His evidence on these types of details can be explained by the passage of time. In his statement to Ms Dunsby, Mr Watterston had stated that he called Mr Golz at 9.01 am. Ultimately, the evidence that Mr Watterston gave on the central issues was largely consistent with his contemporaneous statements, and was fortified by the evidence of Mr Simone.
203 The evidence of Mr Watterston and Mr Simone that Mr Roach told Mr Watterston that he could not work on the site until he had attended to a payment with the Union had an air of likelihood about it given the following surrounding circumstances -
(a) Mr Watterston and Mr Simone were engaged in a small business, and they had an interest in performing the sub-contract for caulking work into which their company had entered with Geschke Plumbing;
(b) their interest in performing the work was supported in part by the fact that in order to undertake the work they had purchased materials specifically for that job that they brought with them to the site, and which would be wasted if they did not undertake the work;
(c) Mr Watterston and Mr Simone therefore had a strong disincentive to leave the site in a fit of pique as it were, and to abandon the work that they had secured;
(d) indeed, Mr Watterston and Mr Simone did not abandon the site, because they waited outside while Mr Watterston made telephone calls to Mr Silver and Mr Golz;
(e) Mr Roach was both a health and safety representative and a union delegate, which clothed him with apparent authority not only in relation to workers' occupational health and safety qualifications, but also in relation to union financial status and membership;
(f) the fact that Mr Roach checked the union cards of five or six workers (on Mr Roach's account), or of Mr Simone and then Mr Watterston (on their account), supports the applicant's case that Mr Roach was checking the financial status of workers entering the site;
(g) the above point finds reinforcement in the contents of the Union's Code of Conduct for Delegates, which renders it likely that Mr Roach was engaged in checking Union cards for the purposes outlined in the Code, including the enrolment of members and the maintenance of financial membership by continuous checks, and the requirement that delegates must make sure that they and their members are financial before they start work, before April 1 and October 1 each year; and
(h) the agreed fact that Mr Roach telephoned the Union office at 8.24 am.
204 There is other circumstantial evidence that supports the applicant's case. The most significant support is found in the contemporaneous representations made by Mr Golz to Ms Dunsby when she telephoned him on 21 April 2020. I accept, consistently with the submissions of the parties, that Ms Dunsby's note of what Mr Golz told her is likely to be a substantially accurate record of what she heard Mr Golz say. The crucial feature of that note is the following paragraph, which I reproduce here for convenience -
• Golz called Roachie, and tried to convince Roachie to let Watterston and Simone back on site. Roachie said that Simone was allowed on site because he was financial but Watterston wasn't. Golz informed Dunsby, that he tried his hardest to get them back on site but it was out of his hands.
205 The applicant's case also finds circumstantial support in the relevant records of the Union. No officer of the Union was called to explain the records, and I am therefore left to draw my own conclusions. I find that the Union's printout that was tendered showed that on 25 September 2019 the Union received the email from Mr Watterston, sent on his wife's email account, which the Union treated as notice of resignation. That resignation was initially processed by the Union on 26 September 2019, as recorded in the printout. There is also a further entry that records the resignation as having been processed on 3 February 2020. The Union had calculated that the amount owing by Mr Watterston to the Union for the period ending 31 March 2020 was $412.50, and this sum was paid to the Union with a receipt noted as being dated 30 October 2019. The fact of this payment is also supported by Mr Watterston's banking record dated 28 October 2019, which records a BPAY payment to the Union. The Union's records show no amount as being outstanding for the period ended 30 March 2020. The records therefore show that from 30 March 2020 Mr Watterston was no longer a financial member of the Union. I find that it is likely that Mr Roach made his telephone call to the Union office for the purpose of confirming Mr Watterston's financial status, and in the brief call of one minute 15 seconds at 8.24 am was told that Mr Watterston had cancelled his ticket.
206 There is also the content of the text exchanges between Mr Roach and Mr Golz which, in combination with the other evidence, is significant. The exchanges are set out under [63] above. There are two aspects of what Mr Roach said that invite attention. The first is his reference to "dob the union in". By itself, this may not be decisive, but the use of the word "dob" is indicative of a consciousness of contravention by the Union. More significant to my mind is the second aspect, which is Mr Roach's claim that "Melbourne caulking won't be getting any union work in the future". I find that this statement was an expression of illegitimate authority to sanction those who acted against the interests of the Union by controlling entry to sites. This expression of power was consistent with the applicant's claim that Mr Roach attempted to exercise illegitimate authority to prevent Mr Watterston from entering the building site. While I accept Mr Roach's explanation that he wrote the text in frustration, his reason for making the threat is beside the point. As to Mr Roach's evidence that he could not and did not take any steps to prevent Melbourne Caulking getting union work, I regard the evidence as a self-serving rationale that does not diminish the significance of the fact that the threat was expressed.
207 As I have foreshadowed, questions arise in relation to the truthfulness of some of the evidence given by Mr Golz to the Court, and his willingness to accept contradictory propositions that were put to him by leading questions in cross-examination. However, those reservations do not have the same weight in relation to the extra-curial contemporaneous representations that Mr Golz made to Ms Dunsby. Ms Dunsby was called as a witness immediately after Mr Golz had given his evidence. It was not put to Ms Dunsby in cross-examination that her notes of her interview of Mr Golz and their reference to Mr Golz's conversation with Mr Roach were the product of putting leading propositions to him, save that Ms Dunsby was cross-examined as to whether Mr Golz had used the word "financial" in reference to Mr Simone (see [70] above). Ms Dunsby gave evidence that "financial" was Mr Golz's word. Otherwise, Ms Dunsby was not questioned in cross-examination about any other aspect of her note recording what Mr Golz had told her.
208 Mr Watterston gave evidence that during his first call to Mr Golz, which I find occurred at 8.28 am, he stated to Mr Golz that he was not permitted to work at the site because he was not a union member, in response to which Mr Golz asked about Mr Simone. Mr Golz's email to Mr Silver and Mr Geschke dated 22 April 2020 stated that Mr Watterston told him that Mr Simone was able to continue on the site, as he did have his card. Mr Golz said that he would make some calls. I find that after Mr Watterston telephoned and spoke to Mr Golz at 8.28 am, he called Mr Golz again at 9.01 am while he and Mr Simone remained outside the site awaiting further information from either Mr Golz or Mr Silver as to whether, on their understanding of the situation, they would be permitted to return to the site. Mr Watterston's evidence concerning whether during the second telephone conversation, which was at 9.01 am, Mr Golz told him that he had spoken to Mr Roach was, to some extent, equivocal. Mr Watterston gave evidence that Mr Golz called him back. However, that is not consistent with the telephone records, or with Mr Simone's statement to Ms Dunsby that Mr Watterston called Mr Golz again. I note, however, that in evidence-in-chief Mr Simone stated that Mr Golz got back to Mr Watterston. Nor is it consistent with Mr Golz's evidence that Mr Watterston called him back. As to the content of the second call, Mr Watterston initially stated that the gist of what Mr Golz said was that he had spoken to Mr Roach and to Lendlease, and that unless he was a union member, it was not going to happen for him. Then, in answer to a direct question, Mr Watterston stated that he could not remember Mr Golz telling him that he had spoken to Mr Roach. In cross-examination, Mr Watterston stated that Mr Golz did not tell him to whom he had spoken, but that he had spoken to "people", and that Mr Watterston and Mr Simone were not getting on site. Mr Watterston was unable to say what words were spoken by Mr Golz, but said that he was told that he may as well go.
209 Mr Simone gave evidence that he was present with Mr Watterston at the time of the call to Mr Golz at 9.01 am, and that it was his understanding that Mr Golz told Mr Watterston that Mr Simone could start, but that Mr Watterston could not start until he sorted everything out with the Union but that Mr Watterston explained that it was a two-man job. I am cautious about this aspect of Mr Simone's evidence, because Mr Simone did not hear Mr Golz speaking to Mr Watterston, and I am not confident that Mr Simone's evidence was not the product of some degree of reconstruction, which he came close to volunteering when he stated that he was "almost filling in the blanks", and that he and Mr Watterston spoke about it afterwards. Mr Simone stated that Mr Watterston relayed to him after the second call that Mr Golz was too busy to sort things out, and relayed to Mr Simone that the person on the phone "was basically saying that they would probably get somebody who's union to do the job". Initially, Mr Simone could not remember who had said this, but then stated that he thought it was Mr Golz. Mr Simone was also uncertain in his understanding as to whether he and Mr Watterston were waiting outside the site for Mr Golz to come down and see them, but then stated that it was his understanding that they were waiting to see whether Mr Golz could sort something out.
210 Mr Golz initially gave evidence that on 20 April 2020 he spoke to Mr Roach in person after Mr Watterston called him to say that he was not allowed to start until he sorted out his union fee. During the course of cross-examination by counsel for the respondents Mr Golz changed his evidence to say that he did not recall whether he met Mr Roach, and then accepted that on reflection he was mistaken about having a face-to-face meeting with Mr Roach.
211 There are some aspects of Mr Golz's contemporaneous representations that are inconsistent with other evidence. In Ms Dunsby's note of her conversation with Mr Golz of 21 April 2022, the following sequence is described -
(a) Mr Golz received a call from Mr Watterston, who was outside the site, informing him that Mr Roach had not permitted them to work on the site, because they were not financial Union members;
(b) no distinction in the above account was made between the positions of Mr Watterston and Mr Simone;
(c) Mr Golz told Mr Watterston that he would call Mr Roach and then meet them outside;
(d) Mr Golz then called Mr Roach, who informed him that Mr Simone was allowed on the site because he was financial, but that Mr Watterston was not;
(e) Mr Golz called Mr Watterston back, and Mr Watterston told him that they had left the site; and
(f) during the above call, Mr Golz told Mr Watterston that Mr Simone was allowed on site, but Mr Watterston responded by stating that it was a two-man job.
212 In this account, Mr Golz makes no distinct reference to Mr Watterston's telephone call to him of 9.01 am, at which time Mr Watterston and Mr Simone remained outside the site.
213 In his email to Mr Silver and Mr Geschke of 22 April 2020 set out at [65] above, Mr Golz described the following sequence -
(a) after the induction, Mr Watterston called him and advised that he was unable to attend the site because he was not financial, and added that Mr Simone was able to continue, because he did have his card;
(b) Mr Watterston told Mr Golz that he had said to Mr Roach that he had paid fees of $200 "a couple of weeks prior", as to which there is a live question whether that information was given to Mr Golz by Mr Roach;
(c) Mr Golz then spoke to Mr Roach, not specifying whether this was in-person, or by telephone, where he "heard the same story as Brendan";
(d) Mr Golz then contacted Mr Watterston and stated that he was on his way down the building to sort it out and to meet Mr Watterston and Mr Simone; and
(e) by the time Mr Golz had made his way down, Mr Watterston called Mr Golz and said that they were leaving the site, as nothing more could be resolved, in response to which Mr Golz made it known that Mr Simone could stay, but Mr Watterston responded by stating that it was a two-man job.
214 Mr Golz's reference to contacting Mr Watterston to say he was on his way down the building is not supported by the agreed facts concerning the time of the telephone communications. There appears to be no reference in Mr Golz's email to the later telephone call that Mr Golz made to Mr Watterston at 9.41 am.
215 On balance, and while the question is not free from doubt, I do not accept Mr Golz's evidence-in-chief that he spoke to Mr Roach in person after Mr Watterston called him at 8.28 am. Other evidence indicates otherwise. In Ms Dunsby's note of her telephone conversation with Mr Golz of 21 April 2020, Mr Golz is recorded as stating that he called Mr Roach. That statement is supported by the agreed fact that Mr Golz telephoned Mr Roach at 9.09 am and that they spoke for 2 minutes, 35 seconds. Mr Golz's email to Mr Silver and Mr Geschke is not inconsistent with Mr Golz having telephoned Mr Roach, rather than speaking to him in person. For completeness, I do not give any weight to Mr Silver's email to himself dated 22 April 2020 to which I referred at [80] above, because his source of the representation that "apparently" Melbourne Caulking was not allowed onto the site because they were not in the union is not identified. The email does not have the same significance as the contemporaneous representations made by Mr Golz, who had spoken to Mr Roach.
216 I find that it is likely that it was during the 9.09 am telephone call that Mr Roach told Mr Golz that Mr Watterston was not permitted onto the site, but that Mr Simone was, confirming the information that Mr Watterston had given Mr Golz in his telephone conversation at 8.28 am. Consistently with Ms Dunsby's note of 21 April 2020, Mr Golz agreed in the course of cross-examination by counsel for the applicant that he had tried his hardest to get Mr Watterston and Mr Simone back on site, but that Mr Roach had made his position clear, namely that Mr Watterston could not work onsite until he was financial with the union. I accept that evidence of Mr Golz, as it is consistent with his contemporaneous account to which I have referred. I regard it as unlikely that when Mr Golz spoke to Ms Dunsby on 21 April 2020 that he was confused about the fact that on the previous day he had tried to convince Mr Roach to let Mr Watterston onto the site, and that he was told that Mr Simone was able to return to the site, but that Mr Watterston was not. Further support for the applicant's case is given by Mr Golz's email to Mr Silver and Mr Geschke of 22 April 2020, to which I referred at [65] above, and in particular Mr Golz's representation that "I spoke to roachy To get a better understanding and heard the same story as Brendan". In combination with Ms Dunsby's note, that email provides substantial contemporaneous support for the applicant's case that Mr Roach prevented, or threatened to prevent, Mr Watterston working at the site until he paid a fee to the Union.
217 I do not accept Mr Golz's evidence given in cross-examination by counsel for the respondents that Mr Roach told him that the claim that he would not let the caulker start on site "was a load of bullshit", and that he said that he had never asked the caulker to leave. That evidence, which was given in response to leading questions, was not consistent with the tenor of Mr Golz's contemporaneous statements, and was given in circumstances where Mr Golz then gave different evidence in further cross-examination by counsel for the applicants, and accepted that insofar as he might have said something different when giving instructions to Ms Murphy of Maurice Blackburn, he did so in order not to upset the Union.
218 Further, Mr Golz's evidence on this issue does not sit comfortably with the apparent logic of events. Mr Watterston and Mr Simone were motivated to undertake the work the subject of the subcontract, had purchased materials, and had secured car parking for that purpose. If there was some misunderstanding as between Mr Watterston and Mr Roach and that "it was all bullshit", then one would expect that the contemporaneous representations of Mr Golz might have suggested that he called Mr Watterston to say so, which is a topic to which I now turn.
219 There was evidence from Mr Roach that Mr Golz informed him later in the day on 20 April 2020 that he had telephoned Mr Watterston and told him that he was not prevented from working on the site, and asked him to come back, and that Mr Watterston responded by stating that he was already on another job, and that he was too busy. Mr Golz was cross-examined by counsel for the respondents about his telephone conversations with Mr Watterston and I have set out relevant exchanges at [74] above. That evidence was inconsistent with his evidence-in-chief, and his evidence in re-examination to which I have referred at [62], [68], and [76(a) and (b)] above.
220 On the other hand, there is the contemporaneous statement of Mr Golz recorded by Ms Dunsby that he called Mr Roach, tried to convince him to let Mr Watterston and Mr Simone back on site, but that Mr Roach said that Mr Simone was allowed on site because he was financial, but that Mr Watterston was not. Further, there was no reference by Mr Golz to any denial of the claims by Mr Roach in his email to Mr Silver and Mr Geschke of 22 April 2020. On the contrary, in that email Mr Golz stated that he made it known to Mr Watterston that Mr Simone could stay and complete the caulking, but that Mr Watterston responded by stating that it was a two-man job. There was no reference in Mr Golz's email to Mr Silver to any statement by Mr Watterston that he was "too busy" or that he had another job on the day.
221 I accept the evidence of Mr Watterston that Mr Golz did not invite him back onto the site, but that in response to Mr Golz's suggestion that Mr Simone could return, Mr Watterston stated that it was a two-man job. I also accept Mr Watterston's evidence that he did not tell Mr Golz that he had another job to go to. These findings are supported by the contemporaneous representations of Mr Golz to which I have referred above, and by the evidence of Mr Simone, who stated that they looked through their diaries to see if there were any jobs they could pick up for the day, but that they had booked out the day for that particular job. It also accords with common sense that Mr Watterston and Mr Simone would allocate two days in their diaries for the job at the Melbourne Quarter site.
222 If I were wrong in finding that it was in the course of the 9.09 am telephone call that Mr Roach had first made his position clear to Mr Golz, namely that Mr Watterston could not work onsite until he was financial with the Union, then a finding that Mr Golz had earlier spoken to Mr Roach in person, that is, prior to the 9.09 am call, would not affect my conclusion as to what Mr Roach said to Mr Golz, because in either event I find that Mr Roach told Mr Golz that Mr Watterston was not permitted to work on the site until he had paid his fees. Whether the conversation occurred in person, or by telephone, it occurred prior to Mr Golz's telephone call to Mr Watterston at 9.41 am, by which time Mr Watterston had left the site, and significantly, it occurred prior to Mr Golz's conversation with Ms Dunsby on 21 April 2020, and prior to his email to Mr Silver on 22 April 2020.
223 One issue on which the evidence varied was whether Mr Watterston told Mr Roach in the lunchroom that he had recently paid an amount to the Union, and whether he nominated $200. I find that after Mr Roach had made his telephone call to the Union that Mr Watterston said to him that he had recently paid an amount to the Union. That finding is supported by the evidence of Mr Simone, Mr Watterston, and Mr Roach. I do not accept the evidence of Mr Jones that Mr Watterston referred to a sum of $200 before Mr Roach made the telephone call to the Union office. Whether Mr Watterston subsequently mentioned a figure of $200 is a question which requires some analysis. In relation to contemporaneous evidence, Mr Golz referred to the $200 amount in his email to Mr Silver and Mr Geschke of 22 April 2020 which was sent at 6.12 pm. Mr Golz stated in cross-examination by counsel for the applicant that Mr Watterston had never said that he told Mr Roach that he had paid $200, and that it was Mr Roach who had told him about the $200. However, in cross-examination by counsel for the respondents Mr Golz stated that Mr Watterston had told him in his telephone conversation at 8.28 am that he had told Mr Roach that he had paid the sum of $200 to the Union, that Mr Roach said that there was no record of the payment, and that he should chase it up with the Union office.
224 I find it unlikely that Mr Watterston mentioned any figure of $200 to Mr Golz during his telephone calls to him. That sum did not reflect either the amount that Mr Watterston had paid to the Union for the period up to 31 March 2020, or the sum of $515 that was payable in respect of the term commencing 1 April 2020. I prefer Mr Simone's evidence that in the lunchroom Mr Roach told Mr Watterston that he had to pay a sum of $515, which corresponds with Mr Simone's reasonably contemporaneous statement to Ms Dunsby, and Mr Watterston's evidence that he was required to pay $500, which corresponds with his statement to Ms Dunsby. As I have said, I also find that Mr Watterston then told Mr Roach that he had recently paid a sum to the Union. I am not persuaded to find that he mentioned a figure of $200, and I prefer Mr Simone's evidence that no figure was mentioned. It is more likely that the sum of $200 to which Mr Golz referred in his email to Mr Silver and Mr Geschke on 22 April 2020 at 6:12 pm was first mentioned to Mr Golz by Mr Roach. Prior to sending that email, Mr Golz had spoken to Mr Roach on at least two occasions: at 9.09 am on 20 April 2020, and at 2.03 pm on 21 April 2020, which was after Mr Golz had spoken to Ms Dunsby.
225 In any event, the resolution of this issue is peripheral to my path of reasoning. Even if Mr Watterston had mentioned a figure of $200 to Mr Roach or to Mr Golz, which is a possibility that Mr Watterston admitted in cross-examination, that would not affect my acceptance of Mr Watterston's and Mr Simone's evidence that Mr Roach told Mr Watterston that he was not permitted on site unless he paid a fee to the Union which Mr Roach identified as either $515 on Mr Simone's account, or $500 on Mr Watterston's account, the former corresponding with the amount due for the six month term commencing 1 April 2020. As I have alluded to, Mr Simone was not really challenged in cross-examination on his evidence that Mr Watterston sought and obtained clarification from Mr Roach that he was not permitted onto the site unless he sorted out his union membership, but instead Mr Simone was asked to confirm his evidence (see [56(9)] above).
226 There was much attention given by the parties to the question whether Mr Roach and Mr Jones conducted a safety "spiel" before checking cards. The evidence of Mr Watterston and Mr Simone was unequivocal and direct: there was no safety "spiel". The suggestion that Mr Roach and Mr Jones conducted the "spiel" arose in the instructions which Maurice Blackburn took from Mr Roach, and the instructions that Maurice Blackburn took from Mr Jones that were recorded in a note prepared by Mr Sutton dated 3 July 2020, and was the subject of their evidence to the Court. Other than the representations in the documents recording their instructions, there is little objective or contemporaneous support for Mr Roach's and Mr Jones's evidence on this topic.
227 There were differences between the accounts of Mr Roach and Mr Jones. To my mind, a significant difference was whether Mr Roach was standing when addressing the workers. The record of Mr Jones's instructions to Maurice Blackburn states that he and Mr Roach "sat down with the induction group and spoke to them about safety on the site". Mr Jones appeared to confirm this detail in his examination-in-chief when he stated that he and Mr Roach were "sitting down at one of the smoko tables". In cross-examination, Mr Jones stated that he did not know whether Mr Roach was seated when he was talking to the group, and that his recollection was not assisted by the Maurice Blackburn note of his instructions. On the other hand, Mr Roach gave evidence that he was standing when he was addressing the workers prior to checking tickets.
228 Counsel for the applicant made much of the submission that the safety "spiel" and the checking of tickets as described by Mr Roach and Mr Jones could not have occurred within the nine minute window between 8.15 am when it was submitted the Lendlease induction finished, and 8.24 am when Mr Roach called the Union office. I have considered those submissions carefully, but I am not persuaded to place weight upon an analysis that depends upon making a finding as to precisely when the Lendlease induction was completed, and for what period of time a safety "spiel" might last. There was no evidence that any of the participants were monitoring their watches or clocks. And the evidence as to when the Lendlease induction finished varied. For instance, in his statement to Ms Dunsby, Mr Simone stated that the Lendlease induction commenced at 7.30 am and went for 45 minutes to an hour, and that he and Mr Watterston walked into the lunchroom at around 8.30 am. In his evidence-in-chief, Mr Simone stated that the Lendlease induction went for half an hour or 45 minutes and concluded between 8.00 am and 8.15 am. In his statement to Ms Dunsby Mr Watterston stated that the Lendlease induction began at 7.30 am and went for close to an hour. I am not persuaded to find that the Lendlease induction finished at 8.15 am, and not earlier. The second difficulty with the respondent's submissions about timing is that in the absence of measurement, the experience of the passage of time is subjective. I have no objective means by which to measure how long a safety "spiel" described by the evidence of Mr Roach and Mr Jones ought to have taken.
229 Nonetheless, on the question whether a safety "spiel" occurred, I prefer the evidence of Mr Watterston and Mr Simone over the evidence of Mr Roach and Mr Jones. As I have indicated, the evidence of Mr Watterston and Mr Simone that no safety "spiel" occurred was clear and emphatic. It is not an issue about which they were likely to be mistaken, and it was not put to either that he was giving false evidence. My preference for the evidence of Mr Watterston and Mr Simone on this issue is also informed by findings as to their honesty, and my acceptance of their evidence over the evidence of Mr Roach and Mr Jones that Mr Roach told Mr Watterston that he was not permitted to commence work on the site.
230 It follows from the above analysis that I do not accept the evidence of Mr Roach and Mr Jones that a safety "spiel" occurred. And on the main question in the proceeding, for the foregoing reasons I am comfortably satisfied that upon Mr Watterston seeking clarification, Mr Roach conveyed to him that he could not commence work on the site until he had attended to the payment of a Union fee of $515. Whether Mr Roach referred to $515 or $500 is not material, but I consider that it is more likely that he referred to a sum of $515, being the fee due for the six month term commencing 1 April 2020. A necessary consequence is that in preferring the evidence of Mr Watterston and Mr Simone I do not accept the evidence of Mr Roach that he did not seek to prevent Mr Watterston working on the site, and to the extent that Mr Jones's evidence did not refer to Mr Roach's clarification that Mr Watterston was not permitted to work on the site, I do not accept his evidence either. I accept that upon being told that he could not work on the site that Mr Watterston uttered an expletive to Mr Roach. Whether he said "[eff] you" or "I am sick of you [*unts]" is not material: each expression employed the use of a profanity to convey exasperation.