Why did Mr Sharma advance the 9 August Resolutions?
153 Mr Jolly urges the court to conclude that, insofar as he brought about the passage of the 9 August Resolutions, Mr Sharma was actuated, or partly actuated, by reason of Mr Jolly's having commenced the s 94A Application. In addition to the statutory presumption for which s 361(1) of the FW Act provides, he relies to that end on three matters.
154 The first is circumstantial. Mr Jolly contends that the timing of the s 94A Application and the submission advanced by the RTBU in defence of it (namely, that the VLD would not be capable of sustaining itself, in part because the funds that it said were at its disposal were, in fact, not its funds) support the inference that the making of the s 94A Application bore upon Mr Sharma's sponsorship of the 9 August Resolutions.
155 The second concerns a document that was disclosed as part of the discovery process in this proceeding; specifically, a printout of a "WhatsApp" conversation that involved a group of members or officials of the RTBU, each of whom is aligned, factionally or politically, with Mr Sharma. That printout comprises a series of messages sent by individual members to the group as a whole between Monday, 24 July and Thursday, 27 July 2023. The content of those messages (or some of them) - to which I shall later return - is said to support the same inference (namely, that the making of the s 94A Application bore upon Mr Sharma's decision to champion the passage of the 9 August Resolutions).
156 The third concerns Mr Sharma's credit as a witness. For various reasons (each of which I shall address), Mr Jolly contends that Mr Sharma's evidence as to why it was that he brought about the passage of the 9 August Resolutions should be rejected because Mr Sharma was not a witness of truth.
157 Those matters, Mr Jolly contends, accumulate to a point where the court should decline to accept that Mr Sharma has rebutted the statutory presumption to which s 361(1) of the FW Act gives voice.
158 As to that rebuttal, Mr Sharma gave evidence about why it was that he supported (or encouraged or incited) the approval of the 9 August Resolutions. He told the court that he did so because he was concerned to bring the financial affairs of the Victorian branch into line with what the RTBU Rules require. Having had occasion to consider the issue in the context of similar non-compliance on the part of the Rail Divisions, Mr Sharma told the court that he formed the view that the scheme effected by the 2017 Resolution was inconsistent with the requirements of the RTBU Rules. He denied that his sponsorship of the 9 August Resolutions was in any way actuated by Mr Jolly's having commenced the s 94A Application.
159 Senior Counsel for Mr Jolly accepted that, were the court to reject Mr Sharma's evidence as to why he did what he did, it would necessarily do so on the basis that his evidence was deliberately false: in other words, that when he described to the court his reasons for acting, he did so knowing that they were, in fact, not his real reasons. At issue presently, then, is whether there exists a basis in the evidence to conclude that Mr Sharma's evidence was fabricated.
160 On that score, Mr Jolly submits that Mr Sharma was "an extremely unreliable witness", whose evidence before the court was not given "frankly" and could be characterised, in multiple respects, as "disingenuous". Several examples were advanced of answers given by Mr Sharma during the course of his cross-examination that the court should characterise in that way.
161 The first concerned the printed reproduction of the WhatsApp "chat" that is referred to above. It is prudent to replicate here what was relevantly discussed during that "chat" (I shall identify the names and times associated with each entry, followed by the entry itself - all errors original):
Vic Moore (3:18pm on Thursday, 27 July 2023)
That latest [VLD] letter sent today to exec members has a tone of desperation attached to it or is it just me
Bryan Evans (3:19pm on Thursday, 27 July 2023)
No
It does
No threats of legals nothing…. Just a long drawn out plead
…
Mr Sharma (3:45pm on Thursday, 27 July 2023)
It contains a threat that what happened in 2016/17 could happen again - member resignations
It concedes that even if the 2017 reso was valid, Exec has the power to rescind it and put in a new practice
Definitely desperation - ultimately they know that the Exec has a lot more power than it has ever exercised
Bryan Evans (3:45pm on Thursday, 27 July 2023)
Yeah
But this time an exodus works against them
Mr Sharma (3:45pm on Thursday, 27 July 2023)
And an allegation that the Exec does not pass resos in good faith and that the numbers are controlled
Bryan Evans (3:46pm on Thursday, 27 July 2023)
Less viable with less members
Mr Sharma (3:46pm on Thursday, 27 July 2023)
Yes
162 In the course of his cross-examination, Mr Sharma was asked to clarify "how an exodus would work against the locomotive division". Referring to the events of 2016 (when members of the VLD resigned from the RTBU en masse - see above, [17]), he gave the following answer:
[M]y understanding is the last time the exodus was actually planned to apply pressure on the then officeholders to, you know, meet with local - local leaders' demands at that time. But if - and members right now, they are, you know, unhappy about all this, you know, infighting and they - and they raised those issues and if there were an actual genuine exodus, you know, then those members won't return back because it's not a planned, you know, departure from the union. So it was organised for a couple of hundred members or however many back then. Resign, we will do all this, apply pressure and bring you back.
163 Mr Jolly describes that answer as "nonsensical". Respectfully, I do not accept that it is. Mr Sharma's evidence was clear enough. He considered that the 2016 "exodus" that the VLD orchestrated (or that he otherwise attributed to VLD officers) was unlikely to be repeated in 2023 because the circumstances were different. In 2016, so far as he understood the history, the resignations that were procured served as something of a bargaining chip to extract from the Victorian Branch executive concessions as to how funds might be controlled: they were procured on the understanding that members would rejoin once those concessions had been obtained. That, so Mr Sharma thought, was not akin to the situation that obtained in 2023. In 2023, the VLD had commenced efforts to withdraw from the RTBU and there were no concessions in respect of which a repeat of the "exodus" might have been thought advantageous. Indeed, if anything, an exodus might well have worked to prejudice the VLD's efforts to withdraw.
164 How any of that assists Mr Jolly is not immediately apparent. It does, of course, suggest that Mr Sharma was alive - as surely he must have been - to the s 94A Application and the variables that bore upon it. But why should that matter for present purposes? How might it serve as a basis to think that the 9 August Resolutions (which were then, of course, proposed resolutions) were inspired in some way by the s 94A Application?
165 More to the point, I do not accept that Mr Sharma's evidence on the issue can fairly be described as nonsensical or disingenuous, nor that the court might, because of it, have reason to reject what he said or any other aspect of his evidence. On the contrary, Mr Sharma's evidence about the WhatsApp "chat" was rational and hung together in an unremarkable and orthodox way.
166 Next, Mr Jolly suggests that Mr Sharma's evidence was "disingenuous" insofar as concerned his handling of a report that was provided to him by an auditor in September 2022 and his handling of concerns that the VLD raised with him in writing in March 2023. It is said that, in each case, Mr Sharma attempted improperly to downplay the significance of the delays that attended his handling of those matters and that, in light of that, the court should have occasion to treat his evidence with caution.
167 I reject those characterisations of Mr Sharma's evidence. Mr Sharma accepted, at least implicitly, that his handling of the matters to which Mr Jolly points was open to legitimate debate. He sought to impress upon the court - and I accept - that he was a relatively new Branch Secretary who was still coming to terms with the demands of his job. I do not accept that his answers about the manner in which he set about handling the many demands of what is surely a demanding office were such as might legitimately give the court pause to reject his evidence generally - at all, and certainly not as a product of deliberate falsification.
168 Mr Jolly's best - and, with respect, I think only genuinely credible - submission as to why the court might reject Mr Sharma's evidence about why it was that he was moved to sponsor the passage of the 9 August Resolutions concerned the timing of events. Mr Jolly submitted that "…[t]he sequence of events raises a powerful inference that Mr Sharma was focused on attacking the 2017 Resolution in the Branch Executive at the same time as he was advancing an argument based on[ ]its validity in the Fair Work Commission." It is suggested that Mr Sharma correctly identified that the scheme that was put in place as a result of the 2017 Resolution was something that might imperil his defence of the s 94A Application; and that he took the steps that he did to dismantle it (most notably, by championing the 9 August Resolutions) in order to enhance the prospects of that defence.
169 There can be no doubt that the "sequence of events" is such as to afford at least some support for the contention that Mr Jolly advances. Nonetheless, the ultimate inference that he invites the court to draw from that sequence cannot properly be drawn. The timing of Mr Sharma's sponsorship of the 9 August Resolutions and the significance to the s 94A Application of the arrangements to which they were directed are consistent with the notion that the former was motivated, at least partly, by the latter; but they do not stand as a proper evidential foundation upon which the court might conclude as much (or might otherwise reject other evidence suggestive of some other reality).
170 That is particularly so given the evidence that Mr Sharma gave. Mr Sharma told the court that he became aware of the 2017 Resolution in May 2022, following a meeting with Mr Marotta. He was, at that time, new to the role of Branch Secretary. He did not then have occasion to consider whether the scheme to which the 2017 Resolution gave effect was compliant with the RTBU Rules.
171 Mr Sharma explained that, very soon after he assumed the role of Branch Secretary from Ms Grigorovitch, he began fielding letters of complaint from the VLD and the VTBD about improprieties in the management of the branch's affairs. Those complaints, appropriately enough, fixed his attention upon the requirements of the RTBU Rules. Over time, he amassed some measure of understanding as to what those requirements were.
172 It was in early 2023 that Mr Jolly commenced the s 94A Application and the Magazine Application. In the latter, an allegation was raised about the use of the Rail Divisions accounts and whether they could legitimately be used to fund a publication of the Victorian branch.
173 As might be expected, Mr Sharma retained a solicitor, Mr Marcus Clayton, to assist in his defence of Mr Jolly's assertions. Mr Sharma told the court that Mr Clayton suggested in late March or early April 2023 that it might be prudent for him to obtain "…advice as to the effect of rules 21 and 23 of the [RTBU Rules] and whether the practices adopted by the Branch in respect of funds and the receipt of subscriptions were compliant with the [RTBU Rules]". That was an issue squarely raised by the Magazine Application.
174 Mr Sharma's evidence was that there then followed a process by which he came to examine whether (or the extent to which) the financial affairs of the Victorian branch were managed consistently with the RTBU Rules.
175 That very question then arose in the context of the s 94A Application. In a statement that he filed in support of that application on 3 April 2023, Mr Jolly made the following allegations (errors original):
The Victorian Branch, Rail Operations Division and their officials have a long and significant record of not complying with the rules of the RTBU. I refer to and rely on the matters set out at [earlier] paragraphs…as well as:
(a) In breach of rule 21(4), 23(3), 23 (4) and 54(x), the financial affairs of the Victorian Branch have, to my knowledge, always been conducted through an account held by the Rail Operations Division instead of through a Victorian Branch Fund;
(b) In breach of rule 23(8), the financial affairs of the four Branch Divisions that are collectively known as the Rail Operations Division have, to my knowledge, always been conducted through an account held by the Rail Operations Division collectively instead of through a Branch Divisional Fund for each Branch Division;
(c) In breach of rule 21(8), the funds of the Branch Divisions that are collectively known as the Rail Operations Division have, to my knowledge, always been managed and controlled by the Victorian Branch Secretary instead of the Branch Divisional Committees of the Branch Divisions that are collectively known as the Rail Operations Division;
(d) In breach of rule 23(5), the transfer and or/disbursement of the funds of the Branch Divisions that are collectively known as the Rail Operations Division have, to my knowledge, always been authorised by the Victorian Branch Secretary alone instead of by two Branch Divisional office bearers;
(e) In breach of rule 23(6), the funds of the Branch Divisions that are collectively known as the Rail Operations Division have, to my knowledge, have often been disbursed or dealt with by the Victorian Branch Secretary without a resolution of the Branch Divisional Committee of those Branch Divisions;
…
176 On two occasions in May 2023, Mr Sharma attended upon Mr Clayton and counsel (including senior counsel) for the purposes of obtaining advice about the management of the Victorian branch's financial affairs. Having done so, he formed the view that Mr Jolly might have had a point: that there may well have been (indeed, were) aspects of the manner in which the finances of the Victorian branch were managed that were not compliant with the RTBU Rules.
177 Having formed that view, Mr Sharma then set about regularising things. As a first step, he sought to correct what Mr Jolly had correctly identified about the Rail Divisions accounts. That prompted him to move and favour the resolutions of 28 June 2023 (above, [35]), which brought to an end the branch's use of the Rail Divisions accounts.
178 Having addressed that legitimate concern of Mr Jolly's, Mr Sharma's attention very naturally shifted to the arrangements set in place under the 2017 Resolution. He had correctly reckoned that the Shared VLD Account - like the Rail Divisions accounts prior to 28 June 2023 - was being used contrary to the requirements of the RTBU Rules and he set in train efforts to correct that reality. Those efforts ultimately culminated in the passage of the 9 August Resolutions.
179 As has been noted, those resolutions were first proposed in early July 2023. They prompted some opposition from Mr Jolly. On 14 July 2023, he wrote to Mr Sharma, complaining that what was proposed would involve an exercise of power "…in bad faith and for an ulterior and extraneous purpose, namely…hindering or obstructing the withdrawal of the VLD from the RTBU". By written reply sent a few days later, Mr Sharma explained - consistently with what is summarised above - how it was that he came to be of the view that the Shared VLD Account was being used contrary to the requirements of the RTBU Rules. As has been noted, Mr Sharma also observed that:
…It is the duty and responsibility of all RTBU offices to ensure that the rules of the Union are respected and complied with. I have proposed the motion because I consider that the 2017 resolution is contrary to the rules of the Union and is not in the best interest of the Union because it does not provide for proper and good administration of the Union. Those are my only reasons for proposing the motion.
180 Mr Sharma gave evidence consistent with that narrative. He was not shaken from it during persistent and skilful cross-examination. I discern no reason to reject what he said about the reasons for which he did what he did; indeed, I found his evidence on those fronts (and generally) to be compelling. Contrary to what is advanced against him, Mr Sharma impressed during his time in the witness box as a person of undoubted integrity (as, I might add, did Mr Jolly).
181 Respectfully, I reject Mr Jolly's invitation to treat Mr Sharma's evidence with suspicion; or, otherwise, to reject it outright. On the contrary, I consider the sequence of events to be clear: the reason why Mr Sharma brought about the passage of the 9 August Resolutions was because he had formed the view that they were necessary and appropriate to address a measure of impropriety in the way that the finances of the RTBU's Victorian branch were then being managed. That he did so was consistent with equivalent efforts that he had earlier made to address similar improprieties associated with the Rail Divisions. He was not relevantly animated by the fact that Mr Jolly had made the s 94A Application.
182 That the s 94A Application had some relevance to that course of events may be accepted. It was partly in connection with that application that Mr Jolly had occasion to complain about the Victorian branch's financial practices; and it was partly in consequence of that complaint that Mr Sharma came to hold the views upon which he later acted. But so to acknowledge is not to accept that Mr Sharma did what he did because, or for reasons that included that, Mr Jolly commenced the s 94A Application. In ascertaining why particular adverse action was taken, the court is concerned to identify the subjective reasons of those who effected it, rather than the contextual circumstances within which those reasons came to be formed: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (French CJ, Hayne, Crennan, Kiefel and Gageler JJ); see also the authorities to which I referred in Serpanos v Commonwealth of Australia [2022] FCA 1226, [279]-[284].
183 There is another reason not to reject the evidence that Mr Sharma gave. The court is invited to do so on the basis that the evidence that he gave about why he brought about passage of the 9 August Resolutions was deliberately false. Even if (contrary to the observations made above about Mr Sharma's candour and demeanour as a witness) there were a basis upon which I might suspect what Mr Jolly invites me to accept, I would nonetheless decline the invitation on the basis that it was never suggested to Mr Sharma that his evidence was deliberately false.
184 True it is, of course, that Mr Sharma was on notice that Mr Jolly would invite the court to disbelieve his evidence, and to conclude (whether as a matter of inference or by reason of the statutory presumption in s 361(1) of the FW Act - or both) that his motivations for supporting the 9 August Resolutions included motivations that were proscribed by pt 3-1 of the FW Act. There can be no suggestion that the court should reject Mr Jolly's invitation by application of the rule in Browne v Dunn (1893) 6 R 67.
185 Nonetheless, the court should, I think, be slow to draw conclusions adverse to Mr Sharma - or, worse, conclusions that are consistent with the hypothesis that he deliberately gave false evidence - in circumstances where he was not given an opportunity in the witness box to say why they ought not to be drawn: see, in that regard, Curwen v Vanbreck Pty Ltd (2009) 26 VR 335, 349-350 [28]-[29] (Redlich and Bongiorno JJA and Hansen AJA).
186 For obvious reasons, it is unnecessary to make any more of that. I regard the evidence that Mr Sharma gave about why he did what he did in support of the 9 August Resolutions as truthful and forthright, and I accept it. He did not bring about the passage of those resolutions because, or for reasons that included that, Mr Jolly had exercised a workplace right.
187 Mr Jolly's claim to relief under pt 3-1 of the FW Act must be rejected.