Ogbonna v CTI Logistics Ltd

[2016] FCA 239

Federal Court of Australia|2016-03-11|Before: Barker J

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Court

Federal Court of Australia

Decision date

2016-03-11

Before

Barker J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

The time to lodge the appeal be extended.
The appeal be dismissed.
The applicant/appellant pay the respondents' costs of the application and appeal to be taxed, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

BARKER J: 1 The applicant, Mr Ogbonna, applies to extend the time within which to file an appeal, and if granted, to appeal from a judgment of the Federal Circuit Court of Australia dismissing his claims against the respondents in which he alleged racial discrimination under the Racial Discrimination Act 1975 (Cth) (RD Act). 2 The Court below also dismissed a further claim that Mr Ogbonna was not paid allowances to which he was entitled, and superannuation. 3 Mr Ogbonna failed to lodge an appeal within the required period of 21 days following the decision and orders of the Court below. Rather, he attempted to lodge an appeal within 28 days. 4 Thus, Mr Ogbonna seeks an order of the Court extending the time for lodging an appeal and for appealing against the decision of the Court below. 5 Two issues therefore arise in the hearing of this matter: (1) whether time to appeal should be extended; and, if so, (2) whether the appeal has any merit. 6 The second issue is also relevant to the first. As the respondents submit, any application to extend time to appeal will necessarily involve a consideration of the reasons why the appeal was not lodged within the prescribed time, as well as a consideration of the merits of the proposed appeal. 7 In this case, the Court is satisfied that time to lodge an appeal should be extended. While the evidence of Mr Ogbonna as to how the confusion arose is not entirely clear, the Court accepts that Mr Ogbonna, who was self-represented in the Court below, sought the assistance of his present lawyer in lodging his appeal and, due to some confusion between them, believed he had 28 days to do so. Accordingly, he attempted to lodge the appeal some matter of days out of time. While some proposed grounds of appeal, as discussed below, are without merit, some are arguable. In all, time to appeal should be extended. 8 The substantive matter is whether the appeal should be allowed. In that regard, Mr Ogbonna states nine broad grounds of appeal, as follows: (1) Standard of review. (2) Appointment of Mr Ogbonna to perform first aid. (3) Mr Ogbonna's role as team leader at Garston Way site. (4) Admission of hearsay as fact in [68] of the judgment of the primary judge. (5) Direction to work at the Spearwood Avenue site - 6 July 2012. (6) General claims with respect to two allowances under the Road Transport and Distribution Award 2010. (7) Travelling allowance. (8) Admission of evidence. (9) Defamation of Mr Ogbonna's character. 9 The detailed errors contended for appear below. 10 The question in each case is whether the primary judge erred in the manner alleged.

[3]

Did the primary judge err in relation to the standard of review as alleged? 11 The more detailed statement of this first ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: The Court wrongly held the view the non-payment of the first aid allowance to Mr Ogbonna was not a relevant point in Mr Ogbonna's allegation of racial discrimination as cited in his application and thus failed to apply the Racial Discrimination Act (RD Act). However, the non-payment of the first aid allowance to Mr Ogbonna (including supervisor's allowance) was a relevant point in Mr Ogbonna's allegations of racial discrimination application. While Mr Ogbonna was not paid, Mr Alan Rapley, who was paid the first aid allowance was of a different racial background to Mr Ogbonna who was an immigrant. This shows Mr Ogbonna was discriminated on and denied his rights. In particular:- a. The court failed to apply Section 9 of the RD Act, which states: It is unlawful for a person to do any act involving a distinction exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the ...economic... of public life. b. Secondly, Mr Ogbonna did inform CTI Logistics concerning these payments and CTI Logistics refusal to pay Mr Ogbonna any of these allowances was both deliberate and discriminatory in nature as Mr Alan Rapley was of the same race as the Managers who refused to pay Mr Ogbonna his allowance. 12 In relation to this ground and these contentions, the respondents submit as follows: 7. Contrary to the contention of the appellant, the court did deal with the allegation of non-payment of the first aid allowance specifically as a ground of alleged racial discrimination. 8. The court dealt with the claim for the first aid allowance in two parts, namely: (a) whether it constituted racial discrimination under the Racial Discrimination Act (Tab G, judgment, at [78]); and (b) as a claim for unpaid entitlements (Tab G, judgment, at [79]). 9. As to the first issue, the point raised by the judge was that the fact one person was paid the allowance and another was not does not of itself establish racial discrimination. There must be evidence to establish that the distinction was motivated by race. 10. There was no evidence of any reason based on race for the allowance not being paid (Tab G, judgment, at [78]). 11. In this regard, see also the finding that the change in the travel allowance did not constitute race discrimination (Tab G, judgment, at [35] to [36]). 12. As to the claim for unpaid entitlements: (a) an employee is only entitled to payment of the first aid allowance if he or she was appointed by the employer to perform first aid duty (Tab U Ex 2 - Road Transport and Distribution Award 2010 - clause 16.2(e)); (b) the appellant had not been appointed by the respondent to perform first aid duty and there was therefore no entitlement to payment (Tab G, judgment, at [80]). 13. In any event, the evidence was deficient and did not make out a case for payment of the entitlement (Tab G, judgment, at [80]). 13 At the hearing of the application and appeal, counsel for Mr Ogbonna submitted that the question whether or not a failure to pay the allowance in respect of first aid was motivated by racial discrimination would need to be considered in light of the other matters that were the subject of a number of the other grounds of appeal. In short, that the Court should have regard to a pattern of conduct in determining whether the non-payment of this claimed allowance was motivated by racial discrimination, and that the conduct of the respondents overall should enable the Court to draw a proper inference that the reason one employee received the payment and Mr Ogbonna did not, was a conscious decision motivated by racial discrimination. 14 In many respects, counsel accepted that on the evidence, taken in isolation, it may be difficult for the Court to infer that the non-payment was motivated by racial discrimination. 15 Counsel for Mr Ogbonna also accepted that the issue raised in ground 1 was intimately connected with ground 2, in which Mr Ogbonna challenged the primary judge's finding that he was not appointed a first aid officer. 16 In the result, I do not consider the Court should disturb the findings of fact made by the primary judge in respect of the finding that Mr Ogbonna was not appointed a first aid officer. It follows from that finding that he was not entitled, under the Award, to receive an allowance in that regard. It therefore follows that the non-payment of such an allowance was not motivated by racial discrimination. 17 In any event, it seems to me, on the evidence, that the respondents did not make any conscious decision not to pay a first aid allowance. Mr Ogbonna raised questions about his entitlement to such an allowance, but the respondents never acknowledged that entitlement and effectively said they would look into it. 18 There is, in the circumstances, an insufficient evidentiary basis, as his Honour found in the Court below, upon which to found a reasonable inference that the non-payment of the first aid allowance was motivated by racial discrimination. 19 It follows that ground 1 fails.

[4]

Did the primary judge err concerning the appointment of Mr Ogbonna to perform first aid as alleged? 20 The more detailed statement of this second ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: It was an error of fact for the Court to prefer the facts of Mr Vanderlist by stating that Mr Ogbonna did not mention the name of the person who appointed him to perform first aid duties. Contrary to this, Mr Ogbonna did mention Jane Higgins as the person who appointed him in an email to Mark Vanderlist dated 16 July 2012. More so, Jane Higgins instructed Mr Ogbonna to write his name and 17 on the first aid box as the unique reference number. Secondly, the first aid box was in a prominent location where all the managers who visited the site saw the names and reference numbers written on it. When Mr Ogbonna requested his first aid allowance there was no question as to him not being a first aid officer for the site. 21 In relation to this ground and these contentions, the respondents submit as follows: 14. The judgment does not state that the appellant did not mention the name of the person who allegedly appointed him as a first aid officer. To the contrary, it acknowledges that he did mention a name (Tab G, judgment, at [80]). 15. The court held that the appellant had not been appointed by the employer to perform first aid duty as required by clause 16.2(e) of the Award. 16. The appellant's evidence, confirmed in cross-examination, was that he had been appointed by Tracy O'Brien (Tab M, appellant's affidavit sworn 25 November 2013, at [6] and Tab X, transcript, at page 51; see also Tab K, appellant's affidavit sworn 7 October 2013, where there is no allegation and Tab L, appellant's affidavit sworn 5 November 2013, at [19]). 17. The appellant then sought to change his evidence to say that Jane Higgins had appointed him (Tab X, transcript, at page 51). 18. The evidence of Mr Vanderlist appears at Tab P, his affidavit sworn 5 November 2013, at [3] to [11]. 19. The court preferred the evidence of Mr Vanderlist that Mr Rapley was the only person appointed by the respondent to perform first aid duty (Tab G, judgment, at [80]), based upon the credibility findings already made (Tab G, judgment, at [13] to [14]). 20. A finding of fact by a trial judge that is based on the credibility of a witness should not be set aside on appeal unless that finding was not open on the evidence. Devries v Australia National Railway Commission (1993) 177 CLR 472 [479] Fox v Percy [2003] 214 CLR 118 21. The finding of the judge is consistent with the evidence and no error has been demonstrated. 22 In dealing with these submissions, the Court also refers to the reasons given above for finding that ground 1 fails. 23 In the view of the Court, the primary judge was entitled to find that Mr Ogbonna had not been "appointed" a first aid officer with the purpose of receiving an allowance, to which the Award related. In many respects, the evidence shows that while Mr Ogbonna was desirous of being considered, by the respondents, as a relevant first aid officer, the respondents never acknowledged that he in fact performed that role. 24 The most significant piece of evidence suggesting that he did perform that office was a "first aid duty box" in a room upon which two names appeared, including his. But cross-examination of Mr Ogbonna at trial showed that that name was written in his handwriting and that he, in effect, had assigned himself to the role. 25 In the result, the primary judge's finding that Mr Ogbonna was not appointed a first aid officer was open and should not be disturbed. 26 It follows that ground 2 fails.

[5]

Did the primary judge err concerning Mr Ogbonna's role as team leader at the Garston Way site as alleged? 27 The more detailed statement of this third ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: The Court's findings and decision that Mr Ogbonna was not a team leader (leading hand) was inconsistent and contrary to the facts presented by both the Applicant and First, Second and Third Respondents. Also there is clear and convincing evidence that supports Mr Ogbonna's role as team leader (leading hand) who supervised Garston Way site. For instance:- a. Mr Barton indicated that he did not challenge Mr Ogbonna's description of himself as Site Supervisor or team leader in the documentation he received but later claimed Mr Ogbonna was removed for having difficulties in managing staff and work at the Garston Way site and replaced him with Mr Robins in the role of team leader. This raises a question of fact; who was the previous team leader for the site? b. Also in the email from Mr Adam Taylor, a supervisor (Site Coordinator) to both Mr Ogbonna and Mr Vanderlist on 28 June 2012, Mr Taylor addressed Mr Ogbonna as a leading hand. See extract below:- 'Hi Celestine. '...As a leading hand on this project, it is your responsibility to ensure that every time a single load of product has had a checklist done and completed the paperwork is returned at the end of the day...' Thanks Adam Taylor (See Mark Vanderlist's Affidavit sworn 23 October 2013, page 17 annexure MV3 - email trail) c. Mr Ogbonna's redeployment to Spearwood was because CTI claimed they needed a red tag team leader to assist with the extra workload at Spearwood Avenue on a short term basis, which also validates Mr Ogbonna's role as ram leader at Garston Way . See Mark Vanderlist's Affidavit (the Second Respondent) sworn 23 October 2013, pages 23 and 24annexure 'MV6 - email trail dated 16 July 2012). 28 In relation to this ground and these contentions, the respondents submit as follows: 22. Clause 16.2(a) of the Award (Tab U Ex 2 - Road Transport and Distribution Award 2010) provides for the payment of a leading hand allowance, which is only payable where: (a) the employee has been appointed as a leading hand; and (b) the employee was appointed to be in charge of not less than three employees. 23. The court held that the appellant was appointed as a warehouse store person and not as a site supervisor or team leader (Tab G, judgment, at [24]). 24. That was the appellant's title in his contract of employment (see annexure MV1 to Tab O, Mr Vanderlist's affidavit sworn 23 October 2013). 25. Only time the term 'leading hand' was referred to was in the email from Mr Taylor ((see annexure MV3 in Tab O, Mr Vanderlist's affidavit sworn 23 October 2013, and Tab S, Mr T Barton's affidavit sworn 23 October 2013, at [8]). 26. The appellant: (a) claims to be a 'site supervisor' because he had a key to the premises (Tab X, transcript, at [53] lines 7 to 14); (b) later claims to have been appointed to that role by Mr Vandermere and Mr Tucker, neither of whom were employed by the respondent (Tab DD at page 24); (c) acknowledges that Mr Robins was 'the leading hand' (Tab X, transcript, at [53] lines 21 to 23). 27. There was no evidence that the applicant had been appointed as a leading hand or that he was in charge of at least 3 employees. 28. The finding of the judge is consistent with the evidence and no error has been demonstrated. 29 This ground, as counsel for Mr Ogbonna at the hearing of the application and appeal explained, is also tied to the further ground concerning the transfer of Mr Ogbonna to the Spearwood Avenue premises. 30 Mr Ogbonna took the view that, while he was appointed as a warehouse store person, he had effectively transitioned to the formal role of "leading hand" or "site supervisor". 31 What appears to have occurred is that, in some correspondence, the nature of the work that Mr Ogbonna carried out was referred to by some persons as being in the nature of that performed by a leading hand or a supervisor. 32 Nonetheless, it has to be said the idea that Mr Ogbonna had become a "site supervisor" seemed to depend very much on his evidence that he held a key to the premises and the like. Plainly, that is an insufficient basis for him to be considered as having transitioned to such a role. He was, in fact, engaged as a warehouse store person on a casual basis and was in the employ of the first respondent for less than three months. It is difficult to see the evidence for his transitioning to any major roles. 33 It was plainly open to the primary judge to reject the submission that he was a "site supervisor". 34 Similarly, there is insufficient evidence to show that he had become a "leading hand" in any formal sense. That expression was only referred to once in an email from Mr Taylor and no other relevant employee of the first respondent used the expression. It was obviously used in a manner emphasising the relevant level of responsibility that Mr Ogbonna was assumed to exercise, not formally describing a position that he held. 35 There is, therefore, no basis to conclude that under the Award, Mr Ogbonna was entitled to a leading hand allowance. There is no other relevant allowance to which he would have an entitlement in this regard. 36 The finding of the primary judge was open to him. 37 For these reasons, ground 3 must fail.

[6]

Did the primary judge err in relation to the admission of hearsay as fact in [68] of his judgment as alleged? 38 The more detailed statement of this fourth ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: It was not in the best interest of justice and fairness for the Court to rely on mere hearsay stated in an email, that claim Mr Ogbonna was a nutcase, disrespectful and disruptive, when in fact there was no letter of warning issued or evidence to support this statement. In particular:- a. Mr Ogbonna as a self-represented litigant never saw it necessary to object to this statement made in the email because from his understanding he thought it was only necessary to respond to the statements in the paragraphs of the sworn affidavits of the First, Second and Third Respondents respectively. Which he did do where such statements were inaccurate. b. The statement credited Mr Neil Raspa who had no contact with Mr Ogbonna is not only hearsay but defamatory in nature and does not represent the character of Mr Ogbonna who worked hard in the best interests of CTI Logistics to the extent he went beyond the call of duty to clean the toilet and even provided work materials to perform his duties which was acknowledged by Mr Vanderlist during cross examination. 39 In relation to this ground and these contentions, the respondents submit as follows: 29. The email from Mr Rasper (annexure MV8 to Mr Vanderlist's affidavit dated 23 October 2013, Tab O) was admitted into evidence without objection as part of an email exchange between a number of managers. 30. Reference to the email exchange is made to identify the issues being discussed by Messrs Saxild, Barton and Vanderlist and the thoughts of managers at the time the appellant was dismissed. 31. There is no finding or suggestion that Mr Ogbonna was 'a nut case, disrespectful or disruptive'. 32. The reference to Mr Rasper's email is not hearsay evidence. 33. In any event, there was evidence by Mr Barton and Mr Vanderlist and Mr Saxild confirming the email exchange. 34. Finally, the appellant does not challenge the finding in Tab G, judgment, at [71]. 35. The reference to Mr Rasper's email did not materially affect the outcome of the matter. 40 The issue raised by this ground is of some concern. 41 While the respondents submit that no actual finding was made that Mr Ogbonna was "a nut case, disrespectful or disruptive", the primary judge went out of his way at [68] of the judgment to extract those passages from an email which reflected on Mr Ogbonna in that regard. The material from which the extracts were taken constituted a long sequence of email material. 42 While, as the respondents submits, it appears this evidence overall was designed to demonstrate to the Court that by their general conduct, there was nothing in any of the conduct of the first respondent and its employees to support an allegation that they had at any time acted in a way that was motivated by racial discrimination, the fact that the primary judge set out these extracts is troublesome. 43 It undoubtedly leads to a concern that his Honour placed some measure of significance on the opinion of this person who was not called as a witness. The extracts published in the judgment are entirely hearsay. The evil of hearsay is that material goes into evidence and the truth of it is then assumed, unless contradicted. At no time did Mr Ogbonna have an opportunity to cross-examine the author of the email about the content of those statements. The primary judge, in my view, should have explicitly raised the question of the admissibility of those passages with Mr Ogbonna. Mr Ogbonna was a self-represented person who plainly did not betray any understanding of the complex laws of evidence. His background plainly was not in Australian general law or statutory law. 44 While I am critical of the fact that the primary judge has acted on this material, in the result I consider, that to the extent that this material influenced the primary judge, it can only have been by way of fortifying a view that the primary judge otherwise independently formed in dealing with each of the critical issues. 45 In that regard, it is certainly correct to say that, in dealing with the other critical findings made by the primary judge, the primary judge did not advert to this material. 46 As I have already said, it is unfortunate that this material found its way into evidence and was then referred to in the way that it was in the judgment in the Court below. 47 Nonetheless, for the reasons given, namely that this error did not affect the relevant findings made, this ground must fail. In my view, on the evidence quite apart from this hearsay material, the other grounds of appeal fail.

[7]

Did the primary judge err in relation to the question of direction to work at the Spearwood Avenue site - 6 July 2012, as alleged? 48 The more detailed statement of this fifth ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: The Court erred in part by failing to address the adverse action against Mr Ogbonna as a result of his redeployment. The direction given to Mr Ogbonna on or about 16 July 2012 to move to the Spearwood Avenue site though lawful in nature, however was an 'adverse action' against Mr Ogbonna by CTI Logistics because they changed Mr Ogbonna's job to his disadvantage and dismissed Mr Ogbonna for trying to exercise a workplace right without any valid reason stated in the Separation Certificate issued to him thereafter. In particular:- a. Mr Ogbonna never performed any red-tag duties as clearly stated in the email advising of his redeployment as a red-tag trained team leader to assist with the extra workload at Spearwood Avenue as a short term solution instead he was made to work as a cleaner and was ridiculed by other workers at the Spearwood Avenue site. b. Mr Ogbonna's redeployment had nothing to do with concerns about Mr Ogbonna's relationship with the client, Leighton Contractors at the Garston Way site but rather the need for a red-tag trained team leader. In fact, Leighton Contractors' office shared the same Spearwood Avenue site. c. Mr Ogbonna's redeployment and subsequent termination of his employment for no stated reason was discriminatory in nature considering the fact CTI Logistics hired several new employees during this time. 49 In relation to this ground and these contentions, the respondents submit as follows: 36. The appellant never raised a claim of adverse action under the provisions of the Fair Work Act 2009 in his amended statement of claim. 37. The appellant should not be allowed to raise new matters on appeal. University of Wollongong v Metwally (No.2) (1985) 59 ALJR 481 at 483; 60 ALR 68 38. In any event, the appellant did not refer the matter to the Fair Work Commission as he was required to do under sections 365 and 370 of the Fair Work Act 2009. 50 I accept the submission that a claim of adverse action, to the extent that it is raised and now relied on in this appeal, should not be allowed to go forward. 51 I apprehend, however, that Mr Ogbonna by counsel does not intend to raise adverse action itself as an issue, but rather, as explained in oral submissions, to say that there was a significant reason, other than that disclosed by some of the correspondence, for Mr Ogbonna being transferred to the Spearwood site. 52 The chain of evidence referred to by counsel for Mr Ogbonna in support of this ground, concludes with an email contributed by Mr Ogbonna for the first time in that sequence, querying whether his proposed transfer was for the reason stipulated or had something to do with a meeting he attended with the second and third respondents on 6 July 2012. 53 When one has regard to the findings of the primary judge about what occurred at that meeting, to be found at [50] of his Honour's reasons for decision, it is plain that the first respondent, by its relevant officers, was unhappy with the performance of Mr Ogbonna, met with him because he was apparently feeling insecure, and raised with him things that he had said in his dealings with a representative of Leighton Contractors on site. It was then made clear that it may be appropriate to transfer him to the Spearwood Avenue site. That ultimately happened. 54 It follows in my view, that the reason given in the emails of the first respondent's relevant officers at about the time of Mr Ogbonna's transfer for his transfer, namely that he was a person well versed in the red tag quarantining activities, involving pipe cleaning, was not the real reason for the transfer. 55 But that said, the reasons given at the meeting on 6 July 2012 were the real reasons and did not involve any racial discrimination. 56 The fact that Mr Ogbonna subsequently felt demeaned by the nature of the work he said he got to do at the Spearwood Avenue site is, in the circumstances, irrelevant. Whatever difficulties there were at that point, do not provide a motivation for the actual transfer to the Spearwood Avenue site. 57 In any event, I accept the submission made by the respondents that, to the extent that (through counsel) Mr Ogbonna at the appeal complained of being assigned to menial work, such as cleaning a toilet, there is no evidence he was in fact directed to do that and the only the evidence concerning that would appear to be that he undertook that work voluntarily himself, because he was unhappy with the condition of some toilets. 58 Furthermore, the evidence appears to disclose that once transferred to the Spearwood Avenue site he did, in fact, undertake quarantining or red tag activities, as intended. 59 In these circumstances, ground 5 fails.

[8]

Did the primary judge err in relation to general claims with respect to two allowances under the Award as alleged? 60 The more detailed statement of this sixth ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: The Court's decision that Mr Ogbonna made a generalised claim was wrong because Mr Ogbonna made specific claims which were the unpaid leading hand and first aid allowances during the course of his employment with CTI Logistics. The superannuation being claimed was that which was supposedly payable on the loss of income being claimed as a result of CTI Logistics' termination of Mr Ogbonna's employment on discriminatory grounds with no valid reason. It should be noted:- a. The First, Second and Third Respondents and their legal counsel at no time during the proceedings objected to the relief Mr Ogbonna was seeking. b. Mr Ogbonna never put in a claim for travel allowance, rather it was mentioned as part of the proceedings to prove his case of being racially discriminated against by CTI Logistics. The relief that was sought was not deficient in any respect because Mr Ogbonna was a leading hand and a first aid officer as claimed and proved. 61 In relation to this ground and these contentions, the respondents submit as follows: 39. The court referred to a 'lack of specification' (Tab G, judgment, at [81]). 40. The court dealt properly with the leading hand allowance and the first aid allowance claims (Tab G, judgment, at [75] and [80]). 41. As confirmed in the amended notice of appeal (Tab I, amended notice of appeal, at [6]), the superannuation claim related only to damages for lost income in the event that the respondent was found to have discriminated against the appellant. 42. No such finding having been made, there was no claim for superannuation to be considered. 43. The respondents did object to the relief that the appellant was seeking (respondents' points of defence, Tabs D, E and F). 62 I accept the submissions made by the respondents. 63 It follows that ground 6 fails.

[9]

Did the primary judge err in relation to the travelling allowance as alleged? 64 The more detailed statement of this seventh ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: The Court erred by accepting that Mr Vanderlist at the 25 June 2012 meeting did not expect that Mr Ogbonna would travel between Garston Way and Spearwood Avenue sties more than once per week but that if Mr Ogbonna found that he had to travel more than once per week between the Garston Way and Spearwood Avenue sites, then CTI Logistics would review the situation. Please note:- a. The question of fact in this case on travel allowance is clear. The award states that travel allowance be paid per travel not per week. Therefore the allowance cannot be subjected to review but paid in accordance per each trip made. b. The correspondence that was included in the evidence also supports Mr Ogbonna's claim that Mr Vanderlist wanted to change the award by making a flat $30 travel allowance payment per week irrespective of the number of trips made each week. Also he never sent out a memo or held a meeting for all the leading hands at the various sites to meet as a group to discuss this matter as would be normally expected. c. Mr Vanderlist never refuted Mr Ogbonna's allegation to Adam when he was sent a courtesy copy of an email that state hi intention to amend the said travel allowance to $30 per week regardless of the number of trips made in contravention of the award. Mr Vanderlist's only response to Mr Ogbonna's email was 'will meet with you in the near future to discuss your comments here.' See Mark Vanderlist (the Second Respondent) sworn Affidavit 23 October 2012 pages 15, 16 and 17 annexure 'MV3' - email trail16 July 2012) 65 In relation to this ground and these contentions, the respondents submit as follows: 44. The appellant never made a claim for a travel allowance (Tab I, amended notice of appeal, at [6(b)]). 45. There was no evidence that the appellant had travelled on more than one occasion in any week or that he had otherwise undertaken travel for which he was entitled to, but did receive, payment. 46. The judgment deals with the travel allowance allegations insofar as the appellant claims they amount to racial discrimination (Tab G, judgment, at [77]). 66 I generally accept the submissions made by the respondents. 67 The burden of the complaint made by Mr Ogbonna appears to be that attempts were made, in his view, to alter the travel allowance rules and this was only done because of Mr Ogbonna and his race. There is no basis in any evidence for making that assumption. As the respondents point out, the position adopted applied to everybody in the organisation. There is nothing to suggest any change was made specifically to discriminate against Mr Ogbonna in particular. 68 It follows that this ground fails.

[10]

Did the primary judge err in relation to the admission of evidence as alleged? 69 The more detailed statement of this eighth ground of appeal, which is part statement of an error of law or fact and part submission, is in the following terms: Mr Ogbonna honestly believed he was carrying out the recording for the protection of his lawful interest being that he has been bullied by Mr Vanderlist and Mr Barton in the past with discriminatory remarks also made against his person. This situation informed Mr Ogbonna of the need to have some sort of proof of what was being said to him at that time. The contravention does not apply as stated in Section 5(3)(d) of the surveillance Devices Act 1998 (WA): (1)(b) does not apply to the installation, use or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if - a principal party to the private conversation consents expressly or impliedly to that installation, use or maintenance and the installation, use or maintenance is reasonably necessary for the protection of the lawful interests of that principal party. 70 In relation to this ground and these contentions, the respondents submit as follows: 47. The first time that the appellant disclosed the existence of the recording was the day before the hearing when he delivered a disc containing a copy of the recording to the respondent's solicitors (Tab X, transcript, at page 17). 48. The appellant acknowledged being aware of the provisions of the Surveillance Devices Act 1998 (Tab X, transcript, at page 17). 49. At no stage in the proceeding did the appellant claim that recording was for the protection of his lawful interest (see Tab X, transcript, (transcript 19/12/2014) page 17 and pages 61 to 66). 50. There was no evidence before the court of any dispute that would enliven the exception in section 5(3)(d) of the Surveillance Devices Act 1998. Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 at [16] to [17] 51. In any event, the court was entitled to exclude the evidence on the basis that: (a) it was not relevant, the appellant having acknowledged that it related only to a 'side issue' (see Tab X, transcript, at page 65 line 45); (b) the fact that the appellant deliberately withheld the existence of the recording until the very last minute; and (c) that there was an incomplete recording and in those circumstances the best evidence was to be obtained from the evidence of the other witnesses (Mr Barton, Mr Vanderlist and the appellant) (see Tab G, judgment, at [48]). 52. The content of the recording would not have affected the outcome of the matter. 71 At the hearing of the application and appeal, counsel for Mr Ogbonna conceded that it was matter of discretion for the primary judge as to whether or not the recording that Mr Ogbonna wished to adduce in evidence should be admitted. In those circumstances, the question is whether Mr Ogbonna has demonstrated on this appeal that an error of a House v The King (1936) 55 CLR 499; [1936] HCA 40, type was made by the primary judge. 72 In my view, no such error is demonstrated. The discussion in the reasons of the primary judge show that he considered various authorities as to how the Surveillance Devices Act 1998 (WA) applied and whether, under the Evidence Act 1995 (Cth), he should admit the secret recording into evidence. 73 The additional facts that need to be borne in mind in this regard are that Mr Ogbonna did not disclose to the respondents, until immediately before the hearing, that he had made the recording and wished to rely upon it. Additionally, the recording was only of a part of the meeting on 6 July 2012. 74 It should also be noted that at the hearing of the application and appeal, counsel for Mr Ogbonna accepted that the account of that meeting provided by the primary judge at [50] of his Honour's reasons for decision, was an accurate account of the evidence given by the participants in that meeting. 75 In all of those circumstances, it cannot be said that the primary judge erred in law in refraining from accepting the recording into evidence or that he was, in any relevant respect, misled by the evidence actually led at trial. 76 It follows that this ground fails.

Ogbonna v CTI Logistics Ltd

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