THE APPELLANTS' CHALLENGE TO THE PRIMARY JUDGE'S CREDIBILITY FINDINGS
201 As noted above, the primary Judge found the evidence of Mr Stewardson, Mr Gorman and Mr Green unreliable. His Honour's dissatisfaction with their evidence was so complete that he disposed of the respondents' case under ss 340 and 346 of the FW Act on the basis that the appellants had called no credible evidence as to Mr Green's reasons for terminating the employment of Mr Giddings, and had therefore failed to discharge the onus of proof which arose under s 361.
202 In the submission of the appellants, fundamental to his Honour's credibility findings were his conclusions that each of these witnesses had concealed or disguised (or similar) evidence which they thought would be unhelpful to the appellants' case. Specifically, this related to the absence from the affidavit of any of them of any reference to the Scenario Planner (see para 15 above) or to the first, second and third drafts of the OOR report. It was submitted on behalf of the appellants that his Honour had fallen into an error of the kind referred to in the judgment of Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 386 [67]:
It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party's claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.
This passage requires attention to be given to four matters: (1) Was a party-witness criticised for deliberately withholding the truth? (2) Was it in a fashion crucial to a dismissal of that party's claim? (3) Were reasons given for concluding that the truth had been deliberately withheld? (4) Was the party-witness given the opportunity to deal with the criticism?
203 As to the first matter, Mr Green was both a party and a witness in the proceeding before the primary Judge. Further, since Mr Gorman and Mr Stewardson were senior managers whose conduct was assimilated to that of the Company by his Honour, they too, in my view, came within the principle enunciated in Kuhl. As is apparent elsewhere in these reasons, each of these witnesses was criticised by his Honour for deliberately withholding the truth.
204 As to the second matter, technically the Company and Mr Green were not claimants at all: they were respondents. However, in the respondents' case under ss 340 and 346 of the FW Act, the Company bore the legal onus on a significant issue, the resolution of which would inevitably turn, wholly or substantially, upon the evidence of Mr Green himself. On any view, the primary Judge's criticism of Mr Green and, if it matters, Mr Gorman and Mr Stewardson, was self-evidently crucial to the dismissal of the Company's, and Mr Green's, defence to that case.
205 As to the third matter, although counsel for the appellants were critical of the reasons given by the primary Judge for his Honour's criticisms of the evidence of these managers, I do not understand it to have been contended that his Honour did not give reasons at all.
206 As to the fourth matter, I turn below to the question whether the relevant witnesses were given the opportunity to deal with the criticism ultimately made of them in the primary Judge's reasons. That has become a central issue in the appeal, although it was, I would have to say, dealt with in the submissions of the parties at a very high level. Counsel for the appellants asserted what was, in effect, a negative: that no warning that would have been sufficient was given to any of the witnesses. Counsel for the respondents rejected that proposition, and referred to some instances on which they relied. The sufficiency of those instances will need to be examined. Because of the importance of the point, however, and because time for a painstaking investigation of the course of the trial was not available at the hearing of the appeal, I have read the transcript of the evidence of Mr Green, Mr Gorman and Mr Stewardson, and, in due course below, I shall set out what I believe to be each instance in which, even arguably, a sufficient warning might have been given to these witnesses.
207 Before getting to the detail of this issue, however, there are some dimensions of the controversy - quite apart from the question whether sufficient warnings were given - that might conveniently be addressed at the outset.
208 In their outline on appeal, the respondents observed, correctly, that the point did not correspond with any ground contained in the appellants' Draft Notice of Appeal. Normally, that would be fatal. In the present case, the notice was, I would have to say, a most unhelpful document: it was replete with grounds of which little or nothing further was heard and provided a quite misleading picture of the kind of case that was ultimately run on appeal. Had this been a jurisdiction in which an award of costs was available, a submission might have been open to the respondents in this regard. But, in their written outline filed some four weeks before the hearing of the appeal, the appellants took the Kuhl point and articulated the basis of their reliance on it. In oral argument, counsel for the respondents did not revisit their client's protest that had been contained in their outline, and dealt with the matter on the merits. There was no suggestion of any disadvantage or prejudice arising from the unsatisfactory way in which the appellants had prosecuted their appeal in relevant respects. In the circumstances, I am disposed to treat the point as properly before the court.
209 The respondents next made a distinction between a finding that matters had been "concealed" (which, it was put, had not been made by the primary Judge) and a finding that matters had been deliberately "omitted" from these witnesses' affidavits (which, it was put, had been made by his Honour). Orally, this point was developed into a distinction between concealing evidence or documents as such (which, it was said, did not represent the present case) and omitting to refer to factual details on some relevant matter, such as the timing of a witness's consideration or awareness of such a matter (which did represent the present case). At least in relation to significant aspects of the primary Judge's reasoning, I would not accept either of these distinctions; and, to the extent that any such distinction does appear, I consider, with respect, that it is one which does not involve a difference. As appears elsewhere in what I have written, his Honour's reasons amounted to findings that all three of the appellants' main witnesses - Messrs Stewardson, Gorman and Green - had withheld from the court documents, and in some instances facts, which his Honour regarded as significant.
210 The respondents next said that this was not a Kuhl situation at all: there, the trial Judge had treated the plaintiff's evidentiary omissions as a form of admission on matters of substance, no challenge having been made to his evidence, whereas in the present case the primary Judge made findings of credit. In Kuhl, the plaintiff had given a brief and, the trial Judge apparently thought, inadequate account of the detailed facts surrounding the incident which gave rise to his injury. The trial judge had said that the plaintiff "was reluctant to say precisely what happened" (243 CLR at 383 [60]). Of that statement, Heydon, Crennan and Bell JJ said (243 CLR at 384 [62]):
The significance of the trial judge's finding. The conclusion of the trial judge that the plaintiff was "reluctant to say precisely what happened" is an important one. If that conclusion were soundly arrived at, it would be a significant factor against the plaintiff's success. So, at least, the trial judge, the Court of Appeal majority and the first respondent thought. It would be significant because of the following considerations. Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was "reluctant" to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness's knowledge for which the question does call). To conclude that a party-witness is reluctant to say what happened is to conclude that the party-witness is deliberately failing to comply with the duty to tell the whole truth. That is a serious conclusion to reach, for the following reasons.
Their Honours' reasons, into which the above passage led, culminated in the passage set out in para 202 above.
211 As I read Kuhl, that passage applies, as its terms provide, wherever a party is to be criticised for deliberately withholding the truth in a fashion (ie in circumstances) crucial to a dismissal of his or her claim. Kuhl was one example of such a case. There, the plaintiff's omission led the trial Judge to fill the void by drawing an inference that was adverse to his interests (ie that "some subsequent action by [him] caused his arm to be drawn in by the suction force" (243 CLR at 386 [65])). The position in the present case differed in the sense that, ultimately (ie by the respondents having availed themselves of the notice to produce procedure), the full facts of the matter were known. But the principle for which Kuhl stands covered the present case in the sense that omissions from the evidence-in-chief of the witnesses concerned were crucial in the primary Judge's conclusion that those witness were not to be believed across a broad front.
212 I would add that I do not read Kuhl as concerned with the simple situation in which a witness gives positive evidence of a fact and that evidence is not accepted. The premise upon which all litigation proceeds is that witnesses are well aware of their obligation to give truthful evidence and of the prospect that their evidence might not be accepted. By contrast, Kuhl was concerned with an omission, that is to say, with evidence which fell short of being "the whole truth". The present case is of the same kind, but it differs in the procedural context in which the evidentiary statements later held to be incomplete were made. They were made in affidavits, where the deponents did not swear to tell "the whole truth", but swore, or affirmed, that the contents of their affidavits were true and correct in every particular. This is not merely a technical distinction. It reflects the forensic reality of the different ways in which evidence-in-chief may be given. It is an important distinction in the present case because of the need to give close attention to the gravity of the omissions of which the primary Judge accused Mr Green, Mr Gorman and Mr Stewardson. At this point, I desire to make some general observations by way of foundation for what will follow in these reasons.
213 The evidence which a party leads in chief in support of his or her case is a matter for him or her. Subject to the court not being misled by half-truths and the like, a party is under no legal or (in the case of his or her legal advisers) ethical obligation to call evidence which is unhelpful to that case. That, amongst other reasons, is why we have pre-trial procedures for discovery and, at trial, cross-examination. The omission of counsel to lead, in chief, evidence on particular topics exposes his or her client to risks at two levels (at least). First, if it becomes apparent that the witness concerned might have given relevant evidence, counsel's choice not to question him or her about the topics may incline the court against drawing inferences favourable to the party: see Kuhl 243 CLR at 385 [63]. Secondly, the omitted evidence may ultimately be disclosed in a forensic setting over which the party has little control. Thus the case of a party whose counsel chooses to examine a witness in chief on part only of the relevant facts within that witness's knowledge may be cast in a most unfavourable light if the whole facts come out first in cross-examination. On the other hand, it is a commonplace that cross-examining counsel often take the opportunity to elicit from a witness facts which contribute to the case of counsel's client, such as facts that might contribute to a positive defence, but which, because they made no contribution to the case of the party calling the witness, were not mentioned in chief. In such a situation, there could be no criticism of the party calling the witness for confining the questions asked in chief to those that were considered helpful and relevant to his or her case as such.
214 There are, of course, well-known exceptions to the principles just referred to, such as the situation in which a court is being asked to intervene in the absence of the affected party. However, at the contested trial of a proceeding in which there have been reciprocal inspections of the parties' documents, such as generally follows discovery, or some analogous procedure such as inspections pursuant the return of subpoenas or notices to produce, there is, so far as I am aware, no basis upon which a party could be criticised for omitting from the evidence which he or she calls documents considered to be unhelpful to his or her case. In our system of litigation, a party is, save in exceptional situations, under no obligation to make good the other party's case.
215 Turning from the position of the party to the position of a witness called by the party, I would refer next to what their Honours said in the passage from Kuhl set out at para 210 above. The specific point for present purposes is that a witness who has sworn to tell the whole truth is under no obligation to go further than to provide complete and truthful answers to the questions which are asked of him or her. I know of no principle which would have it that the credibility of a witness should be regarded as compromised by the circumstance that he or she omitted to give answers to questions which might have been, but which were not, addressed to him or her.
216 How considerations of the kind discussed in Kuhl play out in a setting in which the evidence-in-chief of a witness, whether or not a party, is given on affidavit has not, it seems, been the subject of authoritative judicial attention. A point of distinction flows out of the considerations to which I have referred in para 212 above. The evidentiary omission of which the trial Judge had been critical in Kuhl arose during the course of the plaintiff's oral evidence-in-chief. The course of his examination is, relevantly, laid out in the reasons of Heydon, Crennan and Bell JJ (243 CLR at 384 [61]): he was asked to recount what had happened when the hose was passed back to him. A witness who, in answer to a question in this form, recounts some but not all of the happenings which were involved in the event inquired of might be criticised for not having told the whole truth. By contrast, where evidence-in-chief is given by affidavit, a promise to tell the whole truth, in the sense of not omitting anything that might be relevant, even important, is not conventionally part of the oath or affirmation. Of course, if the affidavit contains a statement that its contents, either generally or in respect of a particular matter, are comprehensive, different considerations would apply; as they might in a situation in which, even absent an explicit statement of such a kind, it appears that the deponent was manifestly concerned to give a blow-by-blow account of some event. Even in a case of this latter kind - ie where the affidavit, explicitly or necessarily, makes it clear that it constitutes a complete statement of the relevant facts known to the deponent either generally or in respect of a particular matter - the court will not be justified in reaching a conclusion of deliberate concealment unless the deponent has been appropriately warned.
217 Additionally to that point of distinction, there is, in my view, an important point of similarity between the case in which evidence-in-chief is given orally and the case where it is given on affidavit. In a case of the latter kind, and proceeding by way of analogy, it would, in my view, be both unrealistic and contrary to principle to commence with the assumption that the contents of the affidavit must have been the result of the witness's own unassisted endeavours. Just as a witness answers questions from his or her counsel, so too the assumption must be, in my view, that it will be the party's legal advisers who shoulder at least the de facto responsibility for deciding what matters will be set out in the witness's affidavit. After all, the courts place considerable reliance on legal practitioners to confine evidence to such as is relevant and otherwise admissible. The system would not work if it were left to lay witnesses to decide the scope of the evidence they would give, and the terms and form in which it would be given. What I say in this paragraph would, of course, be subject to substantial modification in a situation in which the relevant party is unrepresented (a situation which does not have to be considered here), but even then the court expects, somewhat optimistically at times, the party to make a distinction between what he or she knows about the dispute in which he or she is involved and the relevant and admissible evidence that is required to produce a successful outcome in court.
218 As in the case of a question on a relevant topic which is not asked in chief, so too where a particular matter is not addressed in an affidavit led in chief, it may prove to be to the forensic disadvantage of the party concerned to have proceeded in this way. But the court should not, from that circumstance alone, regard the witness in question as unlikely to be telling the truth in relation to the evidence which he or she does give. Much less, with respect to the primary Judge in the present case, would the court be justified in concluding that the witness was concealing, or disguising, the facts which were not part of his or her evidence-in-chief.
219 Turning then to the present case, I propose to undertake a survey of so much of the evidence of Mr Stewardson, Mr Gorman and Mr Green as bears upon the matters presently under consideration. In the case of each witness, two issues require attention: (1) whether the primary Judge was justified in his statements that he "purported to present a comprehensive account of the development of the proposal to abolish positions and terminate the employment of the affected employees", and "in cross-examination … confirmed that this was so"; and (2) whether a sufficient warning of the prospect of concealment findings of the kind made by his Honour was given.
220 Taking first Mr Stewardson, it is true that his affidavit appears to present a comprehensive account of how he reached the point at which he recommended to Mr Green that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished; or, as it was put in some of the documents, that those roles be made redundant. Chronologically, Mr Stewardson's consideration of such matters, as laid out in his affidavit, commenced at a very high level in April 2014 when Mr Green informed him of the operations review and of Mr Gorman's role in it. On 2 May 2014, he was informed by Ms Ragen that the review was moving to Phase 2, where cost savings measures in the functional support area of the business would be considered. Mr Stewardson proceeded to describe the course of his consideration of cost savings in the engineering department, referring to various roles which could potentially be made redundant. On 17 July 2014, he emailed Mr Green with a brief background paper for a meeting which was, apparently, to be held the following day, and in which he identified the positions of Long Term Planner and Facilities Maintenance Engineer as no longer needed by the Company. Whether or not a meeting was held on 18 July 2014, Mr Stewardson does mention the meeting with Mr Green, Mr Gorman and others on 1 August 2014 referred to in the reasons of the primary Judge.
221 At least down to that stage, Mr Stewardson's affidavit was wholly concerned with his consideration of what roles in the engineering department were no longer needed. While the termination of the employment of those who occupied the positions concerned might have appeared likely, the fact is that the affidavit did not purport to deal with any "proposal to … terminate the employment of the affected employees". This distinction may be significant because, ultimately, the primary Judge accepted that the Company's decision to abolish the positions of Long Term Planner and Facilities Maintenance Engineer, and one Administration Assistant Position, was based on genuine business needs and, in the case of the first-mentioned position, was not was not made for reasons which included Mr Giddings' role or activities as a union officer.
222 In Mr Stewardson's affidavit, I do not find any indication, either expressly or by necessary implication, that nothing that might have been of relevance to the appellants' case had been omitted. I can understand that a reader of the affidavit might assume that it was comprehensive, but it would, in my view, be a different matter altogether for him or her to treat Mr Stewardson as having been untruthful by reason only of any such omissions.
223 But it was submitted by the respondents, and accepted by the primary Judge, that, in his oral evidence, Mr Stewardson had confirmed that his affidavit did contain a comprehensive account. Early in his cross-examination, Mr Stewardson was taken to a paragraph in his affidavit in which he referred to a meeting on 2 May 2014 with Ms Ragen, in which she told him that the operational review should consider moving to Phase 2, and that it would be necessary to consider any cost saving initiatives in the functional support areas of the Company's business. Responding to counsel for the respondents, Mr Stewardson clarified that this was a routine monthly meeting to discuss employment relations, and was not confined the subject of the review. Then there was the following interchange:
Now, thereafter, Mr Stewardson, you've - just by way of overview - I don't want to take you to anything particular at the moment - but you've set out an account of your involvement in the process which led to the - the compulsory redundancies of Mr Giddings and Mr Rosewarn?---Yes.
Now, do you tell the court that that - the account you've set out in your affidavit is a full account of the - your knowledge of the process leading up to the redundancies?---Yes.
224 The matter of the comprehensiveness of Mr Stewardson's affidavit was not further explored by counsel at that point. I would make two observations about the stage that matters had then reached. First, it is, of course, a common and legitimate practice for cross-examining counsel to have the deponent of an affidavit confirm that he or she has included therein everything that relates to the area on which he or she is giving evidence. Usually, this is a precursor to a line of questioning about some matter which is not in the affidavit. To say that a witness's evidence generally should be regarded as unreliable on account of the untruthfulness of such a confirmation would, however, normally be a very big step for a trial Judge to take. Secondly, even if the evidence of Mr Stewardson as mentioned above were untruthful, that would not be the same thing as the witness having concealed, or deliberately withheld, every piece of relevant evidence that was not in his affidavit. There might be any number of benign explanations for the absence from an affidavit of matters which the witness concerned might have mentioned, a judgment made by the legal advisers of the party concerned being, perhaps, the most obvious one. In the result, I take the view that the primary Judge was not entitled to treat the answers referred to most recently above as, of themselves, casting a long shadow of doubt over the legitimacy of Mr Stewardson's reasons for omitting certain evidence from his affidavit.
225 I turn next to the question whether Mr Stewardson was cross-examined in a way which amounted to a sufficient warning of the concealment findings which were ultimately made.
226 In the course of the cross-examination of Stewardson about his knowledge of the scenario planner, the following interchange took place:
Now, did you have discussions with Mr Gorman or anyone else about the contents of this document?---No.
How did you come to see it then?---It was part of a presentation that I - that I was witness to across that period of time.
Do you make reference to that presentation in your affidavit?---I don't believe so. No, I don't.
So when you told me that you've given … a full account of your involvement in the process, that wasn't correct, was it?---It was from the point of view of everything I had involvement in producing.
The matter was left there.
227 The next aspect in relation to which Mr Stewardson was challenged about an omission from his affidavit related to something which appeared in Mr Gorman's affidavit. At the stage when Mr Stewardson was here under cross-examination, Mr Gorman had not yet been called. But cross-examining counsel had his affidavit. It contained the following:
On 23 May 2014, I met with Mr Stewardson and Ms Ragen to discussion the Operational Review, including the potential for the MTEC roles to be filled by two persons from the Engineering team, rather than by secondees from the shift work groups. A copy of a draft presentation outlining this proposal is at JG1, Tab 11 . The focus was to restore the shift work groups resource levels and reduce the costs associated with covering the gaps left in the business left by the secondees.
It is not necessary here to elaborate upon these matters, save to observe that the potential for the redeployment of Mr Giddings and others (but not, at least clearly from the document, Mr Rosewarn) was noted in the document referred to.
228 Mr Stewardson was taken to this document by counsel for the respondents. On the subject of redeployment, he was cross-examined as follows:
Now, did you have a part in formulating those proposals as far as redeployment was concerned?---I had input, yes.
And how was that position arrived at?---Discussions between myself and Mr Gorman around possible options for the roles.
I see. And that was obviously some time before 23 May 2014 that you had those discussions?---It may have been just before, I can't - I can't recall exactly when.
Well, Mr Gorman gave the presentation to you that included this information on 23 May, didn't he?---Yes.
So those discussions must have occurred before that date?---Yes.
Now, you don't refer to those discussions concerning possible redeployment anywhere in your affidavit?---No.
So when you say you gave a full account of your involvement in this process, that wasn't entirely accurate, was it?
[Objection]
When you said in answer to a question earlier yesterday that you had given a full account in your affidavit of your involvement in the process leading to the redundancies, I suggest to you that answer wasn't entirely accurate?---No, I disagree.
Well, the consideration of options for redeployment, that's an important part of the process, isn't it?---Yes.
And you didn't give any indication of your involvement in that process, which resulted in these proposals in your affidavit?---That's correct. So this was - I failed to indicate a conversation I had with Mr Gorman before the presentation.
Well, it was more than just a conversation, wasn't it, Mr Stewardson? You were considering important issues, which was how people who no longer had a position could be redeployed within the organization.
[Objection]
Mr Stewardson, still looking at the right-hand column of this document on page 57, those - the entries in that column are proposals with respect to redeployment of individuals. You agree with that?---Proposals, yes. That's correct.
And those proposals were developed between yourself and Mr Gorman essentially, would that be right?---As I say, I can remember brief conversation before the presentation.
In order to know where the individuals in these positions could potentially be redeployed to, you would have to have a look at what skills and qualifications they have?---That's correct.
And who did that before this document was prepared?---That was me in a conversation with Mr Gorman.
229 The next aspect of Mr Stewardson's cross-examination of present relevance related to the question whether, by about 25 July 2014, there had been a change in the Company's position on the matter of offering voluntary redundancies as a means of absorbing those whose positions would be made redundant as a result of the operational review. In answer to the court, Mr Stewardson confirmed that he, Mr Gorman and Ms Ragen reached the view (in his Honour's words as put to the witness) "that voluntary redundancies ought only be offered in the admin assistant's stream, but that had yet to be approved by Mr Green". When it was suggested to him by counsel for the respondents that he had had some discussions with Mr Green in July 2014 on "the subject of voluntary redundancy and how widely it would be offered", Mr Stewardson said that he did not recall such discussions.
230 Cross-examination then proceeded as follows:
Mr Stewardson, at some point that decision was reached, wasn't it, that at least as far as you and Mr Gorman were concerned, leaving aside Mr Green for now, a decision was reached that your approach would be no voluntary redundancies outside of the admin finance area?---Between Mr Gorman and I?
Yes?---Based on the advice we had, yes.
When you say "based on the advice" what are you referring to?---I'm sorry. I mean yes. Yes. Yes.
What did you mean by that, Mr Stewardson, when you say "based on that advice"?---Well, so Ms Ragen is an important part of that conversation as well and she's our HR specialist.
Do you say that you based your position that no voluntary redundancies would be offered outside of finance and admin on Ms Ragen's advice?---Yes.
And you don't refer to that anywhere in your affidavit?---No. But, as I say, I form the view that none of this is approved - - -
I'm sorry?--- - - - until my general manger or manager said that it's - - -
Well, you've given a lot of evidence in your affidavit, Mr Stewardson, about the steps you took to develop a proposal before it was ever approved by Mr Green?---Yes.
And this discussion - and this decision was about an important issue, wasn't it?---Yes.
Counsel continued to press Mr Stewardson about discussions which he had had in July 2014 with Mr Green about the "specific issue of voluntary redundancies and how widely they would be offered", and he maintained his evidence that he could not recall any such discussions.
231 The next, and final, challenge made to the completeness of Mr Stewardson's affidavit came in the context of cross-examination about differences between the first and later drafts of the OOR report. The first draft contained a passage to the effect that the company should prepare an assessment of contractors performing work of the nature that employees may have the skills and competencies to perform. Counsel asked Mr Stewardson to accept (as was the fact) that this passage "disappeared from subsequent versions of the document". He was asked whether he had any explanation for that, and he replied that he did not. Cross-examination continued:
And do you know whether that assessment was ever undertaken by the company?---Yes.
And did you do that?---Myself and Mr Gorman. Yes.
And does that appear in your affidavit, Mr Stewardson?---I refer to the work that was done across that period, but Mr Gorman documented that process.
I see. Can you just point me to where in your affidavit you refer to conducting an assessment of the contractors and that the nature of the work and skills, etcetera?---I - my apologies, I may not have referred to it as I understood that Mr Gorman was undertaking the documentation for that review.
Was a document prepared?---Yes.
232 After some further questions, and an interchange involving the court, on that subject, cross-examination continued:
[As] at July 2014 you proceed on the basis that there would be no voluntary redundancies outside of the finance admin?---Right.
You proceeded on the basis contractor work was only relevant … to redeployment if the work constituted a permanent fulltime position?---Yes.
And you proceeded on the basis that there were no opportunities for redeployment of Mr Giddings and Mr Rosewarn within [the Company] at that time, that is, July 2014?---As I say, I can't specifically remember what my mind was telling me in July exactly, but, yes.
And I want to suggest to you that the reason that you proceeded on that basis was because each of those assumptions was necessary in order to justify making Mr Giddings redundant?---Sorry, was that a question?
Yes. I'm putting to you a proposition that the reason you proceeded on the basis of those three assumptions was that each of them was necessary, and all of them were necessary, in order to justify making Mr Giddings redundant?---That's not correct.
And … Mr Stewardson, I want to further suggest that you have omitted significant parts of these deliberations from your affidavit?---Which parts of these deliberations?
[Objection]
The parts where you and Mr Gorman changed your position on each of those three issues, you've completed [sic] omitted any reference to that process from your affidavit, haven't you?---As I said, my assumption through the whole process was nothing final until my general manager it [sic], so.
Yes. Mr Stewardson, you've made that point many times and the reason you keep advancing that is because you think that proposition helps the respondent's case; that's right, isn't it?---No. Because it's true.
[Objection]
It's your understanding, as you sit in the witness box, Mr Stewardson, that it's helpful to the respondent's case to advance the proposition that no final decision had been taken by July 2014. That's your understanding, isn't it?---No.
That's why you keep repeating the proposition that no final decision had been made. That's why you're doing it, isn't it?---No, it's not.
I shall return to this extract from the evidence of Mr Stewardson presently.
233 First, however, it is necessary to consider the way in which the primary Judge addressed the matter of Mr Stewardson's omissions in his evidence. I have dealt with that subject at paras 76-87 above. The first document was Ex A4 (see para 19 above). That had been produced by the appellants in response to the respondents' notice to produce. It was shown to Mr Stewardson during cross-examination. No suggestion was made to him that it should have been referred to in his affidavit, much less that its omission was a deliberate act on his part.
234 While on this subject, it is desirable to return to his Honour's treatment of the "Nirvana" slide in this document. The course of Mr Stewardson's cross-examination on this subject was as follows:
[W]hat do you mean by referring to this plan as Nirvana?---My intent with this document, as I said, was purely for developing proposals in my own mind, and memory of this document to me is calling it Nirvana was to make myself feel good.
I'm sorry?---To make myself feel good. I mean, I didn't produce it for any other purpose.
This was your ideal structure, is that right?---Yes, at the time.
And also your ideal personnel filling particular positions?---They were in - yes. Suggested, yes.
Yes. These were the people you wanted in your team?---At that time.
Yes. And you didn't want Mr Giddings, did you?---That's correct.
And part of the reason you didn't want Mr Giddings was his role in providing resistance to what you thought was appropriate in the Enterprise Agreement. That's right, isn't it?---No, it's not right.
235 As noted earlier in these reasons, the primary Judge held that this evidence was "contrary to the thrust of his evidence that he did not have an adverse view about Mr Giddings' work at the terminal or his union role and industrial activities". However, in reaching his own view of the credibility of Mr Stewardson in relevant respects, his Honour made no mention of the following evidence given by him in re-examination:
You were asked some questions … about the last page of that document which is headed Nirvana. Do you recall those questions?---I do, yes.
And you said that it was your ideal structure, and you said, "Yes, at the time". Do you remember that?---Yes.
At what time were you referring to?---So, at around that October period of time, so ideal structure in my mind at that time.
It's - when you say "ideal", what do you mean by that?---So I produced that document as a risk, I guess, risk tool in my own mind to validate that the numbers in my team were going to be adequate, given the proposal I presented.
I see. And that document does not obviously include the position occupied by Mr Giddings, does it?---No, it doesn't.
And it was suggested to you that the people in the Nirvana document were the people that you wanted in your team - and you said at the time?---Yes.
And it was suggested to you that you didn't want Mr Giddings, did you, and you said, "That's correct"?---Yes.
What did you mean by that?---I meant the - I meant the role of the long-term planner.
Right. And there are other roles which were in your real world team which were not included in the structure headed Nirvana, is that right?---That's correct, yes.
And in respect of each of those roles, did you - which were not included in the Nirvana document, what was your position in relation to those roles?---That I saw that I wouldn't need those roles in the future either.
You wouldn't need those roles in the future, is that right?---I wouldn't need those roles either, or they would be renamed to the - potentially, to the roles that I had described on that document.
Right. Thank you. …. The roles - the other roles other than Mr Giddings which were in your team but which were not included in the document headed Nirvana, were any of those roles - well, obviously, none of those roles other than Mr Giddings was occupied by the Lodge President of the CFMEU of the plant?---That's correct.
Were any of those other positions occupied, to your knowledge, by members of the lodge executive?---In - in that structure?
The people that were not present in Nirvana who were in your real time?---That were not present - the people? So I - so that structure was referring to roles specifically, so the people that I had in those - in that structure had a lot of poetic licence because there's contractors and all sorts of people in that structure that I had no - no ability to recruit or retain.
Right?---So it was purely a tool to validate in my own mind that the numbers and the structure looked the right size.
I do not suggest that the primary Judge was under any obligation to accept this evidence in re-examination, but it was, in my respectful view, incumbent upon his Honour at least to give it consideration before reaching the conclusion set out at the commencement of this paragraph.
236 The proposition that Mr Stewardson "failed to disclose the presentation in an attempt to avoid disclosing his real view about Mr Giddings", reflected in the primary Judge's finding set out in the quoted passage at para 77 above, was not put to Mr Stewardson. He was, undoubtedly, cross-examined along the lines that his real view of Mr Giddings was that he was, because of his union roles and industrial activities, an impediment to the better operation of the terminal, but that was, with respect, a very different matter from that involved in his Honour's finding that he had, in effect, been party to a conscious design to conceal evidence from the court.
237 As to Mr Stewardson's failure to mention the Scenario Planner in his affidavit, what the primary Judge meant by his "hedg[ing]" (see para 78 above) must, so far as I can see, have been a reference to the passage in cross-examination set out in para 226 above. In that passage, Mr Stewardson was not asked, much less pressed as to, why he had failed to mention the Scenario Planner in his affidavit. Rather, he was challenged on the truthfulness on his earlier evidence that his affidavit contained a full account of his involvement in the process. He justified his position, and that justification need not have been accepted by his Honour. But he was not further challenged on that justification. And it most certainly was not put to him that his failure to refer to the Scenario Planner in his affidavit arose from his desire to conceal evidence from the court.
238 As to the OOR report, what is striking about the passage from the cross-examination of Mr Stewardson which I have set out at paras 231-232 above, is that no suggestion was made to the witness that he ought to have referred to the report in his affidavit. Rather, he was questioned as to why he made no reference to having undertaken the assessment which had been recommended in the first draft of the report; and, later, as to why he had omitted to make any reference to his, and Mr Gorman's, change of position on what counsel referred to as the three assumptions. It was not the omission of any reference to the OOR report that, as put to Mr Stewardson in cross-examination, was supposed to have been designed to assist the appellants' case: rather, it was the witness's repeated insistence that, through the whole process, nothing was final until approved by Mr Green.
239 As to Mr Stewardson's concession that, until late May 2014, he thought that it might be possible to redeploy Mr Giddings into other positions and that he had discussed that with Mr Gorman (see para 80 above), it was not, so far as I can see, put to Mr Stewardson that his omission to refer to that aspect in his affidavit was the result of a conscious decision on his part to assist the Company's case in court.
240 Finally on this aspect, with respect to the matter of contractors dealt with in para 82 above, although dealt with in the section of his Honour's reasons presently under discussion, the criticism appears to be not so much that Mr Stewardson concealed something that would have been harmful to the appellants' case if set out in the affidavit, but that he was wrong in claiming, in response to counsel's questions in cross-examination, that any proper assessment had been undertaken. Indeed, the evidence in question would, if accepted, have been helpful to the appellants' case.
241 Turning next to Mr Gorman, it is also true that his affidavit appears to present a comprehensive account of how he reached the point at which he recommended to Mr Green that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished. The affidavit commenced with his appointment to conduct the operations review (or "Business Review" as it was called in Mr Green's memo to all staff of 14 April 2014). Mr Gorman said that, in the process of "actioning certain identified initiatives", he discussed "draft papers" with Mr Green and others in the management team. He set out what he described as "a summary of the various initiatives [he] considered" in the review.
242 Under the heading (in his affidavit) "PKCT Operational Review", Mr Gorman gave evidence as to the preparation of the summary referred to in para 13 above. There followed a subheading, "Phase 1 - Operational Review" in which Mr Gorman said that he first considered the business "from an operational perspective", that is to say, relating to shift and day work trade work groups. Under the subheading, "Phase 2 - Operational Review", Mr Gorman considered the prospect of labour reductions in "Finance/Admin/Stores & Daywork appointed positions". He referred to his conversations with managers in the various functional areas, including Mr Stewardson and Mr Tonini. As to the engineering team, Mr Gorman told Mr Stewardson that there were potentially five roles that could be reduced. In that part of his affidavit that dealt with potential reductions amongst administrative employees, Mr Gorman referred to, and exhibited, a version of the organisation chart which showed the positions that would be affected. He said that he prepared this on 30 June 2014, and that it was "based on previous workforce planning processes and recent discussions with Mr Tonini and Mr Stewardson". This was the chart referred to in para 17 above.
243 Continuing with Mr Gorman's affidavit, the next section was under the subheading "Final Recommendations to Peter Green". Mr Gorman said that, on 24 July 2014, he met with Mr Green for their "regular fortnightly review". He said that, on 1 August 2014, he met with Mr Green, Mr Stewardson and Ms Ragen "to discuss our recommendations of proposed redundancies". He said nothing more about that meeting. He followed that evidence with a reference, with only the highest-level details, of what he described as approximately five further meetings with Mr Green and other managers from then until 18 November 2014. So far as his affidavit is concerned, however, the clear impression is that Mr Gorman's recommendations as to the abolition of positions in the engineering department were complete by 1 August 2014.
244 However, as in the case of Mr Stewardson, while the reader of Mr Gorman's affidavit might reasonably assume that it was comprehensive, there was no indication, explicitly or by implication, that nothing that might have been of relevance to the appellants' case had been omitted.
245 At the outset of Mr Gorman's cross-examination by counsel for the respondents, the following exchange took place:
Mr Gorman, as a general proposition, your affidavit sets out your involvement in the review process which led to the compulsory redundancies of three of PKCT's employees?---Yes.
And do you say that you have set out every - I withdraw that - the full extent of your involvement in that process to the best of your ability?---Yes.
And you've set out every step that you took in relation to the review?---Yes.
That was as far as counsel went to have Mr Gorman affirm that his affidavit was comprehensive. I would apply to his circumstances what I have said about those of Mr Stewardson at para 222 above.
246 With respect to the matter of warnings, I commence with the Scenario Planner, about which Mr Gorman was cross-examined. His explanations for various entries which he made in this document were challenged. Then cross-examination proceeded as follows:
And you don't identify anywhere in your affidavit that you produced this document, do you?---No.
And the reason for that is you knew that this document wasn't helpful to your case, didn't you?---No.
You told me at the beginning that you had included every step that you had taken in progressing this review?---Yes.
And this is an important step, the preparation of this document, isn't it?---It's part of it, yes.
Yes. You don't have any other reason why you didn't include it in your affidavit?---I used this for the purpose of obtaining legal advice.
You don't have any other reason why you didn't include it in your affidavit, Mr Gorman?---No.
That was, I accept, a direct challenge to Mr Gorman's motive for omitting any mention of the scenario planner from his affidavit, and it would amount to a warning of the kind required by Kuhl.
247 Mr Gorman was cross-examined about the document titled "Review of the obligations regarding workforce reductions" (see para 14 above), but he was not asked why he made no reference to it in his affidavit. The conclusion of the primary Judge that Mr Gorman had not referred to this document because it was contrary to the Company's case did not correspond, even approximately, with anything that was put to the witness. Likewise, Mr Gorman was cross-examined extensively about the first, second and third drafts of the OOR report, substantially in the sense of what they showed about his, and management's, thinking in the early months as to the Company's obligations with respect to employees displaced by redundancies. But, again, he was not asked why he made no reference to these drafts in his affidavit: much less was it ever put to him that the omission was "deliberate", or that he was "alive to the risk that his failure to disclose the OOR report could damage his credibility", as found by the primary Judge.
248 Mr Gorman was cross-examined about his advice to Mr Green, in late June 2014, that the Company should not offer voluntary redundancies in relation to Daywork Appointed positions, because it would reduce the cost savings that could be achieved by forced redundancies. Nothing was put to him as to his reason for omitting any reference to that advice from his affidavit, but something was put to him about his own decision, made jointly with Ms Ragen and Mr Stewardson, that voluntary redundancies should not be offered outside the administration and finance area. The cross-examination proceeded as follows:
Now, that was a very important decision, wasn't it?---Yes.
And there's no record of the - I withdraw that. There's no mention of that decision in your affidavit?---Not that I can recall, but I would have to reread my affidavit.
Well, accepting, as you do, that it's an important decision, why wouldn't you put that in your affidavit?---I couldn't say.
Is there any record that you know of of the process and deliberations that led to that decision, and I don't want you to mention any content of any legal advice?---No.
This was, I take it, the passage in which, in the primary Judge's words, Mr Gorman offered "no cogent explanation" for his failure to disclose the advice to Mr Green. Whether or not Mr Gorman's answers to the questions addressed to him amounted to a cogent explanation, however, there is, in my respectful assessment, nothing here that would warn the witness of the prospect of a finding, as his Honour made, that Mr Gorman did not disclose the advice "in an effort to avoid disclosing that a desire to save costs underpinned a recommendation which, on its face, was inconsistent with the view he held, at the time, of [the Company's] obligation to offer voluntary redundancies."
249 As to the content of Mr Gorman's advice to Mr Green, I would add only that I cannot, with respect, appreciate how the disclosure of that advice would have been harmful to the Company's case. Accepting that, in late June 2014, Mr Gorman held the view that the Company was obliged to offer voluntary redundancies to other employees upon the abolition of the positions occupied by Mr Giddings and Mr Rosewarn, this advice may well have been inconsistent with that view, but it would, surely, have been part of the narrative by which Mr Green ultimately acted in the way that he did. And it would have been consistent with innocence, more so than with guilt, under ss 340 and 346 of the FW Act (the only area of the case in which these managers' states of mind were relevant).
250 Turning finally to Mr Green, in his affidavit, he outlined the background market and commercial circumstances which provided the imperative for a review of the cost of operations at the terminal. He referred to what he described as consultation on that subject, mentioning his email of 14 April 2014 and his address to the Lodge meeting on 4 July 2014. He referred to Phase 2 of the review being conducted by Mr Gorman. He referred to the meeting on 1 August 2014 when Ms Ragen, Mr Stewardson and Mr Gorman outlined what Mr Green, in his affidavit, described as "a number of draft proposals for achieving costs savings and efficiencies". Save for the events of December 2014, his affidavit was, I accept, short on detail, particularly in relation to the timing of various developments. However, in relation to the events of, say, May-July 2014, which ultimately occupied such a significant place in the reasons of the primary Judge, a reader of the affidavit would, in my respectful view, be unlikely to conclude that the affidavit was comprehensive apropos Mr Green's involvement. Rather, it tends to read as a summary, with more focus upon what might then have presented as the main issues in the case, such as the relation between the abolition of the position of Long Term Planner and Mr Giddings' position in the Lodge. Such an observation on the part of an appeal court, would, of course, normally be neither here nor there. What is significant in the present context, however, is that the affidavit contained no statement, and did not convey the necessary implication, that it was exhaustive in the sense that nothing that might have been of relevance to the appellants' case was omitted.
251 Turning from the terms of Mr Green's affidavit to the evidence which he gave under cross-examination, he was not asked, at the outset, whether he had included everything of relevance in his affidavit. However, in the course of a series of questions about his state of understanding in early July 2014 - specifically with reference to Mr Gorman's then proposals, apparent from the third draft OOR report that Mr Green accepted he had seen, that the positions of Long Term Planner and Facilities Maintenance Engineer be abolished, that voluntary redundancies not be called for and that contractor positions not be considered unless they were full-time and permanent ones - the following exchange occurred:
Now, it's fair to say, isn't it, Mr Gorman, that - Mr Green, I'm sorry, that you don't set out in your affidavit to set out all of your involvement in the process leading to the redundancies of Mr Gorman and Mr Rosewarn?---Is your question that I have not been thorough in my affidavit?
I'm not saying "thorough". I'm saying you haven't set out the full extent of your involvement in the process leading to those redundancies?---My answer is I have.
After a series of further questions about the subject under examination (ie rather than the completeness of Mr Green's affidavit), counsel had Mr Green accept that the Company's decision not to use the mechanism of voluntary redundancy to avoid compulsory redundancy would have been "an issue for the Company to deal with."
252 So far as I can see, Mr Green was not otherwise invited to confirm that his affidavit contained a comprehensive account of his involvement in the process leading to the redundancies of the positions occupied by Mr Giddings, Mr Rosewarn and Ms Arber, and to the terminations of their employments.
253 With respect to warnings, undoubtedly Mr Green was, as times, asked about the absence of certain matters from his affidavit. The instance referred to most recently above related, in context, to the third draft of the OOR report. Later, Mr Green was being pressed as to his ability to recall some dates and events, but not others. He justified the extent of his recollection by what he said was his recourse to appointments and the like in his electronic diary. The following exchange then occurred:
Well, what records did you rely on for that - to ascertain that?---I can't recall those records, but in building my affidavit, I went to my Outlook calendar to establish all discussions of this nature, and I would have derived that meeting date from my Outlook calendar.
Now, if you have no records, how - do you have any independent recollection of what was said about those meetings that you refer to in paragraphs 49 and 50?---It would have been topics - perhaps if I could point to this document here.
Which document are you referring to, Mr Green?---[The witness referred to the third draft of the OOR report.]
Yes. So why didn't you put that document in your affidavit?---Because I didn't have it, like, by way of an attachment to a meeting or something that would prompt me to include it.
Well, what information did you have about the proposals in writing before you entered the meetings that you refer to in paragraph 49?---The version in writing would have been potential organisational charts, as I referred earlier today.
And you had a version of the document which is [the OOR report]?---Yes.
And that was the basis for your discussions in - or one of the bases for your discussion of the meetings referred to in paragraph 49?---Yes.
It was in para 49 of his affidavit that Mr Green dealt with the meeting on 1 August 2014.
254 For the sake of completeness, I next mention two miscellaneous instances in which the absence of various matters from Mr Green's affidavit was raised in the cross-examination of him. First, it was pointed out by cross-examining counsel that Mr Green had not included in his affidavit "any report by Mr Gorman following on from his review", and Mr Green's response was, "I don't recall there being one." Secondly, cross-examining as to whether, in proposing to consult with the Union and the Company's employees, he was following the timetable laid out by Mr Gorman or his own timetable, counsel put it to Mr Green that the subject of timetabling was "another thing" that he had not included in his affidavit, and he agreed that that was so.
255 As noted above, there were a number of omissions from Mr Green's affidavit that the primary Judge regarded as particularly relevant to an assessment of his credibility. The first was a reference to Ms Ragen's document "Operational Review - May 2014". This was an exhibit to Mr Gorman's affidavit. He (Gorman) said that the document was presented at a meeting on 23 May 2014 attended by Mr Stewardson, as well as Ms Ragen and himself. Mr Green was not at the meeting. He was, however, cross-examined as to his knowledge of the document. Asked when he first saw it, he replied that he did not recall seeing it "through a meeting or anything like that", but that he did recall seeing it saved on the Company's server at the time that he was gathering up material for inclusion in an affidavit to the preparation of which he had, apparently, turned his mind in December 2014, in consequence of receiving a letter from the Union threatening legal action. Mr Green was later further cross-examined about the document, specifically with reference to the appearance which it gave that, at the time of the date which it bore, Ms Ragen had it in mind that Mr Giddings was amongst those who might have been redeployed to other positions. Mr Green was asked, and agreed, that this showed that there had later been a change of position on the part of Ms Ragen and others involved in the operational review. Mr Green made it clear that he was not aware of the document at that time, and was not involved in discussions about it. He was not challenged on this evidence. It was not suggested to him that he had seen the document in May 2014 or thereabouts. Neither was his evidence that he saw the document first in December 2014 challenged. There was, of course, no positive evidence to the contrary of that given by Mr Green on these matters. There was, with respect, no established foundation for the findings which underpinned the reasoning of the primary Judge referred to in para 102 above. Not only was there no basis for the conclusion that Mr Green's inability to recall the date, prior to 2 July 2014, when Ms Ragen showed the document to him and discussed it with him "implausible", there was no evidence that that represented the facts of the matter, and it was never suggested to Mr Green that it was. Whether "cogent" or not, Mr Green's explanation of when, and in what circumstances, he came to see this document was the only one fairly available on the evidence.
256 The second omission to which his Honour referred was the circumstance that, before he addressed the Lodge on 4 July 2014, Mr Green had seen a version of the organisation chart mentioned at para 17 above. He was unable to say when he had seen a version of the chart, but he was cross-examined on the premise that he had seen it before the meeting of the Lodge. That was a valid premise, based as it was on evidence which had by then been given under cross-examination by Mr Gorman (who had said, in his own affidavit, that he had prepared the organisation chart on 30 June 2014). When Mr Green was asked about the whereabouts of the version that he did see at some stage, he said that he did not know. He was asked why the version which he saw had not been referred to in his affidavit, and his response was, "I had no occasion or need to." Asked further where the document that he saw might be found, Mr Green replied, "If a document exists, it would be in, perhaps, the shared folder that I referred to, or in the affidavits that I'm not across." While undoubtedly counsel was being critical of Mr Green in this line of questioning, nothing put to him approaches a warning that a finding would be sought that the omission from his affidavit had the purpose of concealing relevant facts from the court. The existence of the chart as such was, of course, the subject of Mr Gorman's affidavit. I appreciate that the relevant reasoning of the primary Judge, referred in para 103 above, did not put this aspect as high as involving concealment, but it was clearly a significant item on his Honour's list of three documents and matters which Mr Green had "failed" to disclose.
257 The third omission to which his Honour referred was the fact of Mr Green's awareness of, and access to, the first, second and third drafts of the OOR report in July 2014. I have summarised, and to an extent set out, the relevant evidence in para 253 above. In my respectful view, while it might well be expected that a witness in Mr Green's position would make reference to these drafts, or at least to the most recent of them, in his affidavit, the evidence does not justify the conclusion that the omission was deliberate (in the sense of amounting to a conscious concealment of something that was perceived to be harmful to the appellants' case). Neither did anything put to Mr Green by counsel for the respondents amount to a warning of the kind required by Kuhl.
258 The fourth omission related to the timing of Mr Green's decision not to offer voluntary redundancies to employees whose positions might be assumed by those who would otherwise be made redundant. There were, it seems, two aspects of this omission, in the view of the primary Judge. The first related not to the timing of the decision as such but to Mr Green's failure to disclose his awareness, by late June, of Mr Gorman's proposal not to offer voluntary redundancies (see para 108 above). To the extent that anything was put to Mr Green in cross-examination which was critical of this omission from his affidavit, it was in the following passage:
Did you discuss the issue of voluntary redundancies, or the use of voluntary redundancies, with Mr Gorman prior to that decision being made?---Through the course of our meetings I tested the strength of some of the items in that review paper, yes.
That wasn't my question, Mr Green. Did you discuss the issue of utilisation of voluntary redundancies with Mr Gorman?---I recall it being discussed as - if it was with Mr Gorman, I cannot recall, but it may have been.
I see. Now, there's no reference in your affidavit to any document recording that the issue was considered; do you agree with that?---There's nothing in my affidavit, no.
As noted earlier, the primary Judge found that Mr Green "sought to conceal the early date upon which he first considered not offering voluntary redundancies." That finding implies wilfulness, the suggestion of which was not put to the witness.
259 The second aspect did relate to the timing of Mr Green's decision as such (see para 109). Under cross-examination, he said that he had made the decision in late October 2014. That evidence was not accepted. This second aspect, was not, as such (ie apart from the first aspect referred to), the subject of any adverse comment about the omissions from Mr Green's affidavit.
260 That brings me back to the primary Judge's high-level conclusions as to the credibility of these three managers (see paras 67-72 above). As the survey which I have undertaken discloses, only in once instance - Mr Gorman in relation to the Scenario Planner - was the witness given a warning which, conformably with the principles discussed in Kuhl, would have been a sufficient precursor to findings of the kind made by his Honour. By contrast, Mr Green gave unchallenged evidence that he had not seen this document before (ie before he was asked about it in cross-examination). That is to say, far from giving a sufficient warning to Mr Green about his concealment of the scenario planner, counsel for the respondents chose not to challenge him on his evidence that he had not seen it before. Yet the Scenario Planner was one of only two documents which his Honour mentioned specifically as having been disclosed by "none of them" (a group of three including Mr Green) (see para 69 above).
261 The OOR report was the other document specifically mentioned by his Honour. As mentioned earlier, when asked why this was not included in his affidavit, Mr Green said that it was because he did not have it as "an attachment to a meeting or something that would prompt me to include it." That may not have been very satisfactory evidence on the part of Mr Green, but it stands a good distance short, in my view, of providing a justification for the deliberate concealment findings made by the primary Judge. Mr Gorman too was included in those findings, but he was never even questioned about the absence from his affidavit of any reference to the July drafts of the OOR report, much less warned that that absence might lead to findings of that kind.
262 Neither, so far as I can see, was any of these witnesses warned of the prospect of a finding that, in his evidence-in-chief, he had "sought to conceal the fact that by the 1 August meeting Mr Green had been presented with a comprehensive and essentially complete proposal to abolish the relevant positions" (see para 70 above).
263 In my respectful view, the primary Judge's credibility findings, in relation to Mr Stewardson, Mr Gorman and Mr Green, cannot stand alongside the joint judgment in Kuhl. In the light of the matters which I have canvassed above, to have made those findings amounted, in the circumstances, to a miscarriage of justice.
264 It remains to consider the consequences of that conclusion for the appeal in the present case. So much of the appeal as concerns the primary Judge's decisions under cll 13.5.1 and 13.5.3 of the Agreement does not involve any contested question of fact: it was common ground that the Company did not make use of redeployment and voluntary redundancy, and did not investigate the reduction of contractors. The conclusions which I have reached in those areas may, therefore, stand. So much of the appeal as concerns his Honour's decision under cl 7 should also, in my view, be allowed for reasons which, although involving factual issues as to which there was some contention, have nothing to do with the question whether the evidence of Mr Stewardson, Mr Gorman and Mr Green should have been rejected on the grounds that it was.
265 The primary Judge's decision under ss and 340 and 346 of the FW Act is, however, in a different category. As mentioned above, it was his Honour's rejection of the evidence of these three witnesses which left the appellants without a leg to stand on in their project of discharging the legal onus for which s 361 provides. I shall turn to that department of the appeal next, after which I shall consider the appellants' challenge to his Honour's reinstatement order.