Ying v Song

Judgment 1HIS HONOUR: Michael Alexander Williamson ("Williamson") was an office bearer of the Health Services Union NSW ("the Union") from about September 1995 until 21 June 2012. His designations included General Secretary. He vacated office as a consequence of an order of the Federal Court of Australia. 2Whilst in office he committed offences, involving dishonesty, in respect of which he was charged, pleaded guilty, and was convicted. On 28 March 2014, the District Court of New South Wales sentenced him to five years prison with an additional term of two years six months. He is eligible for release to parole on 2 March 2019. 3On 6 November 2012, the Union initiated proceedings against Williamson in the Industrial Court of New South Wales ("the IRC proceedings") for recovery of losses and damages suffered as a result of breaches by Williamson of duties owed to the Union. 4On 7 November 2012, the Union initiated proceedings in this Court against Williamson, his family trust company, an erstwhile Deputy General Secretary of the Union Peter Mylan ("Mylan"), an erstwhile member of the Union's Remuneration Subcommittee Kathy Jackson ("Jackson") and Kerrie Seymour, a former officer of the Union ("Seymour"). The IRC proceedings were transferred to this Court on 1 February 2013 and have been consolidated with the proceedings instituted here. The proceedings by the Union against Williamson, his family trust company, Jackson and Seymour have been settled. 5The Union's claims against Mylan fall into three categories. First, the Union seeks damages arising out of alleged involvement by Mylan in transactions between the Union and a supplier of information technology services to it called United Edge Pty Ltd, in which Williamson had an interest and via which he obtained benefits from moneys paid by the Union. Second, the Union claims that remuneration increases for Mylan were not validly authorised and it seeks restitution of overpayments. Third, the Union claims damages from Mylan arising out of asserted breaches of his contract of employment whilst he was Acting General Secretary in connection with an independent inquiry into the governance of the Union. Amongst others, the Union asserts that Mylan collaborated with Williamson with respect to the backdating of invoices for services not in reality provided to the Union by CANME, a business run by Williamson's wife. 6By First Cross-Claim, Mylan makes various claims against the Union amongst others for failure to pay asserted legal entitlements. 7By Second Cross-Claim, the Union also sues Elizabeth Jensen ("Jensen"), who was an independent management consultant retained by the Union to prepare various reports in relation to remuneration, which reports the Union asserts were materially misleading or negligently prepared as a consequence of which it says it suffered loss. 8The charges preferred against Williamson, and in respect of which he pleaded guilty, included a charge under s 176A of the Crimes Act 1900 (NSW) (since repealed) of cheating and defrauding whilst a director in relation to CANME, and a charge under s 192H of publishing a false statement to deceive whilst an officer in connection with the creation of fifteen false invoices. A statement of Agreed Facts placed before the sentencing court is in evidence. 9On 19 April 2013 the Court noted an agreement between the Union and Williamson to mediate their disputes. The mediation was successful. 10On 24 September 2013, by an instrument entitled "Deed and Deed Poll" ("the Deed"), Williamson, the Union and other parties associated with Williamson and the Union respectively settled their differences on terms which entailed, amongst others, the Union releasing Williamson from all claims and Williamson consenting to judgment in favour of the Union in the sum of "$5,000,000.00 as damages for breaches of statutory and fiduciary duties, and overpayments of remuneration, and negligence". On 26 September 2013 the Court entered judgment against Williamson accordingly. Williamson has been removed as a party from the proceedings. 11The Deed reveals that Williamson has furnished to the Union statutory declarations made by him on 20 June 2013 and 1 August 2013. These are not in evidence but I infer that they contain information exposing misconduct on the part of Williamson. 12Clause 2.5 of the Deed provides, amongst others, that if the contents of the statutory declarations are misleading or deceptive or likely to mislead or deceive in any material particular, the release otherwise granted to Williamson will not apply to benefit him or burden the Union. 13Clause 2.7 of the Deed provides relevantly: 2.7 Assistance [Williamson] must on the Union Council giving its approval of this Deed pursuant to clause 3.11 as evidenced by a Certificate under that clause, and in exchange for such Certificate, provide signed statutory declarations in the form agreed between the Union and [Williamson], unsigned copies of which will be provided to the Union Council with this deed for approval, dealing with: ... (v) Peter Mylan; (vi) Elizabeth Jensen; ... ... (b)In the event that the Union Council fails to provide approval under this deed, all copies of the unsigned statutory declarations will be destroyed. (c)Subject to: (i)Application being first made for an appropriate certificate for [Williamson] pursuant to s128 of the Evidence Act 1995 (whether or not that application is granted) in relation to any matter the subject of criminal proceedings to which [Williamson] has at the time of request pleaded guilty or been convicted or any matter for which there is no reasonable grounds for concern about self incrimination; and (ii)The application for and obtaining of such certificate in relation to any other matter for which evidence is sought, where [Williamson] may have reasonable grounds for concern about self-incrimination; (iii)[Williamson] must, if required by the Union, give evidence in proceedings by the Union against or brought by any of the persons listed under paragraph (a)...and to the extent possible at law make himself available at the place where he resides from time to time for prior interview for that purpose. 14Clause 3.11 of the Deed makes provision for the Council of the Union to approve the Deed and for the Secretary of the Union to certify that such approval has been given. These requirements have been fulfilled. 15In accordance with the usual practice in the Commercial List, on 2 May 2014 I directed the Union to serve by 13 June 2014, affidavits in chief on its claim and on its claim against Jensen. However, the direction expressly excluded affidavits of any witness who objects to giving evidence on the grounds of self-incrimination. 16I directed that any motion seeking issue of a certificate under s 128 of the Evidence Act 1995 (NSW) ("the Act") in respect of the affidavit of Williamson and any other witness who objects to giving particular evidence on the grounds of self-incrimination be filed and served by 30 May 2014 and made returnable on 6 June 2014. Such a motion had earlier been foreshadowed. 17On 28 May 2014 the Union's solicitors wrote to Williamson's solicitors confirming that the Union would be seeking evidence from Williamson in these proceedings. They provided details of the matters concerning which they would seek that evidence (these details are reflected in the motion to which reference is made below). They noted that Williamson had provided some preliminary indication of the evidence he would be able to give by way of certain statutory declarations and preliminary information provided to the solicitor in a teleconference on 23 May 2014. They recorded that they understood from what Williamson's solicitors had told them that he would not sign any affidavit or approve any draft affidavit or take other steps which may be admissible against him without a s 128 certificate. 18Williamson's solicitors replied on 29 May 2014 stating that the evidence Williamson may give may lead to incrimination under Australian law including but not limited with respect to offences under the Industrial Relations Act 1996 (NSW) and the Crimes Act 1900 (NSW). They confirmed that Williamson would not sign any affidavit or approve any draft affidavit or take any other steps which may be admissible against him whatsoever without a s 128 certificate. 19Section 128 of the Act provides relevantly that: 128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country... (2) The court must determine whether or not there are reasonable grounds for the objection. (3) Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness: (a) that the witness need not give the evidence unless required by the court to do so under subsection (4), and (b) that the court will give a certificate under this section if: (i) the witness willingly gives the evidence without being required to do so under subsection (4), or (ii) the witness gives the evidence after being required to do so under subsection (4), and (c) of the effect of such a certificate. (4) The court may require the witness to give the evidence if the court is satisfied that: (a) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (b) the interests of justice require that the witness give the evidence. (5) If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence. (6) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (7) In any proceeding in a NSW court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. 20On 30 May 2014 the Union duly filed a motion seeking orders that Williamson be given a certificate under s 128 of the Act in respect any evidence by him in these proceedings (whether by way of affidavit or oral evidence), on the following particular matters: (a) United Edge. Mr Williamson's dealings in relation to United Edge Pty Ltd ("United Edge"), including (without limitation): (i) the establishment of United Edge; (ii) Williamson's interests in United Edge; (iii) the provision of IT services by United Edge to the Union, and the terms on which those services were provided; (iv) the disclosure to the Union of his interests in United Edge; (v) dealings with Mylan, in relation to United Edge and the provision of IT services to the Union, including (without limitation) dealings in relation to: (A) Williamson's interests in United Edge; (B) the nature and discharge of Mylan's responsibilities in relation to IT matters, including in relation to United Edge; (b) Remuneration Review. Williamson's dealings in relation to the review and approval process relating to the remuneration of full-time executive officers of the Union, in the period September 2010 to February 2011, including (without limitation): (i) dealings with Jensen, in relation to the engagement of Jensen to undertake a review of the remuneration of full-time executive officers of the Union; and the conduct by Jensen of that review; and the provision of information to Jensen in relation to that review; (ii) the disclosure and non-disclosure of matters to the Union Council (and other committees) of the Union, in relation to the review and approval of remuneration of full-time executive officers; (iii) participation in any decision-making process in relation to the approval or setting of remuneration for full-time executive officers; (iv) the discharge of his legal duties in relation to the conduct of the review and approval and setting of executive remuneration. (c) Conduct while Williamson was purportedly on leave and during the Independent Panel Review conducted by Mr Ian Temby and Mr Dennis Robertson ("Temby Inquiry"). In the period from 22 September 2011 to 21 June 2012, Williamson's dealings with and in relation to the Plaintiff, including (without limitation): (i) requesting or instructing others to escort Williamson into the Union's premises using security "swipe" keys of those others; (ii) providing responses to the Temby Inquiry; (iii) requesting or instructing others (including Mylan) to give responses to the Temby inquiry; (iv) requesting or instructing others (including Mylan) to forward correspondence from the Temby Inquiry to Williamson; (v) requesting or instructing others (including Mylan) to respond to that correspondence as directed by Williamson; (vi) advising Mylan in relation to the circumstances surrounding previous payments made by the Union to CANME; (vii) preparing and presenting backdated invoices in relation to CANME; (viii) seeking the approval from others (including Mylan) of backdated CANME invoices or other backdated documents; (ix) giving directions to Mylan during that period; (x) attending the Union offices during that period; (xi) requesting and obtaining access to Union records; (xii) attempts to remove and destroy the Union's records, or actual removal or destruction of the Union's records; Any dealings with Mylan (or any other person) in relation to dealings of that kind, including the matters set out in (i) to (xii) above. 21Section 192A of the Act permits the motion to be dealt with at this stage. It provides for advance rulings and findings and is in the following terms: 192A Advance rulings and findings Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. 22The motion is supported by affidavits of Troy Michael Rollo, a solicitor in the employ of the solicitor on the record for the Union. The Office of the Director of Public Prosecutions was notified of the application and advised that the Director does not wish to be heard on the application. A similar position is taken by Jensen. Mylan's initial position, as articulated by counsel, was avowedly not to oppose the application but to draw to the Court's attention "issues" pertinent to the exercise of the Court's discretion to grant a certificate. These issues were all matters supportive of a refusal to grant the certificate. One such issue was the possibility that Williamson had waived his privilege against self-incrimination by the provision of the statutory declarations described in cls 2.5 and 2.7(a) of the Deed. Mylan then changed position to oppose the issue of the certificate and the parties were given leave to make further submissions. 23For the reasons which follow, the certificate cannot be given at this time. 24Having regard to the blatantly dishonest conduct and misuse of his position on the part of Williamson, as revealed by the Agreed Facts placed before the sentencing court, I am satisfied that the evidence which Williamson could give may tend to prove that he has committed an offence or offences under an Australian law, the possible candidates being at least: (a) making a false document (Crimes Act 1900 (NSW), s 253(b)); (b) using a false document (Crimes Act 1900 (NSW), s 254(b)(ii)); (c) obtaining financial advantage by deception (Crimes Act 1900 (NSW), s 192E); (d) acting dishonestly in the exercise of his duties (Industrial Relations Act 1996 (NSW), s 267); (e) improper use by officer of an industrial organisation of their position to gain financial advantage for another (Industrial Relations Act 1996 (NSW), s 268). 25Williamson is a non-party to the proceedings who by cl 2.7 of the Deed has bound himself to give assistance to the Union not only by giving evidence but by making himself available for prior interview for that purpose. 26By cl 2.7(c)(ii) of the Deed, with respect to evidence where he has reasonable grounds for concern about self-incrimination in respect of offences for which he has not yet been convicted, his assistance is subject to the application for and obtaining of the certificate. Hence this application, which is brought not by him or on his behalf, but by the Union so as to fulfil the condition in the Deed. 27Section 128 only applies "if a witness objects to giving particular evidence". Section 128 is not in play because "objects" in this context means unwilling to give the evidence where otherwise required to do so, on the ground that the evidence would tend to incriminate; see Ying v Song [2009] NSWSC 1344 at [31] and [51], Song v Ying [2010] NSWCA 237 at [28]. See too Cornwell v R (2007) 231 CLR 260 at [112]. 28The certificate is sought in relation to a potential affidavit to be given to the Union which affidavit may or may not be brought into existence and, if it ever were, may or may not be served or read. 29Williamson has not been subpoenaed to give evidence. He is not in the process of giving evidence and there is no compulsion upon him to give it. He is not even contractually bound to the Union to provide an affidavit unless and until a certificate is given. 30There is no legal compulsion upon Williamson to give any evidence let alone "particular evidence". Accordingly, he has not, in the sense required by s 128(1), objected to giving particular evidence and the certificate can therefore not be given. 31This is perhaps additionally reflected in the fact that the certificate is being applied for to fulfil a condition in the Deed upon which a contractual obligation of Williamson to give assistance to the Union, and to the Union only, is dependent. 32The appropriate course is for the Union to subpoena Williamson and to provide, so far as it can, a précis of the evidence it anticipates he will give. At the point at which he is called and required to testify the machinery of s 128 will operate with respect to evidence which he objects to giving on the ground that it may incriminate him. I will give directions accordingly. 33Having regard to my conclusion that the certificate is not to be given at this time, it is not necessary to deal with Mylan's submissions as to waiver of privilege. I will however do so, having regard only to the material available at this time. 34The evidence establishes that the statutory declarations referred to in cl 2.5 of the Deed related only to the financial circumstances of Williamson and entities related to him and were provided for the purpose of and in the context of the settlement discussions by way of mediation which resulted in the making of the Deed. They were seen only by legal representatives, officers of the Union, legal advisers, and the mediator and those participating in the mediation. They may have also been seen by Williamson's wife and her legal advisers who also participated in the mediation. 35With respect to the draft statutory declarations referred to in cl 2.7 of the Deed, the evidence establishes that such drafts were provided on 10 September 2013 on a without prejudice basis and further drafts were provided on 23 September 2013 also on a without prejudice basis in the course of the negotiations of the Deed. These were seen only by Williamson, his solicitor, the Secretary of the Union and its legal advisors. 36With respect to the statutory declarations referred to in cl 2.7, these were provided to the Union and were seen only by Williamson, his solicitor and the Union's legal advisors. Each such declaration includes the words: I am prepared to give information to sign Affidavits in any proceedings commenced by the [Union] against any of the parties listed below subject to a certificate under s 128 of the Evidence Act being provided to me, in the event that my legal representatives deem that it is necessary. 37In my view, the circumstances (including the above quoted contents of the declarations themselves, and the terms of the Deed) in which the draft and signed statutory declarations were brought into existence and disclosed, rather than revealing any waiver by Williamson of his self-incrimination privilege, establish its preservation. It is not necessary to consider whether the communications attract some other form of privilege in addition. 38It follows that the Union's motion filed 30 May 2014 is dismissed. 39I note that a similar motion was filed on behalf of the Union on 15 June 2014 with respect to another potential witness, Bradley Carl Bird, in respect of evidence whether by way of affidavit or oral evidence. It seems to follow from what I have said above that that motion too must be dismissed. I will hear the parties on this, on any questions as to costs and as to the form of the appropriate directions going forward.