Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 4 Appeal from: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550

File number: VID 605 of 2017

Judges: KENNY, TRACEY AND BROMWICH JJ

Date of judgment: 30 January 2018

Catchwords: EVIDENCE – privilege against self-exposure to penalties – application for leave to appeal and appeal from orders of primary judge refusing the grant of a certificate to a party witness under s 128 of the Evidence Act 1995 (Cth) – where party witness had declined to answer questions put to him in chief by his own counsel – meaning of "objects to the giving of particular evidence" in s 128(1) – whether primary judge erred in finding that s 128(1) was not engaged because the witness was not compellable to give the evidence objected to – whether Song v Ying [2010] NSWCA 237; 79 NSWLR 442 was plainly wrong Held: application for leave to appeal granted – Song v Ying was correctly decided – second appellant was not entitled to a certificate under s 128 – appeal dismissed

Legislation: Acts Interpretation Act 1901 (Cth) s 15AB Evidence Act 1995 (Cth) s 128 Fair Work Act 2009 (Cth) ss 340(1), 343(1), 346, 348, 361, 546

Cases cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 Cornwell v The Queen [2007] HCA 12; 231 CLR 260 Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 89 Ferrall v Blyton [2000] FamCA 1442; 27 Fam LR 178 Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 Song v Ying [2010] NSWCA 237; 79 NSWLR 442 Sorby v Commonwealth (1983) 152 CLR 281 Ying v Song [2009] NSWSC 1344