Hadgkiss v Construction, Forestry, Mining and Energy Union (No 2) [2006] FCA 960

FEDERAL COURT OF AUSTRALIA

Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 2) [2006] FCA 960 HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS NSD 1259 OF 2005 GRAHAM J 27 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1259 OF 2005

BETWEEN: NIGEL CLIVE HADGKISS

Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

EDMOND CASPER

Third Respondent

MICHAEL LANE

Fourth Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 27 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant's application for leave to further question Glenn David Suter as though the applicant were cross-examining him in accordance with s 38(1) of the Evidence 1995 (Cth) be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1259 OF 2005

BETWEEN: NIGEL CLIVE HADGKISS

Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

EDMOND CASPER

Third Respondent

MICHAEL LANE

Fourth Respondent

JUDGE: GRAHAM J

DATE: 27 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The trial in this matter commenced on Monday 17 July 2006. The fourth of seven witnesses called to date for the applicant was Glenn David Suter, who attended Court in response to a subpoena ad test. Mr Suter's examination in chief commenced on 19 July 2006 (transcript p233). His evidence in chief continued until shortly before the luncheon adjournment on 20 July 2006 (transcript p290). At that stage senior counsel for the applicant made an application for leave to question Mr Suter as though the applicant were cross-examining him, relying upon each of subparagraphs (a), (b) and (c) of s 38(1) of the Evidence Act 1995 (Cth) ('the Act'). 2 Upon the hearing of the application for leave the applicant called on the voir dire three witnesses namely Mr Suter himself, and two inspectors who had interviewed him on 11 March 2004 and 22 March 2004. The hearing of the s 38 application was protracted and did not conclude until quite late in the day on 24 July 2006, an additional witness in the proceedings having been interposed by leave on 21 July 2006. At the conclusion of the hearing of the s 38 application I delivered ex tempore reasons for judgment (Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941) and ordered that leave be granted to the applicant to question Glenn David Suter as though the applicant were cross-examining him in accordance with s 38(1)(c) of the Act. 3 The occasion for the grant of the leave was the making by Mr Suter of a prior inconsistent statement, he having made previous representations orally that were inconsistent with the evidence given by him in his examination in chief at the time when the s 38 application for leave was made. Those previous representations, made orally, were recorded, a transcript of the relevant recording having now become Exhibit A10 in the proceedings. It dealt with that part of the interview of Mr Suter which took place on 11 March 2004 between 10.17 am and 11.12 am and then between 12.16 pm and 1.15 pm. 4 In accordance with s 38(1)(c) of the Act it was open to the applicant to question Mr Suter as though the applicant were cross-examining him about the probability of the factual state of affairs contended for by the applicant which were covered by the inconsistent statement. 5 Mr Suter returned to the witness box on the morning of 25 July 2006 whereupon his examination in chief proceeded with questioning, as though he were being cross-examined. 6 As it transpires it became necessary for the applicant to seek an adjournment of Mr Suter's further examination to allow him a fair opportunity to listen to the recording which had been made of that part of his interview on 11 March 2004 which had been the subject of the transcript, now Exhibit A10, and to also allow him to read and consider the transcript. In the circumstances the hearing was adjourned at about 10.45 am on 25 July 2006 until a further witness could be produced. This did not occur until about 1.30 pm on that day. The applicant's sixth and seventh witnesses were then interposed. 7 Shortly before 11.00 am on 26 July 2006 Mr Suter returned to the witness box to be further questioned as though the applicant were cross-examining him. That questioning continued until about 3.25 pm on that day. 8 At that stage senior counsel for the applicant proceeded with further examination in chief of Mr Suter but without relying upon the leave which had been granted as mentioned above in accordance with s 38(1)(c) of the Act. 9 In the ensuing half hour Mr Suter was asked questions about further events that occurred on Tuesday 17 February 2004 and shortly thereafter. He was asked about conversations that he may have had with a person known to him as 'Graham' who would appear to have been Graham Boyd, a leading hand for Innovation Interiors Pty Limited, a plastering subcontractor to Lanskey Constructions Pty Limited in respect of a site at Fairy Meadow upon which a building known as 'Northgate Apartments' was then being constructed. 10 Mr Suter was also asked further questions about other conversations he may have had with the fourth respondent after the one to which he was a party on the afternoon of Tuesday the 17th of February 2004, which was covered by Exhibit A10. 11 Shortly before 4.00 pm on 26 July 2006 the applicant made a further application for leave to question Mr Suter as though the applicant were cross-examining him under each of subparagraphs (a), (b) and (c) of s 38(1) of the Act. 12 In support of that application the applicant sought to tender notes said to have been made by one of the inspectors who interviewed Mr Suter on 11 March 2004 which notes were said to be referable to that part of the interview which took place on 11 March 2004 between 1.37 pm and 2.12 pm and for which neither a sound recording nor a typed transcript was tendered on the earlier voir dire application or at any other time. 13 The notes which the applicant sought to place before the Court were contained in a notebook said to be that of Ms Siciliano who gave evidence on the earlier voir dire application. A sample of her handwriting is contained in an extract from a notebook of hers which dealt with a conversation with another witness on Tuesday 24 February 2004 which lasted from 4.40 pm until 5.05 pm on that day. Whilst counsel for the respondents originally objected to the tender of that extract, he later indicated that he did not object to it as a business record. The copy of the extract from Ms Siciliano's diary note became Exhibit A9. 14 When senior counsel for the applicant sought to tender Ms Siciliano's diary note referable to the afternoon interview on 11 March 2004 to which reference has been made, counsel for the respondents objected submitting that, notwithstanding s 183 of the Act, the Court should refuse to admit the copy of Ms Siciliano's notes on the s 38 application in accordance with s 135 of the Act. Thereupon, senior counsel for the applicant indicated that if there was an issue as to whether the notes were as the applicant submitted them to be, the applicant would wish to call Ms Siciliano to prove them. In the circumstances the application was then adjourned until earlier today. 15 Shortly after 8 am this morning Ms Siciliano returned to the witness box to give evidence on the voir dire. She was asked to give evidence as to her recollection of what Mr Suter had said during the course of the afternoon interview with Ms Siciliano and another inspector commencing at 1.37 pm. Quite naturally Ms Siciliano, who impressed me as an astute and intelligent lady, said that she had no recollection at all of what had been said. She did indicate however that she had taken contemporaneous notes during the course of the interview. She said that when the other inspector asked questions she wrote down the answers. My note is that she said, 'Not word for word - a summary of what was said'. 16 Ms Siciliano's notes were admitted without objection on the application as exhibit AAA1. They were about one page in length. On two occasions they record phrases within quotation marks suggesting that they might have recorded what Mr Suter had said verbatim. When asked about this she indicated that the words in quotation 'Sorry mate' had been spoken by Mr Suter but the words 'What the fuck is going on' which were attributed to another person had not been spoken by Mr Suter. On a couple of occasions the notes record 'I' before words such as 'rang' and 'want' which may suggest that such passages record oral representations in fact made by Mr Suter. However, in my opinion it is impossible to conclude that any relevant part of the notes constituted Ms Siciliano's recording of an oral representation made by Mr Suter, giving his account of what happened in the immediately preceding weeks i.e. February to March 2004. 17 After seeking and obtaining leave for Ms Siciliano to revive her memory about the oral representations made by Mr Suter on the afternoon of 11 March 2004 she was asked whether she could recall what Mr Suter had said at the time. She preceded to give an extensive account of words which she attributed to Mr Suter as if they were the words or words to the effect of what she then remembered he had said back in March 2004. 18 The applicant submits that her one page of notes, exhibit AAA1 on the application, record a prior inconsistent statement made by Mr Suter and further that the account given by Ms Siciliano in the witness box, after reviving her memory, as to what Mr Suter had said in March 2004 constituted a prior inconsistent statement made by Mr Suter. 19 For reasons which I have already given I cannot accept that exhibit AAA1 constitutes a prior inconsistent statement made by Mr Suter, nor is it a record of previous oral representations made by Mr Suter which could answer that description. As to Ms Siciliano's oral evidence she said that the words she attributed to Mr Suter as having been spoken in March 2004 at the afternoon interview were her recollection of what she had 'read', that is, as I understood it, it was her interpretation of the notes to which she had had regard in reviving her memory. 20 She did close her eyes whilst giving her extensive account, suggesting concentration on her behalf, when recounting what Mr Suter had 'said'. She said that she was trying to picture herself at the site at the interview. It has been suggested that her evidence is inconsistent with her own notes. Counsel for the respondents submits that this indicates that her oral evidence is unreliable and should not be taken to be evidence of previous oral representations made by Mr Suter. 21 Senior Counsel for the applicant submits that the discrepancies work in favour of an acceptance of her oral evidence in that it indicates a measure of independent recollection. 22 I must say that I am unable to accept that any particular oral representations were made by Mr Suter on 11 March 2004 of which there is any satisfactory evidence in the current trial within a trial. 23 I do not regard the evidence of Mr Suter in his examination in chief after 3.25 pm on 26 July 2006 to relevantly be 'unfavourable' in the sense in which I consider that word should be construed (see my earlier reasons for judgment at [9]). I have been invited to reconsider my interpretation of s 38(1)(a). Having reflected upon the matter I adhere to my earlier view of that subparagraph. 24 In relation to the application made under s 38(1)(b) I have again formed the impression that Mr Suter has not been disingenuous when he has indicated that he has exhausted his recollection in giving his account of the matters to which his evidence, given after 3.25 pm on 26 July 2006, related. Mr Suter has been more than frank in disclosing that his recollection of his conversations on 16 and 17 February 2004 is now 'very vague'. He readily acknowledges that what he said during the course of his interviews in March 2004 reflected his contemporaneous recollection of the factual state of affairs, which would be reliable, but alas, in respect of the afternoon interview on 11 March 2004 there is no reliable evidence as to what he then said. He informed the Court that he answered the questions asked of him by the inspectors truthfully in accordance with his then recollection. 25 My understanding is that whilst the applicant seeks leave under s 38(1)(b) of the Act, that application is not strenuously pressed. Whether that be so or not, I would not consider it appropriate to grant leave under that subparagraph given my observations of Mr Suter and in particular the genuineness of his attempts to give, on 26 July 2006, evidence of events which were then long since past. 26 This brings me, once again, to s 38(1)(c). As I said in my earlier reasons for judgment at [16]: '… In determining whether leave should be granted under this paragraph, the issue is whether Mr Suter had, at an earlier point in time than his examination in chief, made a prior inconsistent statement, that is, whether he had made a previous representation that was inconsistent with the evidence given by him in his examination in chief. In this context a representation may be oral or in writing or implied (see s 3 of the Evidence Act and the definitions of 'prior inconsistent statement', 'previous representation' and 'representation' contained in the dictionary to the Act).' 27 The applicant submits that the oral representations made by Mr Suter during the course of his interview by the inspectors between 1.37 pm and 2.12 pm on 11 March 2004 as recorded in Ms Siciliano's diary notes answered the description of being such an inconsistent statement. For reasons that I have already given, Ms Siciliano's notes do not amount to a prior inconsistent statement made by Mr Suter. What he in fact said at the afternoon interview may well have amounted to a previous representation made by Mr Suter which fell within s 38(1)(c) of the Act. Unfortunately for the applicant, what previous representations Mr Suter may have made have not been proved. 28 Had Ms Siciliano's account of those previous representations been accepted, the respondents accepted that there was sufficient inconsistency, between the evidence given by Mr Suter yesterday and those representations, to support a grant of leave under s 38(1)(c) of the Act. However, that question does not arise. 29 On this occasion, I find it unnecessary to consider the discretionary matters referred to in ss 38(6) and 192(2) of the Act. 30 The application for leave under s 38(1) is refused. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.