FEDERAL COURT OF AUSTRALIA Temple v Powell (No 1) [2007] FCA 987 EVIDENCE - mode of evidence at trial – civil penalty proceedings – whether affidavit evidence exhibiting transcripts of interview and statements given to investigators may be received – unsatisfactory form of some proposed evidence – discretionary questions – civil penalty proceedings – critical evidence of oral statements and conversations by union officials – evidence directed to be given on affidavit – affidavits to indicate time, place and nature of critical oral conversations – evidence of content of oral conversations and statements to be adduced orally in chief – annexure to affidavits of previous witness statements or interviews with investigators not permitted in exercise of discretion Building and Construction Industry Improvement Act 2005(Cth) Workplace Relations Act 1996 (Cth) Industrial Relations Act 1979 (WA) Briginshaw v Briginshaw (1938) 60 CLR 336 cited Australian Securities and Investments Commission v Vines Z(2003) 21 ACLC 159 cited A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247 cited Platcher v Joseph [2004] FCAFC 68 cited Alfred v Lanscar [2007] FCA 833 cited MARK TEMPLE v MICHAEL POWELL, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS, JOE MCDONALD AND CONSTRUCTION, FORESTRY MINING AND ENERGY UNION WAD 347 OF 2006 FRENCH J 2 JULY 2007 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 347 OF 2006 BETWEEN: MARK TEMPLE Applicant AND: MICHAEL POWELL First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS Second Respondent JOE MCDONALD Third Respondent CONSTRUCTION, FORESTRY MINING AND ENERGY UNION Fourth Respondent JUDGE: FRENCH J DATE OF ORDER: 2 JULY 2007 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The parties may adduce evidence-in-chief at trial by way of affidavit subject to the usual rights of cross-examination provided that evidence of oral statements made by the first or third respondents and conversations in which they participated shall be adduced orally in chief. 2. The preceding direction does not prevent the inclusion in the affidavit of the time and place of such statements or conversations and their subject matter without going to their content. 3. In the event that any proposed witness is unwilling or unable to provide an affidavit, the evidence of such witness may be adduced orally in its entirety. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 347 OF 2006 BETWEEN: MARK TEMPLE Applicant AND: MICHAEL POWELL First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS Second Respondent JOE MCDONALD Third Respondent CONSTRUCTION, FORESTRY MINING AND ENERGY UNION Fourth Respondent JUDGE: FRENCH J DATE: 2 JULY 2007 PLACE: PERTH REASONS FOR RULINGS IN RELATION TO USE OF AFFIDAVITS EXHIBITING OUT OF COURT STATEMENTS 1 These proceedings were instituted on 30 November 2006 by Mark Temple an inspector appointed under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). The first respondent is Michael Powell who is an organiser and member of the Construction, Forestry, Mining and Energy Union (CFMEU) registered under the Workplace Relations Act 1996 (Cth) (the WR Act) and is said also to be an organiser and member of the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) registered under the Industrial Relations Act 1979 (WA). Both the CFMEUW and the CFMEU are named as respondents. Also sued is Joseph McDonald who is said to be an employed officer and agent of both unions and a member of both. 2 According to Mr Temple's statement of claim the CFMEU was, in August 2005, a party to five certified agreements relating to the Ravensthorpe Nickel Project. He alleges that on or about 17 August 2005 Messrs McDonald and Powell visited a nickel mine construction site at Ravensthorpe. Various contractors at that site employed both CFMEUW and CFMEU members. Each of the contractors was said to be a "building industry participant" engaged in "building work" within the meaning of the BCII Act. It is said that McDonald and Powell spoke at a meeting of members of the two unions at or near the Ravensthorpe mine site on the morning of 17 August. 3 It is alleged that during the meeting, designated "the First Meeting", Messrs McDonald and Powell instructed or encouraged members of the two unions employed by contractors on the site not to attend for and perform work at the site for a period of 48 hours. In an alternative plea, it is alleged that Messrs McDonald and Powell and other members of the CFMEU and CFMEUW so instructed and encouraged their members. A further alternative plea is that Messrs McDonald and Powell and alternatively, they and members of the CFMEU and CFMEUW placed a ban limitation or restriction on the performance of work or acceptance of work at the Ravensthorpe mine site for a period of 48 hours. 4 It is alleged that after the First Meeting all members of the CFMEU and CFMEUW who were employees of the contractors failed to attend for and perform work at the site for a period of 48 hours. The actions of Messrs McDonald and Powell and the members of the unions were said not to be authorised by the employers and taken for the purpose of supporting or advancing claims against some or all of the employers in respect of the members' employment under the Ravensthorpe certified agreements at the Ravensthorpe mine site. The conduct is said to have been done on behalf of CFMEU. 5 The statement of claim refers to a dispute resolution mechanism in the Ravensthorpe certified agreements and pleads that the industrial action was taken without first following the procedure prescribed in those clauses. The CFMEU is said thereby to have breached cl 4.5 of each of the Ravensthorpe certified agreements and thereby to have contravened s 178 of the pre-reform WR Act. It is said that the CFMEU is liable to have a penalty imposed on it. 6 It is then alleged that the CFMEU, the CFMEUW and Messrs McDonald and Powell contravened s 38 of the BCII Act and on that basis are liable to penalty. 7 The statement of claim alleges a second strike action instigated by Mr Powell on 24 August 2005. It is said that he spoke at a meeting, designated the "Second Meeting", at the Ravensthorpe mine site with employees of AGC Industries Pty Ltd and that during that meeting he and members of the CFMEU and CFMEUW and other employees of AGC decided that all AGC employees would fail to attend for and perform work at the Ravensthorpe mine site for a period of 24 hours. A 24 stop work is said to have followed on 25 August 2005. The so-called "Second Strike Actions" are said to have constituted a contravention by Mr Powell, the CFMEU and the CFMEUW of s 38 of the BCII Act. Each of those respondents is said to be liable to a penalty by reason thereof. In the application which accompanied the statement of claim, declaratory relief and orders for pecuniary penalties are sought. 8 Filed with the application and statement of claim were a number of affidavits which may briefly be listed as follows: 1. Affidavit of Augusto Teixeira Marques, sworn 11 September 2006. Mr Marques is a crane driver. His affidavit exhibited, and verified the truth of the answers contained in, a transcript of an interview with him conducted by the Australian Building and Construction Commission (the Commission) on 27 April 2006. This was done pursuant to a notice to Mr Marques to attend and answer questions under s 52(1)(e) of the BCII Act. The transcript comprised questions put to him by counsel assisting the Commission and to a Commissioner and his answers to those questions. 2. Affidavit of Matthew John Vendittelli, sworn 11 September 2006, which exhibited, and verified the truth of his answers in, a copy of a transcript of an interview conducted with him by the Commission on 2 May 2006. The text of that transcript does not indicate that Mr Vendittelli was under any compulsion to answer questions at the interview which was conducted by Mr Temple. Mr Vendittelli is a boiler maker. 3. Affidavit of Anthony John Tomic sworn 4 September 2006. Mr Tomich is the Group Human Resources Manager for the Ausclad Group of Companies. His affidavit exhibited and verified the truth of a statement given to the Commission by him on 9 November 2005. 4. Affidavit of Stephen William Pay, sworn 4 September 2006, a Human Resources Officer for the Ausclad Group. His affidavit exhibited and verified the truth of a statement signed by him on 27 October 2005 and given to the Commission. 5. Affidavit of Trevor John Bartlett, sworn 5 September 2006. Mr Bartlett is a leading hand. He exhibited to his affidavit and verified the truth of a witness statement signed on 23 February 2006 and given to the Commission. 6. Affidavit of Jon Kaskow, sworn 5 September 2006. Mr Kaskow is the Employee Relations Co-ordinator for the Ravensthorpe Joint Venture. That affidavit was self-contained and did not incorporate by reference any statements given, or interviews conducted, with the Commission. 7. Affidavit of Ronald Glen Duckworth, sworn 5 September 2006. Mr Duckworth is a truck driver. He exhibited to his affidavit and verified the truth of a witness statement he signed on 1 February 2006 and gave to the Commission. The affidavit was self-contained and did not incorporate by reference any statements given, or interviews conducted, with the Commission. 8. Affidavit of Benjamin John Matthews, sworn 13 November 2006. Mr Matthews is an Industrial Relations Advisor for the Ravensthorpe Joint Venture, employed at the Chamber of Commerce and Industry Western Australia. This affidavit is self-contained. 9 Directions were given on 13 December 2006 for the filing of defences and replies. Defences were filed on 13 February 2007. They consist almost entirely of non-admissions. On 28 February 2007 directions were given for informal discovery. On 17 April 2007 Deputy District Registrar Stanley gave directions requiring the filing of submissions in relation to the issue of the form of evidence. At a directions hearing on 5 June 2007 I directed that Mr Temple and the respondents file and serve written submissions as to the form of the evidence at trial including: (i) whether such evidence shall be by way of written statements or affidavits affirmed or sworn to by the witness and subject to cross examination; (ii) if yes to the first question, whether its (sic) is appropriate that a direction be made allowing such evidence to consist of the transcript of examinations before the Australian Building and Construction Commissioner verified on oath or on affidavit by the proposed witness and otherwise in the form of the affidavits already filed by the applicant. Submissions were filed by Mr Temple and joint submissions by the respondents. A reply submission was filed on behalf of Mr Temple. Contentions on the use at trial of affidavits of witnesses exhibiting transcripts of interviews and witness statements 10 The procedural question between the parties concerns the conduct of the trial. The question is whether or not Mr Temple should be allowed to call the deponents to the various affidavits already filed on his behalf, have them swear or affirm their affidavits, and then be made available for cross examination. A consequence of such a direction would be that in those cases in which the affidavits exhibit the transcript of an interview between the deponent and the Commission or a witness statement given by the deponent to the Commission, the transcript and/or statement as the case may be will, in effect, be the evidence-in-chief of the witness. 11 The respondents accept that it is open to the Court to direct that evidence may be given by way of written statement or affidavit. However they say that having regard to the penal character of these proceedings a direction that the applicant be permitted to rely on witness statements or affidavits should not be made. Acknowledging that the defences filed to date are by way of non-admission and that no positive defence is "currently advanced" the respondents submit there are very live issues of credit. If affidavits and witness statements are able to be relied upon it is submitted that the trial judge will be deprived of observing the way in which a witness responds to oral examination in chief. As in a criminal trial, fairness to the respondents is said to be best guaranteed by the evidence being led orally. 12 By way of alternative submission the respondents contend that if a direction is given for evidence-in-chief to be provided by way of affidavit or witness statements sworn to or affirmed it should not allow reliance upon those affidavits already filed which simply verify an annexure in the form of a statement given to the Commission or a transcript of an examination before the Commission. 13 It is pointed out that the statements and transcripts of examination considerably post date the events with which they are concerned. It is submitted that these would not of themselves be admissible in evidence and the witnesses would not be permitted to refer to them for the purpose of refreshing their memories. To allow these affidavits to be admitted and stand as evidence-in-chief of the witness would be to allow in evidence which is otherwise inadmissible. In addition it is said there is inherent unfairness in allowing evidence of cross-examination to stand as evidence-in-chief. I take this submission to be a reference to the leading nature of the questions put in the examinations. 14 Counsel for Mr Temple submits on the other hand that presentation of the evidence-in-chief of his witnesses by way of affidavit or witness statement will be considerably more efficient than adducing the evidence orally. There are no special issues of credibility that demand oral evidence be given. There is no unfairness to the respondents given that the witnesses will all be available for cross-examination and in view of the respondents' limited ability, having regard to the nature of their defences, to challenge the applicant's pleaded case. 15 It is said on behalf of Mr Temple that these are proceedings for declarations of contraventions of the WR Act and the BCII Act and the imposition of pecuniary penalties. They are civil not criminal and the civil rules of evidence and procedure apply, albeit there is a need for "exactness of truth": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363 applied by Austen J in Australian Securities and Investments Commission v Vines (2003) 21 ACLC 159. 16 It is submitted for Mr Temple that the respondents' case as pleaded simply puts him to proof. He says there is no privilege against self-incrimination or exposure to a penalty available to either the CFMEU or the CFMEUW. Having regard to the pleading, he is entitled to proceed on the basis that no respondent seeks to propound a positive defence not just that "no positive defence is currently advanced" as the respondents say in their joint submissions. Reliance is placed upon the observations of Gyles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247 at [17]. When the respondents suggest for the first time in their written submissions that there are "very live issues of credit [as to which] the applicant's case will succeed or fail" the applicant submits that it is hard to place much weight on such a statement in view of the absence of even a positive denial of a single fact pleaded against any respondent. Whether the applicant should be permitted to rely on affidavits exhibiting the deponent's out of Court statements 17 There is no doubt that the Court may permit the evidence-in-chief of a witness in civil proceedings to be given by that witness orally swearing to, or affirming, the truth of a statement previously made. It is immaterial whether the statement previously made was by way of a witness statement or the transcript of answers given to questions put in the course of an oral examination whether under some compulsory process or not. It follows that a witness may by way of affidavit swear to or affirm the truth of a previous statement exhibited to the affidavit or to the truth of a transcript of a previous interview so exhibited. The affidavit may be read in evidence provided that the witness is available, if required, for cross examination. 18 In Platcher v Joseph [2004] FCAFC 68, Tamberlin and Emmett JJ accepted at [101] that when an affidavit of a witness affirmed the truth and accuracy of a transcript of evidence given in an examination under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth), the transcript of that interview was "potentially admissible". Weinberg J said (at [163]): The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. 19 Recently, a question very similar to that which arises in this case, arose before Buchanan J in an application for civil penalties by an Australian Building and Construction Commission inspector: Alfred v Lanscar [2007] FCA 833. As part of an investigation into alleged breaches of the WR Act statements were taken from a number of people. They were signed and witnessed. The Commission subsequently sought to rely upon affidavits sworn or affirmed by people from whom the statements were taken in which they deposed to the truth and accuracy of the statements and exhibited them to the affidavits. Eight statements adopted in that fashion were relied upon at the hearing before Buchanan J as part of evidence-in-chief in the applicant's case. 20 Buchanan J ruled that the witness statements were made admissible by their adoption in the affidavits. Although his ruling was made in the course of the hearing, his Honour subsequently reduced his reasons for decision to writing. 21 Buchanan J referred to s 37 of the Evidence Act 1995 (Cth) and in particular s 37(3) which contemplates the exercise by a court of power in the rules of court to allow a written statement or report to be tendered or treated as evidence-in-chief of its maker. A question arose whether the statements adopted by the witnesses were hearsay within the meaning of s 59 of the Evidence Act. His Honour held that if they were they would fall within an exception to the hearsay rule in s 63 and not be inadmissible for that reason. He referred to the decision of the Full Court in Platcher v Jones [2004] FCAFC 68. He did not read the observations of their Honours as turning on the requirements of s 19 of the Australian Securities and Investments Commission Act. I respectfully agree with his Honour's observations. His Honour rejected the objection taken to the admissibility of the statements. He also rejected a separate submission that the Court should require the evidence to be given orally in any event. He saw no reason to depart from earlier directions that the conduct of the proceedings be by affidavit. His Honour said (at [4 ]): In the circumstances, I will admit the statements in question in the sense that I will not exclude them from the evidence upon the basis which has so far been argued. However, it follows that if the statements are to be treated as part of the evidence in chief, as I think they should be, then they will be subject to objections in the ordinary way upon some other foundation if that appears to be available. Such objections will need to be dealt with as they are taken. I reject the objection so far taken in a general way to the statements in question. 22 In my opinion the nature of the proceedings is not such as to preclude the Court allowing the applicant to adduce his evidence-in-chief in the way in which he proposes. Nor is there any inherent unfairness in such a procedure particularly where the respondents have filed defences which simply put the applicant to proof. They raise no positive case and certainly no denial of any fact alleged against them which would depend upon the credit of any witness. How they can contend that there are "live issues of credit" in the case, is difficult to see. 23 There is a distinct issue however and that is whether the witness statements and/or transcripts of interview contain inadmissible material to such an extent that resort to those statements and records of interview as evidence in chief may interfere with the efficient hearing of the case. There is also a question of fairness in connection with the extent to which evidence of oral statements and conversations critical to liability should be allowed to be adduced in this way. 24 The transcript and witness statements contain both admissible and inadmissible material. The transcript of the interview with Mr Marques is lengthy and discursive. It covers much irrelevant material, leading questions and what appear to be argumentative propositions put to Mr Marques by the interviewer. As a matter of discretion I would not allow it in evidence in its present form. The difficulties it presents of sorting out the admissible from the inadmissible are simply too pervasive. The reception into evidence of the remaining statements and the transcript of interview with Mr Vendittelli could be managed subject to rulings and objections to particular parts. If it were not for the concern about fairness and reliability in relation to evidence of oral statements I would have been inclined to allow the evidence of the other witnesses to be adduced in the way proposed on behalf of Mr Temple. 25 There is a general and legitimate concern that the liability of the respondents in this case will depend critically upon what the first and third respondents are found to have said prior to the two instances of industrial action complained of in the statement of claim. Generally speaking courts should take a cautious approach before allowing evidence of critical oral conversations to be received, over objection, by way of affidavits or witness statements particularly where the proceedings involve, as in this case, the potential imposition of civil penalties. The presentation of affidavits or witness statements of oral conversations does not disclose the extent to which they have been adduced as a result of leading questions or suggestions put to the deponent. This, of course, does not prevent the adducing of affidavit evidence as to non-critical or uncontentious oral conversations or matters which set out a chronology of events or bring in documentary evidence. These contending considerations can be resolved by allowing the filing of affidavits which cover other matters including chronology, documentation and essentially non-contentious issues but leave the detail of evidence about the content of critical oral conversations to be adduced orally in chief. In my opinion that is the proper course to be taken here. 26 I propose to direct that evidence-in-chief be on affidavit provided that oral statements said to have been made by the first and third respondents or oral conversations to which they were parties be adduced in chief by oral testimony in the usual way. The timing and location of such oral statements or conversations and their subject matter may be outlined in the affidavit evidence as part of the chronology of events which it covers. The witness may then be invited to give oral evidence as to the particulars of the conversations whose existence and subject nature is disclosed as part of the chronology of events covered by the affidavits. 27 Where a witness is unwilling to provide or unable to provide an affidavit the party calling the witness may adduce all the evidence of that person orally and may, of course, apply for leave to issue a subpoena if the witness is not willing to attend voluntarily. While this course may cause some inconvenience it is to be noted that the witness statements already filed were filed in the absence of any direction from the court as to the mode of evidence at trial. It has had the advantage however that the respondents are on notice of the nature of the case against them beyond that disclosed in the pleadings. 28 So far as evidence from the respondents is concerned, it does not appear at the moment that there is any positive case that they can make given that their defences simply put the applicant to proof. I do not anticipate therefore that they will be filing any evidence. That seems to be accepted as appears from what passed between the Court and counsel at the directions hearing on 5 June 2007. 29 The directions in relation to the evidence at trial will be as follows: 1. The parties may adduce evidence-in-chief at trial by way of affidavit subject to the usual rights of cross-examination provided that evidence of oral statements made by the first or third respondents and conversations in which they participated shall be adduced orally in chief. 2. The preceding direction does not prevent the inclusion in the affidavit of the time and place of such statements or conversations and their subject matter without going to their content. 3. In the event that any proposed witness is unwilling or unable to provide an affidavit, the evidence of such witness may be adduced orally in its entirety. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 2 July 2007 Counsel for the Applicant: Dr JG Renwick and Mr S Harben Solicitor for the Applicant: Clayton Utz Counsel for the First and Third Respondents: Mr K Bonomelli Solicitor for the First and Third Respondents: Jeremy Noble Solicitors and Barristers Counsel for the Second and Fourth Respondents: Mr TJ Dixon Solicitor for the Second and Fourth Respondents: Gavin Maclean Date of Hearing: 5 June 2007 Date of Last Written Submission: 25 June 2007 Date of Judgment: 2 July 2007