Unsworth v Tristar Steering and Suspension Australia Limited [2007] FCA 1434

FEDERAL COURT OF AUSTRALIA

Unsworth v Tristar Steering and Suspension Australia Limited [2007] FCA 1434

EVIDENCE – whether evidence improperly obtained – investigative powers of workplace inspector are not spent by a decision to commence court proceedings WORKPLACE RELATIONS – investigative powers of workplace inspector are not spent by a decision to commence court proceedings Evidence Act 1995 (Cth), ss 87, 135, 138 Workplace Relations Act 1996 (Cth), Pt 6, s 169(1), s 169(2)

Health Insurance Commission v Freeman (1998) 88 FCR 544 cited Laing v Carroll (2005) 146 FCR 511 followed INSPECTOR IAN UNSWORTH (OFFICE OF WORKPLACE SERVICES) v TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED ACN 004 311 111 NSD 232 OF 2007

GYLES J

12 September 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 232 OF 2007

BETWEEN: INSPECTOR IAN UNSWORTH (OFFICE OF WORKPLACE SERVICES)

Applicant

AND: TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED ACN 004 311 111

Respondent

JUDGE: GYLES J DATE OF ORDER: 12 SEPTEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

Paragraphs 3–5 inclusive and 18–23 inclusive of the affidavit of Elizabeth Anne Goodall of 19 July 2007 are rejected.

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 232 OF 2007

BETWEEN: INSPECTOR IAN UNSWORTH (OFFICE OF WORKPLACE SERVICES)

Applicant

AND: TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED ACN 004 311 111

Respondent

JUDGE: GYLES J

DATE: 12 september 2007

PLACE: SYDNEY

REASONS FOR INTERLOCUTORY RULING 1 The applicant seeks to read and rely upon an affidavit of Ms Elizabeth Anne Goodall affirmed on 19 July 2007. Objection is taken on behalf of the respondent on a number of grounds. As the decision is an interlocutory ruling in the course of the hearing I will not deliver extensive reasons. I will assume a knowledge of the case. 2 On 17 July 2007 an exhibit to the first affidavit of the deponent was rejected. It purported to set out the contents of interviews between the deponent, then a workplace inspector, and certain employees of the respondent. Leave was granted to adduce oral evidence on the topic. It was then decided that an affidavit would be prepared which would deal with the matters in relation to which leave had been granted. This is the affidavit in question. 3 The affidavit deals with interviews occurring during a visit to the factory premises of the respondent on 5 February 2007, during which Inspector Goodall conducted an interview with a person now known to be Mr Huuson Nguyen; a visit to Brownbuilt's factory on 7 February 2007 where there was an interview of each of Mr George Koorey, the Finance and Administration Manager of the respondent, and Ms Yvonne Arnold, the Human Resources Administrator of the respondent; and a visit to the factory on 12 February 2007 where there was an interview of Mr Amit Misra, the Operations Manager of the respondent. 4 I have ruled earlier that s 87(1)(b) of the Evidence Act 1995 (Cth) has the effect that an employee is able to make an ex post facto admission binding the employer provided that it relates to a matter within the scope of the person's employment. 5 The first basis of objection was that the evidence was improperly obtained. A voir dire was held in relation to that question. 6 The starting point is Pt 6 of the Workplace Relations Act 1996 (Cth) (the Act) dealing with workplace inspectors, as the deponent was an inspector at all times material to this issue. It is submitted for the respondent that it is apparent that Inspector Goodall entered the premises that she did in order to interview the individuals pursuant to s 169(2)(b)(iii) of the Act. The powers of a workplace inspector under that section may only be exercised: "169(1) (a) for the purpose of determining whether any of the following are being, or have been, observed: (i) workplace agreements; (ii) awards; …" 7 It is submitted that, at least by 2 February 2007, a decision had been made to commence the current proceedings alleging contravention of the terms of the relevant certified (workplace) agreement. It follows, so it is said, that the only conclusion available is that the purpose was not to investigate whether there was, or had been, a contravention but to obtain evidence in relation to the contravention that had already been the subject of a decision to prosecute. It was submitted that such a purpose was beyond the scope of s 169(1). Put another way, the power was spent once the decision to proceed had been taken. The evidence was, therefore, obtained illegally. 8 The first answer by counsel for the applicant is that there is no evidence that the deponent was exercising the compulsory statutory powers in conducting the interviews in question. It is submitted that she was simply asking questions of persons willing to answer without compulsion. There is no express reference to the use or existence of the statutory powers in relation to the relevant interviews. It is, at least, doubtful whether the statutory preconditions for the operation of s 169(2)(a) existed in relation to the Brownbuilt premises. On the other hand, Inspector Goodall was no doubt presenting as an authorised inspector and it may not be necessary to wave a badge to assert the statutory powers to gain entry and conduct the interviews. 9 It is not necessary to resolve that issue as, in my opinion, the objection cannot succeed in the face of the decision of the Full Court in Laing v Carroll (2005) 146 FCR 511 which concerned the operation of the predecessors to s 169 of the Act, namely, s 83BH and s 86 of the Act as it stood in 2003. The sections cannot be distinguished in substance and the reasoning in Laing 146 FCR 511 is directly applicable to the present circumstances. Lander J gave the leading judgment on this point (at [246]–[286]). Kenny J agreed (at [82]) but added some observations of her own on this point ([90]–[93]). On this reasoning, the powers in question are not spent, even by the institution of civil penalty proceedings. It seems that Spender J would agree ([76]). There is no need for me to repeat the analysis of the authorities to be found in those judgments. I would only add a reference to the judgment of Merkel J in Health Insurance Commission v Freeman (1998) 88 FCR 544 at 558–560 (agreed with by Von Doussa J and Carr J). The argument is weaker in this case than in Laing 146 FCR 511 as the proceeding had not been commenced at the time of the interviews. It can be concluded that a decision in principle to commence the proceeding had been taken by 2 December 2006. That is not incompatible with the necessity for completion of the investigation prior to actual commencement of the proceeding. I should add that there is no basis here for an argument that the interviews constituted a contempt of court. The evidence was not illegally obtained. 10 Separate objection is taken to para 4 of the affidavit, referring to a conversation with a Mr Huuson Nguyen. I agree with the submission for the respondent that this evidence is not admissible, even with the assistance of s 87 of the Evidence Act. There is no evidence that the scope of his employment is such as to make the statements admissible. Paragraphs 3 and 5 fall with para 4. 11 Objection is taken to paras 18–23 of the affidavit on the basis that they go beyond the leave which was granted to lead further evidence. A conscious decision was made by the deponent to omit the content of these paragraphs from the statement which had previously been tendered and rejected as the interviewee had requested that the comments be kept strictly confidential and not on the record. I can see no good reason for granting leave to permit that decision to be reversed. It is clear enough that the statements would not have been made for the record. Even if admissible pursuant to s 87 of the Evidence Act, there would be arguments for excluding the evidence pursuant to either s 135 or s 138 of that Act. Leave is refused and the paragraphs will be rejected. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.