FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No. 2) [2012] FCA 47 Citation: Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2012] FCA 47 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and DARYL LAMBERTH v PILBARA IRON COMPANY (SERVICES) PTY LTD (ACN 107 210 248) File number: NSD 1928 of 2011 Judge: KATZMANN J Date of judgment: 3 February 2012 Catchwords: INDUSTRIAL LAW — Whether evidence of an employer's attitude to, or relationship with, a trade union is relevant to assessing denials that adverse action was taken against an employee because of his membership or associations with the union EVIDENCE — Evidence Act 1995 (Cth) – relevance – hearsay– whether s 64(2) exception applies – tendency evidence –opinion evidence – credibility rule – whether s 106 exception applies – whether leave should be given under s 106(1)(b) – consideration of matters in s 192(2) when giving leave Legislation: Evidence Act 1995 (Cth): ss 59, 60(1) and (2), 64(2), 67, 68, 76, 95, 97, 102, 106, 192(2) Evidence Amendment Act 2008 (Cth) Fair Work Act 2009 (Cth): ss 346, 360, 361(1) Cases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 Date of hearing: 19, 20, 21, 22 and 23 December 2011 and 30 January 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Applicants: Ms C Howell Solicitor for the Applicants: Slater & Gordon Counsel for the Respondent: Mr J J E Fernon SC Solicitor for the Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1928 of 2011 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant DARYL LAMBERTH Second Applicant AND: PILBARA IRON COMPANY (SERVICES) PTY LTD (ACN 107 210 248) Respondent JUDGE: KATZMANN J DATE OF ORDER: 3 FEBRUARY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The following paragraphs and annexures to the affidavit of Gary Norman Wood dated 19 December 2011 be rejected: a. Paragraph 8; b. Paragraph 10; c. Paragraph 11; d. Paragraph 15; e. The first sentence and the first word of the second sentence of paragraph 17; f. The third sentence of paragraph 22; g. The penultimate and final sentences of paragraph 23; h. Annexure GNW4; i. Annexure GNW5; j. Annexure GNW6; k. Annexure GNW8 except for the items identified in Order 2. 2. The following paragraphs and annexures to the affidavit of Gary Norman Wood dated 19 December 2011 be received in evidence: a. Paragraph 13 save for the last sentence; b. The second sentence of paragraph 17 save for the word "however"; c. Paragraph 18; d. Annexure GNW7; e. Paragraph 22 save for the second and third sentences; f. The first three sentences of paragraph 23; g. The letters from Rick Briant and Joanne Farrell contained in annexure GNW8 at pages 94, 119, 136 and 140 of the affidavit; h. The memorandum from Ms Farrell dated 18 November 2009 contained in annexure GNW8 (page unnumbered). 3. The parties confer with a view to coming to an agreement as to the facts that the applicants wish to prove from the first sentence of paragraph 12 and annexure GNW3 of the affidavit of Gary Norman Wood dated 19 December 2011. 4. If no agreement is reached by Monday 6 February, the applicants notify the respondent and chambers by 6 pm on Wednesday 8 February 2012 of the particular parts of annexure GNW 3 upon which they wish to rely. 5. The oral evidence given by Dennis William Jones on the voir dire on 21 December 2011 be received in evidence but not for a tendency purpose. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1928 of 2011 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant DARYL LAMBERTH Second Applicant AND: PILBARA IRON COMPANY (SERVICES) PTY LTD (ACN 107 210 248) Respondent JUDGE: KATZMANN J DATE: 3 FEBRUARY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The second applicant in this proceeding, Daryl Lamberth, was employed by the respondent, Pilbara Iron Company (Services) Pty Ltd ("Pilbara Iron") for twelve months. The first applicant, the Construction, Forestry, Mining and Energy Union ("CFMEU"), is the trade union to which he belongs. They allege that Pilbara Iron subjected him to adverse action within the meaning of the Fair Work Act 2009 (Cth) ("FW Act") for reasons largely related to his membership of the CFMEU and activities in which he engaged or its views and interests which he espoused. Action taken for any one or more of these reasons is prohibited under s 346 of the FW Act. The applicants also rely on s 340 of the Act, which is concerned with workplace rights. Importantly, where adverse action is taken, it is sufficient if the reasons include a reason within the ambit of s 346 (or s 340). See FW Act, s 360. There is a presumption in a case like this that the action was taken for such a reason unless the person taking the action shows otherwise: FW Act, s 361(1). The effect of s 361(1) (read with s 360) is that the onus is on Pilbara Iron in this case to show that a prohibited reason was not a reason for taking the action about which Mr Lamberth complains. If they succeed, several remedies are available to the applicants, including civil penalties. 2 Pilbara Iron denies taking adverse action against Mr Lamberth for any prohibited reason and called evidence to that effect. The evidence was contained in a number of affidavits filed in accordance with an expedited timetable in the hope that the proceeding could be heard and determined before the end of the 2011 calendar year. As it turned out, the hearing could not conclude in the allotted time and has been set down for a further three days from 13 February 2012. 3 Pilbara Iron objects to substantial portions of an affidavit filed by the applicants in reply to evidence given by a number of Pilbara Iron's witnesses to the effect that Mr Lamberth's union membership, associations or related activities had anything to do with the actions they took. The affidavit in question is sworn by Gary Norman Wood, the secretary of the Western Australian District of the Mining and Energy Division of the CFMEU, and was not filed until the first day of the hearing (apparently because of a failure on the part of Pilbara Iron to file its affidavits in accordance with the timetable). The disputed passages purport to reply to evidence given by witnesses of Pilbara Iron who attest to the importance of a document entitled "The Way We Work" (a 2009 publication by Rio Tinto Limited ("Rio Tinto"), subtitled "Our Global Code of Business Conduct"), in providing guidance to its employees about expected standards of conduct and as a statement of the values of the corporate group (Rio Tinto) to which it belongs. In substance, the applicants wish to lead evidence that statements made in, or incorporated by reference into, "The Way We Work" are not indicative in fact of the way in which the corporate group operates. In particular, the applicants will argue that statements that Rio Tinto recognises the rights of all employees to choose whether or not to belong to a union and to seek to bargain collectively are at odds with other statements made by senior officers of Rio Tinto that reflect the true attitude or "culture" of the organisation, which is antagonistic to collective bargaining and hostile to trade unions. In other words, the applicants' argument, in substance, is that Rio Tinto (and therefore Pilbara Iron) pays only lip service to the rights of its employees to organise and bargain collectively. The applicants argue that this evidence provides the context in which the denials of the various witnesses should be evaluated and are material to determining whether Pilbara Iron took action against Mr Lamberth for a prohibited reason. 4 Pilbara Iron also objects to oral evidence taken from Dennis Jones on the voir dire. Mr Jones is an employee of Pilbara Iron, a member of the CFMEU and the President of the Karratha Lodge of the union, a workplace branch covering train drivers and car examiners employed by Pilbara Iron. Should the evidence of Mr Wood be admitted? 5 The evidence of Mr Wood to which objection is taken consists of: Statements outlining Mr Wood's experience of Rio Tinto's/Pilbara Iron's application of the values espoused in "The Way We Work" (paragraphs 8 and 10); Statements regarding union membership (paragraph 11); Rio Tinto's submission to the Australian Industrial Relations Commission dated 1 August 2008 dealing in part with the corporate structure of the Rio Tinto group in Australia (paragraph 12, annexure GNW 3); Rio Tinto's submissions to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Cth) and the Fair Work Bill 2009 (Cth) referring to Rio Tinto's use of statutory individual employment contracts since the early 1990s and its preference for industrial arrangements that promote "direct relationships" between the company and its employees (paragraph 13, GNW 4 and GNW 5); An article by Damon Kitney published in The Australian newspaper reporting statements attributed to Sam Walsh, the chief executive of Rio Tinto's iron ore operations, said to have been made in a public forum. The article refers to disparaging remarks Mr Walsh is said to have made about trade unions, assertions that unions had no role to play in the iron ore and oil and gas sectors, and statements that having a direct relationship with its employees is very important to Rio Tinto and that the union agenda is different to Rio Tinto's (annexure GNW 6, paragraph 15); Evidence concerning the establishment of a workplace branch of the CFMEU at the 7 Mile Rail Depot at Dampier on the Pilbara coast (paragraph 17); Evidence concerning negotiations between the CFMEU and Rio Tinto and Pilbara Iron towards a collective agreement (paragraphs 22 and 23); and Correspondence between the CFMEU and Rio Tinto and Pilbara Iron about the negotiations, including statements about the importance to "the company" of the direct relationship it enjoys with its employees and statements indicating Rio Tinto's preference for, and commitment to, direct employee engagement (annexure GNW8, paragraph 22). 6 The objections are taken principally on the ground of relevance. Additional grounds for objection are raised in some instances. Is the evidence relevant? 7 I am satisfied that the evidence is relevant. Gray and Bromberg JJ pointed out in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at [27]–[28] that the central question under s 346 of the FW Act is why the aggrieved person was treated in the manner he or she was. That involves characterising the reason or reasons of the person who took the adverse action. Although the state of mind or subjective intention of that person is "centrally relevant", it is not decisive. Their Honours explained: What is required is a determination of what Mason J in Bowling (at 617) called the "real reason" for the conduct. The real reason for a person's conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. 8 Lander J, who dissented in the result, said (at [216]): The surrounding circumstances will be relevant in assessing whether the employer took the action because the employee was an officer or member of an industrial association. Those circumstances will be relevant to determine whether an employer's evidence that action was not taken for that reason should be accepted. 9 Here, if accepted, the evidence in question could rationally affect (indirectly, if not directly) the assessment of the evidence of the witnesses called by Pilbara Iron as to the reasons for taking the action against Mr Lamberth. The evidence shows Pilbara Iron's relationship with Rio Tinto. Pilbara Iron also called evidence on this question. It is relevant to its case. It relies on Rio Tinto's policies. Its evidence is to the effect that its policies are Rio Tinto's policies and its values are Rio Tinto's values. If there is evidence to show that Rio Tinto (and/or Pilbara Iron) favoured direct negotiation over collective bargaining and that the involvement of third parties, like trade unions or trade union officials, was unwelcome, then intervention by Mr Lamberth on behalf of other workers about matters that did not apparently concern him might be regarded as antipathetic to company policy, notwithstanding the statements appearing in "The Way We Work". Mark Hamilton, the Rail Operations Manager of Pilbara Iron and one of the people involved in the action taken against Mr Lamberth, admitted in cross-examination that "the company" regarded the principle of "direct engagement" – that is, working directly with employees as opposed to working through a third party or intermediary (such as a trade union) – as very important. He also agreed that he tries to apply the principle of direct engagement as much as possible. He said that union representation of employees at the workplace goes against the principle of direct engagement and was not what the business preferred. Is the evidence of the newspaper article hearsay? Should it nevertheless be admitted? 10 Pilbara Iron objects to the tender of the evidence of the newspaper article reporting statements of Mr Walsh and to paragraph 15, which annexes the article and extracts part of its contents, on the additional ground that it is hearsay. 11 The hearsay rule in s 59 of the Evidence Act 1995 (Cth) ("Evidence Act") renders inadmissible (save in exceptional circumstances) evidence of a previous representation to prove the existence of a fact that it can reasonably be supposed the person making the representation intended to assert by it. Section 60(1), however, provides that the hearsay rule does not apply to evidence of a previous representation admitted because it is relevant for a purpose other than proof of an asserted fact. Here, the applicants say they do not rely on Mr Walsh's representations to prove the existence of the facts he intended to assert. Rather, they say they rely on those representations for a non-hearsay purpose, that is, to show that the statements were made by Rio Tinto's chief officer, reflecting the company's attitude to trade unions. Section 60(2) provides that the section applies "whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2))". That is, it does not matter whether the knowledge of the person making the representation (here the journalist) was, or might reasonably be supposed to have been, based on something he saw, heard or otherwise perceived, or whether it was based on a previous representation made by another person. In other words, the non-hearsay purpose exception applies, not only to first-hand, but also to second-hand and more remote hearsay. That this was Parliament's intention is plain from paragraphs 68–9 to the Explanatory Memorandum to the Evidence Amendment Act 2008 (Cth), which inserted the subsection. 12 However, GNW6 itself consists of representations by Mr Kitney (the journalist) that Mr Walsh made the representations attributed to him in the article. The difficulty for the applicants is that, although they say they do not wish to prove the facts asserted by Mr Walsh, they do want to prove the facts asserted by the journalist. Thus, the tender is indeed for a hearsay purpose. Had evidence been adduced from the journalist that Mr Walsh made the statements, then the evidence would be admissible. But the applicants have not called evidence from the journalist. 13 The applicants sought to cure this problem by relying on s 64(2) of the Evidence Act. It applies in a civil proceeding where the person who made the representation is available to give evidence about an asserted fact. It relevantly provides that the hearsay rule does not apply to: (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation, if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence. 14 Section 67 provides, however, that s 64(2) does not apply to evidence unless reasonable notice in writing has been given of the party's intention to adduce the evidence, and specifies what the notice must contain. Although the evidence was served, the notice requirements imposed by s 67 were not met. Amongst those requirements is the need to indicate the grounds in s 64(2) on which it intends to rely. The other party may object and if the objection is unreasonable, the Court may order that other party to bear the costs: s 68. Section 67(4) confers a discretion on the Court, on the application of a party, to direct that s 64(2) applies despite the failure to give notice. Implicit, if not explicit, in the applicants' submissions was a request for such a direction. 15 Quite apart from the problem of notice, in my opinion the evidence must be rejected. The applicants did not show that undue expense or undue delay would be occasioned if the journalist were called (or an affidavit taken from him) or that it would not be reasonably practicable to call him. Doubtless the exercise would involve some expense but is it unwarranted or excessive? Why would it not be reasonably practicable to obtain an affidavit from the journalist? Certainly that would not cause undue delay. The hearing is due to resume on 13 February 2011. There is no reason to think that the evidence could not be taken on that occasion. In the absence of evidence on these issues I am not satisfied that s 64(2) applies. 16 The applicants also sought to invoke the exception to the hearsay rule contained in s 66A. That applies to contemporaneous representations about a person's health, feelings, sensations, intention, knowledge or state of mind. It is irrelevant. 17 I therefore reject paragraph 15 and annexure GNW 6. 18 I note that paragraph 16, which consists of a commentary on the statements in the article, was not pressed. Is the evidence tendency evidence? 19 Pilbara Iron submit that, if the evidence of Mr Wood to which objection is taken is relevant, then it is inadmissible tendency evidence. 20 Section 97 of the Evidence Act provides: (1) Evidence of the character, reputation or conduct of a person, or of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. 21 The applicants' case is that Pilbara Iron had a hostile attitude towards the CFMEU. They submit that the company pursued "direct engagement", which necessarily involves, at least, a minimisation of the role of trade unions. For this reason they contend it prefers its employees not to be members of the CFMEU. These circumstances are material to whether Pilbara Iron is able to discharge its onus of excluding union membership from the reasons for its actions against Mr Lamberth. The applicants also submit that the company has an attitude towards unions which is inconsistent with the policy documents upon which it relies and which therefore undermines the significance of the evidence of those policy documents and, ultimately, those witnesses who rely on them to justify the actions they took against Mr Lamberth. 22 I am not satisfied that this is tendency evidence. It is not tendered as evidence of the prior conduct, character, reputation or tendency, of any of the individuals who took, or participated in, the adverse action but of a position taken by the company. Save for one matter to which I will come shortly, the applicants are not seeking to adduce this evidence to show that any of those individuals has tendency to act in a particular way or to have a particular state of mind. It is, as I said earlier, evidence of the context or circumstances in which the adverse action was taken. The remaining objections 23 As for the remaining parts of Mr Wood's affidavit to which objection was taken I make the following rulings. 24 I reject paragraph 8. It offends the opinion rule in s 76 of the Evidence Act and does not meet the criteria for admission in either s 78 or s 79. 25 I also reject paragraph 11. It, too, is opinion evidence that does not satisfy either s 78 or s 79. 26 Similarly, I reject paragraph 10 as inadmissible opinion evidence. Mr Wood may be able to give evidence based on his experience but not in the form in which paragraph 10 is couched. 27 Paragraph 12 annexes a submission of Rio Tinto to the Australian Industrial Relations Commission dated 1 August 2008. Pilbara Iron objects to both paragraph 12 and the annexure (GNW3). The third and fourth sentences of paragraph 12 are not pressed. The submission deals in part with the corporate structure of the Rio Tinto group in Australia and the history of those arrangements. The objection is taken on the ground of relevance. The relationship of Rio Tinto to Pilbara Iron is plainly relevant, but much of the submission is irrelevant. During argument senior counsel for Pilbara Iron did not contend otherwise. There does, however, seem to me to be no particular utility in admitting into evidence the whole submission. I directed the parties to confer with a view to coming to an agreement about the facts the applicants wish to prove from the submission. If agreement is not reached by Monday 6 February, I direct the applicants to notify my chambers by 5 pm on Wednesday 8 February of the particular passages of the submission upon which they wish to rely. 28 Paragraph 13 annexes GNW4 and GNW5 – the two submissions by Rio Tinto to the Senate committee inquiries. Objection was taken on the ground of relevance. In each submission Rio Tinto expresses its desire for "direct relationships" with employees and discusses its long history of using individual contracts. In GNW5 Rio Tinto emphasises that individual contracts are important for achieving workplace flexibility. For the reasons given above, this evidence is relevant to whether adverse action was taken in this case for reasons that included Mr Lamberth's union affiliations. I therefore admit paragraph 13, save for its last sentence which was not pressed, and annexures GNW4 and GNW5. 29 I note that paragraphs 14, 16, 19, 20 and 21 are not pressed. 30 The first sentence of paragraph 17 is conclusory and should be rejected on that basis. But I admit the second sentence (with the exception of the first word, "however"). Contrary to Pilbara Iron's submission I think the evidence is relevant background. 31 The applicants submit that the evidence in paragraphs 22 and 23 and annexure GNW8 is relevant to show that the union acted contrary to the company's preferences and therefore that an operative reason for the action taken against Mr Lamberth was his known union membership. The correspondence in GNW8 includes two statements made by Rick Briant, the General Manager – Human Resources Pilbara, about the benefits of direct engagement and statements made in July 2009 by Joanne Farrell, Vice-President, Organisation Resources, in July 2009 to like effect. Those letters appear at pp 94, 119 and 136 of Mr Wood's affidavit. In a letter to Mr Wood dated 6 November 2009 (p 140 of Mr Wood's affidavit) Ms Farrell states that Rio Tinto is aware that bargaining is being heavily promoted by the union. An internal memorandum from Kellie Parker, the Manager – Railways Division of Rio Tinto to "Rail Operations – Cape Lambert and Inland Employees" (GNW8, page unnumbered) refers to the request from the CFMEU for a new collective agreement and the company's intention to provide employees with information on the bargaining process. 32 Pilbara Iron submitted that there was no suggestion that the individuals involved in the decisions affecting Mr Lamberth had "any real knowledge" of the collective agreement negotiations. That is so. The subject was not raised in cross-examination with them and there is no other evidence that they were aware of the positions taken by the parties in the negotiations. The applicants nevertheless submit that this material is part of the surrounding circumstances. Without more, however, I am not persuaded that, with the exception of the letters from Mr Briant and Ms Farrell and the memorandum from Ms Parker to which I referred in the preceding paragraph, the evidence contained in annexure GNW8, if accepted, could rationally affect – even indirectly – the assessment of the probability that the people involved in the action taken against Mr Lamberth were actuated for a prohibited reason. I therefore reject it as irrelevant. On the other hand, I think that the evidence that a collective agreement was made and approved on 14 August 2011 and that it was the first of its kind since the early 1990s is in a different category. It is inconceivable that the decision-makers involved in the action against Mr Lamberth were unaware of this. I therefore admit the first three sentences of paragraph 23, the first sentence of paragraph 22, the four letters of Mr Briant and Ms Farrell and the memorandum but otherwise reject GNW8. I also reject the third sentence of paragraph 22 as inadmissible opinion evidence. I note that the second sentence of paragraph 22, the third and fourth sentences of paragraph 23, and annexures GNW8, GNW9 and GNW10 are not pressed. I will also admit paragraph 18 (including GNW7) to give context to the admissible evidence in these paragraphs. Should the evidence of Mr Jones be admitted? 33 Mr Jones gave the following evidence on the voir dire. He said that on 25 October 2011 Mr Hamilton asked him to come into his office, shut the door and then informed him that the company had anecdotal evidence that he had been harassing or approaching employees telling them what to do in certain situations. Mr Jones said Mr Hamilton stated that they regarded this as harassment, it was very serious, would not be tolerated and must stop immediately. Mr Jones said he told Mr Hamilton he thought he knew what he was referring to. He said he informed Mr Hamilton that two co-workers (whom he named), who were also members (which I take to mean union members), had come to the union for advice and protection. He said that Mr Hamilton told him this was not the incident he was referring to. Mr Jones said Mr Hamilton then explained the incident he was referring to, and that Mr Jones responded that he did not know what Mr Hamilton was talking about. Mr Jones then said that Mr Hamilton stated: We take this matter very seriously. Your attitude is nothing but conflict. Button your shirt up. Roll your fucking sleeves down. Shane had asked you previously to roll your sleeves down and you had done that for a little while. Now your attitude stinks. 34 Mr Jones added that later Mr Hamilton complained that his attitude was "nothing but conflict" and it would have to stop and then said: "[i]f you want to play hardball I'll let you know we can play hardball too". 35 The same day Mr Jones made a diary note of the conversation, which was marked for identification as MFI 1. 36 Pilbara Iron objects to the evidence as irrelevant. Alternatively, it argues, the evidence is inadmissible tendency evidence or only goes to Mr Hamilton's credibility and is therefore inadmissible. 37 Mr Hamilton was cross-examined about this conversation. He made some, but few, admissions. Most of what was put to him he claimed he could not remember. Some matters he simply denied. He admitted he told Mr Jones that the harassment matter was very serious. He said he did not remember making the observation about Mr Jones's attitude. He agreed that he told him to roll his sleeves down but denied using the expletive. He also said he did not remember making the other statements. He confirmed he knew that Mr Jones was president of the Karratha Lodge, that Mr Lamberth was a union member and that Mr Jones and Mr Lamberth were friends. He denied that he regarded Mr Lamberth as Mr Jones' protégé. He also denied that he saw Mr Jones as a troublemaker because he regarded him as confrontational, something that arose directly out of his role as president of the Lodge. And he denied that he saw Mr Lamberth as effectively another Mr Jones who caused trouble by challenging management. No objection is taken to the cross-examination of Mr Hamilton. 38 In my view the evidence is relevant. In the first place it potentially affects the assessment of the credibility of Mr Hamilton. But it is not only relevant for that reason. One of the reasons given for failing to renew Mr Lamberth's contract and for his performance assessment (two of the adverse actions about which the applicants complain) was his manner of communication. In this way the evidence, if accepted, could show that the standards of communication at the workplace were different from the standards Pilbara Iron claimed applied and therefore could place Mr Lamberth's conduct in its proper perspective. What weight is to be attached to this evidence is another matter. But that is a matter for another day. In addition, if Mr Jones is to be believed, the evidence could be indicative of Mr Hamilton's tendency to have a hostile attitude to union activists. That is to say, it is evidence which, if accepted, could, at least indirectly affect the assessment of whether Mr Hamilton treated Mr Lamberth in the way that he did (at least in part) for a prohibited reason. 39 If, contrary to what I have concluded, the evidence is only relevant to credibility, it would offend the credibility rule: Evidence Act, s 102. But the exception in s 106 applies, as the substance of the evidence was put to Mr Hamilton in cross-examination and he denied or did not admit it, and I would give the applicants leave under s 106(1)(b) to adduce it. In giving that leave I have taken into account the matters set out in s 192(2). This is a civil proceeding, albeit that penalties may be imposed if the applicants are successful. Granting leave would not be likely to add unduly to the length of the hearing. There is no apparent unfairness to Pilbara Iron. Certainly, Pilbara Iron did not suggest there was. As Mr Hamilton is a key decision-maker in Pilbara Iron, the evidence is not unimportant to the applicants' case. 40 This leaves the question of tendency evidence. The applicants seek to rely on this evidence to prove that Mr Hamilton has a tendency to have a particular state of mind. They did not give Pilbara Iron reasonable notice in writing of their intention to adduce the evidence. For this reason it is inadmissible to prove that Mr Hamilton has a tendency to have that state of mind unless one of the exceptions applies or the notice requirement is dispensed with. The applicants do not rely on any exception and I am not disposed to dispense with the requirement for notice. No explanation was given for the failure to give notice of this evidence. It did not appear in either of the two affidavits sworn by Mr Jones on 28 October and 19 December 2011. In the circumstances, it is unnecessary to consider whether the evidence has significant probative value. 41 In the result I admit the evidence but s 95 of the Evidence Act precludes it being used for the purpose of showing Mr Hamilton had a tendency to have a particular attitude towards Mr Lamberth because of his union connections or involvement. Orders 42 Orders will be made in accordance with the schedule to these reasons. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 3 February 2012 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, LAMBERTH v PILBARA IRON COMPANY (SERVICES) PTY LTD NSD 1928 of 2011 SCHEDULE Rulings on objections to evidence of Mr Wood and Mr Jones Affidavit of Mr Wood Paragraph/Annexure Ruling 8 First sentence Rejected 10 Whole Rejected 11 Whole Rejected 12 First sentence and the annexure marked "GNW3" - 12 Third sentence and fourth sentence Not pressed 13 Whole including "GNW4" and "GNW 5" Not pressed 13 Last sentence Not pressed 14 Whole Not pressed 15 Whole and "GNW6" Rejected 16 Whole Not pressed 17 Whole 2nd sentence with the exception of the word "however" and annexure GNW7 admitted 1st sentence and first word of 2nd sentence rejected 18 Whole Admitted 19 Whole Not pressed 20 Whole Not pressed 21 Whole Not pressed 22 Whole and "GNW 8" First and final sentence of paragraph 22; Four letters of Mr Briant, Ms Farrell and Memorandum in GNW8 admitted Balance of GNW8 rejected 22 Third sentence Rejected 23 First three sentences only First three sentences of paragraph 23 admitted 23 Penultimate and final sentence and the annexures marked "GNW9', 'GNW10' and 'GNW11' Not pressed Oral Evidence of Mr Jones Evidence be admitted but not for a tendency purpose