FEDERAL COURT OF AUSTRALIA Fair Work Ombudsman v Valuair Limited [2014] FCA 404 Citation: Fair Work Ombudsman v Valuair Limited [2014] FCA 404 Parties: FAIR WORK OMBUDSMAN v VALUAIR LIMITED (200302952W), TOUR EAST (T.E.T) LTD (31629391) and JETSTAR AIRWAYS PTY LTD (ACN 069 720 243) File number(s): NSD 719 of 2012 Judge: BUCHANAN J Date of judgment: 29 April 2014 Catchwords: EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence Legislation: Evidence Act 1995 (Cth), ss 59(1), 59(2), 81, 81(2)(b), 87(1) Cases cited: Jack v Smail (1905) 2 CLR 684 Lopes v Taylor (1970) 44 ALJR 412 Mahmood v State of Western Australia (2008) 232 CLR 397 Mule v R (2005) 221 ALR 85 Spence v Demasi (1988) 48 SASR 536 Lexis Nexis Butterworths, Cross on Evidence (at Service 165) [33455] Date of hearing: 7, 8, 15, 16, 22 April 2014 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr JJE Fernon SC, Ms E Raper, Mr D Chin Solicitor for the Applicant: Baker & McKenzie Counsel for the First and Second Respondents: Dr CS Ward, Mr A Macauley Solicitor for the First and Second Respondents: Arnold Bloch Leibler Counsel for the Third Respondent: Mr F Parry QC, Mr R Dalton, Mr J Darams Solicitor for the Third Respondent: Herbert Smith Freehills IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 719 of 2012 BETWEEN: FAIR WORK OMBUDSMAN Applicant AND: VALUAIR LIMITED (200302952W) First Respondent TOUR EAST (T.E.T) LTD (31629391) Second Respondent JETSTAR AIRWAYS PTY LTD (ACN 069 720 243) Third Respondent JUDGE: BUCHANAN J DATE: 29 april 2014 PLACE: SYDNEY REASONS FOR RULING ON EVIDENCE BUCHANAN J: 1 For the purpose of the present judgment, which concerns a ruling on evidence made on 15 April 2014, the factual position described briefly hereunder has been derived from the pleadings and the affidavit evidence as filed. This judgment does not state final conclusions about factual matters which remain for debate in the proceedings. 2 The first and second respondents are each foreign corporations. The first respondent is incorporated in Singapore; the second respondent is incorporated in Thailand. The third respondent is an Australian corporation which operates both international and Australian domestic airline services, under the name "Jetstar". 3 The first and second respondents each employ cabin crew who are provided to the third respondent for its international services. The proceedings concern allegations that the first and second respondents breached an Australian award applying to aircraft cabin crew and that the third respondent was (at least) knowingly concerned in those breaches. 4 The cabin crew employed by the first and second respondents are permanently based in Singapore (in the case of the first respondent) or Bangkok (in the case of the second respondent). They fly into and from Australia on Jetstar aircraft. They also fly on occasions between Australian ports. The relief claimed in the present proceedings concerns some (but not all) of those flights between Australian ports. 5 During the course of the applicant's case the applicant sought to introduce into evidence the transcript of three interviews conducted with one officer of the first respondent and two officers of the third respondent, which were attended voluntarily by those officers. 6 The transcripts recorded out of court statements. The applicant sought to justify reception of the transcripts as admissions; or as containing admissions. At first, I declined to receive the transcripts of interview in their entirety and indicated that I required the applicant to identify the particular representations which would be relied upon as admissions against the interest of the particular respondent. 7 Counsel for the third respondent, however, submitted that the balance of the two interviews with officers of his client should be admitted into evidence at the same time as any admissions. I did not immediately concur with this view. I indicated that I would also admit into evidence representations or statements necessary to put any admissions into an appropriate and fair context, but only such representations or statements. I did not then envisage admitting the whole of the transcript of the interviews as sought by counsel for the third respondent, although no final ruling was made at that point. 8 Counsel for the first and second respondents took a different course. He did not press the balance of the interview with the officer of the first respondent. In those circumstances, I admitted into evidence at once only the representations relied on as admissions from that interview. 9 Later reflection (and a little research) persuaded me that the whole of the record of an interview of this kind should be admitted into evidence if that is pressed by a party against whom any admissions contained in that record will be used. 10 Sections 59(1) and (2), 81 and 87(1) of the Evidence Act 1995 (Cth) ("the Evidence Act") provide: 59 The hearsay rule—exclusion of hearsay evidence (1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation. (2) Such a fact is in this Part referred to as an asserted fact. … 81 Hearsay and opinion rules: exception for admissions and related representations (1) The hearsay rule and the opinion rule do not apply to evidence of an admission. (2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation: (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and (b) to which it is reasonably necessary to refer in order to understand the admission. … 87 Admissions made with authority (1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. 11 "Admission" is defined in the Dictionary to the Evidence Act as follows: admission means a previous representation that is: (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding. 12 On one view, s 81 of the Evidence Act provides that the representations which are admissible as exceptions to the hearsay and opinion rules are those representations of asserted fact which are adverse to the interest of a party and only those additional representations which are identified in s 81(2)(b). However, a pre-existing and longstanding practice has established a rule of fairness, which is routinely applied in criminal trials, which requires admission of the whole of the relevant document or record, unless there is agreement to the contrary or exclusions may safely be made on the ground of relevance. 13 The general rule is set out in Cross on Evidence at [33455], which provides: C — Reception of the entire statement [33455] … When a statement contains items favourable to a party's case in addition to the admission, the party relying on the latter cannot prevent the other items from being provided, though what weight is to be given to the favourable items is entirely a matter for the trier of fact. Accordingly, the debit side of an account may be tendered as an admission against one party, but this will mean that the credit side may be treated as evidence against his adversary. The self-serving nature of the parts of a statement that are favourable to the maker of an admission will no doubt affect their weight but there seems to be no reason why the jury should not treat them as evidence of the truth of that which they assert. … … The whole statement, including both admissions and self-serving portions, must be left to the trier of fact who may attach different weight to different parts of it. The principle only applies to a single statement, not to what are in truth statements which are separate because of temporal considerations or other circumstances. It is a live question how far it is open to the tendering party to refuse to tender more than the admissions and self-serving portions closely related to them. It has been said that if in a statement there is a qualification and an admission inextricably bound together so that they cannot be separated into different components, then the trier of fact must accept the whole or reject the whole; but if it is possible to fragment the statement, the trier of fact might accept part and reject another part. … (Citations omitted.) (Emphasis added.) 14 My initial view accorded with the position described in the last part of this extract. However, I am satisfied that it has not been adopted as the preferred view in Australia. 15 The rule which is generally applied was stated in Jack v Smail (1905) 2 CLR 684 at 695 where Griffiths CJ said in relation to a deposition: … the trustees must take the deposition as they find it. They cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case. They must take the deposition as a whole. That is the rule in criminal proceedings, and it was the rule in the Court of Chancery. A fragmentary portion of depositions could not be taken alone if it was qualified by another portion. That is simply a rule of fair play. 16 The approach stated in Jack v Smail has been applied in Australia in both civil and criminal cases. In Lopes v Taylor (1970) 44 ALJR 412 ("Lopes"), Gibbs J expressed his preference (at 421-2) for: … the view that where one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated, although the Court is not bound to accept all parts of the statement as true but may give different weight to different parts of the statement … 17 Statements containing both inculpatory and exculpatory passages are sometimes referred to as "mixed" statements. In Spence v Demasi (1988) 48 SASR 536 ("Spence"), Cox J undertook an extensive survey of both criminal and civil cases in Australia and England and distilled the following propositions concerning mixed statements: (at 540): The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. (at 541): One thing should be made quite plain. The use that may be made in a criminal trial of a mixed statement by a defendant is not confined to passages that qualify or explain, more or less directly, the admissions upon which the Crown relies … … There is much authority to support a like exception to the hearsay rule in civil proceedings. … (at 545): … However the principle is to be stated, there is a longstanding practice of conceding evidential value to the self-serving parts of a mixed out of court statement and leaving it to the court to decide what weight they should have. … 18 Lopes and Spence were each referred to in Mule v R (2005) 221 ALR 85 ("Mule") (at [14]) in support of a reference to "the accepted view of the law in this country". One reason given for the existence of the rule was mentioned in Mule (at [15]) where the High Court said: [15] Where evidence is given of out of court statements made by an accused person, there may be no clear distinction between matter that is inculpatory and matter that is exculpatory. A dividing line between incriminating admissions and self-serving assertions may sometimes be difficult, or impossible, to draw. … 19 The "live question" referred to above in Cross on Evidence was addressed by Hayne J in Mahmood v State of Western Australia (2008) 232 CLR 397 in the following way (at [39]-[41]): 39 … If an accused has made inculpatory statements that are admissible in evidence, the prosecution should ordinarily lead evidence of all of those statements. It is necessary, of course, to take account of statutory provisions governing admissibility of out-of-court admissions that are not recorded. But subject to that important consideration, it is not open to the prosecution to pick and choose between those statements, whether according to what is forensically convenient or on some other basis. And in leading evidence of out-of-court assertions which the prosecution alleges are inculpatory, the prosecution must take the out-of-court assertion as a whole; the prosecution "cannot select a fragment and say it bears out their case, and reject all the rest that makes against their case". 40 Application of the last-mentioned principle to the record of a lengthy interview or re-enactment may not be easy. But just as the prosecution in this case tendered the whole of the record of interview (apart from the undisputed excision of some irrelevant material) so too the prosecution could have, and should have, tendered the whole of the record of the re-enactment. 41 … If there is admissible evidence available to the prosecution of out-of-court statements of the accused that contain both inculpating and exculpating material, fair presentation of the prosecution case will ordinarily require that the prosecution lead all that evidence. (Citations omitted.) 20 In the light of these statements of principle it was appropriate to reconsider whether the whole of the transcripts of interviews should be admitted into evidence, should the relevant respondent press for that to happen as part of the tender by the applicant. 21 The transcripts in question (i.e. those in respect of which an issue remains) in the present case record interviews that took place between Fair Work Inspectors and officers of the third respondent in one day, usually in one sitting, and in relation to one investigation. There is no suggestion that the transcripts of interviews are temporally or otherwise fragmented or separable. The transcripts contain both inculpating and exculpating representations. In those circumstances, and given the discussion of the authorities above, it was appropriate to admit into evidence the whole of the transcripts of interviews (where sought) and not only the admissions upon which the applicant seeks to rely. 22 Accordingly, I admitted into evidence the whole of the transcripts of interview of officers of the third respondent, as sought by the third respondent. Counsel for the first and second respondents did not seek any alteration of the previous ruling concerning the interview of the officer of the first respondent. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 29 April 2014