Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550

FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550 File number: VID 458 of 2016

Judge: BROMBERG J

Date of judgment: 22 May 2017

Catchwords: EVIDENCE – privilege in respect of self-exposure to penalties – Evidence Act 1995 (Cth), s 128 – application for the issue of a certificate pursuant to s 128 – whether a party under no legal compulsion to give proposed evidence relevantly "objects to the giving of particular evidence" so as to engage s 128(1) – where respondent declines to answer questions put in chief by his own counsel – where respondent is subject to a statutory presumption of intent that would rarely be effectively rebutted without direct testimony– motivation to give evidence to avoid having judgment entered against him or her not relevant compellability – Song v Ying (2010) 79 NSWLR 442 not plainly wrong – application refused

Legislation: Evidence Act 1995 (Cth) s 128 Fair Work Act 2009 (Cth) ss 340, 343, 346, 348, 361

Cases cited: Aitken v Murphy [2011] FamCA 785 BHP Billiton Iron Ore v National Competition Council (2007) 162 FCR 234 Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Chao v Chao [2008] NSWSC 584 Chong v CC Containers Pty Ltd [2015] VSCA 137 Clayton Utz v Dale (2015) 47 VR 48 Cornwell v The Queen (2007) 231 CLR 260 Crawford v Crawford (No 3) [2016] NSWSC 704 Ferrall v Blyton [2000] FamCA 1442 Health Services Union NSW v Peter Mylan [2014] NSWSC 1026 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 Ollis v Melissari [2005] NSWSC 1016 Re Lime Gourmet Pizza Bar (Charlestown) Pty Ltd (formerly under administration) [2014] NSWSC 1898 Sheikholeslami v Tolcher (2009) 75 NSWLR 418 Song v Ying (2010) 79 NSWLR 442 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214