FEDERAL COURT OF AUSTRALIA Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Evidence) [2020] FCA 341 File numbers: NSD 1344 of 2017 NSD 1027 of 2018 NSD 1028 of 2018 Judge: PERRAM J Date of judgment: 13 March 2020 Date of publication of reasons: 27 March 2020 Catchwords: EVIDENCE – hearsay – admissibility of affidavit referring to transcript and reports of Royal Commission into Trade Union Governance and Corruption ('Royal Commission') – where affidavit refers to large volume of Royal Commission interim report – whether transcripts admissible under s 6DD of Royal Commissions Act 1902 (Cth) PRACTICE AND PROCEDURE – whether Applicants' delay in provision of affidavit and volume of supporting documents constituted procedural default Legislation: Royal Commissions Act 1902 (Cth) s 6DD Date of hearing: 13 March 2020 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 16 Counsel for the Applicants: Mr M Seck with Ms B Byrnes Solicitor for the Applicants: McArdle Legal Counsel for the Respondents: Mr B Walker SC with Mr B Docking Solicitor for the Respondents: Taylor & Scott Lawyers ORDERS NSD 1344 of 2017 BETWEEN: ANDREW QUIRK First Applicant BRIAN MILLER Second Applicant AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent DAVID NOONAN Second Respondent FRANK O'GRADY (and others named in the Schedule) Third Respondent JUDGE: PERRAM J DATE OF ORDER: 13 MARCH 2020 THE COURT ORDERS THAT: 1. The affidavit of Mr Andrew Quirk sworn on 12 March 2020 be read and the supporting folder of documents accompanying the affidavit be tendered as Exhibit 7, subject to the following conditions: (a) The affidavit and Exhibit 7 not be received to prove the truth of their contents; and (b) To the extent that the affidavit and Exhibit 7 contain transcripts of evidence given by Mr Darren Greenfield to the Royal Commission into Trade Union Governance and Corruption, they shall not be used against Mr Greenfield. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1027 of 2018 BETWEEN: BRIAN MILLER Applicant AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) Second Respondent JUDGE: PERRAM J DATE OF ORDER: 13 MARCH 2020 THE COURT ORDERS THAT: 1. The affidavit of Mr Andrew Quirk sworn on 12 March 2020 be read and the supporting folder of documents accompanying the affidavit be tendered as Exhibit 7, subject to the following conditions: (a) The affidavit and Exhibit 7 not be received to prove the truth of their contents; and (b) To the extent that the affidavit and Exhibit 7 contain transcripts of evidence given by Mr Darren Greenfield to the Royal Commission into Trade Union Governance and Corruption, they shall not be used against Mr Greenfield. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1028 of 2018 BETWEEN: ANDREW QUIRK Applicant AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) Second Respondent JUDGE: PERRAM J DATE OF ORDER: 13 MARCH 2020 THE COURT ORDERS THAT: 1. The affidavit of Mr Andrew Quirk sworn on 12 March 2020 be read and the supporting folder of documents accompanying the affidavit be tendered as Exhibit 7, subject to the following conditions: (a) The affidavit and Exhibit 7 not be received to prove the truth of their contents; and (b) To the extent that the affidavit and Exhibit 7 contain transcripts of evidence given by Mr Darren Greenfield to the Royal Commission into Trade Union Governance and Corruption, they shall not be used against Mr Greenfield. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 Today is the fifth day of the trial. Mr Seck, for the Applicants, sought to read a third affidavit of Mr Andrew Quirk sworn on 12 March 2020 ('Mr Quirk's third affidavit') and to tender with that affidavit a folder of documents and an index listing the contents of the folder. This was objected to by Mr Docking, for the Respondents. 2 The background to the present objection emerges from a ruling I made on 10 March 2020 to reject para 167 of Mr Quirk's affidavit of 11 June 2019 ('Mr Quirk's first affidavit'). At the time I rejected para 167, I indicated that I would, in principle, permit the contents of para 167 to be admitted but not in the form that it was in. 3 The Respondents took objection to para 167 of Mr Quirk's first affidavit because it contains references to paragraphs of the Interim and Final reports of the Royal Commission into Trade Union Governance and Corruption ('the Royal Commission'), as well as references to the transcript of various witnesses before the Royal Commission and some statements which were tendered before it. 4 The Applicants did not seek to tender this material to prove its truth; rather they sought to put it before the Court to prove what it is that Mr Quirk would have sought to put before the Divisional Executive of the Construction and General Division ('the Divisional Executive') on 15 April 2015. I accepted that as long as it was not led to prove the truth of any of it, the material was, in principle, admissible, at least for the purpose of Mr Quirk proving what it is he would have tried to put before the Divisional Executive. 5 Nevertheless, at the time that para 167 of Mr Quirk's first affidavit was sought to be read, Mr Docking objected, not without some force, to the failure of the Applicants to identify with clarity and provide in a way which was easily digestible the various parts of the Royal Commission's Interim report which were to be relied upon. 6 Therefore, I rejected para 167 Mr Quirk's first affidavit on that practical basis, but permitted the Applicants to put forward a third affidavit of Mr Quirk, addressing with particularity the various parts of the Royal Commission's reports (both Final and Interim), transcripts and statements upon which reliance was to be placed. Over the next couple of days, various draft versions of that affidavit and of the proposed folder were provided to the Respondents and to the Court. The final version of the folder was made available, as I was told, yesterday, and the final version of Mr Quirk's third affidavit was only made available this morning. 7 The Respondents submit that the final version of Mr Quirk's third affidavit and the bundle do not comply with what I indicated should be done on 10 March 2020. The Respondents drew particular attention to para 167(i) of Mr Quirk's first affidavit. In that paragraph, there is a stray reference to the whole of chapter 8.4 of the Royal Commission's Interim report. On the basis of that reference, the Applicants' advisers have included in the bundle accompanying Mr Quirk's third affidavit the whole of chapter 8.4, and it is submitted by the Respondents that this is a departure, if not from the form of what I had suggested on 10 March, then certainly from its spirit. There were related complaints. These complaints were probably driven by the volume of the material which has been produced in the proposed bundle. Certainly when I suggested that a third affidavit of Mr Quirk might be produced, I had in mind a much smaller bundle than the 700 pages or so which have now been provided. 8 Much of the bulk of the proposed exhibit results from, as Mr Docking inevitably pointed out, repetition of various documents. So, for example, chapter 8.4 appears as document 2 in the folder, but also as document 49 and there are other repetitions, too. This suggests that the bundle was produced under some time constraints and it adds to Mr Docking's submission that it is a cumbersome document to deal with. The two questions which now arise are, first, whether Mr Quirk's third affidavit and the accompanying bundle are admissible and then secondly, upon the assumption that they are admissible, whether the procedural default on the Applicants' part in their preparation of the affidavit and the bundle is such that I should, as a matter of case management, not permit them now to be used. 9 In relation to the topic of admissibility, I see no reason to depart from my previous determination that Mr Quirk is entitled to prove what it is that he would have put in front of the Divisional Executive on 17 April 2015 by way of his attempt to persuade them not to remove him from the office of Organiser under r 11 of the Construction, Forestry, Maritime, Mining and Energy Union, Construction and General Division Rules. On that basis, the material is admissible to prove that it is the material which Mr Quirk would have put before them, but not admissible to prove the truth of the contents of the material. I thus adhere to my previous ruling that this material is relevant for that non-hearsay purpose, but must be subject to a direction that it be only used for non-hearsay purposes. 10 I then turn to the second question, which is whether there is some basis in case management principles why I should reject Mr Quirk's third affidavit. Following a lengthy exchange with Mr Docking, I was eventually able to extract his agreement that the cross-examination he would have conducted on the rejected para 167 was essentially no different to the cross-examination he would conduct on the folder accompanying Mr Quirk's third affidavit. It seems to me that in that circumstance, Respondents' counsel suffers no prejudice by the receipt of the (admittedly somewhat chaotic) bundle, because it has no impact upon the course of his cross-examination. Mr Docking did draw to my attention to the fact that he had not yet had the opportunity to read all 700 pages which have been included in the folder and, given the exigencies of time in this case, I accept that. 11 But, when pressed, Mr Docking was not able to identify what it was he had in mind in reading the 700 pages that would have any impact upon his cross-examination. I then put to him directly whether he was prejudiced in the running of the case by the receipt of the material, and eventually Mr Docking accepted that he was not. He nevertheless submitted that the Respondents were prejudiced. I do not accept that. The materials which are contained in the folder are all publicly availably materials. They are not being received to prove the truth of their contents; they are only being received to prove that they exist. The fact that they exist is a notorious public fact known to most people in the industrial area and, I am quite certain, certainly to the Respondents. 12 It seems to me in that circumstance, subject to one exception and a further minor matter to which I will return, there is no prejudice to the Respondents, either via their counsel or through their own personal positions, in this material being received on a non-hearsay basis. Therefore, it seems to me that it would not be possible for me to reject the material on a case management basis, where it does not lead to any prejudice to the Respondents and where non-receipt of it would prejudice the Applicants, in the sense that it would deprive Mr Quirk of the ability to prove a plank in his case. 13 I said that there was an exception to that, and that relates to the operation of s 6DD of the Royal Commissions Act 1902 (Cth). Section 6DD provides as follows: Statements made by witness not admissible in evidence against the witness (1) The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory: (a) a statement or disclosure made by the person in the course of giving evidence before a Commission; (b) the production of a document or other thing by the person pursuant to a summons, requirement or notice under section 2 or subsection 6AA(3). (2) Subsection (1) does not apply to the admissibility of evidence in proceedings for an offence against this Act. 14 Contained within the bundle, I am told, is some transcript of evidence given by a Mr Darren Greenfield before the Royal Commission. Mr Greenfield, in his capacity as a committee member, is the Twentieth Respondent to the rules matter in these proceedings, NSD 1344 of 2017. Objection was taken to the receipt into evidence of those transcripts on the basis of s 6DD, the argument being that this was the use in a civil proceeding against Mr Greenfield of a disclosure made by him, in the course of giving evidence to the Royal Commission. After some argument, the Applicants agreed that the evidence should not be tendered against Mr Greenfield and I will direct it to not be used against him. In that circumstance, the objection falls away. 15 The small matter I referred to before is that because Mr Docking has not yet had the opportunity to read the 700 pages of the bundle, he has not yet identified whether there might be other persons whose transcript is contained in the bundle and who, being respondents to the rules proceeding, may be able to avail themselves of a similar objection under s 6DD. I accept that Mr Docking has not had an opportunity to read the bundle in its entirety. The course I will take, therefore, is to permit the Respondents, at any time prior to the end of the trial, to raise with me some other part of the bundle which they would like to be subject to a similar regime. 16 In those circumstances, Mr Quirk's third affidavit will be read and the folder of exhibits will be received as Exhibit 7. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 27 March 2020 SCHEDULE OF PARTIES NSD 1344 of 2017 Respondents Fourth Respondent: JOHN SETKA Fifth Respondent: JOSEPH MCDONALD Sixth Respondent: ELIAS SPERNOVASILIS Seventh Respondent: SHAUN REARDON Eighth Respondent: DEAN HALL Ninth Respondent: JADE INGHAM Tenth Respondent: AARON CARTLEDGE Eleventh Respondent: MICK BUCHAN Twelfth Respondent: MICHAEL RAVBAR Seventeenth Respondent: NIGEL DAVIS Eighteenth Respondent ANDREW SUTHERLAND Nineteenth Respondent ROB KERA Twentieth Respondent DARREN GREENFIELD Twenty First Respondent JASON O'MARA Twenty Second Respondent KANE LOWTH Twenty Third Respondent MICHAEL GREENFIELD