FEDERAL COURT OF AUSTRALIA Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Pleadings Reinstatement) [2020] FCA 412 File numbers: NSD 1344 of 2017 NSD 1027 of 2018 NSD 1028 of 2018 Judge: PERRAM J Date of judgment: 30 March 2020 Catchwords: PRACTICE AND PROCEDURE – whether to reinstate paragraphs of pleadings previously struck out – where strike out application made at commencement of trial – where impugned paragraphs sought to allege existence of transcripts and reports of Royal Commission into Trade Union Governance and Corruption EVIDENCE – hearsay – admissibility of transcripts and reports of Royal Commission into Trade Union Governance and Corruption – whether Royal Commission materials relevant for non-hearsay purpose Legislation: Evidence Act 1995 (Cth) ss 55, 60 Date of hearing: 9-13, 16-20 and 26 March 2020 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 4 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: 30 MARCH 2020 THE COURT ORDERS THAT: 1. Order 2 made on 10 March 2020 striking out paragraphs 40, 41 and 43 of the Amended Statement of Claim be revoked. 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: 30 MARCH 2020 THE COURT ORDERS THAT: 1. Order 2 made on 10 March 2020 striking out paragraphs 62, 63 and 65 of the Further Amended Statement of Claim be revoked. 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: 30 MARCH 2020 THE COURT ORDERS THAT: 1. Order 2 made on 10 March 2020 striking out paragraphs 63, 64 and 66 of the Further Amended Statement of Claim be revoked. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 These reasons should be read with the Court's earlier reasons in Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Pleadings) [2020] FCA 303 ('the pleadings ruling'). In those reasons I concluded that paras 63, 64 and 66 of the Further Amended Statement of Claim ('FASOC') filed in Mr Quirk's adverse action claim proceeding (NSD 1028 of 2018) should be struck out. That occurred on the second day of the trial. Paras 63, 64 and 66 effectively alleged the existence of the Royal Commission into Trade Union Governance and Corruption ('the Royal Commission'), various evidence put before it and Reports it published. The Applicants sought to establish that a non-hearsay use of the Royal Commission material could be relevant under s 60 of the Evidence Act 1995 (Cth) ('the Act'). The paragraphs were said to be relevant to issues in the case in five ways, each of which I rejected. 2 One of the bases which I rejected was a contention by the Applicants that the Royal Commission materials were relevant to show that they had acted in good faith. I did so because there was no allegation by the Respondents that the Applicants had acted in bad faith. Subsequently, it has become apparent that the Respondents do in fact claim that the Applicants had no proper basis to make the allegations that they did on the 7.30 Report and that the Divisional Executive was within its rights to dismiss them from their office as organisers. That claim seems to me to make relevant a contention by the Applicants that they acted reasonably because of the contents of the Royal Commission's Interim Report. Of course, the Interim Report post-dated the 7.30 Report but it seems to me still plausible to suggest that the Applicants' complaints were backed up by what the Royal Commission subsequently found in the Interim Report. In turn, this may support an inference that the Applicants might not have been guilty of gross misbehaviour within the meaning of the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General Division Rules. There are many obstacles in the path of that argument: the fact that the Interim Report was published after the 7.30 Report, the fact that this Court's jurisdiction to review the Divisional Executive's view about the matter may be quite circumscribed, and the fact that it may not be straightforward to draw links between what was said on the 7.30 Report and what was ultimately contained in the Interim Report. Be that all as it may, I would not exclude evidence of these matters on the basis of s 55 of the Act. This matters because after the pleadings ruling the Applicants sought to tender material relevant to these matters and I admitted it as relevant on the basis I have just described (and subject to the limitation that it was not admitted as to its truth but only to prove the existence of what the Applicants were acting upon). It seems to me that my initial reasons for striking out paras 63, 64 and 66 of the FASOC are no longer correct in light of what has happened and I propose to revoke my previous orders. 3 It is true that this will lead to those paragraphs making the allegation too broadly in the sense that they allege the truth of the matters contained in the Royal Commission's Interim Report and related materials. I have not permitted the evidence to be used for that purpose and the trial has not been conducted on the basis that the Court will be inquiring into the correctness of the Interim Report's conclusions. There is no point further adjusting the paragraphs to bring them into line with the evidentiary approach I have taken. It is enough, upon their reinstatement, that I make clear the basis on which the trial is being conducted. 4 I will therefore revoke my previous orders to strike out paras 63, 64 and 66 of the FASOC in Mr Quirk's adverse action proceeding. I will make cognate orders in Mr Miller's adverse action proceeding (NSD 1027 of 2018) and the proceedings brought by Mr Quirk and Mr Miller jointly (NSD 1344 of 2017). I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 30 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