FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the trial judge be set aside.

3.    In lieu thereof:

It be declared that, on 13 June 2014 at the building site of the Castlemaine Police Station (“the Site”), the second respondent acted in an “improper manner” within the meaning of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by engaging in the conduct and in the circumstances identified by the trial judge, namely:

(i)    Before and during his inspection of the Site, the WorkSafe Victoria inspector, Jason Sharples, twice told Alex Tadic that he should limit his questions and comments until the end of Mr Sharples’ visit.

(ii)    Despite the request referred to in (i) being made by Mr Sharples, Mr Tadic did not comply with these requests.

(iii)    Mr Tadic “expressed his dissatisfaction [with Mr Sharples] directly and forcefully to Mr Sharples. In doing so he used swear words liberally. This speech was louder than normal conversation but was not yelling and not screaming. Mr Tadic generally directed these comments to the state of the premises rather than to [Mr Sharples] personally. The swearing was by way of ‘sentence enhancer’. It was not generally used in an aggressive way, but rather to add emphasis to the point he was seeking to make” (emphasis added).

(iv)    The conduct of Mr Tadic referred to in (iii) caused Mr Sharples to be “distracted” from his task but not to an appreciable degree.

(v)    During the inspection, Mr Tadic called Mr Sharples the worst inspector he had ever seen, causing Mr Sharples to be disconcerted and concerned about his reputation.

(vi)    The CFMEU organiser, Nigel Davies, considered that, when Mr Tadic made his statement, his voice was louder than in general conversation.

(vii)    During the course of Mr Sharples’ inspection of the Site, Mr Tadic told Mr Sharples in a raised voice that he was “pathetic”.

(viii)    During the course of Mr Sharples’ inspection of the Site, Mr Tadic said to Mr Sharples: “Are you applying for a job with the builder?”.

(ix)    During the inspection, the CFMEU organiser, Mr Davies, considered that Mr Tadic’s “tone [towards Sharples] was probably sarcastic”.

(x)    As Mr Tadic left the Site, in the presence of workers at the Site, Mr Tadic said to Mr Sharples: “This is not over”.

4.    The proceeding be remitted for determination by the Court (differently constituted) of:

(i)    the penalty to be imposed on the second respondent for his contravention of s 500 of the Act; and

(ii)    whether the first respondent has also contravened s 500 of the Act by reason of the operation of either or both ss 550 and 793 of the Act or by reason of the application of common law principles of vicarious liability and, if so, what, if any, penalty should be imposed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The principal issue raised on this appeal concerns the construction of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) and, more specifically, what is comprehended by the requirement that a permit holder not “act in an improper manner”. The proceeding had been commenced by the Director of the Fair Work Building Industry Inspectorate (“the Director”).

2    The Director alleged that, in the course of a site inspection, the second respondent, Mr Alex Tadic, who held a permit to enter the site, had made a series of comments which, the Director contended, meant that he had acted improperly.

3    After the case had been argued before the trial judge, but before his Honour delivered judgment, the Building Construction Industry (Consequential and Transitional Provisions) Act 2016 (Cth) commenced operation. By force of that Act the Australian Building and Construction Commissioner (“the Commissioner”) was deemed to have replaced the Director as the moving party in the proceeding and for other statutory purposes: see clause 19 of Schedule 2. Despite this change it will be convenient to refer to the Commissioner as the “Director”.

4    The trial judge found that a number of the alleged comments had been made but that, individually and collectively, they did not evidence contraventions of s 500.

5    We have concluded that, on the findings made by the trial judge, a contravention of s 500 occurred.

FACTUAL BACKGROUND

6    In 2014 work was proceeding on the construction of a police station at Castlemaine in Victoria. The head contractor for the project was Behmer and Wright Pty Ltd (“Behmer”). On 13 June 2014 Mr Tadic and another official of the Construction, Forestry, Mining and Energy Union (“the CFMEU”), Mr Nigel Davies, entered the site. They were both holders of entry permits, issued under the Act. They spoke to the acting site supervisor and advised him that they considered, for various reasons, that the site was unsafe.

7    Shortly after he had entered the site Mr Tadic made telephone contact with WorkSafe Victoria (“WorkSafe”) and requested that an inspector attend at the site. In response to this request Mr Jason Sharples, who was an inspector appointed under the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), came to the site. Not long afterwards Mr Bradley Regan, the site manager, also arrived.

8    Mr Sharples proposed to conduct a safety inspection of the site. Before he did so he told Mr Tadic that Mr Tadic should limit any questions and comments he may wish to make about site safety until the end of the inspection. This request was later to be repeated during the conduct of the inspection.

9    Mr Sharples embarked on the inspection. He was accompanied by Mr Tadic, Mr Davies and Mr Regan. The site was large and the inspection eventually took about an hour and a half to two hours to complete.

10    At various points during the inspection Mr Tadic made complaints about what he perceived to be safety concerns. There was conflicting evidence about the manner in with which Mr Tadic had made his complaints but the trial judge accepted that Mr Tadic had been forceful in the way he had spoken on various occasions. Mr Regan accepted some of Mr Tadic’s complaints and directed that immediate remedial action, such as cordoning off some areas, should be taken.

THE LEGISLATION

11    Section 500 appears in Part 3-4 of the Act. The object of the Part is explained in s 480:

480 Object of this Part

The object of this Part is to establish a framework for officials of organisations to enter premises that balances:

(a)    the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i)    this Act and fair work instruments; and

(ii)    State or Territory OHS laws; and

(b)    the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and

(c)    the right of occupiers of premises and employers to go about their business without undue inconvenience.

12    In order to facilitate and regulate the entry of officials to work sites, s 512 of the Act provides for the Fair Work Commission to issue permits to such officials.

13    Division 3 of Part 3-4 regulates the exercise, by permit holders, of their right of entry to premises for the purpose of exercising rights granted under State and Territory occupational health and safety laws such as the Victorian OHS Act. If a permit holder wishes to enter premises and inspect them for safety purposes the relevant employer must be given prior notice: see s 495. A permit holder is required to produce his or her entry permit upon request to do so from an occupier of the premises or an affected employer: see s 497. The right of entry and inspection may only be exercised during working hours: see s 498.

14    Section 500 provides that:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

A “permit holder” is defined, in s 12 of the Act, to mean a person who is the holder of an entry permit.

THE TRIAL judge’s findings

15    The trial judge heard evidence from Messrs Sharples, Reagan, Tadic and Davies. His Honour expressed a preference for the accounts of relevant events which had been given by Mr Tadic and Mr Davies.

16    His Honour was satisfied that Mr Sharples had twice said to Mr Tadic that he, Mr Tadic, should limit any questions and comments until the end of the site visit. He considered that Mr Sharples had made these requests because he objected to having his work criticised rather for advancing the purpose of the inspection. His Honour accepted that Mr Tadic did not accede to Mr Sharples’ request.

17    His Honour found that, in the course of the inspection, Mr Tadic was “frustrated at the way in which Mr Sharples was dealing with the safety issues”: see [242]. As a result Mr Tadic had “expressed his dissatisfaction directly and forcefully to Mr Sharples”. Mr Tadic had made liberal use of swear words. Although he was not yelling or screaming, Mr Tadic’s speech “was louder than normal conversation”. His Honour said, at [242], that:

Mr Tadic generally directed these comments to the state of the premises rather than to Mr [Sharples] personally. The swearing was by way of ‘sentence enhancer’. It was not generally used in an aggressive way, but rather to add emphasis to the point he was seeking to make.

Mr Tadic’s conduct had distracted Mr Sharples from the performance of his duties but not to an appreciable degree.

18    Mr Tadic was found to have made a number of pejorative comments about Mr Sharples in the course of the inspection. He had said that Mr Sharples was the worst inspector that he (Mr Tadic) had seen. He called Mr Sharples “pathetic”. Mr Tadic accepted that, at one point, when the adequacy of flood lighting had been raised, he had asked Mr Sharples a question along the lines of: “Are you fair dinkum? Are you applying for a job with the builder?” Mr Tadic said that he had asked these questions out of frustration with decisions made by Mr Sharples which Mr Tadic considered favoured the builder. As Mr Tadic left the site Mr Tadic told him, in the presence of some of the workers, that “this is not over”. The trial judge accepted that these words were not intended to intimidate Mr Sharples or to humiliate him; rather they were intended to indicate that Mr Tadic would be filing a complaint against Mr Sharples.

THE TRIAL JUDGE’S REASONS

19    The trial judge held that Mr Tadic had not contravened s 500 of the Act either by hindering or obstructing Mr Sharples or by acting in “an improper manner”. No challenge to the former finding has been made on this appeal. The Director’s challenge is directed at the latter finding that Mr Tadic had not acted “in an improper manner”.

20    His Honour held that any appraisal of Mr Tadic’s conduct at the site had to be made and understood in the light of certain “contextual matters”. These were:

    The important functions being performed by both Mr Tadic and Mr Sharples under the OHS Act.

    The existence of a number of serious safety problems at the site.

    The “dynamic of the interaction between Mr Tadic and Mr Sharples”. A comparison was drawn between Mr Tadic and Mr Sharples. His Honour said (at [266]) that:

Mr Tadic was a very experienced health and safety officer with a special dedication to the protection of workers from unsafe practices. He was frustrated that Mr Sharples did not respond appropriately to the safety issues on site. On the other hand, Mr Sharples was relatively inexperienced in the role of an inspector and particularly in relation to commercial building sites but was fairly confident in his own ability. His long experience as a prison officer meant that he was not easily intimidated.

    Mr Tadic’s view that Mr Sharples was not responding appropriately to the seriousness of the safety issues.

21    His Honour considered that, in these circumstances, “Mr Tadic was entitled to form the view that Mr Sharples was not treating the safety issues seriously enough” and that there was no impropriety involved in him expressing these views to Mr Sharples: see [286]. What was in issue was whether the manner in which Mr Tadic chose to express his views gave rise to a contravention of s 500.

22    The trial judge explained his reasons for rejecting the Director’s claims at [288]-[290]:

288    At first sight and stripped of the context of the particular safety walk these statements [being those recorded above at [18]] might seem to be abusive and beyond the bounds of propriety. However, the context governs the interpretation of the words. The statements take their meaning and colour from the circumstances in which they were said.

289    Where an inflamed situation arises on a building site over differing views on safety issues it may be a line not easy to draw between, on the one hand, improper conduct arising from abuse by one participant to another and, on the other hand, a reasonable exchange of views about safety issues on the site. The clash of opposing views might amount to improper conduct if rough exchange degenerates into unreasonable personal abuse and aggression. But an exchange of strongly expressed opinions even in a rough and robust way may be seen as acceptable interaction in such a situation.

290    The statements made by Mr Tadic were the way he conveyed to Mr Sharples that he disapproved of the way Mr Sharples was responding to the safety issues. They were robust expressions but directed to an inspector who appeared to Mr Tadic to be “cocky” and confident of his own judgment. The worst inspector comment and the pathetic comment reflected Mr Tadic’s actual view of the quality of Mr Sharples’ work which view Mr Tadic backed up by making a formal complaint to WorkSafe about Mr Sharples. In other words, those comments were not directed as personal abuse but where rather aimed to convey a genuine opinion about the quality of Mr Sharples’ work. The reference to Mr Sharples working for the builder was a reference to Mr Sharples making decisions which favoured Mr Regan over safety to workers on site. It was a sarcastic comment. It was not said as an allegation of corruption. I find that Mr Sharples took these comments as robust expressions of Mr Tadic’s opinion of how safety issues should be handled rather than as outbursts of abuse directed to Mr Sharples in a derogatory personal way. Indeed, Mr Sharples said that he admired the passion which Mr Tadic demonstrated in favour of workers’ safety.

23    His Honour concluded, at [296], that “Mr Tadic’s conduct was direct but he was no more forceful than the circumstances on the site justified”.

24    In the course of his reasons the trial judge made some adverse observations about the conduct of the Director in the course of a compulsory examination of Mr Sharples. The examination took place before the Director with counsel assisting. Counsel assisting asked most of the questions. The Director did, however, at times intervene and ask his own questions. At one point Mr Sharples had been asked about his reaction to Mr Tadic’s conduct. Of this intervention his Honour said (at [280]):

Then it is alleged … that Mr Sharples felt hindered and intimidated. Mr Sharples’ direct answer during the compulsory examination that he felt that Mr Tadic’s conduct hindered him was given in response to a question from the Director. It is curious that the Director intervened in the questioning when it was being conducted competently and according to the proper process by experienced counsel. The Director intervened at a point where the answers given by Mr Sharples appeared to paint a picture of conduct which did not contravene the FW Act. The impression given is that the Director intervened in order to try to encourage Mr Sharples to bolster the case against the respondents. The role of the Director was to investigate not to suggest a case which the witness did not volunteer. The Director asked:

Is it fair to say that Mr Tadic’s demeanour, conduct … hindered you in any way?

The question was leading and put in such general terms that no weight should be placed on the answer.

25    The trial judge had, earlier in his reasons, said (at [148]) that the interventions appeared “to have been designed to suggest certain elements of the case which would inculpate Mr Tadic” and “reflected a partisan approach rather than the neutral approach proper for the investigative process.”

THE GROUNDS OF APPEAL

26    The Director’s amended notice of appeal contained 16 grounds. They fell into three broad categories. These were what was said to be:

    Errors of law made in characterising Mr Tadic’s conduct (Grounds 1-7);

    Miscarriages of the Court’s fact finding task (Grounds 8-13); and

    Denial of procedural fairness to the Director (Grounds 14-16).

THE PARTIES’ CONTENTIONS

Grounds 1-7

27    The Director contended that the trial judge had erred by taking into account Mr Tadic’s subjective appreciation of the circumstances on the site, of Mr Sharples’ capacity as an inspector, and of the fact that Mr Sharples was not responding in a manner in which Mr Tadic regarded as appropriate to the perceived seriousness of the safety issues of the site. These were, he submitted, matters which were not relevant to a determination of whether or not Mr Tadic had acted in an “improper manner”. They had distracted the trial judge from the objective assessment required when assessing allegations of impropriety for the purposes of s 500.

28    The Director further contended that various matters, relating to Mr Sharples, which his Honour had brought to account were irrelevant. These included Mr Sharples’ level of experience, his confidence in his own ability and Mr Tadic’s view that Mr Sharples appeared “cocky”. For similar reasons the fact that Mr Sharples had been an experienced prison officer who was unlikely, as a result, to be intimidated by Mr Tadic’ conduct and Mr Sharples’ evidence that he considered Mr Tadic’s statements to be “robust expressions” of opinion, were irrelevant considerations. Furthermore it mattered not that Mr Tadic’s conduct towards Mr Sharples was motivated by Mr Tadic’s perception of Mr Sharples’ performance of his statutory duties and did not constitute a personal attack.

29    The proper approach, the Director argued, was to ask whether a reasonable person would consider it improper for Mr Tadic to disregard Mr Sharples’ request to limit his questions and comments until the end of the inspection and whether the impugned statements, made by Mr Tadic in the course of the inspection, were “improper’ in the necessary sense. Had such an approach been adopted, on the facts found, a finding that Mr Tadic had acted in an improper manner should, he contended, have been made.

30    The respondents submitted that the trial judge had been correct to find that Mr Tadic had not acted in an improper manner. They accepted that, in his dealings with Mr Sharples, Mr Tadic had acted “in a robust manner”, had complained about what he perceived to be inadequacies in the inspection, and had told Mr Sharples that he (Mr Tadic) might take matters further. None of this conduct was “improper”. It was not rendered so merely because Mr Tadic had expressed himself “directly and with the use of swear words”. Section 500, they argued, “is not directed to the promotion of civility”.

31    In oral argument the respondents advanced a further submission which had not been argued before the trial judge. It was that a permit holder would only contravene the “improper manner” proscription in s 500 if the impugned acts had a practical and adverse impact on the “capacity of occupiers and others on the premises to go about their usual business.” This formulation was apparently based on some observations of Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 802 at [140] (“the Laverton North/Cheltenham Case”).

Grounds 8-13

32    These grounds alleged error on the part of the trial judge in relation to:

    His assessment of the credibility of Mr Sharples and Mr Regan;

    Mr Tadic’s credibility; and

    The finding that Mr Tadic’s intention, when he questioned Mr Sharples about whether he (Mr Sharples) was applying for a job with the builder, was merely to express a sarcastic opinion.

33    We do not propose to elaborate on these complaints because, for reasons which we will later explain, it will not be necessary to pursue these grounds further.

34    The respondents submitted that the trial judge had not erred in relation to his assessment of credibility of witnesses and in preferring the evidence of the respondents’ witnesses to that of the Director’s.

Grounds 14-16

35    The Director also objected that he had been denied procedural fairness by the trial judge when his Honour made adverse findings relating to the Director’s conduct in the course of the compulsory examination of Mr Sharples. This was said to have occurred because his Honour had, in the course of argument, effectively advised the parties that it was not necessary for submissions to be made in relation to the participation of the Director in the compulsory examination of Mr Sharples. As a result the Director was deprived of the opportunity of justifying his interventions during the course of questioning by counsel assisting. Further, there was a real risk that his Honour’s view concerning such conduct had adversely affected his assessment of Mr Sharples’ evidence.

36    The respondents submitted that no denial of procedural fairness had occurred. The record of Mr Sharples’ interview had been tendered and relied upon by the Director at trial. In the course of closing arguments the trial judge had voiced his concerns about the Director’s participation in the interview. Counsel for the Director had the opportunity to address the Court about these matters but had not done so.

CONSIDERATION

Grounds 1-7

37    Although, at trial, the Director sought adverse findings against the respondents under both limbs of s 500, his appeal was confined to the trial judge’s rejection of the “improper manner” allegations relating to Mr Tadic’s conduct.

38    The improper acts, comprehended by s 500, are acts other than those involving obstruction or hindering. It is not necessary that the acts were intended to be improper: cf Setka v Gregor (No 2) (2011) 195 FCR 203 at 209-210; [2011] FCAFC 90 at [30], [35]-[37] (Lander, Tracey and Yates JJ). See also Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106] (Mansfield J).

39    All parties accepted that an objective assessment of Mr Tadic’s actions was needed to determine their propriety. They were correct to do so. As Mansfield J held in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 at [106]-[107]:

106    Consequently, as they were seeking to exercise powers under Pt 3-4 of the FW Act, s 500 may be contravened when their conduct exceeds that authorised by the exercise of those rights. Section 500 requires an objective assessment or determination whether there was conduct or action of an improper manner. It does not depend upon intention.

107    In R v [Byrnes] and Hopgood (1995) 183 CLR 501, the High Court said in the majority judgment at 514-515:

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender’s knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to an abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.

(Emphasis added.)

40    In Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 at 394; [2015] FCA 668 at [97] Flick J held that “improper conduct” is conduct “which falls below that standard which can reasonably be expected of those who occupy positions of responsibility”.

41    As Barker J pointed out in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (2017) 270 IR 190 at 231; [2017] FCA 847 at [169]-[170] the dictionary definition of “manner” refers to a “way of doing, being done, or happening; mode of action, occurrence, etc”. As a result, what the actor said “and its effect, and how he spoke, all may potentially comprise conduct falling under the ruling ‘act in an improper manner’”.

42    The question for the trial judge was whether Mr Tadic’s impugned conduct breached the standards that would be expected of a union official by reasonable persons with relevant knowledge of the duties of such an official in respect of the maintenance of health and safety on construction sites.

43    The reason that Mr Tadic and Mr Sharples found themselves together at the construction site on 13 June 2014 was a common interest in protecting those working there from risks to their health and safety occasioned by any dangerous practices or occurrences on the site. Both had important, but different, responsibilities under the OHS Act. Mr Tadic had identified safety deficiencies of sufficient seriousness to warrant the lodging of a report with WorkSafe. Mr Sharples attended the site in response to these complaints. His duties included the investigation of the complaints and the identification of any other risks to health and safety with a view to giving directions to secure rectification of any shortcomings.

44    Mr Sharples was required to perform his statutory duties as an inspector. Mr Tadic was entitled to accompany Mr Sharples on his inspection and to draw his attention to any perceived risk to health and safety. It was for Mr Sharples to determine whether or not the alleged deficiencies existed and what, if any, remedial action was to be taken. Although Mr Tadic was present during the inspection and was expressing various opinions, his presence was not necessary in order for Mr Sharples to undertake his statutory responsibilities. Mr Tadic, as an authorised representative of the CFMEU, had separate but related responsibilities under the OHS Act. Mr Tadic had additional obligations, under the Act, including an obligation not to contravene s 500.

45    The trial judge’s findings as to what occurred during the lengthy inspection are recorded above at [15]-[18]. Despite these findings, his Honour found that Mr Tadic had not contravened s 500 of the Act. He was led to this conclusion by various “contextual” considerations. These included:

    Mr Tadic’s level of experience (and Mr Sharples’ comparative inexperience) as a health and safety officer.

    Mr Tadic’s view that Mr Sharples was not responding appropriately to what Mr Tadic perceived to be serious safety issues.

    Mr Tadic’s frustration with Mr Sharples’ responses to observations made by Mr Tadic.

    Mr Tadic’s perception that, despite Mr Sharples’ relative inexperience, he (Mr Sharples) was “cocky” and confident in his own ability.

    Mr Sharples’ previous employment as a prison officer rendered him less susceptible to intimidation by Mr Tadic’s conduct.

    The pejorative comments which Mr Tadic made had been directed towards what he considered to be the inadequate performance by Mr Sharples of his duties and were not directed at Mr Sharples personally.

46    As his Honour accepted (at [288]), it would be open, but for these “contextual” considerations, to find that Mr Tadic’s impugned statements were abusive and beyond the bounds of propriety. We respectfully agree with this assessment. We do not, however, consider that the “contextual” matters, on which his Honour relied, rendered what otherwise might be regarded as contraventions of the second limb of s 500 as non-contravening conduct.

47    Mr Tadic’s subjective perceptions about Mr Sharples’ competence and what Mr Tadic considered were Mr Sharples’ inadequate responses to Mr Tadic’s complaints about conditions on the site may well have given rise to frustration. They may explain Mr Tadic’s impugned conduct; they do not excuse it: see Director of the Fair Work Building Industry Inspectorate v Upton [2015] FCA 672 at [25] (Gilmour J). This is so whether Mr Tadic’s comments were or were not directed at Mr Sharples personally. The degree to which Mr Sharples may or may not have been susceptible to intimidation by Mr Tadic’s use of foul language and abuse is a matter which can have no bearing in the making of an objective assessment under s 500. Were it otherwise, liability for acting in an improper manner could turn on the level of fortitude of the particular inspector who was subject to the abuse.

48    The additional argument, which the respondents raised during final submissions on appeal, was that a permit holder would only contravene the second limb of s 500 if the impugned act had a practical and adverse impact on the performance of the inspector’s statutory duties.

49    Such a construction of s 500 was not urged at trial. It cannot be accepted. The determination of whether somebody has acted in an improper manner by making statements of the kind which Mr Tadic did cannot depend on the reaction of the person or persons to whom the action is directed. Possible reactions would range from complete capitulation to overbearing conduct on the one hand, to unconcern and dismissiveness on the other.

50    We would also note that the observations made by Bromberg J in the Laverton North/Cheltenham Case, dealt with another form of impropriety for the purposes of s 500. It was a failure, on the part of certain union officials, to abide by the requirements of ss 487 and 489 of the Act which respectively required the provision of notice and the production of entry permits as conditions of site entry.

51    The submission that s 500 of the Act is “not directed to the promotion of civility” does not assist Mr Tadic: it involves an overly simplistic characterisation of Mr Tadic’s actions and ignores the wider statutory context in which the propriety of his conduct is to be assessed.

52    It is to be accepted that the allegation against Mr Tadic was not that he had departed from the standards of polite society. It was that he had acted contrary to a standard of propriety imposed by s 500 of the Act.

53    The premises was one on which building work was undertaken by and on behalf of third parties for economic purposes. Mr Tadic was not a tradesman on the building site, nor was he the owner or occupier. He was a person to whom an entry permit had been issued pursuant to s 512 of the Act, on the basis that the Fair Work Commission was satisfied that he was a fit and proper person to exercise the intrusive rights conferred on permit holders under the Act. Were it not for his status as a permit holder, Mr Tadic had no entitlement to enter and remain on the premises at all. He attended at the site in a professional and legal capacity, not a social one.

54    Whilst there, Mr Tadic directed coarse and sarcastic criticisms to a person who he had personally called to the site for the purpose of discharging an important statutory function under the OHS Act. The criticisms were directed not only at the state of the site, but toward Mr Sharples personally. To say that the swear words used by Mr Tadic were “sentence enhancers” is to state the obvious. What is important is that the “enhancements” were used liberally and loudly and they were not good humoured. They heightened the tenor of the criticisms he expressed toward the site and toward Mr Sharples whilst Mr Sharples performed his statutory task, and all in a context where he had been requested, reasonably, to refrain from voicing his opinions until the end.

55    As has been said, the propriety of Mr Tadic’s conduct is not to be assessed by reference to whether Mr Tadic’s opinions about the safety of the site or the quality of Mr Sharples’ inspection were passionately held, nor by reference to whether the opinions were objectively right or wrong. The propriety of his conduct is to be assessed having regard to the circumstance that he had been granted rights by the statute to enter and remain on private property for limited statutory purposes. Viewed in that context, Mr Tadic’s liberal use of swear words is clearly a relevant circumstance bearing on the question of whether his overall conduct was improper. The question of whether his language fairly reflected his passionate opinions is a consideration that may bear on the penalty that might be imposed for the contravention, but it does not bear on the objective assessment of whether he acted in an improper manner.

Grounds 8-13

56    Given that we consider that, on the evidence before the trial judge and accepted by him, Mr Tadic had contravened s 500, it is not necessary for us to deal with these grounds.

Grounds 14-16

57    These grounds relate to observations made by the trial judge, in his reasons, which were critical of the Director’s conduct during a compulsory examination of Mr Sharples. These observations are recorded above at [24] and [25].

58    Ground 14 alleges that the Director was denied procedural fairness in relation to the observations. Ground 15 alleges that there is at least an unacceptable risk that the trial judge may have given no weight to the evidence given by Mr Sharples at the examination because of his Honour’s “findings” concerning the Director’s conduct. Ground 16 deals with “hindering”, a matter which was not addressed on appeal.

59    The examination of Mr Sharples was conducted pursuant to s 51 of the Fair Work (Building Industry) Act 2012 (Cth) (“the FWBI Act”). It took place on 11 February 2015. At that time s 51 required that the Director of the Fair Work Building Industry Inspectorate conduct the examination: see s 51(2). The person being examined was entitled to be represented by a lawyer: see s 51(3). Mr Sharples chose to be so represented. Mr Sharples gave evidence on oath: see s 51(4) and (5). The hearing was inquisitorial in nature.

60    Counsel assisting had asked most of the questions, some of which were leading questions. The Director, as he was entitled to do, from time to time, asked some questions of Mr Sharples. The examination is recorded on a transcript which extends for some 53 pages. Although the Director asked some questions there were only two which were criticised as being leading.

61    In answer to questions, asked by counsel assisting, Mr Sharples had said that he had reported Mr Tadic’s conduct towards him to a supervisor at Fair Work Victoria. The supervisor was sufficiently concerned about what he had been told that he asked Mr Sharples, “Are you going to be okay?” The following exchange then occurred between Mr O’Grady (counsel assisting), Mr Hadgkiss (the Director) and Mr Sharples:

MR O’GRADY:    Did you respond to that question?

MR SHARPLES:    I said, “I’m shaking by it. I’ve not experienced that,” but I need to get this job squared away right because this is not going to stop here, I don’t imagine, and that’s what I said to him, “I don’t think this is going to stop here. I think this guy’s going to make a complaint about me.”

MR HADGKISS:    Is it fair to say that Mr Tadic’s demeanour, conduct, et cetera, like you’ve mentioned with hindsight you would have asked him to leave, do you feel that he hindered you in any way?

MR SHARPLES:    Most definitely.

MR HADGKISS:    Did he obstruct you in the course of your duties?

MR SHARPLES:    I was still able to go through the seven points of the complaints, sir, so I don’t believe he obstructed me to that point. I believe it affected my ability to conduct a more thorough inspection of the workplace because I was so worried about what he was trying to say and what he was saying. I had one ear on him, one ear on Brad [Regan].

MR HADGKISS:    So you were distracted from ---

MR SHARPLES:    He certainly distracted me, without a doubt. I was distracted from my conduct – from the course of my inspection.

MR HADGKISS:    As you would had you have done that in your normal professional approach?

MR SHARPLES:    That’s right sir.

62    As can be seen the questioning related to the possibility that Mr Sharples had been obstructed in the performance of his duties by Mr Tadic’s conduct.

63    The leading questions did not elicit from Mr Sharples any simple acceptance of the propositions put to him. Rather he provided further evidence to reinforce that which he had already given in relation to the impact of Mr Tadic’s conduct on the site inspection.

64    As already noted the transcript was in evidence.

65    In the course of final addresses at trial, counsel for the Director sought to rely on some evidence given by Mr Sharples about being distracted by Mr Tadic’s interventions in the course of the inspection. The trial judge intervened saying:

Well, going back to paragraph 145 of your submissions, Mr Star, we got a bit deflected, but I think you dealt with (a), the considered leaving the preparations. Now, (b), for instance – you see, this is an example, the distracted, apart from the fact that it was a line fed by Mr Hadgkiss – which is really inexcusable, I have to say, for an investigator – but let’s leave that to the side. To express the conclusion, “I was distracted”, how far does that go?

(Emphasis added.)

66    The Director’s principal complaint was that he was not forewarned about the possibility that the trial judge would, in his reasons, make pejorative comments and findings. Counsel for the Director had not considered it necessary to address the issue because the trial judge, having said that the Director’s questioning was “inexcusable”, had immediately said, “but let’s leave that to the side”. The Director’s secondary complaint was that there was, in any event, no proper foundation for the criticism. This latter complaint seems to relate to Grounds 14(c) and 14(d), although it may go a little further.

67    A reading of the transcript of the examination shows that, before the Director asked the two leading questions, Mr Sharples had already given evidence that:

    He had asked Mr Tadic, before the site walk commenced, to hold or limit all comments and questions until the completion of the inspection.

    Mr Tadic had not complied with that request.

    The request had been repeated but Mr Tadic continued to ignore it.

    Mr Tadic had told him that he (Mr Sharples) was “the worst inspector he had seen” and that he should close the whole site down.

    Mr Tadic’s posture had become “very aggressive” and that he had snarled at Mr Sharples.

    Mr Tadic had held up his mobile phone and said to Mr Sharples, “I’m going to fuckin’ call your boss.”

    In his role as a workplace inspector for WorkSafe, which commenced a year and a half prior to the day of the relevant incident, Mr Sharples had not previously experienced such a level of aggression as that displayed by Mr Tadic.

    Mr Tadic’s conduct during the inspection had distracted Mr Sharples from the performance of his duties and that he (Mr Sharples) had started to worry “more about his (Mr Tadic’s) conduct and his level of aggression rather than other issues that I would normally look at.”

    The level of aggression which Mr Tadic had directed towards Mr Sharples had led Mr Sharples, at one point, to consider leaving the site.

In the light of this evidence from Mr Sharples it is very difficult to see why the Director might consider it necessary to “bolster” the case against Mr Tadic. It had already been made.

68    Ground 16 alleges that, as a consequence of the denial of procedural fairness, the trial judge erroneously gave no weight to the evidence of Mr Sharples to the effect that he had been hindered by Mr Tadic. There is, however, no relief sought on this appeal in respect of his Honour’s ultimate conclusion that Mr Tadic had not intentionally “hindered or obstructed” Mr Sharples within the meaning of s 500 of the Act. Although we need not deal with Ground 16, the evidence concerning that matter may have some broader relevance to the trial judge’s treatment of the evidence generally.

69    The Director seems to make five different complaints, namely that:

    his official conduct was the subject of unjustified criticism;

    the trial judge did not extend to him an opportunity to make submissions concerning such criticisms;

    the trial judge did not extend to him an opportunity to make submissions concerning the impact which the Director’s conduct might have had on the weight to be attributed to Mr Sharples’ evidence given at the examination;

    there is an unacceptable risk that because of the trial judge’s view concerning the Director’s conduct of the examination, his Honour erred by giving little or no weight to Mr Sharples’ evidence at the inquiry; and

    his Honour’s negative view of Mr Sharples’ evidence at the examination may have adversely affected his assessment of the evidence as a whole, and hence the outcome on the count of acting in an improper manner.

70    In considering these submissions, one must keep in mind the fact that this is an appeal against a decision of a judge of a superior court of record, not an application for review of a tribunal’s decision for reason of jurisdictional error.

71    The Judicial Committee of the Privy Council considered a not dissimilar case in Brinds Ltd v Offshore Oil NL (1985) 60 ALJR 185, a contested winding-up case. In the course of the hearing of the winding-up petition, Mr Macintosh, the chairman of the petitioning company, Offshore Oil NL (“Offshore”), was cross-examined extensively by counsel for the debtor company, Brinds Ltd (“Brinds”). In the trial judge’s reasons, his Honour observed that Mr Macintosh was, in his cross-examination, charged with “professional incompetence, absence of commercial judgment, want of good faith, duplicity and deception, calculated unfairness and designed lack of independence”: see at 186. The trial judge exonerated Mr Macintosh on all counts.

72    The trial judge made adverse comments concerning the conduct of the chairman of Brinds, Mr Ganke. On appeal, it was submitted that such comments were highly damaging to Mr Ganke’s business reputation. It was conceded on appeal that no attack could be made upon the findings as to Mr Macintosh or Mr Ganke’s credit. In the proceedings before the Judicial Committee, Brinds submitted that major factual findings should be set aside, “as a result of the unjustified adverse comments made by the trial judge about Mr Ganke ... which were unfair to him since these matters were not in issue and the charges against him had never been defined”: see at 189. Brinds sought to rely upon the decision of the Judicial Committee in Mahon v Air New Zealand Ltd [1984] AC 808, a case concerning the findings of a Royal Commission. In that case it had been said, at 821, that, “any person … who will be adversely affected by the decision to make [a particular] finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding” (emphasis in the original).

73    Concerning this passage, the Judicial Committee in Brinds said, at 189, that:

The decision in the Mahon case has nothing whatever to do with the instant appeal. The Mahon case was concerned with the proper exercise of an investigatory jurisdiction, not with the conduct of litigation between adversaries. Counsel for Brinds, acting no doubt on the instructions of Mr Ganke, had launched a fierce attack on the integrity of Mr Macintosh, which the trial judge described as a “wide and searching, and, at times, vigorous and thoroughly challenging and attacking cross-examination … couched in language which was not dignified by the restraint which attends informed and rational criticism of a professional man's activity undertaken in the ordinary course of his professional practice”. It can hardly be a matter of surprise or complaint if such an attack, if unsuccessful, is followed by the judge’s frank appraisal of what he finds on the other side of the coin. But quite apart from what the trial judge clearly regarded as provocative behaviour inspired by Mr Ganke, or at any rate behaviour from which he did not seek to dissociate himself, their Lordships see nothing unfair about the judge's observations on the business methods of Mr Ganke. It is unthinkable that the appellants should be allowed to make use of such comments as an excuse to get round the concurrent findings of fact of the trial judge and the Full Court, or as an excuse to resile from the concession made by counsel to the Full Court in regard to the credibility and integrity of Mr Macintosh, and as to the credit of Mr Ganke.

74    It is important to note that the trial judge’s comments were not challenged on the basis that Mr Ganke’s reputation had been impugned, but on the basis that the outcome of the case may have been affected by such conduct. We also note that the Judicial Committee apparently accepted that a party might be put on notice of possible adverse findings by the way in which the case had been conducted.

75    As in Brinds, we are concerned with an appeal against a judgment. See s 24(1) of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”) and s 4 where the term “judgment” is defined as meaning:

(a)    a judgment, decree or order, whether final or interlocutory, or

(b)    a sentence;

and includes a conviction.

76    Whilst this Court may hear an appeal from a decision of another Judge of the Court sitting at first instance, it cannot review that decision in the way in which it might review that of an inferior court or administrative tribunal. Hence our focus is upon the correctness or otherwise of the judgment.

77    The transcript of the examination seems only to have gone into evidence in the course of re-examination, and without objection. The apparent purpose in tendering it was to support answers given by Mr Sharples in cross-examination. In any event, little was made of it in the course of re-examination. It may be that there had been some previous agreement that it would be tendered. In any event, the Director, in his closing submissions, referred to the transcript. It was in this context that the above exchange occurred between the trial judge and the Director’s counsel.

78    As to the complaint of unjustified criticism, in the absence of any allegation of bias or apprehended bias, we do not see how the absence of any such justification could provide a basis for appealing against the judgment, other than to the extent that it may have affected the trial judge’s assessment of the evidence. We discuss that matter below. For this reason alone, Ground 14 must fail. However we are also of the view that the Director was put on notice that his Honour’s views might appear in his subsequent reasons. Our reasons for reaching that view appear below. Hence the Director had an opportunity to address such matters, to the extent that they might have affected him, and as to their possible effect on the outcome of the trial.

79    The Director seems to submit that, in saying “but let’s leave that to the side”, his Honour indicated that he was not proposing to take his expressed view of the Director’s conduct into account in deciding the case, or that he did not want to hear counsel on the matter. We find it difficult to accept either proposition. The Director was on notice that his Honour had formed an adverse view of the way in which the examination had been conducted. It would have been obvious to experienced counsel that such view had the capacity to raise doubts about the weight to be given to aspects of Mr Sharples’ evidence at the examination.

80    Further, we do not accept that a remark by a judge in the course of submissions, to the effect that a matter might be put to one side, generally implies that the matter will not be taken into account in reaching the judge’s ultimate decision. Such a comment is usually made in order to simplify submissions concerning a particular aspect of the case. In this case, the trial judge was indicating that he wished to consider a particular issue without regard to the Director’s conduct. The issue was Mr Sharples’ evidence that Mr Tadic’s conduct had distracted him. See paragraphs 121 and 145 of the Director’s closing submissions at first instance. His Honour’s concern seems to have been as to whether a claimed distraction could amount to hindering. The Director’s conduct was not relevant to that issue.

81    We do not accept that, taken in context, his Honour’s remarks, “but let’s leave that to the side”, could reasonably be understood to mean that such conduct would not be taken into account in his Honour’s consideration of the matter. His Honour’s concern was not without justification. He could not simply put it to one side in considering the weight to be given to such evidence.

82    It was for counsel to identify the risks to his case inherent in the view which had been expressed, and to make a forensic judgment about how to deal with such risks, either by submissions or, if appropriate, by seeking to call further evidence. We do not mean to suggest any criticism of the course actually taken by counsel. It may well have been the best course open to him. However it does not follow that the Director can now depart from that course. We do not consider that his Honour’s remarks in his reasons at [148]-[153] and [280] went much beyond the assertion that at least one aspect of the Director’s conduct of the examination was “inexcusable”. In those circumstances, we consider that the Director’s counsel was on notice of the trial judge’s view and had an opportunity to deal with it. Whether or not we agree with the trial judge’s concerns about the Director’s conduct per se, it was open to his Honour to take into account all of the circumstances concerning the way in which Mr Sharples gave his evidence at the enquiry.

83    For present purposes, the trial judge’s view of the Director’s conduct is only relevant to the extent that such view may have affected his Honour’s view of Mr Sharples’ evidence, including his evidence given at the examination. With all respect to his Honour, we consider that it was unnecessary to say any more than that, and to assess the likely effect. It would have been better had his Honour not described the Director’s conduct in pejorative terms.

84    The Director’s other points concern the possible effect of the trial judge’s views upon his Honour’s assessment of Mr Sharples’ evidence. It must be accepted that where evidence is extracted by leading questions, a tribunal considering such evidence may conclude that its weight is undermined by the way in which it was elicited. Although, in inquisitional proceedings, leading may be permissible, the worth of the evidence may still be undermined by the way in which it is extracted. In this case, that was a matter for the trial judge. His Honour carefully recorded his impressions concerning the evidence led before him. His Honour also carefully considered the evidence given at the examination in light of his concern about the Director’s conduct of the examination. We do not accept that any excess in his Honour’s description of the Director’s conduct detracts from his careful examination of the evidence, as to hindering or more widely.

85    In those circumstances, Grounds 14 and 15 must also be dismissed, as must Ground 16.

DISPOSITION

86    The appeal should be allowed. The matter should be remitted to a single judge to deal with the outstanding issues relating to the liability of the CFMEU and the determination of penalties.

Associate:

Dated:    12 February 2018