FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Cartledge

[2015] FCA 453

THE COURT ORDERS THAT:

1.    The matter be adjourned for further hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    In this proceeding, the Director of the Fair Work Building Industry Inspectorate (the Director) on 3 September 2014 issued an interlocutory application for orders that:

(1)    a monetary penalty be imposed on Jim O’Connor for being in contempt of an order made by his Honour Justice Mansfield on 25 March 2014 by reason of his conduct on 13 May 2014 at the site of the project for the construction of the new Royal Adelaide Hospital at Port Road, Adelaide (the new RAH project) on which Hansen Yuncken Pty Ltd is engaged as a head contractor.

(2)    O’Connor pay the Director’s costs of the interlocutory application on an indemnity basis.

2    The contempt application was issued in proceedings then on foot in the Court alleging that the Construction, Forestry, Mining and Energy Union (CFMEU), an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and five of its officers, including O’Connor, variously contravened s 500 of the Fair Work Act 2009 (Cth) (FW Act) on 19 and 20 March 2014 at a construction project in Adelaide known as the “50 Flinders Street” project (the principal claim). The second respondent O’Connor is, of course, the person named in the contempt summons. O’Connor, through senior counsel, made submissions concerning the validity of the charge of contempt, in the circumstances set out below, so it will be necessary to refer in a general way to the allegations constituting those contraventions. It is not necessary to do so at this point. However, for the sake of completeness, I note that, ultimately, the facts concerning the alleged contraventions in the principal claim were agreed without a hearing, and on 2 October 2014 judgment was given making declaratory and other orders, including the imposition of pecuniary penalties, on each of the CFMEU and its five officials in respect of the contravening conduct as found: Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047.

3    The conduct the subject of the contempt application is alleged to have occurred on 13 May 2014 at the site of the new RAH project at Port Road, Adelaide (the site). It occurred, obviously, prior to any determination (as it transpired, by common agreement) about the conduct constituting the alleged contraventions on 19 and 20 March 2013. Consequently, it will be appropriate, to the extent that it is relevant, when referring to the principal claim to refer to the allegations then made, rather than the findings as ultimately made based upon the agreed acknowledged facts.

4    On the contempt application, there is no issue about the status of the Director as a statutory appointee of the Commonwealth pursuant to s 15(1) of the Fair Work (Building Industry) Act 2012 (Cth) or about the Director’s standing or authority to bring this application. Nor is there any dispute on the material before me that O’Connor is and was at all material times an organiser, and an officer, of the CFMEU and an employee of the CFMEU. Nor is there any dispute that he is the second respondent referred to in the order made on 25 March 2014, referred to at [6] below. The evidence clearly shows too, and it is not contested, that he was the holder of a permit (the permit) under s 512 of the FW Act, and so was a permit holder within the meaning of s 500 of that Act.

5    The principal claim commenced on 24 March 2014 under s 546 of the FW Act for the imposition of pecuniary penalties against the five named officials of the CFMEU, including O’Connor, and the CFMEU for contraventions of s 500 of the FW Act. That is a civil remedy provision. At the same time, the Director also sought orders imposing interim injunctive relief.

6    On 25 March 2014, on the application for interim relief, the Court made the following order:

8.    Until further order, each of the first respondent, the second respondent, the third respondent, the fourth respondent, the fifth respondent, and any other organiser of the sixth respondent employed in its Construction and General Division, South Australian Divisional Branch, be restrained from attending the Hansen Yuncken Pty Ltd (Hansen Yuncken) project at 50 Flinders Street, Adelaide, or the project for the construction of the new Royal Adelaide Hospital in which Hansen Yuncken is engaged as a head contractor, unless they are lawfully exercising or seeking to exercise rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth).

That order is hereafter called “the injunction”. The contempt application asserts that O’Connor should be punished for a civil contempt for his conduct at the RAH site on 13 May 2014 which, it is asserted, was in deliberate and voluntary breach of the injunction.

THE GENERAL PRINCIPLES

7    There is no issue about the Court’s power to punish a contempt of Court under s 31(1) of the Federal Court of Australia Act 1976 (Cth), reflecting the power of the High Court to punish for contempt under s 24 of the Judiciary Act 1903 (Cth).

8    Although contempt proceedings have been characterised as criminal in nature for some purposes, including that the charge must be proven beyond reasonable doubt, that does not mean that they are equated with the trial of a criminal charge or a criminal prosecution: see Witham v Holloway (1995) 183 CLR 525 at 534 (Witham); Grocon v Construction, Forestry, Mining and Energy Union (2014) 241 IR 288 at [4] (Grocon 2014). The failure to comply with an injunction in a civil proceeding is generally a civil contempt, but such a failure can become a criminal contempt where the disobedience or breach amounts to deliberate defiance or contumacious conduct: see Witham and Grocon 2014. In this case, the Director does not contend that O’Connor’s contempt was a criminal contempt. Instead, the Director contends O’Connor should be punished for a civil contempt. I do not need to explore the difference.

9    To find a contempt of Court involving a breach of an order of the Court the following elements must be proved:

(a)    an order was made by the Court;

(b)    the terms of the order are clear, unambiguous and capable of compliance;

(c)    the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the rules of the Court in question;

(d)    the alleged contemnor has knowledge of the terms of the order; and

(e)    the alleged contemnor has breached the terms of the order.

See generally Bovis Lend Lease v Construction, Forestry, Mining and Energy Union (2009) 254 ALR 306 at [47]; Grocon v Construction, Forestry, Mining and Energy Union (2013) 234 IR 59 at [8]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]; Scott v Evia Pty Ltd [2007] VSC 15 at [36]; Chan v Chen (No 2) [2007] VSC 24 at [22]; Deputy Commissioner of Taxation v Gashi (No 2) (2011) 84 ATR 175 at [18].

10    To prove a contempt of court, the applicant need only prove that the act or omission constituting the breach was deliberate and voluntary: Grocon 2014 at [100].

11    A deliberate commission or omission in breach of an order will constitute “wilful disobedience”, unless it is “casual, accidental or unintentional”. A wilful breach differs from the more serious contumacious breach required to establish criminal contempt: Grocon 2014 at [102]. It is not necessary to explore those matters in detail, as they were not contentious. As noted, the Minister did not set out to establish criminal contempt, and O’Connor through his counsel did not contend that it was necessary for the Minister to prove a serious contumacious breach of the Order, but did contend that there was no breach of it. There was also no submission that, if the finding was made that O’Connor did say the words attributed to him, he did not do so wilfully.

12    The Director accepted that it was necessary for the charge to be proved beyond reasonable doubt, even though the contempt proceeding, which it is accepted is a civil contempt, does not necessarily equate with the trial of a criminal charge or a criminal prosecution.

13    It is now appropriate to set the scene for the disputed factual assertions.

THE UNDISPUTED FACTS

14    Hanson Yuncken Pty Ltd (HY) in a joint venture with Leighton Contractors Pty Ltd was the head contractor for the project for the construction of the new RAH project.

15    Bleasdale National Contractors – South Australia (Bleasdale) was engaged as a sub-contractor to perform work on and in connection with the new RAH project. Nicholas Bleasdale was employed by Bleasdale as the manager responsible for coordinating Bleasdale’s operations on the new RAH project. In about early May 2014, O’Connor, in his capacity as an official of the CFMEU requested a meeting with N Bleasdale with a view to asking Bleasdale to employ a member of the CFMEU executive, Jason Clark. The relevant events occurred as a consequence or in relation to that topic.

16    On 9 May 2014, O’Connor gave notice to Hansen Yuncken that, pursuant to his permit, he would enter the new RAH project on 13 May 2014 for the purpose of holding discussions with employees pursuant to s 484 of the FW Act.

17    Pursuant to that notice, he attended the RAH project at about 6.15 am on 13 May 2014. He there signed a “safety first visitor’s induction form”. It is not suggested that, at that time, by entering the premises he contravened the injunction.

18    Whilst attending the RAH project, at about 11 or 11.30 am on 13 May 2014, Jack Merkx, a delegate and official of the CFMEU, spoke to N Bleasdale. The precise circumstances of that conversation were the subject of detailed evidence. For the purpose of putting the evidence into context, I will call that the first conversation. There is an issue as to whether O’Connor was present during the first conversation.

19    At about 12.15 pm on 13 May 2014, Merkx and O’Connor went to the same office to see N Bleasdale. It is there alleged that O’Connor spoke to N Bleasdale in terms which contravened the injunction. Again, there is a significant dispute as to the content of the conversation or its circumstances. I will call that the second conversation.

SOME PRELIMINARY ISSUES

20    Before turning to the evidence, and my findings in relation to it, there are four other matters which require comment.

21    First, the Director has commenced by separate proceeding SAD 253 of 2014 an action against the CFMEU, O’Connor and Merkx for the imposition of civil pecuniary penalties in respect of the same incident on 13 May 2014 for contraventions of ss 348, 355 and 500 of the FW Act, and for declaratory orders (the civil penalty proceeding). It was the Director’s application that that proceeding be heard and determined at the same time as the present contempt proceeding.

22    O’Connor’s position was that, because the contempt proceeding is a criminal proceeding, s 553 of the FW Act precludes the contemporaneous civil penalty proceeding arising out of the same facts taking place at the same time. The Director contested that on the basis that the contempt proceeding concerns a civil contempt rather than a criminal contempt, and in any event s 553 did not operate to prevent or preclude the concurrent hearing of the civil penalty proceeding against the CFMEU or Merkx or against O’Connor at least so far as declaratory orders are sought.

23    There is an obvious attraction to the Director’s application. It would be efficient, because there is clearly a largely common substratum of facts. It would avoid the risk of there being inconsistent findings about what happened on 13 May 2014, if the two proceedings were heard separately.

24    However, I considered that the contempt application should be heard and determined first. It was appropriate to allow O’Connor to decide, on the contempt application, whether he gave evidence at all and/or called Merkx or others in his defence. The same considerations might not apply to his decision to give (or call other) evidence in the civil penalty proceeding. In addition, there is the risk that either the CFMEU or Merkx might also call or give evidence in the civil penalty proceeding, and it would be very difficult to untangle or disregard that evidence from the admissible evidence against O’Connor in the contempt application. Indeed, either the CFMEU or Merkx might have called O’Connor to give evidence in the civil penalty proceeding, even though O’Connor chose not to give evidence in the contempt application, or they may have cross-examined witnesses in a way that O’Connor in the conduct of the contempt application may not have chosen to do so. At a more practical level, the Court was informed that counsel appearing for O’Connor on the date fixed for the hearing of the contempt application was not retained to appear for, or ready to appear on behalf of, the CFMEU or Merkx on the hearing of the civil penalty proceeding.

25    Accordingly, applying the pragmatic approach endorsed by Gilmour J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 1040, following the approach of Austin J in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [27], I did not accede to the Director’s application.

26    Having reached that decision on that basis, it is not necessary to explore the asserted application of s 553 of the FW Act to prevent the concurrent hearing of the contempt application and the civil penalty proceeding. Consequently, as I noted above, I do not need to explore the difference between civil and criminal contempt. I also do not need to consider whether the allegations made in the contempt application give rise to a criminal contempt: see the observations of Rares J in Seymour v Migration Agents Registration Authority (2006) 215 FCR 168 at [104], and the decision of the Full Court of this Court in Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate (2014) 225 FCR 210 at [37]-[39] per Buchanan, Gordon and Wigney JJ.

27    I indicated in the course of submissions that, subject to hearing from the parties at the time when the civil penalty proceeding comes on for hearing, the Court would anticipate that the evidence led on the contempt application should be tendered and received as evidence in the civil penalty proceeding, especially having regard to ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Counsel for O’Connor agreed that O’Connor would find it difficult to resist that. Part of the efficiency urged by the Director would be achieved in that way.

28    Second is the issue of the evidence which the Director should be entitled to adduce on the hearing of the contempt application.

29    Counsel for O’Connor submitted that the Director could only adduce evidence of the four persons whose affidavits were filed and served with the contempt application and the statement of charge, on 3 September 2014. Their affidavits are said to confine their evidence in chief, but they must be available for cross-examination if so ordered. Those four are N Bleasdale, Daniel Hylands, Michael Nunweek and Mark Temple.

30    Reliance was placed on r 42.12 of the Federal Court Rules 2011 (Cth). It provides:

An application alleging that a contempt has been committed must be accompanied by:

(a)    a statement of charge, in accordance with Form 137, specifying the contempt with sufficient particularity to allow the person charged to answer the charge; and

(b)    the affidavits on which the person making the charge intends to rely to prove the charge.

31    It is not said that the content of their four affidavits, if accepted and unchallenged, would not prove the alleged contempt. Rather, the argument is that they and the contents of their affidavits set out the outer boundaries of admissible evidence relevant to the charge, subject to what is asked of them in cross-examination. The argument is said to be reinforced by r 42.15 which provides:

(1)    The person charged may apply to the Court for an order:

(a)    that the hearing of the charge proceed by way of oral evidence; or

(b)    for the cross-examination of the deponents to the affidavits to be relied on by the person making the charge.

(2)    The person charged may file affidavits in answer to the charge.

(3)    The person charged may:

(a)    give oral evidence; and

(b)    call witnesses to give oral evidence without first filing any affidavit sworn by the person charged or by those witnesses.

32    After hearing submissions, I indicated that I rejected that submission, and that I would give reasons for that ruling when delivering judgment on the contempt application.

33    It is, at first glance, an attractive proposition to say that r 42.12 restricts the evidence that the Director may call to that which accompanied the contempt application and the statement of charge. The apparent logic of that position may be then supported by a reading of r 45.15(1), which permits O’Connor to apply for the hearing to proceed on oral evidence or for cross-examining the deponents, and then at the close of the Director’s case by r 45.15(2) and (3) to file responsive affidavits and to give oral evidence and call other witnesses.

34    In fact, O’Connor did apply for the hearing to be by way of oral evidence. I indicated that I would consider that application in relation to the proposed evidence of each witness, having regard to the justice of the case and the benefits of, or detriments to, the efficient presentation of the case. In the event, some evidence was given by the adoption of affidavits, some by the adoption of affidavits supplemented by further evidence in chief, and of course some by cross-examination. There was no occasion in the course of the evidence which gave rise to an issue of fairness, as oral evidence of the critical conversations and observations was adduced. There were a few “technical” objections (a word used by counsel for O’Connor) which were ruled upon.

35    As to the broader issue about the Director’s entitlement to adduce evidence beyond that contained in the four affidavits referred to, in my view, the purpose of the rule is to ensure that a person the subject of a charge of contempt has a clear understanding of what is alleged and to ensure a fair hearing on the contempt allegation, including the opportunity to answer what is alleged. I do not think that r 42.12 is intended to prescriptively limit what is admissible on the hearing of a charge of contempt. It is to ensure that a contempt charge is supported, in all its elements, by admissible evidence. The charge itself, and the affidavits, enable the person charged to understand the charge and to see whether admissible evidence supports it. Rule 42.15 makes it clear (possibly unnecessarily) that a person charged is entitled to test the evidence and to give or lead evidence, and may do so by affidavit or by adducing oral evidence without prior notice by affidavit.

36    It would be surprising if r 42.12 was intended to go beyond that role. Firstly, it might be doubted whether the rule could, or was intended to, restrict the rights of cross-examination by a person charged with contempt subject to a judicial discretion, or to restrict the calling of admissible evidence, irrespective of the interests of justice in any particular matter. It is a rule prescribing a procedure for the commencement and conduct of a particular type of application, different from those in Parts 8 and 16 dealing with the general way in which proceedings in the Court are instituted and pleaded. Part 18 and Chapter 3 also address the institution and conduct of particular types of applications.

37    In any event, it is clear that rr 1.32 and 1.34 enable the Court, where it is appropriate, to depart from strict compliance with the Rules where it is considered to be in the interests of justice to do so. In this matter, the Director proposed to call (and was permitted to call) three further witnesses. Two of them were notified by the affidavits, and a further affidavit of N Bleasdale, filed some three months before the hearing. There was no suggestion of surprise or prejudice. They were available for cross-examination. One of them was potentially called to give oral evidence as a consequence of certain evidence given by N Bleasdale (as discussed below), namely to support an application that he be declared a hostile witness. That arose only in the course of the hearing. In the event, that witness was not called. The circumstances in which that issue arose tend to illustrate why r 42.12 is not mandatory so that it could have prevented the calling of that evidence. Clearly, if it operated in that way, it would not have been in the interests of justice to exclude that evidence.

38    Those matters indicate why, as I ruled at the time, in my view it is, to the extent necessary, appropriate to dispense with compliance with r 42.12 to permit the Director to call as witnesses James Mathers, David Johns and Matthew Kelleher. In the case of Mathers, his cross-examination was deferred at the request of counsel for O’Connor and ultimately he was not cross-examined at all. Johns was cross-examined and Kelleher was not.

39    I note that, in the course of the hearing, and without objection, I received as evidence certain documentary material including paras 1-3 of the affidavit of O’Connor of 17 April 2014 filed for the purposes of the principal claim.

40    Thirdly, O’Connor applied for an order that the Director be required to call oral evidence from the witnesses relied on. I have addressed that issue in [35] above.

41    Fourthly, O’Connor contended at the commencement of the hearing that he was entitled to further particulars of the charge, and alternatively that paras 13 and 14 of the charge should be struck out for duplicity.

42    The statement of charge, also filed on 3 September 2014, recites the relevant and (with two qualifications noted below) undisputed facts, including that in about early May 2014 O’Connor on behalf of the CFMEU orally “requested or required” that N Bleasdale employ Jason Clark. The element of requirement was in issue. So, too, was the issue whether Order 8 (quoted at [6] above) remained operative and binding on O’Connor while he was on the site on 13 May 2014. That issue is addressed at length later in these reasons.

43    The particularly relevant paras of the statement of charge are as follows:

12.    While attending the Project as set out in paragraph 11, and in contravention of section 348 of the Fair Work Act, you threatened to organise or take action against Bleasdale with intent to coerce Bleasdale to engage in an industrial activity

(a)    within the meaning of section 347(b)(iv) of the Fair Work Act, being compliance with a lawful request made by, or requirement of, the CFMEU that Bleasdale employ Clark; or,

(b)    in the alternative to (a), within the meaning of section 347(e) of the Fair Work Act, being compliance with an unlawful request made by, or requirement of, the CFMEU that Bleasdale employ Clark.

Particulars

At about 12:15 pm on 13 May 2014 you made an oral statement to Nicholas Bleasdale on behalf of Bleasdale that, if Bleasdale did not find Clark a job, the CFMEU would ‘go to war’ with Bleasdale.

13.    Further, or in the alternative, to the facts and matters set out in paragraph 12, while attending the Project as set out in paragraph 11, and in contravention of section 355(a) of the Fair Work Act, you threatened to organise or take action against Bleasdale with intent to coerce Bleasdale to employ a particular person, being Clark.

Particulars

The Applicant repeats the particulars given in paragraph 12.

14.    Further, or in the alternative, to the facts and matters set out in either or both of paragraphs 12 and 13, while attending the Project as set out in paragraph 11, and in contravention of section 500 of the Fair Work Act, you acted in an improper manner.

Particulars

The Applicant repeats the particulars given in paragraph 12.

44    Counsel for O’Connor submitted that para 12 alleges four scenarios, derived from taking as alternatives the combinations of “threatened to organise” and “threatened to take” and “a lawful request made by” and “a lawful … requirement of” the CFMEU. Prior to the hearing, the Director had notified O’Connor that reliance was not placed on para 12(b) of the statement of charge. It was further submitted that para 12 gave rise to two further scenarios, derived from the use of “threatened to organise” action or “threatened to … take” action, and para 13 raises a seventh scenario of acting “in an improper manner”.

45    The complaint was that that meant there were seven separate charges, even though the particulars as specified in para 12 were constant. That, it was asserted, was unfair to O’Connor.

46    I did not accept that complaint. There is no doubt about what O’Connor is alleged to have done. That is particularised. The evidence, as it transpired, was directed to proving that. I do not regard the use of the words “organise or take” as presenting any realistic challenge to O’Connor knowing what the case against him was, or presenting in any other way possible unfairness to him. There is one charge in para 12. The same applies to the use of “request” or “requirement”. There is no doubt about the conduct which is alleged, and it is simply a matter of characterising that conduct.

47    The difference between the paragraphs themselves is also a matter of characterisation of the alleged conduct and what is found in relation to it. There are three specified sections of the FW Act, and the Director says that if para 12 is made out, the succeeding paragraphs need not be considered and, if only para 13 is made out, then para 14 need not be considered. Sections 347(b)(iv) and 355(a) of the FW Act – that is, the provisions upon which paras 12 and 13 are based – assert a particular state of mind on the part of O’Connor, and s 500 (it is said by the Director) involves only an objective assessment of the alleged conduct, if it is proven. In each case, it is the same conduct alleged, but para 14 does not involve establishing any particular state of mind on the part of O’Connor.

48    I did not, and do not, consider that these paragraphs of the statement of charge present any difficulty to O’Connor in knowing the factual case he has to meet. It is the same for each of the three alternative paragraphs. The only difference is that the Director is seeking to show a particular state of mind on the part of O’Connor, but has indicated that in the event that one allegation is not made out, the same evidence will alternatively support a finding of a lesser state of mind, and in the event that that state of mind is not made out, the evidence will in any event support the finding of contempt. In short, I consider that the requirements of a Statement of Charge as expressed in Inghams Enterprises Pty Ltd v Timania Pty Ltd (2005) 221 ALR 823 at [32] are satisfied.

49    In the circumstances, I declined to strike out any of those alternatives, or to direct that further particulars of them be provided.

50    There are also two substantive submissions made by O’Connor which can be addressed before turning in detail to the evidence.

The temporal application of the injunction

51    O’Connor submitted (as noted above) that there has been no contravention of the injunction, because it applied only to the point in time when he entered the site on 13 May 2014, and not to what he did on the site after he entered it. Reference is made to the expressions that he was restrained “from attending” the site unless he was “lawfully exercising or seeking to exercise rights” under Pt 3-4 of the FW Act. It is not asserted by the Director that O’Connor, when he entered the site at about 6:15 am on 13 May 2014, that he did so other than to exercise his rights as a permit holder. The Director accepts that, if that is the proper construction of the injunction, the contempt proceeding must be dismissed.

52    I do not accept that contention.

53    The proper approach to the construction of the injunction is an objective one, by a reasonable person in the position of O’Connor. He is entitled to know what he is obliged to do or to refrain from doing: Redland Brick Co v Morris [1970] AC 652 at 666.

54    On that basis, the following matters indicate that the injunction operated in relation to O’Connor whilst he was in attendance at the site:

(1)    if the order was directed only to his conduct and state of mind at the immediate time when he entered the site, it would have used the word “entering” rather than “attending”;

(2)    the permit holder entering premises under s 484 of the FW Act must do so for a purpose, namely the holding of discussions with employees on the site, so necessarily the exercise of the right of entry involves a period of attendance on the site;

(3)    the expression “from attending” in its ordinary meaning describes the state of being in attendance;

(4)    the temporal focus proposed by O’Connor does not adequately take account of the condition imposed by the order, namely that O’Connor be “lawfully exercising or seeking to exercise” his entry rights under s 484 – if the focus were only at the moment of entry, the term “lawfully … seeking to exercise” would have no work to do, because both the expressions “lawfully exercising” and “lawfully seeking to exercise” would only operate at the point of entry when the relevant state of mind necessarily is prospective;

(5)    it is an awkward and artificial meaning to attribute to the word “attending” that it does not cover the period whilst O’Connor is at the site, because the use of “attending” in the order is a transitive present participle which carries the ordinary meaning of being present at: see “attend” in Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 6th ed, 2013);

(6)    the written submission of O’Connor illustrates that contrived meaning because it is forced to describe O’Connor’s conduct on the site as being “after attending” the site, when common language usage would be that his conduct on the site was after entering the site.

55    In my view, it is clear that O’Connor was, by the injunction, clearly informed that he should not attend, that is be present at, the site unless he was there lawfully exercising or seeking to exercise his lawful entry rights: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 (Lee, Finn and Merkel JJ).

The failure to call Hylands

56    The other contention on behalf of O’Connor is that the failure of the Director to call Hylands to give evidence should lead to an inference that Hylands’ evidence would not have helped the Director’s case: Jones v Dunkel (1959) 101 CLR 298.

57    I do not propose to draw any inference at all, either in favour of or adverse to, the Director’s case from the fact that, ultimately, Hylands was not called to give evidence.

58    Hylands was apparently employed by Bleasdale at or about 13 May 2014. On the evidence, he was possibly present for part of the concluding section of the second conversation. Counsel for the Director did not, in opening, say expressly that he was proposing to call Hylands although (as noted above) the Director had filed and served an affidavit of Hylands when the contempt application was made and the statement of charge filed. O’Connor, therefore, had access to his affidavit.

59    During the cross-examination of N Bleasdale, he was asked about a conversation he had had with Hylands a day or two after 13 May 2014 by inference from the questions, to the effect that N Bleasdale asked Hylands whether Hylands would make a statement to the investigating authority about what he believed happened in relation to Merkx’s conduct on 13 May 2014 [T 117-118]. That cross-examination then exposed that N Bleasdale was making a complaint about Merkx, and his inquiry to Hylands about making a statement was to make a statement about the conduct of Merkx. More relevant to the issues, in his evidence in chief, N Bleasdale was asked:

Q.    What happened when the conversation came to an end?

A.    I recall Mr Hylands coming to the office. There were some niceties said and then they left.

Counsel for O’Connor explored this issue during cross-examination of N Bleasdale:

Q.    … Isn’t it a fact that Mr Hylands was there throughout [the relevant conversation]?

A.    Not that I can recall. He came in at the end of it.

Q.    Well at what part of the conversation?

A.    At the end, right at the end. He popped his head in.

Q.    Well he might have heard all of it then, in that case, if he was outside or nearby?

A.    Not that I can recall. He may have but I can’t recall.

Q.    … He came in eating his lunch didn’t he?

A.    I can’t recall what he was doing, if he was on his lunchbreak.

60    Counsel for O’Connor also refers to Hylands’ affidavit (which did not come into evidence on the contempt charge, and which I refer to and consider only for the purpose of this contention). The relevant part, as identified on behalf of O’Connor is as follows:

Meeting in Bleasdale’s office

12.    In or about early May 2014, I was present at work on my lunch break, when at about 12:45 pm, I went to Bleasdale’s office to talk to him. As I approached Bleasdale’s office, I saw Bleasdale and Merkx present. I also saw Jim O’Connor, who I know to be a CFMEU organiser, present in Bleasdale’s office. I saw that Merkx was standing in the doorway and Bleasdale and Merkx were positioned inside Bleasdale’s office.

14.    When I walked into Bleasdale’s office, I was identified to O’Connor, but I cannot now recall how that happened. An exchange then occurred in words to the effect of (the Discussion):

O’Connor:    ‘Oh, so you’re Daniel. So what’s the problem with joining the Union? How long have you been on site?’

Me:    ‘I have financial difficulties in joining, my fiancé’s ring has just arrived too which has brought about a further drain on my finances.’

Merkx:    ‘So you can afford $10,000 on a wedding ring but not $13 on union membership?’

Me:    ‘The wedding is the reason I can’t afford it, as well as the cost of my visa.’

Bleasdale:    ‘I have just been telling Jimmy and Jack that you’ve been putting in for a spousal visa.’

15.    I then saw O’Connor and Merkx walk out of Bleasdale’s office and heard one of them, I cannot now recall which one, say words to the effect of, ‘We will catch up with you later.’

16.    Bleasdale then said to me words to the effect of, ‘I am getting grief from Jimmy and Jack about employing specific workers. I don’t want to employ them. One of the proposed workers is a dead shit.’

17.    Bleasdale also told me words to the effect that either or both of O’Connor and Merkx told him they would ‘make life difficult’ for him.

61    At the completion of the second hearing day [T 201], counsel for the Director announced that he did not intend to call Hylands, and observed that he thought that counsel for O’Connor had cross-examined everyone he wished to cross-examine. A few names of possible witnesses were discussed in that context (not expressly including Hylands). None were required for cross-examination on behalf of O’Connor. The following day, N Bleasdale was further cross-examined and re-examined. After the tendering of certain documentary material, the Director closed his case. There was no further evidence from or on behalf of O’Connor (apart from two documentary exhibits). There was no case in rebuttal.

62    It is clear, in my view, that O’Connor had ample opportunity to require the attendance of Hylands as a witness if he wished to do so. In my view, the circumstances do not support an inference that the reason why he was not called to give evidence was because his evidence was, or might be, regarded as unhelpful to the Director’s contempt claim. The evidence shows only that Hylands might have been present at part only of the second conversation. This is not a case where the evidence Hylands might have given is speculative. I have had the benefit of seeing the relevant part of his affidavit (including paras 16 and 17 to which counsel for O’Connor may have objected as inadmissible.) I do not see any reason why the inference suggested should be drawn. Moreover, as was put in the course of submissions and not controverted, I accept that counsel for the Director had privately told counsel for O’Connor a few days beforehand that he did not intend to call Hylands. That was not gainsaid. Nor was it asserted that the Director had been requested to produce Hylands as a witness. As Hylands’ affidavit in paras [12]-[15] indicates, he did not have any directly relevant evidence to give about the content of the second conversation. The evidence in chief of N Bleasdale tends to confirm that, and his cross-examination does not alter that position. As I have noted, in any event, although he had the opportunity to request that Hylands be called, or that he be presented for cross-examination, counsel for O’Connor did not do so.

63    It is possible to speculate (but it is no more than speculation) that N Bleasdale asked Hylands about making a statement and that in part N Bleasdale’s evidence of O’Connor coming in to the room only at the end of the second conversation was informed by Hylands’ response. That may reconcile the request made by Bleasdale with his evidence on the topic. I make that observation simply because counsel for O’Connor says that N Bleasdale’s approach to Hylands supports the finding that Hylands heard or overheard part of the second conversation.

64    In short, in the circumstances, I do not think that the decision not to call Hylands supports any inference adverse to the Director’s case. I do not, therefore, need to explore the question whether a contempt application such as the present attracts the same or substantially the same obligations as those on a prosecuting counsel in a criminal prosecution.

THE EVIDENCE AND FINDINGS

(a)    Evidentiary issues

65    It is clear that the Director’s case relies on the evidence of N Bleasdale. It is also clear that the evidence of N Bleasdale was not consistent in all respects. In fact, following his cross-examination, I acceded to the application by senior counsel for the director to declare him a hostile witness.

66    Before making some further observations about N Bleasdale’s evidence, I note that three of the witnesses to be called by the Director (Mathers, Temple and Kelleher) were not cross-examined. I accept their evidence. I also note that the witnesses Nunweek and Johns were cross-examined, but there was nothing arising from their cross-examination which caused me to doubt their evidence. I accept it. I will refer to the evidence of Nunweek when considering the first conversation, as that is what his evidence related to.

67    Mathers is an Inspector of the Fair Work Building Industry Inspectorate (FWBII) who had a role in assembling primary documents relevant to the contempt application. Temple is also an Inspector of the FWBII who served on O’Connor on 1 April 2014 the Order of the Court made on 2 March 2014. Kelleher is a solicitor who gave only formal evidence.

68    Johns works on the Project, as Industrial Relations Manager, and established the receipt of entry permits from O’Connor and his entry on to the site on 13 May 2015. That much was uncontentious.

69    Johns also gave evidence arising from the evidence in chief of N Bleasdale, and his cross­examination. It suggested in cross-examination of N Bleasdale that his version of the second conversation was in part fabricated or reconstructed and was not accurate. In particular, in two respects, N Bleasdale in cross-examination differed from his evidence in chief, where he later said:

(i)    that he did not hear O’Connor say words to the effect that: “if you don’t find him [Clarke] a job, we will go to war with you. You know how it works, Nick”; and

(ii)    that he regarded whatever was in fact said by O’Connor as simply a throw-away line which had no impact on him.

The detail of his evidence is set out below.

70    In that context, the Director tendered certain documents as evidence relevant to the credibility of N Bleasdale on those issues. Section 102 of the Evidence Act 1995 (Cth) (Evidence Act) prohibits credibility evidence as defined in s 101A, except in certain cases. Section 108 provides one such exception under the heading: Exception: re-establishing credibility. Relevantly, s 108(3) says the credibility rate does not apply to evidence of a prior consistent statement of a witness if:

(1)    the evidence of a prior inconsistent statement of the witness has been admitted; or

(2)    it is suggested [as it had been] that the evidence given by a witness [namely N Bleasdale] had been fabricated or re-constructed.

71    Alternatively, it was said that the documents were directly admissible as business records admissible under s 64(3) and (4) of the Evidence Act of the previous representations (that is, what N Bleasdale saw and heard) as exceptions to the hearsay rule in s 59, or under s 69 as business records themselves within the exceptions to the hearsay rule.

72    Senior counsel for O’Connor opposed the tenders of those documents on the basis that they did not qualify as admissible evidence in any event, and alternatively on the basis that the Court should not receive them or any part of them as their probative value was outweighed by their prejudicial value or should otherwise be rejected by exercise of the discretion in s 135 of the Evidence Act.

73    The admissibility of much of what Johns was asked in evidence-in-chief was received on a conditional basis, but in essence only because it may have been irrelevant. That is because it sought to establish the status of certain other documents which, as noted, were said to be either inadmissible or ought not to be admitted.

74    The documents about which Johns spoke were produced by HY to the Court in response to a subpoena issued on behalf of O’Connor. In the event, there were four documents received in evidence, so it is only necessary to refer to Johns’ evidence so far as it relates to them.

75    The first is a typed statement signed by N Bleasdale on 26 May 2014. That statement refers to the first conversation, but says nothing referring to O’Connor being present. It refers to the second conversation when Merkx and O’Connor were present. After conversation between Merkx and N Bleasdale, which (as it appears) did not lead to agreement either to engage Clarke or to pay union dues for employees of Bleasdale and then recoup the fees from the employees, N Bleasdale adds:

Mr O’Connor then joined in with “If you don’t find him a job, we’ll go to war with you. You know how it works Nico”

and the remark: “Throughout the conversation I felt threatened.” I shall call that the “N Bleasdale short statement 26 May 2014”.

76    It was received in evidence as Exhibit A1 initially as a document upon which N Bleasdale was re-examined, as a statement inconsistent with what he said in cross-examination.

77    The second is a lengthy typed statement signed by N Bleasdale also on 26 May 2014, which I shall call the “N Bleasdale long statement 26 May 2014” (initially marked for identification MFI R3 and received in evidence as Exhibit A6).

78    That document was prepared by Mathers, from notes he personally took on an interview with N Bleasdale on 22 May 2014 and was presented to N Bleasdale for checking on 26 May 2014. It was retained, having been signed, as a record of the FWBII, Industrial Relations Section, both electronically and in hard-copy.

79    It was received in evidence initially as a document which was put to N Bleasdale during his further re-examination, so that the re-examination could be properly understood and as it was said to be a statement inconsistent with what he said in cross-examination.

80    The third document is an unsigned document dated 22 May 2014 also prepared by Johns, following his interview with N Bleasdale (initially marked for identification MFI R4 and received in evidence as Exhibit A7). It was sent to N Bleasdale for checking, and as a result the N Bleasdale long statement 26 May 2014 was signed. That had some changes, including one material change from the third document, made at the request of N Bleasdale. The third document contained at [47] some words which were attributed to N Bleasdale during the second conversation and which were removed at the request of N Bleasdale (from the comparable para [40] before the signing of the N Bleasdale long statement 26 May 2014. I note that paras [39] and [40] of that statement are in the same terms as paras [45], [46] and the first part of [47] of the third document.

81    The third document was received in evidence initially on the same basis as the N Bleasdale long statement 26 May 2014.

82    The fourth document (received in evidence as Exhibit A8), is a handwritten note of N Bleasdale of 13 May 2014. It is also annexure NB1 to his affidavit, but as he was required to give oral evidence about the first conversation and the second conversation, that annexure was not initially received into evidence.

83    I note that, apart from reserving for further consideration in the course of final submissions the further use to which those four documents might be put, in the light of the whole of the evidence, I declined to receive certain other documents, namely the HY Project Daily Report of 14 May 2014 (marked for identification MFI A2), handwritten notes of an officer of FWBII of 15 May 2015 (marked for identification MFI A3), handwritten notes of Johns of 22 May 2015 (marked for identification MFI A4), and an internal email of HY 22 May 2014 (marked for identification MFI A5). Those documents are business records of HY. I declined to receive them under s 135 of the Evidence Act, assuming that they were otherwise admissible as evidence of a previous representation under s 64 or under s 69 in any event, or alternatively, as credibility evidence admissible under s 108(3). I considered that, having regard to the direct oral evidence of N Bleasdale, and the written documents either authored by or signed by him, the probative value of that additional material was substantially outweighed by the danger that it may be unfairly prejudicial to O’Connor, at least without the authors of those documents (other than Johns) being called and that the additional time required to explore their respective roles would result in an undue waste of time. In the case of the Johns’ handwritten notes, he described his process of converting them into firstly the document now Exhibit A7 and then, after adoption and alteration by N Bleasdale into Exhibit A6 (the N Bleasdale long statement 26 May 2014). I did not consider there was real utility in receiving his notes, where N Bleasdale had specifically signed that statement derived from his notes.

84    I will address any additional evidentiary force of that material when considering in more detail the findings to be made.

(b)    The course of N Bleasdale’s evidence

85    The course of N Bleasdale’s evidence was not straightforward. Subject to the ruling requiring him to give oral evidence of the first conversation and the second conversation, his affidavits of 14 August 2014 and 23 September 2014 were received.

86    His evidence in chief was then adduced on 8 December 2014.

87    He was then cross-examined, including reference to the documents now Exhibits A2 (a diary note of N Bleasdale made on 13 May 2014, and being annexure NB 2 to his first affidavit), A6 (previously MFI R3), A7 (previously MFI R4), and A8. The cross-examination resumed on 9 December 2014.

88    At the conclusion of his cross-examination on that day, and in the light of certain answers he gave during his cross-examination, senior counsel for the Director applied under s 38 of the Evidence Act for leave to re-examine him as though he were being cross-examined. Section 38(4) and (5) require that questioning under s 38 should take place before the other parties cross-examined the witness, unless the Court otherwise directs, and enables the Court to give directions as to the sequence of questioning. I acceded to that application, as I considered the application was made at the earliest proper opportunity and the application was appropriate having regard to the answers given by N Bleasdale in cross-examination on 9 December 2014 compared to his evidence in chief. I directed that the re-examination (other than on the identified topics) should proceed first. That duly occurred.

89    At the conclusion of that process, I asked senior counsel for O’Connor whether – in the light of that further evidence – he wished to put anything further to N Bleasdale. He was not released from attendance, and requested to attend the next day, after counsel for O’Connor had had the opportunity to consider that further evidence, and the documents produced under subpoena by HY at the start of the hearing that day.

90    On 10 December 2014, on the application of senior counsel for O’Connor, N Bleasdale was further cross-examined for a further relatively brief period. That entitled the Director to further re-examine, and the Director was given leave under s 38 of the Evidence Act to do so in the form of cross-examination.

91    At the completion of his re-examination, and upon ruling upon certain tenders, that was the close of the case for the Director as the other evidence adduced by the Director had been completed.

92    The hearing was then adjourned for submissions, as O’Connor (as noted above) elected to give no evidence himself or to call any other witnesses.

(c)    The other evidence concerning the two conversations

93    As noted, there was no direct attack on the credibility of the witnesses called, other than N Bleasdale.

94    Nunweek’s evidence concerned the first conversation. He was meeting with N Bleasdale at Bleasdale’s portable office at the site at about 11 am. During the meeting, Merkx came to the door of the office and apparently in quite forceful terms demanded a meeting with N Bleasdale. N Bleasdale asked Merkx to come back in two hours, and he agreed.

95    I accept his evidence, notwithstanding the cross-examination and the material presented to him, that O’Connor was present with Merkx at that time, and standing in the passage behind Merkx (who largely blocked the doorway). As it was debated in submissions at the time, I find that O’Connor was sufficiently close to Merkx as to hear the brief conversation between Merkx and N Bleasdale. I found Nunweek an impressive witness, including as to why he did not mention O’Connor’s presence at that exchange when making a statement to FWBII, dated 2 June 2014.

96    Johns was not present at either the first conversation or the second conversation. Of present relevance is that he interviewed N Bleasdale on 22 May 2014 as a step in response to a complaint by N Bleasdale. He made a note of that interview (the document MFI A4 which I have declined to receive into evidence). I accept his evidence that his process was to record what N Bleasdale said to him, that his notes were transcribed into a typed document and, after having been read and altered by N Bleasdale after reviewing it to what N Bleasdale required to be accurate, into the N Bleasdale short statement 26 May 2014 (now Exhibit A1). That document was prepared by Johns typing on to a screen to adjust the transcribed version of his notes as N Bleasdale required, and then printed and signed by N Bleasdale. I am satisfied that Exhibit A1 represents accurately what N Bleasdale said to Johns on that occasion. It deals with both the first conversation and the second conversation.

97    I am also satisfied that the N Bleasdale long statement 26 May 2014 (now Exhibit A6) accurately records what N Bleasdale said to Mathers, and which Mathers reduced to that form, and that N Bleasdale considered its accuracy carefully before signing it.

98    The consequence is that, subject to the use to which they can be put, each of Exhibit A1 and Exhibit A6 are accurate records of what N Bleasdale said to Johns and Mathers respectively in the period up to and on 26 May 2014, and were each carefully considered by N Bleasdale before signing them. I find also that N Bleasdale’s own diary note of 13 May 2014 (Exhibit A8) is a note of what transpired on that date when the facts were fresh in his memory. I accept his evidence to that effect.

99    In my view, each of those documents has potential evidentiary significance beyond being documents put to N Bleasdale in the course of his evidence. In significant respects each of Exhibits A1 and A6 is a previous consistent statement by N Bleasdale to “rehabilitate” his credit by rebutting the suggestion that his evidence in chief was not accurate, but a post-event construction: see Nominal Defendant v Clements (1960) 104 CLR 476 per Dixon J at 479-480 (Clements). At common law, that rule applied in the case of criminal proceedings: R v Martin (1996) SASR 590; R v Karapandzk (2008) 101 SASR 7. That common law rule permits the admission of a prior consistent statement to disprove the suggestion of a concoction, rather than as proof of the truth of the contents.

100    At common law, it is debateable whether that rule applies where cross-examination is the source of the suggested concoction: eg Damon v Snyder [1970] VR 81 at 82 per Lush J; R v Martin (No 2) (1997) 68 SASR 419 at 431-441, especially at 441 per Doyle CJ. At the least, as Dixon CJ said in Clements at 479, great care is called for in applying the rule.

101    Of course, it is the relevant provisions of the Evidence Act which must be applied. And to do so, it is necessary to consider carefully the context in which the Director sought to adduce evidence of these prior consistent (that is, consistent with N Bleasdale’s evidence in chief) statements.

102    The only direct evidence of the second conversation (which is the critical one) is that of N Bleasdale.

(d)    The Conversations: Findings

103    It is clear from the evidence of N Bleasdale, supported to a degree by that of Nunweek, that early in May 2014 O’Connor had asked N Bleasdale to find a job for Jason Clark, a member of the CFMEU Executive. At that time, N Bleasdale knew both Merkx and O’Connor, and understood their roles as officers of the CFMEU.

104    In his evidence in chief, N Bleasdale said Merkx had also asked him to do so on more than one occasion, and had suggested he dispense with the services of Hylands who was employed by Bleasdale and who (Merkx said) was not a member of the CFMEU.

105    The first conversation, after 11:00 am on 13 May 2014, is specifically referred to by Nunweek. N Bleasdale described, in terms similar to Nunweek, O’Connor’s presence and the brief conversation. Apart from the presence of O’Connor, the cross-examination did not suggest that N Bleasdale’s evidence about that conversation was inaccurate. I accept it.

106    The second conversation took place about 12:30 on that day. It lasted about five minutes. Both Merkx and O’Connor were present in the office of N Bleasdale.

107    N Bleasdale’s evidence in chief is as set out in [108] to [112] below.

108    Merkx was standing in or near the doorway, and both O’Connor and N Bleasdale were sitting in the office, during the second conversation. Merkx asked why he (N Bleasdale) “had not sacked that muppet Dan Hylands”. N Bleasdale replied that he was not going to sack him, and started laughing. Merkx asked why he was laughing, and N Bleasdale replied that “Can’t believe he’s [you are] actually being serious”. O’Connor asked if N Bleasdale had yet found a job for Jason Clark. N Bleasdale replied that he had not been able to find him anything just yet. O’Connor then said: “If I [N Bleasdale] don’t find him a job, they will go to war with me”. N Bleasdale responded that he would have to speak to Brad Sugar and see if he could find a position for him. That was effectively the end of that conversation.

109    N Bleasdale then gave evidence of seeing O’Connor later that day as O’Connor was leaving the site. O’Connor asked him if he had “fixed up that issue”, to which N Bleasdale responded: “Aren’t we at war”.

110    That conversation ended at that point.

111    Subsequently, on 14 May 2014, N Bleasdale received a voice message on his mobile telephone from O’Connor. It said:

Nick, how are you going mate? Sorry about your comment about the war. Could we catch up mate and discuss what’s going on? Cheers.

112    Probably on the next day, 15 May 2014, N Bleasdale and O’Connor met when O’Connor came to his office. O’Connor asked words to the effect: “Well, what’s this war comment about”. N Bleasdale said, in effect, that he had nothing to say to him. O’Connor then asked if he (N Bleasdale) “was okay, my general wellbeing”. There was no response or the same response that N Bleasdale had nothing to say to him. He made a diary note of that conversation.

113    The cross-examination started with questions about a separate occasion in September 2014 when (it was put) N Bleasdale and O’Connor had a conversation about this matter. It was denied. Questions about the meeting (probably on 15 May 2014) did not elicit any different information.

114    Then the questions were directed to the first conversation. N Bleasdale said he had spoken to his father on the evening of 13 May 2014, and had made notes of the two conversations. He accepted that it had been agreed between him and his father that he should do so. He did so that evening, and then transposed them to his diary the following day, to the page for 13 May 2014. That diary note (Exhibit R2) does not contain any reference to O’Connor saying anything about a war. Nor does it refer to O’Connor being present or the first conversation, but N Bleasdale was adamant that he was there. N Bleasdale also accepted that neither the draft statement from FWBII (Exhibit A3) nor the N Bleasdale long statement 26 May 2014 (Exhibit A6) referred to O’Connor being present at the first conversation. Nor, it was accepted, is O’Connor’s presence at the first conversation referred to in the affidavit of N Bleasdale of 14 August 2014.

115    For reasons I have already given, as O’Connor’s presence at the first conversation is confirmed by Nunweek, I find that he was present on that occasion.

116    The next set of questions related to the second conversation. It was put that O’Connor made no comment about war, but N Bleasdale said he recalled it and said there was no possibility he was wrong. He said the comment was: “You don’t want to go to war with us. You know how it works, Nicko”.

117    N Bleasdale said he was quite nervous, and said he would have to speak to Brad Sugar [the Site Manager] about possible employment for Clark. He accepted that he may have said: “youse have been fucking persecuting us for years”, although he then said he may have thought that but did not say it, and a little later that he did say it to O’Connor. In re-examination, he said he was uncertain whether he had said it or merely thought it.

118    He was then asked some questions about his attitude to, and relationship with, the CFMEU.

119    Then the questions returned to the second conversation. N Bleasdale accepted that:

(1)    there was nothing untoward about Merkx being unhappy that Hylands was employed, because he was not a union member;

(2)    there was nothing untoward about O’Connor seeking work for Clark, or in N Bleasdale saying he would speak to Brad Sugar about that to see what he could do; and in that context O’Connor said that Clark was really struggling and said words to the effect: you’ve got a good agreement; you’re paid good union rates; you’ve got good conditions; you should have more union members working for you;

(3)    he shook hands with O’Connor when he arrived, and possibly when he left; and O’Connor spoke in a firm and non-emotive voice; and that O’Connor’s part in the conversation was only a “minute or two” and he spoke in his usual jovial joking tone, and that N Bleasdale generally found him to be a “very friendly, compassionate person”;

(4)    Hylands came to the door at about the end of the meeting, and there was conversation to the effect that he was unwilling to join the union as he had to pay the cost of a wedding.

120    That was the completion of the evidence for that day.

121    The cross-examination resumed the following morning. N Bleasdale confirmed that, within a few days of 13 May 2014, he spoke to Hylands to make a statement in relation to “Mr Merkx’s conduct”. N Bleasdale added that his complaint was not about O’Connor. He said:

... I had no objection to what Mr O’Connor said. Some things are said in the heat of the moment, but it was a statement that he made, but I didn’t take personal offence to it [the war comment].

122    He was then asked about the notes he first made, on the evening of 13 May 2014 (Exhibit A8), before they were transcribed into his diary (Exhibit R2). He agreed he made those note for a complaint about the conduct of Merkx.

123    That note relevantly reads:

CFMEU Organiser and Site Delegate came to my office. [Organiser] Demanded that I employ Jason, who is on there (sic) state executive, if I don’t “they will go to war with me” also he said “I should know how it works”.

The word “Organiser” as bracketed was added just after the note was first written. N Bleasdale said he added word “Organiser” after he read his note as written because he appreciated that, as first written, it did not convey that it was O’Connor who used those words.

124    N Bleasdale accepted, as is the case, that the diary entry (made on 14 May 2014, but entered on the page for 13 May 2014) which is Exhibit R2 does not contain any reference to “the war comment”. He was asked about why he left it out. The following passage then occurred:

Well, the reason you left it out is because it didn’t mean anything to you. It wasn’t relevant, was it? That’s why you left it out?---Well, as I’ve said, my concern was not Jim’s comment, it was my complaint against Mr Merks.

Yes?---Yes.

So the war comment, whichever form it took, wasn’t of any concern to you?---Well, people say things all the time in robust conversations in the heat of the moment.

And don’t mean it?---But I don’t believe there was any extreme malice in it. Mr O’Connor was genuinely trying to help someone find a job.

125    He said his complaint against Merkx was that he “wanted me to sack” Hylands. He also said the two notes (Exhibits A8 and R2) were because “sometimes you forget stuff and I wanted to make sure I captured everything that I could remember”.

126    The cross-examination then returned to O’Connor’s role and conduct. It records:

Can I just put this to you about the events of 13 May so far as Jimmy is concerned. Whatever was said and however it was said on 13 May by Jimmy, it was clear to you that he was seeking your help to get a job for Jason Clark?---Without a doubt.

...- and he had come to you often before then on several occasions seeking help from you to find CFMEU members a job?---Yes.

And what he did on that day was no different from what he was doing on any other day?---No.

And put aside colourful language, but he swears a bit?---We all swear a bit.

...

Well, I will ask you so you can respond to my question, how did you feel about what Jimmy said?---I was disappointed but it’s just a part of – all argy-barge of what happened.

Yes. Nothing out of the normal. It’s the way life goes on - - - ?---Yes.

--- between the union and the bosses - - -?--- Yes, yes.

- - - in a site like this?---As I had made it quite clear from day dot, I was more upset when Mr Merks - - -

Yes. And the discussion you had with Jimmy was not in any way unusual or different - - -?---No.

- - - from many other discussions you’ve had with him?---No, correct.

And the same sort of robust language and I – you’ve probably omitted the swear words that both of you used, but the same sort of robust language is a feature of your interaction between Jimmy and you?---Yes.

127    It is fair to observe that the evidence of N Bleasdale in cross-examination on this morning had a distinctly different emphasis, and his demeanour was somewhat different, from that of his evidence in chief and his cross-examination the previous day. N Bleasdale sought to focus his complaint only towards Merkx, despite the concluding section of his cross-examination the previous day when he said there was nothing untoward about what Merkx said in the second conversation, and his focus on “the war comment” (as it was described as a shorthand expression) in some questions and submissions) made by O’Connor which, he said, made him nervous. It was also a comment which prompted N Bleasdale later that day to say to O’Connor in an angry tone: “Aren’t we at war?” and O’Connor to speak to N Bleasdale about it twice in the succeeding days, and to which N Bleasdale gave a cautious response. It was recorded in Exhibit R2, where N Bleasdale made an alteration to record that it was made by O’Connor.

128    It was in that context that Senior Counsel for the Director was given leave under s 38 of the Evidence Act to re-examine N Bleasdale in certain respects as if cross-examining him.

129    In his re-examination (with non-leading questions), N Bleasdale said he was nervous because Jack [Merkx] was “always forceful in the way he dealt with me, and I was concerned that he might launch industrial action against me”. He said he was disappointed with O’Connor’s comment when he remarked to him: “Aren’t we at war?” because he had been a member of the CFMEU for many years, and he thought it was inappropriate and he deserved more respect. He was disappointed that O’Connor would talk to him, “in regards to not employing Jason Clarke, being at war. That if I don’t meet his demand I will face industrial action”.

130    Then the re-examination (by cross-examination) turned to the issue of inconsistent evidence given by N Bleasdale. He was asked, and accepted that, in a “proofing” meeting in a conference room at the Court, before the commencement of the hearing, he had said that he was “100 per cent sure” that O’Connor had said: “If you don’t find Mr Clark a job, we will go to war with you”. He agreed he had said that he remembered that because he had been a member of the CFMEU for 22 years, and that O’Connor’s statement had made him very upset, because during the period of his membership no-one had ever spoken to him like that. He agreed he had said that is why he spoke to his father that evening of 13 May 2014 about O’Connor’s statement, because he was angry and disappointed that a union official would speak to him that way. He agreed that he was very upset about the comment, and at the time he did not regard it simply as a throw-away comment.

131    N Bleasdale also accepted that he had spoken to Johns later in May 2014 about the events of 13 May 2014, that he told Johns what had happened, that he saw Johns take notes, that he saw a typewritten account of what he had said to Johns, that he required some corrections to it, and that he then signed the N Bleasdale short statement 16 May 2014 (Exhibit A1) believing it to be true. He said, in response to a question whether he felt threatened during the second conversation: “Intimidated. Yes” and agreed he felt threatened (a word he used in Exhibit A1). He also agreed that the statement of O’Connor: “If you don’t find him [Clark] a job, we will go to war with you. You know how it works, Nicko” was the only threat made by anyone during the second conversation.

132    As I noted above, I allowed further cross-examination of Mr Bleasdale, which took place the following day, so he could speak to the solicitors for O’Connor if he were minded to before his further evidence. When the cross-examination resumed, N Bleasdale confirmed the words used by O’Connor at the second conversation. He said he provided the statement to Johns to support his complaint about Merkx, and not because of O’Connor’s statement, and that he had asked officers of FWBII why the present application was against O’Connor. He said he felt threatened because of the physical size of Merkx, and his demand that he sack Hylands, pay his union dues, and employ Clark. He said that he did not, at the second conversation, sense any aggression from O’Connor, and “I’ve even questioned what this has got to do with Mr O’Connor”.

133    Before his re-examination on that evidence, he said in response to certain questions from me:

... You know how it works, Nicko”, what did the words, “You know how it works, Nicko” convey to you?---The general argy-bargy of industrial action.

I don’t want to go back on your evidence about what you said about why you spoke to your father that night. Following that meeting, did you in fact think there was a risk of some industrial action?---Yes, I did.

The industrial action, he said, was from the CFMEU. The risk arose if he did not find a job for Clark. Senior counsel for O’Connor then received an affirmative answer to the question: “Was it a consequence of the demeanour and words of Mr Merkx that you came to the conclusions that you came to in answering his Honour’s questions?”

134    That last answer, in my view, is plainly contradictory to the answers given to my questions, unless it is taken as an inclusive answer, that is as including the words and conduct of Merkx as well as the words of O’Connor as giving rise to the risk of industrial action if Clark were not employed.

135    The re-examination of N Bleasdale confirmed that (as one would expect) when he made his note on 13 May 2013 of the events of that day (Exhibit A8), the events were fresher in his memory than at the time of his evidence. They were made before he had spoken to anyone about the events, other than his father. He accepted that what he recorded then about what O’Connor had said is the most reliable record of that. In that note, he confirmed (as was clearly implicit at least in his answers in cross-examination) that his use of the word “organiser” is a reference to O’Connor. He confirmed the process referred to above, by which the N Bleasdale long statement 20 May 2014 (Exhibit A6) came to be signed by him. That process is one which might very readily have been inferred from the documents themselves.

136    That lengthy description of the evidence of N Bleasdale in part explains why I have significant reservations about his reliability as a witness. It is clear that in important respects his evidence in chief and his cross-examination on the first hearing day differed from his evidence during cross-examination on the second day and on the third day. On the latter two periods, his evidence was directed to exculpating O’Connor from, or minimalizing his role and responsibility for the conduct during the second conversation which is said by the Director to support the present contempt application against him. It does not readily lie alongside his evidence in chief.

137    There are, however, certain elements of the events which he refers to which can be accepted. If they were not to be accepted, it would mean that N Bleasdale simply fabricated the first conversation and the second conversation. That was not put forward on behalf of O’Connor, either in submissions or in cross-examination.

138    Approaching the evidence of N Bleasdale with considerable caution for that reason, I am nevertheless satisfied beyond reasonable doubt (beyond the background facts and the findings that I have already made) of the following (with some repetition of findings already made):

(1)    the first conversation took place at about 11:00 am or sometime after that on 13 May 2014 in N Bleasdale’s office, in the presence of Nunweek and both Merkx (standing in the door) and O’Connor (standing behind him, but visible to both N Bleasdale and Nunweek) and that O’Connor was able to hear what was said by Merkx;

(2)    at the first conversation, a very brief one, Merkx forcefully requested a meeting with N Bleasdale and agreed to return in a short while as N Bleasdale was then engaged;

(3)    a little time later, about 12.30 on 13 May 2014 also in N Bleasdale’s office, the second conversation took place with N Bleasdale, Merkx and O’Connor present; and

(4)    in the course of the second conversation, and in the context of the request that N Bleasdale should find a job for Clark, O’Connor said words to the effect of: “You don’t want to go to war with us. You know how it works, Nicko”, and that those words conveyed to N Bleasdale that there was a risk of industrial action if Clark was not found a job.

139    It is necessary to explain why I have reached those firm findings.

140    As I have indicated, assessing the credibility of N Bleasdale is a very important step in the process. I have not acted on evidence he has given where he has clearly given inconsistent versions of certain matters over time, such as the degree of his reaction to O’Connor’s comments at the second conversation. They are apparent from my recital of the course of his evidence. Nevertheless, there are some events which happened, and things which he and O’Connor did (according to the unchallenged parts of his evidence), which provide a foundation for the confident making of those findings.

141    Firstly, it is not in dispute that for some little time prior to 13 May 2014, the CFMEU through O’Connor had explored with N Bleasdale finding a job for Clark.

142    Secondly, the context of the second conversation is the brusque request by Merkx at the first conversation for it to occur. So, it was not as congenial an occasion as their earlier conversations.

143    Thirdly, N Bleasdale was obviously sufficiently concerned about the second conversation to:

(i)    speak to his father about it;

(ii)    make a record of it, initially on a separate sheet (Exhibit A8);

(iii)    when spoken to by O’Connor shortly afterwards, on about 14 May 2014 react in an uncommunicative or unresponsive way;

(iv)    make a complaint about it to HY.

144    Fourthly, O’Connor sent a telephone message to N Bleasdale following the second conversation in which he referred to the second conversation in terms which accepted that some inappropriate words had been used.

145    I have referred to those matters in neutral terms, because I have not taken into account the content of any documents (other than as exposed in cross-examination or re-examination to contradict N Bleasdale, and so to inform my assessment of his credit). Those four matters in [141]-[144], with one qualification, also reflect events which the cross-examination did not challenge, and which in the closing submissions were referred to without asserting that they did not occur (as distinct from issues as to the content of conversations or the significance of the event).

146    The one qualification is the finding about the words used by O’Connor. The submission on his behalf is that N Bleasdale’s evidence was so unsatisfactory that no such finding could or should be made. I do not accept that. It was a consistent proposition put forward by N Bleasdale in his evidence, despite his changes of evidence on other matters and despite the particular criticisms of his evidence which were made. I had the opportunity of seeing his evidence over three different days. I considered that, in that respect, what he attributed to O’Connor is accurate. In reaching that view, I have of course taken into account the apparent discrepancies in his evidence about the estimate of time the second conversation lasted and the time that it occurred. In the overall picture of the evidence, those matters do not really inform my decision about what happened because, in my view, they simply represent imprecise but understandably slightly different estimates or impressions.

147    In making those findings, I have also taken into account the submissions, based on certain parts of the evidence of N Bleasdale, that the complaint made by N Bleasdale concerned the conduct of Merkx at the second conversation. I do not accept that. Nor do I accept the evidence of N Bleasdale about that. I think the material on which he was questioned (including by the Director) indicates that his evidence on that topic is unreliable, as well as confirming my impression about his evidence on that topic from his demeanour. At the conclusion of the cross-examination of N Bleasdale on the first day, he was asked – and agreed – that there was nothing wrong with the requests of Merkx and/or O’Connor to sack Hylands or to find work for Clark, or to pay the union fees directly and debit wages (with the agreement of the employees). Apart from the robust expression of wishes or expectations in relation to getting Clark a job, the only comment which conveyed a risk of industrial action was that which I have found was made by O’Connor. It is, in my view, clear that N Bleasdale following the second conversation had not insignificant concerns as a result of what was said, and I am satisfied that it was the reference to the risk of going to war that prompted his concern. There was nothing said and attributed to Merkx which might have provoked his concern. Such a concern ties in with the subsequent events referred to above.

148    It may well be, as N Bleasdale said, that O’Connor was not routinely aggressive, usually jovial, and that he and O’Connor got on well. It may also be that N Bleasdale had second thoughts after his initial concerns following the second conversation, perhaps prompted by O’Connor’s subsequent contact with him, so that he did not attribute to O’Connor by the time of his evidence (and more obviously by the second day of his evidence) any real threat on the part of O’Connor by what was said by O’Connor at the second conversation. As noted, at one point N Bleasdale said O’Connor’s remark was a “throwaway line” and that he did not take offence to it and more generally said in evidence that he did not feel threatened by it. More generally, he clearly had a favourable regard for O’Connor (as indeed did Nunweek) and a long membership of, and dealings with, the CFMEU.

149    As is apparent, I have made my factual findings without giving probative force to the contents of the statements of N Bleasdale admitted in evidence for the limited purpose of understanding his cross-examination and re-examination and to demonstrate prior inconsistent statements, and so to assess his credibility.

150    It is now appropriate to determine whether further evidentiary significance should be given to what senior counsel for the Director called the prior consistent statements (that is the N Bleasdale long statement 26 May 2014, the N Bleasdale short statement 26 May 2014, the handwritten note of N Bleasdale of 13 May 2014, and the unsigned statement of N Bleasdale of 22 May 2014 which are respectively Exhibits A6, A1, A8 and A2.

151    I do not consider that, in any event, I should give any additional probative weight to the content of Exhibit A2 except as a document prepared and used as described above, as part of the process by which the N Bleasdale long statement 26 May 2014 came into existence. On the evidence it was reviewed by N Bleasdale, and he required amendments to be made to it. Apart from the use as referred to, to give it further weight would distract attention from the documents signed by him.

152    The credibility rule in s 102 of the Evidence Act precludes credibility evidence about a witness; the term “credibility evidence” is defined in s 101A, relevantly as evidence relevant only because it affects the assessment of the credibility of a witness. That broad definition is wide enough to include prior statements which are either consistent or inconsistent with oral evidence. In general terms, that is also consistent with the common law: see the discussion concerning Clements at [100] above.

153    In terms of s 108(3) of the Evidence Act, the credibility rule does not apply to evidence of a prior consistent statement, or where it has been suggested that the evidence given by a witness is fabricated or re-constructed, whether deliberately or otherwise, and leave is given to adduce that evidence.

154    Section 108(1) provides that credibility evidence may be adduced in re-examination, but I do not consider that the prior consistent statements would properly have been admissible through re-examination but for the leave given under s 38 of the Evidence Act because the capacity to confront by leading questions in re-examination only arose pursuant to that leave. There is a qualification to that analysis. It arises because the cross-examination of N Bleasdale elicited that his diary note of 13 May 2014 (Exhibit R2) was not consistent with his evidence, or with his handwritten note of 13 May 2014 (Exhibit A8) about the role of O’Connor at the second meeting, in particular whether O’Connor had made “the war comment”. The difference between those two exhibits and the evidence in chief was explicitly raised with N Bleasdale in his cross-examination (at the time Exhibit A8 had not been received in evidence).

155    It is, in my view, appropriate to observe that each of the four documents called the prior consistent statements, particularly the handwritten note in Exhibit A8, was made at a time when the facts were fresh in the memory of N Bleasdale and when he was endeavouring accurately to record what had happened and in the circumstances referred to above. The other factors relevant to whether to give leave to receive the prior consistent statements do not point in any real way to refusing that leave. In the course of the evidence of N Bleasdale, it was partly to avoid any unfairness to O’Connor that further cross-examination after re-examination was permitted and deferred until the next day.

156    Accordingly, were it necessary to have done so, I would give leave to use the prior consistent statements for the purpose of restoring the credibility of N Bleasdale, on the topic of whether O’Connor made “the war remark”. That would then make the finding I have already made more readily drawn. I have, however, already formed the view that he did so, and I am so satisfied beyond reasonable doubt. Consequently, in that respect, it is not necessary to do so.

157    The other directly contentious issue is the use to which the prior consistent statements might be put, having regard to s 108(3) on the issue as to the effect of what O’Connor said upon N Bleasdale. In that regard, I have decided that I should place no real weight on the evidence of N Bleasdale. I have made the finding at [138(4)] based upon the objective facts, having decided that O’Connor did say words to the effect of: “You don’t want to go to war with us. You know how it works, Nicko”, and that those words conveyed to N Bleasdale that there was a risk of industrial action if Clark was not found a job.

158    Even if they were properly received in re-examination potentially to restore credit, I do not propose to use the four consistent statements to restore the credibility of N Bleasdale on that topic. I would place no real weight on the draft statement (Exhibit A7) for the reasons given. I do not think the N Bleasdale long statement 26 May 2014 (Exhibit A6) would take the issue of the credibility of the evidence in chief of N Bleasdale on this topic any further; it says (as I have already found) the comment referred to industrial action. The N Bleasdale short statement 26 May 2016 (Exhibit A1) says that “Throughout the discussion I felt threatened”. It does not address the specific response of N Bleasdale to that comment by O’Connor. Consequently, to the extent that N Bleasdale’s evidence changed between his evidence in chief and his cross-examination on that topic, so as to cause concerns about his credibility, I do not consider that the prior consistent statements would in any meaningful way restore his credibility.

159    I note that, in re-examination, as described at [130], N Bleasdale agreed that he said to Kelleher that he found the comment very upsetting. That material is already in evidence. As the prelude to that evidence was a “proofing” meeting, and some 21 months after the relevant evidence, I am cautious about the appropriate use of that evidence. Having considered it, whilst it supports the view I have that I should place no weight on the oral evidence of N Bleasdale about how he reacted to O’Connor’s comment, I do not think it operates to restore the credibility of what he said in evidence in chief on this topic. To my mind, as the decider of facts, it does not do so to the extent to be satisfied beyond reasonable doubt that N Bleasdale at the time of the comment specifically felt threatened or intimidated to the extent beyond the point which the objective facts to which I referred lead.

160    It follows that I do not consider that the four consistent statements, quite apart from not in the relevant respect restoring the credibility of N Bleasdale, tend to prove precisely how N Bleasdale felt when he heard that comment of O’Connor. Accordingly, it is not necessary to further address their significance as admitted documents under ss 64(3) and (4) or s 69 of the Evidence Act.

CONCLUSIONS

161    It is now necessary to address whether the facts as proved establish the contempt allegation made by the Director. The relevant part of the Statement of Charge is set out at [43] above.

162    I have found that, during the second conversation, and in the context of the request that N Bleasdale find a job for Clarke, O’Connor said words to the effect of: “You don’t want to go to war with us. You know how it works, Nicko”. I have further found that those words conveyed to N Bleasdale that there was a risk of industrial action if Clark was not found a job.

163    I consider that the consequence of those findings, in all the circumstances, is that O’Connor made a threat to N Bleasdale to engage in industrial activity if N Bleasdale did not find a job for O’Connor.

164    Section 347(b)(iv) of the FW Act provides that a person engages in industrial activity if the person does or does not comply with a lawful request made by an industrial association, that is in the present circumstances, by the CFMEU. The lawful request is that N Bleasdale find a job for Clark, so the response of N Bleasdale to that request would amount to N Bleasdale engaging in industrial activity.

165    Section 348 provides that a person must not threaten to organise or take any action against another person (N Bleasdale) with intent to coerce the other person to engage in industrial activity. The meaning of “intent to coerce” is well settled: see Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [300]-[304] applying Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; Co-operative Bulk Handling Ltd v Maritime Union of Australia [2013] FCA 940 at [17]-[18]; Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290 at [223]-[224]; Construction, Forestry, Mining and Energy Union v Alfred (2011) 203 IR 78 at [12]. In Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 Merkel J at 388 said:

... there must be two elements to prove “intent to coerce”... First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.

In National Tertiary Education Union v Commonwealth (2002) 117 FCR 114 at [103]-[104], Weinberg J said:

The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

166    I accept the submission of the Director that the statement of O’Connor amounted to a threat to take action which would be unlawful, illegitimate or unconscionable, that is to take a form of industrial action, which involved the threat of disrupting the work of N Bleasdale at the site with economic detriment or disadvantage to N Bleasdale if the request to find a job for Clark was not met. Secondly, I am satisfied that the statement of O’Connor was in terms which satisfied the element of negating choice of whether or not to find a job for Clark, because it conveyed the risk of serious adverse consequences to N Bleasdale in its ability to continue to perform its role at the site if no job was found for Clark.

167    In reaching that conclusion, I have assessed the objective evidence in the context of the second conversation, having found O’Connor made the statement referred to above. I have been unable to make any finding about precisely how N Bleasdale reacted to the comment, save that I have found that he understood it to be a threat to take industrial action. In particular, I have not made a finding as to whether he felt “threatened” or “intimidated” or at the other extreme whether he felt it was only a “throw-away line” or no more than the usual industrial “argy bargy”. I do not have sufficient confidence in his evidence to make any specific finding of that character, that is how in detail he felt upon hearing the statement. However, by reason of the objective matters referred to, I am confident that he regarded what was said as more than a mere passing and insignificant observation.

168    Senior counsel for O’Connor submitted that there was an additional element to be applied in deciding whether O’Connor’s statement contravened s 348 of the FW Act. On the basis of Wood and Barrow v Bowron (1866) LR 2 QB 212 at 29-30 and R v Meek [1981] 1 NZLR 499 at 502-503, it was said that a positive “hostile intent” on the part of O’Connor must be shown, so that if his statement in fact merely sounding off, banter, a throw-away line, or part of the usual industrial argy-bargy, then that hostile intent was not shown. In support of that factual contention, reliance is placed on N Bleasdale’s evidence in cross-examination and additionally, or separately, on the fact (which was not challenged) that N Bleasdale would have to speak to Brad Sugar (not an employee of N Bleasdale) to explore getting Clark a job, and that there is no evidence that N Bleasdale did speak to Sugar.

169    I do not consider that I should go beyond the standard authorities about the scope and application of s 348 (or s 355(a)) of the FW Act by adding some additional factual element to be proved. I have addressed whether O’Connor is shown, beyond reasonable doubt, to have had the “intent to coerce” as explained in those authorities.

170    I have also separately considered the specific state of understanding of N Bleasdale as a result of that statement (about which I have been unable to make a particular finding) and whether in fact O’Connor is shown beyond reasonable doubt to have intended to coerce N Bleasdale to find a job for Clark by reason of the threat of industrial action. The finding adverse to O’Connor on that issue is made on the whole of the evidence, as explained above. I did not consider that N Bleasdale’s comment about needing to speak to Sugar, or Sugar’s status, or whether N Bleasdale in fact spoke to Sugar about finding a job for Clark makes any difference to that conclusion. That is because, as is apparent, N Bleasdale’s statement about needing to speak to Sugar is consistent with him reaching either to a proper and unthreatening request to find a job for Clark or with him reaching to such a request accompanied by a threat. That N Bleasdale took an alternative path of making a complaint about the second conversation, and what was done about getting a job for Clark, if anything, was not explored in the evidence.

171    It is not necessary to consider the other alternatives specified in the Statement of Charge. However, if I am wrong in concluding that the statement of O’Connor in the circumstances contravened s 348 of the FW Act by reason of s 347(b)(iv), I would find that his statement contravened s 355(a) of the FW Act, and in the descending order of alternatives I would have found that his statement contravened s 500 of the FW Act by acting in an improper manner. The conduct of O’Connor in making that statement whilst attending at the site to exercise rights in accordance with his permit would amount to a contravention of s 500 because it would be a breach of the standards of conduct that would be expected of a person in the position of O’Connor by reasonable persons with knowledge of the duties, powers and authority of the position as a permit holder and in the circumstances as I have found them: R v Byrne & Hopwood (1995) 183 CLR 501 at [514]-[515]; Director of the Fair Work Building Industry Inspectorate v Myles [2013] FCCA 2229 at [103].

172    That conduct on the part of O’Connor, in the light of those conclusions, means that at the time he made the statement during the second conversation he was not attending the site of the new RAH project and lawfully exercising or seeking to exercise rights in accordance with Pt 3-4 of the FW Act.

173    Accordingly, I find that O’Connor acted at that time in contempt of Order 8 of the orders made on 25 March 2014.

174    I will hear the parties as to the appropriate orders which should be made.

Associate:

Dated:    13 May 2015