FEDERAL COURT OF AUSTRALIA

Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8

FEDERAL COURT OF AUSTRALIA

Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8

CORRIGENDUM

1    In paragraph 112 of the Reasons for Judgment, in the third sentence, the number ‘7’ should read ‘21’.

Associate:

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The respondents pay the appellant’s costs of the appeal.

3.    The orders made by the trial judge on 6 February 2012 be set aside.

4.    There be a new trial on all issues before a differently constituted court.

5.    The costs of the proceedings before the trial judge abide the outcome of the new trial.

6.    The parties file submissions within 21 days on the questions of the reserved costs flowing from the appellant’s amendment to its notice of appeal.

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

REASONS FOR JUDGMENT

Besanko and Perram jJ

Introduction

1    This appeal is concerned with events at a building site at Epsom which are alleged to have occurred between Monday 23 June 2008 and Wednesday 25 June 2008. As all of the key events are alleged to have occurred in the same week, we will refer simply to the names of the days (and not the dates).

2    Epsom is a suburb of Bendigo in Victoria. The site was situated at the corner of Howard Street and the Midland Highway and on it was being constructed a shopping centre to be known as the Epsom Village Centre. It was to include a Safeway supermarket and some shops. The building company was Becon Constructions (Aust) Pty Ltd (‘Becon’).

3    As might be expected, the construction of the buildings involved bricks. The bricks in question were hollow concrete blocks later filled with concrete which was poured after the bricks had been laid. Becon used subcontractors to perform the necessary works on site, including the laying of bricks.

4    On Friday 20 June 2008, following some earlier communications, Becon sent a purchase order to ‘Bob Sawyer Bricklaying’ requiring it to execute and complete certain bricklaying works. It was not in dispute that the correct contracting party was Bendigo Scaffolding Pty Ltd (‘Bendigo’) and that Mr Robert Sawyer was its manager. Bendigo was a bricklaying contractor and hirer of scaffolding.

5    This appeal arises from the interaction between Bendigo (and Mr Sawyer) and the Construction, Forestry, Mining and Energy Union (‘the CFMEU’). Bendigo, at the time, employed a single bricklayer (Mr Sawyer) and two other employees who did a mix of general labouring and scaffolding. To fulfil what would be required of Bendigo at the supermarket site, Mr Sawyer had spoken with two other bricklayers and they had indicated that they were available. Importantly, none of Bendigo’s employees were members of the CFMEU.

6    Mr Bell was employed by the CFMEU and his job, at the time, was to try and persuade employers to enter into enterprise bargaining agreements (‘EBAs’) with the CFMEU and to try and persuade their employees to join the CFMEU. Mr Bell was responsible for a region which included the Epsom site. At many of the sites in Mr Bell’s region there were employers who did not have EBAs with the CFMEU and the Court was informed during the appeal that most of the subcontractors on the Epsom site did not have EBAs.

7    In the context of the building industry, it is contrary to federal law for a person (like Mr Bell or the CFMEU) to take any action with an intention of coercing or applying undue pressure to another (such as Bendigo) into making an EBA. It is also contrary to federal law in the context of the building industry for a person (like Mr Bell or the CFMEU) to discriminate against an employer (such as Bendigo) on the basis that its employees are not covered by an industrial agreement such as an EBA.

8    The appellant is the Director of the Office of the Fair Work Building Industry Inspectorate. He alleges that both Mr Bell and the CFMEU infringed these laws. It was said that both tried to apply undue pressure to or coerce Bendigo into making an EBA with the CFMEU and that they discriminated against Bendigo because its employees were not covered by such an agreement although, by the time the matter reached this Court, the appellant accepted that its case based on discrimination could not succeed for reasons unrelated to the issues with which this appeal is concerned. That case remains relevant, however, because of the intertwining of the fact-finding which underpinned it with the fact-finding relating to the coercion case.

9    The cases on coercion and discrimination were, of course, separate and turned on different events. The coercion case focussed on what was said by Mr Bell to Bendigo; the discrimination case on what Mr Bell said to the staff of the head contractor, Becon. As to coercion, it was said that Mr Bell had threatened to take action to prevent Bendigo from starting work on the site at Epsom during a telephone conversation between Mr Sawyer (for Bendigo) and Mr Bell (for the CFMEU) which occurred at 5.54 pm on the Monday.

10    As to discrimination, it was said that Mr Bell had spoken with the Becon site foreman once by telephone on the Monday night between 5.50 pm and 5.53 pm, twice with the foreman in face-to-face discussions on site on the Tuesday and once with Becon’s project manager by telephone on the Wednesday. During these conversations it was alleged that he said to the foreman and the project manager, broadly speaking, that Mr Sawyer would not be starting on the site unless he signed an EBA and that Becon should not utilise his services as a bricklayer.

11    The central questions for trial were, therefore, factual. They were:

1.    whether the telephone conversation between Mr Bell and the Becon foreman on the Monday night between 5.50 pm and 5.53 pm took place as the foreman alleged;

2.    whether the conversation between Mr Bell and Mr Sawyer on the Monday night at 5.54 pm took place as Mr Sawyer alleged;

3.    whether the two conversations between the Becon foreman and Mr Bell alleged to have occurred on the Tuesday took place as alleged; and

4.    whether the conversation between the Becon project manager and Mr Bell alleged to have occurred on the Wednesday occurred as alleged.

12    The central person in all five conversations was Mr Bell. At trial, Mr Bell’s evidence was that he could not recall any of the discussions in question but that he was certain he would not have coerced Bendigo (as Mr Sawyer alleged) or discriminated against Bendigo by suggesting that Becon not use Bendigo (as Becon’s project manager and foreman claimed).

13    The trial judge found in favour of the CFMEU and Mr Bell: Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46. His Honour accepted that Mr Bell had no actual recollection of the conversations with Mr Sawyer or the project manager or the foreman. He accepted Mr Bell’s evidence, however, that whilst he was unable to remember the conversations he could be certain, by reference to his usual practice and also his training, that he would not have sought to coerce Mr Sawyer or discriminate against him. From that his Honour then inferred that that which Mr Bell could be certain he would not have done, he did not do (at [64] and [85]). This conclusion required his Honour to reject the accounts of the five separate conversations given by Mr Sawyer, the project manager and the foreman.

14    Because the case was predominantly concerned with questions of credit, there were collateral factual matters which, whilst not directly relevant to the causes of action, nevertheless bore on the reliability of the various accounts. We return to these in detail later but they included matters such as relatively contemporaneous facsimile messages and telephone records.

15    In a number of different ways, the appellant contends that the fact-finding by the trial judge is afflicted by error. The issues which arise for determination are:

(a)    The cumulative effect of the evidence (Ground One). The trial judge gave particular reasons for rejecting each of the accounts given by Mr Sawyer, the foreman and the project manager. What his Honour had not done, so the appellant submitted, was to take into account that their testimonies corroborated each other’s evidence. It was also said, in this regard, that his Honour failed to give adequate weight to the contemporaneous documents in evidence. As such it was said that his Honour had failed to have regard to the cumulative effect of the evidence.

(b)    The totality of the evidence (Grounds Two and Seven). The appellant submitted that his case at trial had been so plainly established that it should be concluded that the trial judge had erred in not accepting it. It followed that this Court should find his case proved, remitting the matter for further trial only on the question of penalty. This was to be contrasted with Ground One, the success of which would require a retrial.

(c)    The appropriate evidentiary standard (Ground Three). The trial judge had referred to s 140 of the Evidence Act 1995 (Cth) and the fact that it required him to take into account the gravity of the allegations against Mr Bell in determining whether their occurrence had been proved on the balance of probabilities: [64]. The appellant submitted that his Honour had misapplied the provision because he had not given any or adequate weight to the accounts of the other witnesses. Further, so it was said, the allegations against Mr Bell were not inherently unlikely. A variant of the argument was that his Honour had failed to take into account the nature of Mr Bell or the CFMEU’s defences viz Mr Bell’s non-recollection of the events in question.

(d)    The Jones v Dunkel issue (Ground Four). Part of the discrimination case turned on two discussions which took place between Mr Bell and the foreman on the Tuesday. The trial judge rejected the foreman’s account. Present during both discussions were, according to the foreman, two CFMEU shop stewards including the shop steward for the Epsom site, a Mr Rankin. These stewards were not called by either party: see [75]. His Honour did not draw an inference under the principle in Jones v Dunkel (1959) 101 CLR 298 against Mr Bell or the CFMEU. The appellant submitted that such an inference should have been drawn.

(e)    The Browne v Dunn issue (Ground Five). Although the trial judge found Mr Bell had not said the things which were alleged against him, he nevertheless considered whether, if he had said them, they had been said intentionally (intention being an express element of the coercion claim). The appellant’s counsel did not cross-examine Mr Bell about his intention. The trial judge concluded at [68] that he was not prepared to find that Mr Bell had acted intentionally since this had not been put to him, citing Browne v Dunn (1893) 6 R 67. In this Court, the appellant took issue with this, contending that the principle only applied to matters in issue and that Mr Bell’s defence was conducted on the basis not that he did not intend to coerce, but rather that he had never said the words said to constitute the coercion.

16    Grounds Six and Eight were withdrawn when the notice of appeal was amended on the morning of the hearing before the Full Court.

17    It is useful to deal with these issues in the above order.

Ground One: the cumulative effect of the evidence

18    This ground of appeal necessitates an examination of the evidence and the trial judge’s conclusions.

19    Mr Bell’s telephone records show that at 5.50 pm on the Monday, Mr Bell telephoned the Becon foreman for the Epsom site. This call lasted for three minutes and 21 seconds. There was conflicting evidence about what was said during this call. The foreman said that Mr Bell said to him in relation to Mr Sawyer:

Unless he’s EBA signed, and his workers are union members, he will not be starting onsite

and then later:

No EBA, no union membership, the blokes won’t be starting…end of story

20    Mr Bell’s evidence was ‘I can’t recall the phone call’. Counsel for the appellant then put to Mr Bell the substance of the foreman’s evidence about what Mr Bell had said, to which Mr Bell replied:

No, I deny that. I didn’t say that.

When pressed on why he denied this, his evidence was as follows:

Well, apart from – I can’t recall the phone call. It’s a conversation I just would not have. I would not have that conversation with [the foreman]. I – when it comes to agreements, we have discussions about agreements all the time. I make hundreds of phone calls, but one thing I’m very sure about is, over the phone, I do not ever, in conversation or in person, tell anyone they have to have an agreement.

21    It was put to him again – a little later – that he had said it and, once more, Mr Bell denied this:

[I]ts just something I do not say. I did not say he had to have an agreement in place. It’s just something I wouldn’t say. I just don’t say it.

22    The foreman gave evidence that during the call Mr Bell had been quite agitated and was cross with him. During Mr Bell’s testimony, the trial judge asked him whether he had shouted at the foreman and Mr Bell conceded that, although he could not recall, it was possible: ‘…but you yell. In the job around – we do yell. People yell at me. It’s part of the building industry. It can get frustrating at times’.

23    The phone records also showed that there was a second telephone call made by Mr Bell to the foreman at 6.04 pm on the Monday which lasted for 95 seconds. This was admitted by Mr Bell and the CFMEU to have occurred through a notice to admit facts. There were no findings by the trial judge as to what transpired during this call. The foreman gave evidence of only one call on the Monday evening and the trial judge concluded that, given the foreman’s evidence about the length of that discussion, it was more likely to have been in the earlier call at 5.50 pm (which was of 3½ minutes’ duration) rather than the 6.04 pm call (which was of only 95 seconds’ duration): at [38]-[41]. No party suggested that this aspect of his Honour’s reasoning was incorrect and we proceed on the basis that all that is known of the shorter call is that it occurred.

24    The foreman also gave similar evidence of two face-to-face discussions with Mr Bell. The trial judge concluded that these discussions occurred on the Tuesday, although the foreman thought that they might have occurred on the Monday. This timing issue, as will be seen later in these reasons, is of significance. It will suffice at this stage only to flag that the timing of the occurrence of those events was not a central element of the foreman’s evidence.

25    The first conversation was alleged to have occurred in the foreman’s office at the Epsom site. The foreman gave evidence that he was in his office having a discussion with Mr Sawyer about the Epsom site job. The foreman could see through the window of his office three people having discussion outside. The three people were Mr Bell, a CFMEU shop steward from another site and the CFMEU shop steward for the Epsom site. Mr Sawyer then left the foreman’s office and, through the window, the foreman saw Mr Bell glare at Mr Sawyer and then walk towards him. Some kind of discussion between Mr Bell and Mr Sawyer then ensued, although the foreman could not hear what was actually said. Following that conversation, Mr Bell and the two CFMEU shop stewards then entered the foreman’s office. According to the foreman, this was when his first face-to-face discussion with Mr Bell (insofar as these proceedings are concerned) took place. He says that Mr Bell asked him ‘Who was that?’ and, after being told by the foreman that it was Mr Sawyer, told the foreman that unless Mr Sawyer had an EBA and his workers were signed-up union members, he would not be starting. The foreman said that he protested that this was not right, that Mr Bell knew that, that it was against the law, that anyone could work on a job and that no-one had to have an EBA. Mr Bell then repeated that, unless Bendigo had an EBA and its workers were signed up, it would not be starting.

26    The foreman’s evidence about the second-face-to face conversation with Mr Bell was as follows. Immediately after the first face-to-face discussion had ended, the four people involved – that is, the foreman, Mr Bell and the two CFMEU shop stewards – left the foreman’s office and walked towards the Western exit of the site. The second face-to-face conversation was alleged then to have occurred near that exit. The foreman’s evidence was that Mr Bell said that there had been an agreement with Becon’s construction manager that an EBA and union membership were necessary. The foreman said that he protested, saying that Mr Bell knew that was not right, that they knew the construction manager would not have done that and that it was not necessary to have an EBA to start a job. The foreman says that Mr Bell repeated that this was the agreement he had reached with Becon’s construction manager and that he then said ‘no EBA, no start’.

27    Mr Bell’s evidence was that, whilst he did not recall any such discussion on the Tuesday, he was sure that he would not have said such a thing: ‘I just – don’t say that. I don’t talk about union membership to employers. I just don’t do it’. He denied that he would have said that there could be no start without an EBA for the same reasons he gave in relation to his telephone discussion with the foreman on the Monday.

28    The evidence of the foreman and Mr Bell was not the only evidence on the question of whether these two discussions took place. Although neither CFMEU shop steward was called (by either party – we return to the significance of this issue below) there were several other items of evidence which bear on the issues. The first of these was evidence from Mr Sawyer, which the trial judge accepted, that he did not visit the site on the Tuesday. The second was Mr Bell’s telephone records which showed that he had not been on the site on the Monday. These two pieces of evidence, when combined, presented a potential difficulty for the foreman’s account. He had thought that the two discussions had occurred either on the Monday or the Tuesday although he thought the Monday more likely. In each case, the problem was the same, namely, the fact that Mr Sawyer and Mr Bell could not have met on site either on the Monday or the Tuesday because Mr Sawyer was not there on Tuesday and Mr Bell was not there on Monday.

29    The foreman’s evidence was also challenged under cross-examination from a different quarter. It was part of the foreman’s duties to keep a log sheet for each day. The sheet for the Tuesday was introduced by the appellant into evidence and became Exhibit N. Under a section of it headed ‘REMARKS – VISITORS – DELAY’ there appeared this entry in the foreman’s handwriting:

JASON BELL CALLED IN ABOUT 2.30 PM

30    This tended to suggest that the discussions took place on the Tuesday (and this, in turn, was consistent with Mr Bell’s telephone records). However, under cross-examination another version of the document constituting Exhibit N was introduced. It became Exhibit 3. The two exhibits were identical except that Exhibit 3 had an additional entry in the visitor’s section which was absent from Exhibit N and which was as follows:

BOB SAWYER BRICKLAYER

31    It transpired that Exhibit N had been copied from the original during investigations carried out by the Australian Building and Construction Commission and that, after that had occurred, the foreman had added the reference to Mr Sawyer.

32    One view of this material is that it showed an unsuccessful attempt on the foreman’s part to provide falsified documentary corroboration for his evidence that Mr Sawyer was on site on the Tuesday. Another view – advanced by the foreman – was that he had ‘added’ to the report just to complete it at a later time.

33    Another matter bearing on the foreman’s account related to his version of the sequence of events. Although he could not be certain, he thought that the two face-to-face discussions had happened on the Monday and the evening telephone call had occurred the same day. In any event, regardless of the day on which the telephone call was said to have occurred, the foreman’s evidence was that all three conversations between Mr Bell and himself occurred on one day.

34    The trial judge rejected the foreman’s evidence as to what Mr Bell had said to him in his office and at the western gate because the foreman’s evidence was that this occurred after an encounter between Mr Sawyer and Mr Bell and the trial judge was satisfied that no such encounter could have taken place because the two of them were not on site together on either of those days: [85]. He also concluded that the foreman had falsified the log sheet in Exhibit 3 and this provided an additional reason for rejecting his evidence: [85].

35    The trial judge did not give any explicit reasons for rejecting the foreman’s evidence about the telephone discussion he had with Mr Bell on the evening of the Monday. Indeed, he accepted the foreman’s evidence about that call at least to the extent of concluding that the call was of a few minutes’ duration (and hence could not have been the second call at 6.04 pm which was of only 95 seconds’ duration). Perhaps it is implicit in his Honour’s rejection of the foreman’s evidence about what happened in his office and at the Western gate that he regarded all of the foreman’s evidence as concocted. This certainly consistent with his approach to the altered log-sheet. In any event, it is plain that the foreman’s evidence about the telephone call was not accepted. This was potentially a curious conclusion. It had been accepted at trial by counsel for Mr Bell and the CFMEU that ‘we don’t make the submission that [the foreman] was a liar or anything of that nature, but we say he was fundamentally confused in relation to the events of the day on which the conversation occurred’.

36    It is then necessary to turn to the evidence of the project manager. His evidence concerned the events of the Wednesday. He gave direct evidence of having been called by Mr Bell on the Wednesday morning. He said that Mr Bell had asked him why he was employing Mr Sawyer; that Mr Bell had said that Mr Sawyer owed a lot of money to a lot of people; that Mr Bell did not have an EBA and that Becon did have one. He said that Mr Bell then swore at him, calling him a ‘fucking idiot’, after which the project manager had asked him to calm down. Ultimately the discussion had ended when the project manager concluded it was not going anywhere, it being ‘all one way’. He said that he then said ‘I’ll see what I can do’ and hung up. The project manager was cross-examined about this conversation but it was not put to him that it had not occurred and this was so even though, as the trial judge noted at [80], Mr Bell’s telephone records did not show that such a call had been made to or from Mr Bell’s mobile phone. Put another way, the occurrence of this call was not in dispute.

37    The project manager also gave evidence of another telephone call he had that morning, this time with Mr Sawyer. His final evidence about this call was he made it after receiving a facsimile apparently from Mr Sawyer (in fact, it had been written by Mrs Sawyer but that is presently of no moment). This facsimile was dated the Monday and read as follows:

URGENT

RECEIVED A CALL FROM C.F.M.E.U AT APPROX 6PM TONIGHT STATING I MUST HAVE A E.B.A [sic] IN PLACE PRIOR TO STARTING ON SITE. CAN YOU PLEASE CONFIRM IF THIS IS CORRECT.

Regards

Bob Sawyer [telephone number]

(Emphasis in original.)

38    The trial judge accepted at [57] that this facsimile had been sent to the project manager at 6.30 pm on the Monday and this was not disputed before us. It is inherent in that fact that the project manager’s evidence implied some delay in the delivery of the facsimile to him (more particularly, a delay from the Monday night to the Wednesday morning).

39    The project manager also gave evidence of having received another facsimile from Bendigo on Wednesday afternoon. This one was as follows:

Dear Geoffrey,

    REGARDING: Epsom Safeway

Due to unforseen [sic] and unreasonable circumstances by a third party we have no choice but to withdraw our quotation for bricklaying works to the above project as of 11.15 am Tuesday 24th June 2008. We regret any inconvenience that has arisen from interference by the third party involved that has led to these actions

Regards

Bob Sawyer

40    The trial judge found, and it was not disputed before this Court, that this facsimile had been sent in the middle of the day on the Tuesday: [57]. Again this implied a delay between the time at which the facsimile had been sent by the Sawyers and the time at which it had been delivered to the project manager.

41    As will be seen, these delays assumed some significance in the reasoning of the trial judge. Before turning to that reasoning it is necessary, however, to note the fluid nature of the project manager’s evidence about his telephone calls with Mr Sawyer on the Wednesday. There were three variants, all of which were given during his evidence in chief.

42    The first was simply that he had received a telephone call from Mr Sawyer on the Wednesday. This evidence did not link the call with the receipt of either facsimile. The examination was as follows:

Mr Pauline:    After that phone call from Mr Bell, did you receive any further phone call relating to this issue? --- No, no more from Mr Bell, only some from Mr Bob Sawyer.

So when did you receive a phone call from Mr Sawyer? --- It would have been on the 25th [i.e. the Wednesday], as far as I can remember. On the 25th.

The 25th? Thank you. Could you tell his Honour what the content of that phone – that conversation was with Bob Sawyer? --- Mr Bob Sawyer told me he wished to withdraw from the contract, because of the hassles he was having.

Is that all he said? --- He did – he told me he had spoken to Mr Bell. Mr Bell had spoken to his wife and things like that so – as far as I can remember this.

Did he tell you anything further about that conversation with Mr Bell? --- Between himself and Mr Bell? He told me that he was told if he didn’t have any enterprise bargain agreement he couldn’t work there.

43    Important aspects of this account then are:

    the fact of the call originating from Mr Sawyer and not the project manager;

    the fact that Mr Sawyer had said that he wished to withdraw from the contract; and

    the absence of any mention of any facsimiles.

44    The second subtle variant of this evidence, given only a few questions later (and still during examination in chief), connected the telephone call to the first facsimile above which had been sent on the Monday evening. At the trial this was Exhibit F. This evidence was as follows:

Mr Pauline: Right. Now, do you recall what happened after that phone call from Mr Sawyer that you have just given evidence about? --- Yes, when he asked again if he could withdraw, I asked him to give me that in writing that he was going to withdraw and he did send me a fax saying that he was going to withdraw his tender.

All right. Could the witness, your Honour, be shown exhibit F? --- Thank you. Yes, recognise this document.

I’m sorry? --- Yes, I do recognise this.

All right. Could you tell his Honour when you recall receiving this document? --- This was on the same day as I received the call from Mr Bell.

And that date was? --- The 25th.

25th. So when you say – I asked you when you received I, is that when it came to your attention? Is that what you mean that you received it? --- yes, it would have come to my attention during the course of that day, the 25th, most likely, but in the morning.

45    The examination-in-chief eventually turned to elucidating the relationship between the two facsimiles (the Monday facsimile sent at 6.30 pm – Exhibit F – and the Tuesday facsimile sent at midday – Exhibit J) and the telephone call between Mr Sawyer and the project manager on the Wednesday. The following exchange occurred:

All right. So in terms of the order in which these faxes came to your attention, could you just say whether there was any time in between or not? --- Yes, there was several hours in between the two faxes.

Are you able to estimate how many hours? --- I’d say the fax number 1 would have been morning and fax number 2 would have been afternoon.

Right. Fax number 1, which is exhibit F – so when you received that document did you do anything? --- Yes, I contacted Mr Sawyer and said, “I can’t enforce him to have an EBA because I’m not allowed to discriminate.”

His Honour: How did you contact him? --- By phone, sir.

What are you working hours when you’re in the office? --- About 10 hours a day, eight till six/seven.

Do you take a lunch break? --- Yes.

What time? --- Depending on the work I’m doing at the moment, somewhere been 12/1, half past 1 at the latest.

You think you might have seen the handwritten fax during the morning and the typewritten one after lunch or ---? – Yes.

Mr Pauline: So looking back then at the typed one, exhibit J, you received that document on the 25th, in the afternoon? --- I believe it would have been around that time, yes.

Are you able to tell his Honour what you did when you received this fax? --- When I received this fax I asked Mr Sawyer – I received this fax after I’d asked him to – he’d called me to say he was going to withdraw and then I’d asked – I’d phoned him back or in that conversation asked him to put it into writing that he was withdrawing and that’s how this fax came into existence.

46    The critical feature of this third account are:

    the Monday facsimile sent at 6.30 pm (Exhibit F) was received by the project manager on the Wednesday morning;

    the project manager on receiving it had then initiated a call to Mr Sawyer;

    during that call (or possibly in a later call) the project manager had asked Mr Sawyer to put something in writing; and

    following that, call the project manager then received on Wednesday afternoon the Tuesday facsimile sent at midday (Exhibit J).

47    There were some internal difficulties with these three accounts. There was an inconsistency as to who had initiated the call, Mr Sawyer or the project manger. There was also the timing discrepancy of the times at which the two facsimiles were sent and the time the project manager said he had received them. In relation to the Monday facsimile, this could be explained by suggesting that within Becon there had been a delay between the receipt of the facsimile in Becon’s offices on the Monday evening and its subsequent delivery to the project manager on Wednesday morning (which would not necessarily be unusual). In the case of the facsimile received in the afternoon, however, the problems were potentially more acute. In its case, the project manager had indicated he had received it on the Wednesday afternoon after he had asked Mr Sawyer for it during their morning telephone call. That evidence could not readily be reconciled with the unchallenged finding that Exhibit J was sent at lunchtime on the Tuesday, that is, the day before. Of course, if one brought to account that the project manager was not at all certain that the conversation happened on the Wednesday (‘It would have been on the 25th, as far as I can remember’) this problem recedes in significance.

48    It is now necessary to advert to two further matters before examining the trial judge’s approach to the project manager’s evidence.

49    The first concerns a possible concession obtained from the project manager under cross-examination as follows:

All right. Certainly [you received the second fax, exhibit J] after your normal lunchtime, after you had come back from lunch, whatever time you had lunch that day? --- I believe so.

Yes. All right. That suggests, doesn’t it, that you didn’t travel to Bendigo that day for a site meeting? --- No, I did not.

All right. Now, the call from Jason Bell on the 25th, he complained to you, did he, about Becon engaging Bob Sawyer? --- He did.

He complained – he was complaining because he asserted that Bob Sawyer owed money to people? --- He did.

Can I suggest to you he complained that Bob Sawyer didn’t have an agreement with his workforce? --- He did.

Did he say that Hercus, Phil Hercus, had had an agreement with the CFMEU or Mr Bell that subbies would have an agreement with their workforce? --- He did.

All right. That’s effectively the extent of his conversation, isn’t it? --- In a nutshell; yes.

Thank you. No further questions, your Honour.

50    This evidence, if accepted as a complete synopsis of the project manager’s evidence, may have involved a withdrawal of his evidence described above at [42] with its allusion to an EBA (although the reference to an ‘agreement’ in the second-last question and answer may suggest not). Whether the evidence was truly synoptic and whether that was what the evidence actually connoted is one of those questions upon which a trial judge has a very significant advantage over the position of an appellate court. Certainly the question ‘[t]hat’s effectively the extent of his conversation, isn’t it?’ and the answer ‘[i]n a nutshell, yes’ is capable of suggesting that the preceding few responses are all that had been said (whatever that was). Of course, one can imagine that that might not be so but that depends on how it was said and the elusive atmospherics of the trial courtroom.

51    The trial judge dealt with the project manager’s evidence this way (at [88]):

Once again, having regard to the penal nature of the proceeding, and to the gravity of the conduct alleged, I am not able to be satisfied on the balance of probabilities that this element of [the appellant’s] case is made out. There must be a real doubt as to whether such a conversation ever took place. [The project manager] was clearly mistaken about receiving a telephone call from Mr Sawyer on the morning of [the Wednesday], when Mr Sawyer had no occasion to ring him. The absence of any record of a telephone call from Mr Bell to [the project manager] suggests that [the project manager] may have also been mistaken about receiving a call from Mr Bell on that morning. It is true that, at that time, Mr Bell may not have known about the withdrawal of Bendigo Scaffolding’s quotation (although there is no evidence as to when he found out about that withdrawal), so he might still have been seeking to engage management of Becon in discussions about whether it was appropriate to engage Mr Sawyer. If he did make a telephone call, particularly having regard to my acceptance of his evidence about his general method of operation (in the absence of challenge to that evidence), and the project manager’s ready acceptance of the propositions put to him in cross-examination, I am not satisfied on the balance of probabilities that Mr Bell said words to the effect that Mr Sawyer would not be allowed to start unless he had an EBA and his employees were members of the CFMEU.

(Emphasis added.)

52    The appellant pointed out, with some force, that it was accepted at the trial that the discussion between Mr Bell and the project manager had occurred and that, consistently therewith, he had not been cross-examined to suggest that it had not. The first emphasised sentence did not, therefore, reflect a doubt which the parties had been heard on. There are two other curiosities about this. As we have endeavoured to show, whilst the project manager’s initial evidence was that Mr Sawyer had telephoned him, this was not his final position. Rather the project manager’s evidence was that he telephoned Mr Sawyer after getting the Monday facsimile, asking him for something in writing and then receiving Exhibit J in the afternoon. On that final version of the project manager’s evidence, the trial judge’s criticism of his evidence in the second emphasised sentence cannot be correct – it was the project manager who called Mr Sawyer and asked for Exhibit J. If one accepted that evidence, the difficulty identified by the trial judge could not arise. On the other hand, the difficulty to which we have adverted did arise – i.e. how the project manager’s evidence to that effect could be correct when Exhibit J was prepared on the previous day.

53    The second curiosity relates to the trial judge’s reference to the project manager’s ‘ready acceptance of the propositions put to him in cross-examination’. We believe that this may be a reference to the ‘nutshell’ answer above. Perhaps the statement is to be understood as indicating that the question and answer were, perhaps, ambiguous. In any event, for the purpose of considering Ground One, we need not express any concluded view about this matter.

54    So much for the project manager’s evidence. Pausing there, and perhaps prefiguring in embryonic form the appellant’s complaint, it is apparent from what we have said that the learned trial judge’s assessment of the foreman appears to have been quite disconnected from his assessment of the evidence of the project manager. Perhaps, to put it another way, each of their accounts was capable of corroborating the other’s, a possibility to which the trial judge appears not to have adverted.

55    It is then necessary to turn to the evidence of Mr and Mrs Sawyer and the trial judge’s approach to it.

56    It will be recalled that the trial judge accepted that the foreman had spoken with Mr Bell on the Monday night at 5.50 pm. Although Mr Bell’s telephone records indicated that there was another call between the two men (at 6.04 pm), his Honour thought that it was likely that the conversation which the foreman could remember had been the longer one of three minutes duration at 5.50 pm. This use of the content of the foreman’s account of the conversation is a little difficult to reconcile, as we have noted, with the trial judge’s rejection of the foreman’s evidence about that content at [86]. It is not necessary, however, to pursue that matter further. What matters for the present purposes is that it was in between the calls between the foreman and Mr Bell that Mr Bell’s phone records show that a call between him and Mr Sawyer occurred at 5.54 pm (that is, immediately after the call with the foreman). Mr Sawyer’s evidence as to what was said was as follows:

The person introduced himself as Jason Bell from the CFMEU. I said, “What can I do for you?” He said, “I believe you had been appointed the contractor on the Epsom Shopping Village.” I said, “That’s correct.” He said, “Well, before you are going to be starting that job you are going to have to get a few things in order.” I said, “Well, such as what?” He said, “Well, you’re not compliant with the schemes.” I said, “Well, I beg to differ; I am.”

After some discussion about exactly what ‘schemes’ were being referred to, Mr Sawyer’s evidence continued as follows:

And I said, “Well, I am complaint [sic].” [Mr Bell] said, “Plus you don’t have an EBA,” and I said, “well, I don’t have to,” and he said, “well, you will before you start on that job and none of you guys are in the union.” And I said, “Well, they don’t have to be in the union either.” And he said, “Well, you’re not starting that job till they are.” He then went on to say, “I think we should probably sit down tomorrow to have a coffee and discuss the matter.” I said, “Well, feel free to call,” and that was the end of the conversation.

57    Cross-examination of Mr Sawyer revealed three further facts which were material to the trial judge’s treatment of his evidence. The first was that the call had taken nearly ten minutes, as revealed by Mr Bell’s telephone records: [34]. The second was Mr Sawyer’s surprise at the fact that the call was that long, his impression being that it was shorter: [36]. The third was that the conversation was a friendly one: [36]. At [52] his Honour noted that the apparent length of the call and its friendliness tended strongly to make it unlikely that the conversation was as Mr Sawyer had alleged.

58    In addition, his Honour was impressed by evidence given by Mr Bell as to his knowledge about Mr Sawyer’s previous experience with unions: see [49]. It was said that in the past Mr Sawyer had not always done the right thing by his employees and that he had previously been audited by the CFMEU and had not enjoyed the experience. Under cross-examination he had agreed that he would not be happy going back on to ‘union jobs’ because he was not comfortable with ‘harassment’.

59    Ultimately the trial judge concluded, as will be seen, that Mr Sawyer was perhaps sensitive to the CFMEU’s presence and this most likely caused him to misinterpret what Mr Bell had said. This reasoning had two aspects. The first was Mr Bell’s inability to remember the actual call with Mr Sawyer but his certainty, based on his general practice, that he would not have said that which was alleged against him. The second was an analysis of the kinds of lawful statements that Mr Bell could have made to Mr Sawyer which were similar to that which Mr Sawyer thought he had heard. The trial judge put the matter this way (at [50]):

Given Mr Bell’s concern about Mr Sawyer’s reputation as being an employer who did not pay all of the entitlements of his employees, it is not surprising that Mr Bell was motivated to telephone both Mr Sawyer and [the foreman] on the evening of [the Monday]. Mr Bell was entitled to make attempts to safeguard the interests of those who might be employed by Bendigo Scaffolding on the Epsom site. He was entitled to attempt to do so not just for the benefit of those employees, but to attempt to ensure that terms and conditions of employment of employees who would work on the Epsom site were generally of a standard that the CFMEU would regard as satisfactory, so that the interests of employees who were its members on the site would not be undermined. It was perfectly legitimate for Mr Bell to propose to Mr Sawyer that Bendigo Scaffolding enter into an agreement with the CFMEU pursuant to s 328 of the [Workplace Relations Act 1996 (Cth)]. It was perfectly legitimate for Mr Bell to point out to Mr Sawyer that such an agreement could only be made if Bendigo Scaffolding had at least one member of the CFMEU among its employees whose employment would be subject to the agreement. There could be no objection if Mr Bell had drawn to Mr Sawyer’s attention the effect of the conditions in Becon’s subcontract purchase order, to which I have referred in [26]-[28], including the requirements to provide to Becon not less than five working days prior to commencement on-site details of Bendigo Scaffolding’s industrial instrument covering its employees. It would be unexceptionable for Mr Bell to have told Mr Sawyer that Becon would not permit him to start work on the site unless he had complied with those requirements.

60    Having then doubted the accuracy of Mr Sawyer’s account because of its insufficient duration and too-friendly tone, his Honour’s critical reasoning was then thus (at [64]):

In seeking to determine whether the telephone conversation between Mr Bell and Mr Sawyer on [the Monday] involved a contravention of s 44 of the [Building and Construction Industry Improvement Act 2005 (Cth)], the effect of s 140 of the Evidence Act is to require me to decide on the balance of probabilities, taking into account the nature of the proceeding and the gravity of what is alleged. I must therefore bear in mind that the proceeding is one in which penalties are sought against the respondents and the allegations against Mr Bell are of serious conduct by him. On the evidence in this case, I cannot be satisfied that those allegations are made out. I am not prepared to find that Mr Bell departed from his usual practice in relation to conversations with employers about the terms and conditions of employment of their employees. He was well aware that he should not make threats of consequences to employers if they did not make agreements with the CFMEU. In the circumstances, it is likely that Mr Bell drew to Mr Sawyer’s attention the requirements of Becon, and expressed his preference for the relevant one of those requirements to be satisfied by an agreement with the CFMEU. Mr Sawyer may have interpreted such a statement as a stipulation that Bendigo Scaffolding had to enter into an agreement with the CFMEU. It is possible that Mr Bell drew attention to the need to have a member of the CFMEU employed by Bendigo Scaffolding if such an agreement were to be entered into. It is possible, although less likely, that Mr Sawyer would have interpreted such a statement as being a demand that all his employees must be members of the CFMEU. None of this would have amounted to a threat by Mr Bell that any action would be taken. On the evidence, I am unable to find that it is more probable than not that such a threat was made.

61    On its own there is nothing especially untoward about this style of reasoning. The trial judge did not find that Mr Sawyer was necessarily making his evidence up (although the third-last sentence could be construed as tending in that direction). He found, rather, that Mr Sawyer’s prior experiences with unions had, in effect, led to a form of heightened sensitivity and this, in turn, had led him to misunderstand what the trial judge appeared willing to accept that Mr Bell might have said (by reference to his usual practice). The case then was, on this view of things, one of misunderstanding.

62    That conclusion, in effect, then explained three other pieces of evidence which contradicted Mr Bell’s account. These were: Mrs Sawyer’s evidence about what Mr Sawyer had said when he finished the telephone call with Mr Bell (that is, that Mr Bell had told Mr Sawyer he needed to have an EBA &c.) (referred to by the trial judge at [62]); the facsimile sent by Mr Sawyer to the project manager that evening at 6.30 pm reporting the CFMEU as having told Mr Sawyer that he must have an EBA (i.e. Exhibit F); and Mrs Sawyer’s evidence that after dinner that night a decision was made between her and Mr Sawyer that Bendigo would withdraw from the site (at [60]) (which decision was communicated the next day by the Tuesday facsimile – Exhibit J).

63    All of this evidence was derived ultimately from Mr Sawyer’s perception of what occurred in the discussion he had on the Monday night with Mr Bell. Once one accepted, as the trial judge did, that Mr Sawyer’s perceptions of the discussion involved a misunderstanding on his part, all of this evidence – necessarily based on subsequent reports of what Mr Sawyer perceived – would simply repeat the same misperception. The appellant criticised the trial judge’s rejection of the value of the contemporaneous documents. But if one accepted the trial judge’s conclusion that Mr Sawyer had most likely misunderstood or misperceived what Mr Bell had said, then these matters were, as his Honour held, ‘equivocal’ ([63]):

In the end, [the appellant’s] case as to the alleged contravention of s 44 of the [Building and Construction Industry Improvement Act 2005 (Cth)] by Mr Bell in his telephone conversation with Mr Sawyer on the evening of [the Monday] does not derive great support from the actions of Mr Sawyer in the aftermath of that conversation. In many respects, those actions were equivocal. Significantly, however, they are consistent with either Mr Bell threatening action in that phone conversation and with Mr Bell simply advocating that Bendigo Scaffolding enter into an agreement with the CFMEU. Having regard to his past experience, Mr Sawyer would have been likely to withdraw from the Epsom site job simply because it had become absolutely clear to him that the CFMEU would be attempting to ensure that the interests of his employees were protected, if possible by means of an agreement between Bendigo Scaffolding and the CFMEU.

64    In the event, the trial judge therefore rejected:

(a)    Mr Sawyer’s evidence of what Mr Bell said to him on the Monday night and with it, derivatively, the utility of each of: (i) Mrs Sawyer’s report of what Mr Sawyer had said, (ii); the Exhibit F facsimile; and (iii) Mrs Sawyer’s account of the decision after dinner to withdraw from the site;

(b)    the foreman’s evidence as to what Mr Bell said to him over the telephone on the Monday evening;

(c)    the foreman’s evidence as to what Mr Bell had said to him twice in person on the Tuesday; and

(d)    the project manager’s evidence as to what Mr Bell had said to him over the telephone on the Wednesday.

65    The appellant’s argument is that the trial judge failed to take into account in his reasoning the relevance of each of (a), (b), (c) and (d) to each other. To take the example of Mr Sawyer’s evidence, it is said that the trial judge did not direct himself to whether Mr Sawyer’s account might be more likely given that the foreman and the project manager both gave evidence that Mr Bell had said something similar. Correspondingly, was it not possible that the project manager’s evidence was more likely given that it was corroborated by the foreman and Mr Sawyer? Was it not possible that the fact that Mr Sawyer and the foreman gave very similar accounts of a conversation with Mr Bell on the Monday evening was corroborative of both their testimonies not only because of their similarity but also by the fact that the call with Mr Sawyer started at 5.54 pm, immediately after the foreman’s three minute call at 5.50 pm?

66    The appellant submitted that this argument was supported by a passage in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; [1999] HCA 3, in which the trial judge had rejected the evidence of the State Rail Authority’s principal witness, Mrs Page, whose testimony had been corroborated by the evidence of Mrs Meek and Ms Packham (neither of whom had been cross-examined). Of this situation, Gaudron, Gummow and Hayne JJ said:

[62]    The [State Rail Authority] contends that the trial judge was in error in three respects. First, the trial judge failed to give sufficient attention to all the evidence of the case, especially that of Mrs Meek and Ms Packham, as well as the extensive documentary evidence, in evaluating the evidence of Mrs Page. Secondly, the trial judge applied the incorrect standard of proof in analysing the evidence led by the [State Rail Authority]. And thirdly, the trial judge misdirected himself as to the relevant issue concerning the certification of the dockets. For the reasons outlined above when reviewing the judgments of the trial judge and the Court of Appeal, the [State Rail Authority] has established each of these grounds.

[63]    It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her while giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable [their Honours cited Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-7; ALR. See also Voulis v Kozary (1975) 7 ALR 126; 50 ALJR 59; Chambers v Jobling (1986) 7 NSWLR 1]. The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.

[64]    As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the [State Rail Authority’s] case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken.

67    And at [154] Callinan J said:

[154]    The evidence of Mrs Page was therefore corroborated in material particulars by Mrs Meek and Ms Packham. It was given further force by the respondents’ decision not to cross-examine those corroborators, the failure of the respondents to call any evidence in refutation, and by the attempts at subornation by Messrs Davies, matters to which neither the trial judge nor the Court of Appeal accorded any weight.

68    Kirby J expressed himself in general agreement with the approach of Callinan J: [71].

69    As we understood it, the appellant’s argument was that the obligation to consider the evidence as a whole included the corroborative effect that the evidence of each of Mr Sawyer, the foreman and the project manager could have upon each other’s testimony.

70    There are differences between the situation which obtained in Earthline and that obtaining in this case. In Earthline, the witnesses Mrs Meek and Ms Packham had not been cross-examined to suggest that their account was incorrect (see [28]-[29]) – their evidence was therefore uncontradicted corroborative evidence. In this case that was not so. Mr Bell’s evidence did contradict the account given by each of Mr Sawyer, the foreman and the project manager. Indeed, it was on this basis that his Honour had rejected each of their evidence. Earthline, on the other hand, was a case where one could not dismiss Mrs Page’s evidence without reconciling that finding with the uncontradicted evidence of Mrs Meek and Ms Packham. This led the CFMEU and Mr Bell to submit that Earthline was to be understood as ‘a case of glaring improbabilities or uncontested evidence not brought into account’. This is, indeed, a distinguishing feature from Earthline. We would not accept that by itself, however, it is sufficient to make inapplicable the point that Earthline makes. That point is that a trial court must consider the evidence as a whole including, where relevant, how that evidence internally relates to itself.

71    Here the constellation of facts is a little different, although, we believe, not materially so. One of the strengths of the appellant’s case was that the three witnesses all contended that Mr Bell had made statements to them of a particular kind. One finding consistent with that evidence was that they all gave that evidence because, in fact, it had been said. Further, if one were to accept that Mr Bell had said such things in one of the conversations, that made it much more likely that they had been said in the others. Consequently, as in Earthline, the evidence of each of Mr Sawyer, the foreman and the project manager was corroborative of the evidence of each of the others.

72    For that reason it was necessary for the trial judge to consider that corroborative effect if he was to discharge his obligation to consider all of the evidence. The only difference between this case and Earthline is that the corroborative evidence in Earthline was uncontradicted. However, we do not think that is a sufficient reason to distinguish it.

73    The respondents’ submission in answer to this was that the trial judge had considered all of the evidence. We reject this submission. A central strength of the appellant’s case was that it had the word of three people against one. Nowhere in the trial judge’s reasons is there any allowance for, or consideration of, that corroborative matter. Indeed, had such a consideration been undertaken, difficulties might well have presented themselves for resolution. The trial judge accepted that Mr Bell had possibly said something to Mr Sawyer during the Monday evening telephone conversation about EBAs and union membership but that these remarks were of a legitimate kind consistent with Mr Bell’s invariable practice. As we have said, so viewed, this then was a case of misunderstanding. But his Honour’s rejection of the foreman’s evidence included the proposition that he had falsified documents to support his account. The trial judge did not go so far with the project manager, but he plainly found that what the project manager swore was said had not been said. Missing from the trial judge’s reasoning is any explanation of why, if the case were one of misunderstanding from Mr Sawyer’s perspective, the foreman and project manager of the head contractor would give such false evidence.

74    The need to keep in mind the cumulative effect of evidence is apparent, too, in the principles which govern the approach in cases concerned with circumstantial evidence, that is, where proof of a primary fact is pursued through the demonstration of a range of intermediate facts. It has been stressed often enough in that context that the fact-finding process is directed at the totality of the evidence and not to its individual strands. So in Chamberlain v The Queen (No 2) (1984) 153 CLR 521, Gibbs CJ and Mason J observed (at 535) that ‘in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it’. The appellant drew on that principle and referred us to two other decisions in which it has been applied: Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 and Nolan v Nolan [2004] VSCA 109.

75    The respondents submitted that the utility of these decisions in the present context was limited by the very fact that, unlike this case, they were circumstantial cases. In principle, we think this is correct. This case is not one involving circumstantial evidence. That having been said, however, it may be that the principles in play are not altogether dissimilar. In both kinds of case, the evidence has a probative value beyond merely the direct fact which it is elicited to prove. It is not necessary for us to decide whether some deeper principle may explain both situations. This case may be decided on the basis of Earthline without resort to authorities concerned with circumstantial evidence.

76    The respondents also submitted that it would have been incorrect for the trial judge to have considered the corroborative effect that each witness’ testimony had on the others. It was submitted that such a case would have involved coincidence evidence and this, in turn, would have engaged Part 3.6 of the Evidence Act. Section 98(1) (which is contained in Part 3.6) provides:

98 The coincidence rule

(1)    Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a)    the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)    the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

77    Of course, the evidence here in question was admissible and directly relevant to what Mr Bell had said (because the occurrence of the impugned statements was a fact in issue in either the coercion or discrimination cases). Section 98(1) is not outflanked, however, merely because evidence to which it otherwise applies has some other non-coincidence relevance. This is because of s 95(1) which provides:

95 Use of evidence for other purposes

(1)    Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.

78    There is no substance in this point. The appellant did not pursue a case below on a coincidence or ‘similar fact’ basis. What was alleged was that the evidence of the foreman and the project manager as to what Mr Bell had said to them was direct evidence of the discrimination claims, that the evidence of Mr Sawyer as to what Mr Bell had said to him was direct evidence of the coercion claim and that the evidence of all three was circumstantial evidence of motive or intent on Mr Bell’s part. In addition, it is clear enough that, at trial, the appellant also claimed that the evidence of the foreman and the project manager as to what Mr Bell had said to them was circumstantial evidence supporting Mr Sawyer’s account of his conversation with Mr Bell.

79    On that circumstantial case, there were two competing hypotheses to explain the evidence. One, favoured by the trial judge, was that Mr Bell had said things not dissimilar to that alleged but sufficiently different not to involve a breach of the law; the other, favoured by the appellant, was that Mr Bell had a particular intent and that what he had said to Mr Sawyer, the foreman and the project manager was consistent with that intent. What is important is that there was no competing third hypothesis that the calls could be explained by coincidence. The appellant did not seek to negative such a case. Had Mr Bell alleged that the various calls were coincidental, then the appellant might then have needed to call in aid of such a proposition. But he did not and the appellant had no need of such a contention.

80    It is true that sometimes a circumstantial case will involve competing hypotheses, one of which is coincidence. This was the case in the prosecutions in R v Milat (Unreported, Supreme Court of New South Wales, Hunt CJ at CL, 5 September 1996) and Makin v Attorney-General of New South Wales [1984] AC 57. In both cases, there was an issue about coincidence: in the former, could it be coincidental that the escaping backpacker, Mr Onions (who could identify Mr Milat), just happened to be attacked near the Belanglo State Forest in a similar fashion to the other backpackers, or was it improbable that there were two people attacking backpackers in that place and in that way? In Makin, was it a coincidence that dead infants kept turning up in the gardens of houses in which the Makins had lived, or was it improbable that this was just bad luck on their account? In both cases, there was in play a hypothesis of coincidence. But this is not an inevitable feature of every circumstantial case. Often enough, coincidence is not one of the competing hypotheses. This was such a case.

81    It follows that Ground 1(d) of the appellants’ notice of appeal is made out.

Grounds Two and Seven: the totality of the evidence

82    The appellant also pursued an argument that its case was such a strong case that it was entitled to succeed in the Full Court. We reject this argument. There were a number of potential difficulties with the appellant’s case which makes it impossible for this Court to embrace that proposition. To begin with, the cross-examination of the foreman, which revealed that he had made an alteration to the log-sheet for the Tuesday (so that it included a reference to Mr Sawyer), is material which could justify not accepting his evidence. We do not say that it should, but plainly it was an important matter. Likewise, there are potential chronological difficulties with the project manager’s evidence: how could Exhibit J be a response to a telephone call on the Wednesday morning if it had been sent the day before? So too, the trial judge’s approach to Mr Sawyer’s history with unions as a reason for heightened sensitivity on his part may well be legitimate once the effect of corroboration is factored in. The answer to that question will, however, only be known after a trial.

83    There are other matters: Mr Sawyer’s acceptance that there had been no explicit threat in his telephone call with Mr Bell (although note this did not exclude a generalised threat); the friendly tone of the call (although note the appellant’s submission that a threat can be very effectively conveyed in a calm manner); various inconsistencies in Mr Sawyer’s account (such as whether a union audit was harassment and the date he was to commence work on the site); the failure by the foreman to record Mr Bell’s threat despite instructions to record conversations of that kind; and a similar failure by the project manager.

84    There are matters pointing in the opposite direction, too. For example, the trial judge’s treatment of both the foreman and the project manager was very much driven by the dates they nominated. But both were clear in their evidence that they were far from emphatic about the dates and there may be much to be said for the view that resolving the case by such a rigid approach to dates may be unrealistic given the three years which had passed between the events and the trial. So, too, his Honour’s discussion of the hypothetically innocent conversation that Mr Bell could have had with Mr Sawyer which included an observation that there would have been nothing untoward in Mr Bell observing that Bendigo would need to have at least one employee with the CFMEU before signing an EBA. There may real difficulties in reconciling that observation with Mr Bell’s confident evidence that he never discussed union membership with employers.

85    For these reasons, and possibly many others besides, this Court cannot definitely say what the outcome of those disparate matters should be.

86    Implicit in that conclusion is a rejection of the proposition that Mr Bell’s evidence was ‘unconvincing’ or ‘highly improbable’ (and hence that the trial judge’s acceptance of it was susceptible to appellate review under Fox v Percy (2003) 214 CLR 118). As the respondents submitted, Mr Bell was responsible for at least 70 sites in his area and spent a lot of time on the phone. It is not absurd that he might not remember the calls in question. In the same vein, we do not think that his evidence that he would not have said the matters he is alleged to have said because he had been trained not to do so is glaringly improbable. Despite his previous knowledge of Mr Sawyer, this evidence could still be accepted. Whether it is to be accepted is another matter but the threshold for saying it must be rejected has not been reached. We therefore reject Ground Two. For similar reasons we reject Ground Seven.

Ground Three: the appropriate evidentiary standard

87    Given the conclusions we have reached, there must be a retrial. This makes it strictly unnecessary to consider the remaining issues but, for completeness, we would make the following observations about this ground.

88    As we understood it, the submission was that the trial judge had misapplied s 140 of the Evidence Act in the following ways:

    the trial judge had failed to give any or any adequate consideration to the fact that the appellant’s case was supported by three witnesses, two of whom worked for the head contractor and had no apparent motive to lie;

    the trial judge erred in not taking into account the inherent improbability of Mr Bell’s evidence; and

    the trial judge erred because the matters of which Mr Bell was accused were not of such gravity that their occurrence was inherently unlikely.

89    We do not think that either of the first two points are related to s 140 of the Evidence Act or its application to the gravity of the matter alleged against Mr Bell. They are, instead, about a different topic, namely the matters pursued under Grounds One and Two. No issue about s 140 arises.

90    The third matter does raise an issue calling for consideration. Section 140 provides:

140 Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject matter of the proceeding; and

(c)    the gravity of the matters alleged.

91    The trial judge invoked s 140 in rejecting the evidence of Mr Sawyer, the foreman and the project manager: see [64], [85] and [88]. His Honour set the provision out at [15]. The manner in which he dealt with Mr Sawyer’s evidence in this regard is no different in principle to the manner in which he dealt with the foreman or the project manager’s evidence. We have set that out at [60] above.

92    His Honour’s conclusion was that the conduct alleged against Mr Bell was serious. As we apprehend the appellant’s argument, it is said that his Honour should also have taken into account the fact that the allegations were not so grave as to mean that their occurrence was inherently unlikely.

93    We cannot reconcile that submission with the text of s 140(2)(c). His Honour was required to take into account the gravity of the matters alleged, which he did. Section 140(2)(c) does not say that the trial judge had to have regard to the likelihood of their occurrence in view of the gravity of the matters alleged. No doubt his Honour could have taken that into account in his fact finding without committing error, but this was not required by s 140. It is true that s 140(2)(c) reflects ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct’: NEAT Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; [1992] HCA 66 at [2] per Mason CJ, Brennan, Deane and Gaudron JJ. That this is the philosophy underpinning s 140(2)(c), however, does not require that the question that is posed by that provision be replaced with one which is not.

94    We do not need to consider the second step in the argument, therefore, that the fact that there have been a number of cases where similar conduct has occurred in the past meant that the occurrence of what was alleged against Mr Bell was more likely. The argument, however, appears tenuous.

95    Finally, we do not think that the appellant’s argument that the trial judge failed to have adequate regard to the fact that the defence was based on Mr Bell’s usual practice has anything to do with s 140.

Ground Four: the Jones v Dunkel issue

96    It will be recalled that the foreman had given an account of two discussions at the Epsom site on the Tuesday with Mr Bell. Both discussions were alleged to have taken place in the presence of two CFMEU shop stewards. One of these shop stewards was from another site but one of them, a Mr Rankin, was from the Epsom site. Obviously Mr Rankin’s evidence could possibly have assisted in determining whether the foreman’s account of what Mr Bell had said was to be accepted or not. The trial judge dealt with the failure of either party to call the shop stewards as follows at [75]:

Neither Mr Rankin nor the shop steward from the other site was called to give evidence. No reason was given by either side for the failure to call them. There was no suggestion that [the appellant] had access to statements by them and had elected not to call them because their evidence would not have been favourable to [his] case. The question whether [the appellant] had a duty of fairness analogous to that of a prosecutor in a criminal trial, requiring the calling of all eyewitnesses to an incident, without selecting them on the basis of the favourability of their evidence to the prosecution case, was not addressed.

97    The trial judge considered therefore whether such an inference should be drawn against the appellant but his Honour did not consider whether such an inference should be drawn against Mr Bell and the CFMEU (although a submission to that effect was made to him). The various inferences which may be drawn under Jones v Dunkel all turn on unexplained failure to call a witness who is in a party’s camp. Here the critical questions are whether either of the shop stewards was in the camp of CFMEU and Mr Bell and whether the failure to call them was unexplained.

98    On the first issue the appellant submitted that the shop stewards were in the respondents’ camp although this was not developed. The respondents pointed to evidence of Mr Bell under cross-examination as follows:

Had you spoken, for example, to Mr Rankin, one of the, I think, shop stewards on site, or the shop steward on site, about Mr Sawyer? --- Not a conversation I can recall.

Yes? --- But I would have spoken to Mr Rankin in general about quite a few sub-contractors on that site, over the period of the job.

Yes. Because, essentially, he was your man on site?--- Well, not my man.

No, but the union --- The members’.

--- union’s man on site? --- The members’.

Members’? --- Yes.

Members’ man on site? --- The members’, yes.

99    The respondents did not expand on what this might signify. If it was intended to suggest that the CFMEU’s shop steward represented not the CFMEU but rather its members then, in the context of the present discussion, the distinction appears elusive. It was accepted in this Court that Mr Rankin could be assumed to be a member of the CFMEU (even though there was no direct evidence of this). It seems to us difficult to accept that the CFMEU shop steward would not be a person whom the CFMEU might ordinarily be expected to call if necessary. If there was some particular aspect of a shop steward’s relationship with a union that was apt to show that this was not so, there was no material to which our attention was drawn to make good that proposition. It is true that Mr Rankin was also an employee of Becon, but it was not a party to the litigation.

100    In Payne v Parker [1976] 1 NSWLR 191, Glass JA gave detailed consideration to the operation of the rule in Jones v Dunkel and specifically the issue of what the circumstances were in which it might be concluded that a party had an obligation to call a witness. At 201-202, in a passage cited with apparent approval by the learned author of Cross on Evidence (JD Heydon, LexisNexis Butterworths, 8th ed at [1215]), his Honour, having considered a number of authorities, deduced the following amongst a list of nine propositions:

(6)    Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.

(7)    The first condition is also described as existing where it would be natural for one party to produce the witness…, or the witness would be expected to be available to one party rather than the other…, or where the circumstances excuse one party from calling the witness, but require the other party to call him…, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him…, or where the witnesses’ knowledge may be regarded as the knowledge of one party rather than the other…, or where his absence should be regarded as adverse to the case of one party rather than the other…It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary…If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so…Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman…; his safety officer…; his accountant…; his treating doctor.

(References omitted.)

101    In principle, we accept that a union shop steward is, all other things being equal, a person in a relationship with his or her union sufficient, if necessary, to engage Jones v Dunkel.

102    However, in this case, Mr Rankin had retired. Where a witness has severed his or her relationship with a party, the degree to which the witness may be said to be in the camp of that party for Jones v Dunkel purposes will fluctuate with the circumstances and generally decline over time. This is because the rule in Jones v Dunkel is a principle founded in common sense: see Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [78]. In some cases, it will be easy to see the witness as equally available to both parties, which view of the world may lead to the conclusion that no inference should be drawn in relation to either. This is probably the best explanation for the result in Claremont Petroleum NL v Cummings (1992) 110 ALR 239 at 259 per Wilcox J; see also Adeels Palace Pty Ltd v Moubarack [2009] NSWCA 29 at [98]-[100] per Giles JA, Beazley and Campbell JJA agreeing. In other cases, an on-going relationship may continue which may lead to a different outcome.

103    The only evidence was that Mr Rankin had retired. Whilst he might be expected to be more sympathetic to Mr Bell and the CFMEU, we do not think that he remained perpetually their witness to call. In those circumstances, we do not accept that it would have been appropriate – on that evidence – to draw the inference against either side. On the other hand, there was no evidence explaining why the other shop steward could not have been called. It would have been open to the trial judge to draw an inference against the respondents, but it does not follow that his Honour erred by not doing so. The principle permits inferences which are already open to be drawn with greater confidence. How great that confidence will be in any given case will depend on the realities of the situation. In this case, the absent witness was in the respondents’ camp but came from a different site. His evidence would have been limited to what he could remember of two brief discussions some years before. We are not persuaded that evidence of that kind would have required, as opposed merely to permitting, the drawing of the inference.

Ground Five: the Browne v Dunn issue

104    The trial judge, it will be recalled, concluded that Mr Bell had not said to Mr Sawyer, during the telephone conversation which occurred on the Monday evening, either that he needed to have an EBA or that his men needed to belong to the union. His conclusion instead was that it was most likely that Mr Bell had said something quite lawful (that is, a legitimate proposal that Bendigo enter into an EBA with the CFMEU and the legally accurate observation that Bendigo needed to have at least one employee who was a member of the CFMEU in order for that to occur).

105    The acts of coercion which Mr Bell was said to have committed was an intentional wrong erected by s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth). It explicitly required that the person contravening it act ‘with intent to coerce another person, or with intent to apply undue pressure to another person’. In addition to finding that Mr Bell had not actually said the words which were alleged to be the act of coercion, the trial judge also went on to find that Mr Bell had not intended to coerce Mr Sawyer either: at [65]-[68].

106    The appellant submits that the trial judge’s process of reasoning which led him to that conclusion was erroneous. Having concluded that the conversation had not occurred as alleged by Mr Sawyer (at [64]), the trial judge went on to say this (at [68]):

More importantly, Mr Bell gave evidence. He was cross-examined by senior counsel for [the appellant]. He was not asked any question concerning intent. The only submission that was made was to the same effect as the particulars referred to in [67] above, that the existence of intent (which one was not specified) could be inferred from the circumstances, and from what Mr Bell is alleged to have said in other conversations.

107    Having then referred to authorities (including Browne v Dunn) establishing the need for witnesses to be confronted squarely with the subject matter of a proposed adverse finding, the trial judge continued:

When senior counsel for [the appellant] has had the opportunity to address the question of intent directly in cross-examination, and has not taken that opportunity, I ought not to draw any inference against Mr Bell with respect to his intent.

108    The appellant contends that this involved an inflexible application of the rule in Browne v Dunn because there was no real issue about the question of intent at the trial and because the rule does not require matters not in issue to be put to a witness.

109    We have concluded above that the trial judge’s process of reasoning as to whether the coercion conversations occurred miscarried. This would not justify a retrial if his Honour’s conclusions on intention were permitted to stand, for the appellant was required to succeed on both points at trial and reversal by this Court of the appellant’s failure to prove the words were said would not entitle him to success if the finding that there was no intent was not also reversed.

110    In our opinion, the appellant is entitled to succeed on this point. The trial was not conducted on the basis that intention was in issue. The nature of the defence was that Mr Bell denied saying the words attributed to him because he knew very well that such statements were unlawful and that he had been trained not to say them. If that case were rejected there could be no issue about intention because, ex-hypothesi, Mr Bell would have departed from his usual practice and would have said words known to him to be contrary to his training and the law. There was no necessity in that circumstance to put to Mr Bell that, if he had said the matters attributed to him, he was intending to coerce Mr Sawyer.

Disposition of appeal

111    The omission of the trial judge to consider the corroborative effect upon each other’s testimony of the evidence of Mr Sawyer, the foreman and the project manager means there must be a retrial. A substantial part of the strength of its case has been overlooked and must be bought to account in the fact finding process. Ground Five should also succeed. The appeal must therefore be allowed with costs. Orders One and Two made by the trial judge on 6 February 2012 must be set aside and there must be a new trial on all issues. Given the nature of the findings made by the trial judge, the matter should be heard by a new judge. The costs of the proceedings before the trial judge should abide the outcome of the new trial.

112    On the hearing of the appeal the appellant sought, and was granted, leave to amend his notice of appeal but the question of the costs in that regard was reserved. Both parties should file any submissions on that topic, not more than two pages in length, within 7 days hereof.

Associate:

Dated:    6 February 2013

REASONS FOR JUDGMENT

BROMBERG J

113    Jason Bell was an organiser with the first respondent (“the CFMEU”). For some seven years prior to giving his evidence to the primary judge, Bell had responsibility for organising a very large region in north-west Victoria. His duties involved persuading employers to enter into industrial agreements (colloquially referred to as “EBAs”) with the CFMEU and persuading employees to join and maintain their membership of that union. Whilst he would have liked all employers to have EBAs with the CFMEU, Bell’s experience was that the CFMEU’s capacity to successfully organise in regional Victoria was very different to its capacity in “the city”. At Becon Construction’s Epsom site, there were many employers without an EBA. Bell was not happy about that but he accepted that that’s how it was.

114    This appeal is concerned with the interaction between Bell and the principal (“Robert Sawyer”) of a sub-contractor (Bendigo Scaffolding Pty Ltd), that Becon wanted to use at the Epsom site. The only claim which remains in play on this appeal is whether in a telephone conversation between Bell and Sawyer on 23 June 2008, Bell threatened to take action with intent to coerce or apply undue pressure upon Bendigo Scaffolding to make a “building agreement” pursuant to Part 8 of what was then called the Workplace Relations Act 1996 (Cth). If Bell did that, his conduct would have contravened s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”).

115    Beyond the claim of a threat of coercion, there was another allegation pursued before the primary judge which needs to be identified. That claim concerned an alleged contravention by Bell and the CFMEU of s 45 of the BCII Act which prohibits specified discriminatory conduct. The primary focus of the coercion case was the conversation between Bell and Sawyer. The discrimination case was primarily focused upon what Bell had said to staff of Becon. In that respect, there were three relevant conversations between Bell and Becon’s Site Foreman, Peter Vagg, and one relevant conversation between Bell and Becon’s Project Manager Geoffrey Bongartz.

116    By ground one of its appeal, the appellant (“the FWBII”) contended that in rejecting the claim of coercion, the primary judge erred by failing to take into account the corroborative effect of the testimony of each of Sawyer, Vagg and Bongartz given about their five conversations with Bell. The primary judge fell into error, so the FWBII contended, because he adopted a compartmentalised approach when assessing what was said in each conversation and thus assessed each conversation in isolation and without regard to the cumulative effect of the evidence relied upon by the FWBII as to what Bell had said in the five conversations. There is no issue that whilst three of those conversations were primarily directed to the discrimination claim, FWBII had relied on all five conversations to support the coercion claim.

117    To establish its claim of coercion, FWBII needed to establish that Bell had communicated a threat to Sawyer with intent to coerce or apply pressure upon Bendigo Scaffolding to make an EBA with the CFMEU. It was perfectly legitimate for Bell to propose to an employer that it make an EBA with the CFMEU. Persuasion is not prohibited by s 44(1) of the BCII Act, but coercion is. For FWBII to have succeeded, much depended upon whether (to the standard of satisfaction required by s 140(1) of the Evidence Act 1995 (Cth)), the primary judge could be satisfied that a threat to take action accompanied any proposal made by Bell that Bendigo Scaffolding make an EBA with the CFMEU. The allegation made by FWBII was that the threat made by Bell was contained in words conveyed by Bell to Sawyer to the effect that Bendigo Scaffolding would not start on the Epsom site unless it had an EBA with the CFMEU. Whether such a threat was communicated was to be assessed objectively and largely depended upon the words used by Bell. The primary judge therefore had to make a finding as to what Bell had said to Sawyer. What Bell had said to Vagg and Bongartz in other conversations on the same or similar topic was capable of shedding some light on what Bell may have said to Sawyer. That evidence was capable of being corroborative of either Bell’s account or Sawyer’s account of what Bell had said to Sawyer, because it may have rendered one or other of those accounts “more probable”: Doney v The Queen (1990) 171 CLR 207 at 211.

118    Sawyer, Vagg and Bongartz each gave evidence (at least in chief) that in their respective conversations with Bell, Bell said words to the effect that Bendigo Scaffolding would not be starting on the Epsom site without an EBA.

119    Bell was both examined and cross-examined in relation to what he had said in each of the five conversations. He had no specific recollection of any of the conversations (held many years earlier) but unconditionally and unequivocally denied that he had said that Bendigo Scaffolding had to have an EBA (or words to that effect) in any of the five conversations. Bell’s evidence was that it was his strict practice never to tell employers that they had to have an EBA with the CFMEU. He justified that practice by reference to his understanding, through the training which he had received, that it was unlawful to make such a demand. He also relied upon his perception that he lacked the industrial clout necessary to support the making of any such demand. His approach to winning over employers was to try and build a relationship with them. He agreed that he had held a particular concern about Bendigo Scaffolding because of his view that it had a history of failing to properly pay employee entitlements. When pressed in cross-examination about how he would usually deal with such a situation, he said that such a situation was not uncommon and that he would likely speak to the head contractor and from time to time the sub-contractor in relation to whom he held the concern. He denied that in the context of such a concern he would even possibly depart from his practice. No matter how heated the situation, Bell’s evidence was that he does not say “you must have an EBA”.

120    The primary judge accepted Bell’s evidence of his practice not to demand that employers must make EBAs with the CFMEU and that Bell did not depart from that practice in his conversations with Sawyer, Vagg or Bongartz.

121    In relation to each conversation, the primary judge’s reasons include findings particular to that conversation which help to explain why the primary judge preferred the evidence of Bell. Thus, in relation to the conversation with Sawyer, the primary judge considered that in some respects the manner in which Sawyer gave evidence was evasive; the reliability of Sawyer’s evidence of the conversation was diminished by Sawyer’s hostility to unions and Sawyer’s erroneous view that the conversation lasted only a minute or so when its actual length was over nine minutes; and, that Sawyer’s evidence was inconsistent with the notion that the conversation contained a threat. Sawyer had conceded that the conversation was friendly, conversational, was to be followed up by an agreed meeting over a coffee and that “[a]t no time in that telephone conversation did Mr Bell make any threat to do anything…”.

122    In relation to the three conversations between Bell and Vagg, the reliability of Vagg’s testimony was considered by the primary judge to have been damaged by Vagg’s erroneous evidence that the second and third conversations occurred on a day when Bell and Sawyer were both on the site and were seen by him together immediately prior to the second conversation. The evidence of both Bell and Sawyer was that they had never met and other evidence confirmed that they could not have met on site on either of the days nominated by Vagg. Further, Vagg’s evidence was that the first conversation (by telephone) occurred subsequently to the second and third face to face conversations, when telephone records made it apparent that the telephone conversation must have been the conversation first in time and on the previous day. Lastly and perhaps most tellingly, there was evidence which led the primary judge to find that Vagg had falsified his written daily report to make the report consistent with what the primary judge regarded to be Vagg’s “reconstruction”.

123    In relation to the conversation between Bell and Bongartz, the reliability of Bongartz’s evidence was rejected including because of his mistaken evidence as to when the telephone call occurred and the possible motivation for it. The internal difficulties in Bongartz’s evidence have been dealt with in more detail in the reasons for judgment of Besanko and Perram JJ at [37] to [47]. The primary judge also relied upon a concession made by Bongartz in cross-examination. That concession referred to by the primary judge at [82], suggested that the conversation had not included a statement from Bell to the effect that Bendigo Constructions had to have an EBA.

124    I accept that the evidence of Sawyer, Vagg and Bongartz was capable of corroborating the evidence each gave that Bell had said words to the effect that Bendigo Scaffolding would not be starting on the Epsom site without an EBA. That evidence was, in each case, at least relevant and admissible to Bell’s state of mind as to whether Bendigo Scaffolding’s presence on the Epsom site was to be registered unless it had an EBA. However, I am unable to accept the proposition that the cumulative effect of that evidence was not considered by the primary judge.

125    The sequential way in which the primary judge ordered his reasons for judgment, does not suggest that the primary judge determined what was said in one conversation in isolation from what was said in other conversations. In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1, it was contended that the Refugee Review Tribunal had adopted a flawed approach in its evaluation of the evidence by failing to assess the evidence of the appellant in the light of the corroborating evidence of another witness. As Gleeson CJ noted at [12], the essence of the complaint was that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration and then considered and rejected the corroboration because of the rejection of the evidence of the appellant. The criticism made was based upon the manner in which the Tribunal expressed its reasons. Gleeson CJ rejected the criticism. His Honour relevantly said:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

That observation was recently followed by Nicholas, Yates and Griffiths JJ in Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43].

126    Further, whilst the primary judge’s reasons for judgment dealt with each conversation sequentially, there is one central and uniform finding made by the primary judge which applied to all five conversations. It was not a finding that could rationally have been made about a single incident in isolation because it was a finding about conduct along a continuum. As I have said, the primary judge accepted Bell’s evidence that he had a practice of not demanding that employers make an EBA with the CFMEU and had not departed from that practice. The evidence of Sawyer, Vagg and Bongartz upon which FWBII relied, directly challenged that evidence by asserting that Bell had made a demand for an EBA on five occasions within three days. In that context, the fact that Bell’s word was pitted against the collective word of Sawyer, Vagg and Bongartz could not possibly have been lost on the primary judge when he concluded that Bell’s evidence of his practice was to be preferred.

127    The case was not run in a compartmentalised fashion. Bell was challenged as to whether he had departed from his practice by reference to each of the accounts given by Sawyer, Vagg and Bongartz. The reasons of the primary judge address that cross-examination at [44] and [45] including by reference to Bell’s evidence given in response to the accounts given by Sawyer, Vagg and Bongartz that Bell had effectively said “[n]o EBA, no union membership, no start”. When the primary judge ultimately expressed his conclusion at [64], that the conversation between Bell and Sawyer did not involve a contravention of s 44, he did so “[o]n the evidence in this case” and including because he was “not prepared to find that Mr Bell departed from his usual practice in relation to conversations with employers…” (emphasis added). In rejecting the proposition that Bell intended to coerce Bendigo Scaffolding, the reasons at [67] expressly refer to the conversations between Bell and Vagg and Bell and Bongartz.

128    A careful reading of the primary judge’s reasons for judgment does not support the appellant’s proposition that the primary judge’s approach was compartmentalised. The central finding made by the primary judge transcended all five conversations and provided a common thread in relation to which the relevance of the evidence of each of the five conversations and the potential for corroboration was inescapable. Before the primary judge, no party contended to the contrary (the CFMEU accepted that the content of all five conversations were relevant to the question of what Bell had said to Sawyer) and this Court should be slow to conclude that the primary judge failed to appreciate what must have been obvious. The primary judge’s reasons do not suggest that he did.

129    For those reasons, I would reject ground one of FWBII’s appeal.

130    Relying upon grounds two and seven of its appeal, FWBII contended that, given the totality of the evidence, the primary judge’s findings of fact should not be permitted to stand. That submission relied upon the premise that the primary judge adopted an erroneous approach to the fact finding task thereby misusing his advantage and making his findings susceptible to appellate review by reference to the principles outlined in Fox v Percy (2003) 214 CLR 118 at [28]-[31].

131    Having already rejected the premise upon which this contention depends, it follows that this submission must also fail.

132    The strength of FWBII’s case was dependant upon whether the evidence given by its primary witnesses was accepted. It was not. In that context the decision reached at trial was not “glaringly improbable” or “contrary to compelling inferences in the case”: Fox v Percy at [29].

133    Relying upon the rule in Browne v Dunn, the primary judge determined that in circumstances where Bell was not cross-examined as to whether he held an intention to coerce or apply undue pressure upon Bendigo Scaffolding, no adverse inference should be drawn against Bell with respect to his intent.

134    By appeal ground five, FWBII contended that the primary judge’s application of the rule in Browne v Dunn miscarried. I agree that it did. The rule in Browne v Dunn is a practical rule about fairness. It was pointless for Bell to have been cross-examined about the intent that he held in relation to conduct which he had denied engaging in. Once Bell denied making a threat it was not necessary, as a matter of fairness to Bell, for the FWBII to have challenged Bell as to his intent.

135    My view that FWBII is entitled to succeed on this point does not justify a retrial for two reasons. First, I have rejected FWBII’s challenge to the primary judge’s finding that no threat was made. FWBII needed to succeed on both conduct and intent to justify the orders it seeks. Second, the primary judge’s reasons based on Browne v Dunn had no effect on the disposition of the proceeding before him. In relation to Bell’s intent, the grounds relied upon by FWBII before the primary judge, were dependent upon FWBII establishing that a threat was made and, further and in the alternative, acceptance of the evidence of Vagg and Bongartz as to their conversations with Bell. The primary judge rejected each of those grounds in a manner untainted by his Honour’s application of the rule in Browne v Dunn.

136    For the reasons given by Besanko and Perram JJ I reject appeal grounds three and four.

137    In my view, the appeal should be dismissed with costs.

Associate:

Dated:    6 February 2013