Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Monash Freeway Widening Case) [2022] FCAFC 59

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders in paragraphs 1 and 2 of the orders made by the primary judge on 14 September 2021 are set aside and, in lieu thereof, there be the following orders:

(a)    the Construction, Forestry, Maritime, Mining and Energy Union pay pecuniary penalties of $21,600; and

(b)    Mr James Simpson pay pecuniary penalties of $3,240.

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

REASONS FOR JUDGMENT

THE COURT

1    The second appellant, Mr James Simpson, is an employed official of the first appellant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Mr Simpson is a permit holder for the purposes of Pt 3-4 of the Fair Work Act 2009 (Cth) (FW Act). As a permit holder, Mr Simpson may exercise rights conferred or recognised under Pt 3-4, including the right to enter premises for specified purposes.

2    Section 500 of the FW Act is a civil remedy provision. It provides that a permit holder exercising, or seeking to exercise, rights in accordance with Pt 3-4 must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

3    The Australian Building and Construction Commissioner commenced proceedings in this Court for the imposition of pecuniary penalties on Mr Simpson for four alleged contraventions of s 500 of the FW Act arising out of his attendance at a construction site for the expansion of the Monash Freeway in south-east Melbourne on 9 May 2017. Among other things, the Commissioner alleged that Mr Simpson acted in an improper manner by “physically pushing aside and/or pushing past” Mr Matthew Inkster (a project manager at the site) in an incident referred to as the “Gate 3 Incident”. Relevantly, the Commissioner alleged that the CFMMEU was involved in Mr Simpson’s contravention and therefore liable as an accessory by the combined operation of s 550 and s 793 the FW Act.

4    The issues of liability and penalty were tried separately. On 2 December 2020 the primary judge published findings relevantly to the effect that Mr Simpson and the CFMMEU had contravened s 500 of the FW Act on each of the four occasions as alleged:  Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) [2020] FCA 1727. By orders made on 14 September 2021 the primary judge imposed pecuniary penalties on Mr Simpson and the CFMMEU in respect of the four contraventions totalling $7,290.00 and $47,250.00 respectively:  Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101 (Penalty Reasons). For the purpose of imposing the penalty, the primary judge characterised Mr Simpson’s conduct as “deliberate” and concluded that (Penalty Reasons at [45]):

…  He intended to proceed beyond Inkster’s position and applied physical contact to force his way to that end. It was ‘more than incidental or unintended’. The penalties to be imposed must take account of that truth.

5    The CFMMEU and Mr Simpson appeal from the judgments and orders to the extent that they are based the finding of contravention arising out of the Gate 3 Incident.

6    For the reasons that follow, we have concluded that the factual findings upon which Mr Simpson’s liability was founded in respect of the Gate 3 Incident are affected by appealable error. Making proper allowance for relevant advantages of the primary judge in hearing and seeing the witnesses give evidence at the trial, we have concluded that the Commissioner’s case in respect of the Gate 3 Incident was not proven to the requisite standard.

7    It follows that the appeal should be allowed. The orders imposing penalties will be substituted with orders for lesser penalties to reflect that conclusion.

GROUNDS OF APPEAL

8    At trial, there were three witnesses to the Gate 3 Incident:  Mr Simpson, Mr Inkster and Mr Gordon Langley, the General Superintendent for the construction project. The first ground of appeal alleges error in the assessment of their evidence as follows:

1.    The Primary Judge erred by finding in respect of the Gate 3 incident that:

a.    Simpson pushed Inkster (LJ313 and LJ322);

b.    contact was made and that it was more than incidental or unintended (LJ313);

and

c.    Simpson’s conduct was deliberate and intentional (PJ45),

where such findings could not be supported by the evidence.

Particulars

(a)    The Primary Judge preferred the evidence of the Commissioner’s witnesses, Inkster and Langley, when it was not reasonably open to him on the evidence to do so;

(b)    Contrary to the findings of the Primary Judge, the evidence of the Commissioner’s witnesses, Inkster and Langley, were inexplicably and intractably inconsistent as to the number of times and how Inkster was alleged to have been pushed, and where Langley was located at the time of the alleged push or pushes;

(c)    Inkster made no reference to Simpson pushing him in any of the four documents he created concerning Simpson’s conduct the subject of the alleged contravention;

(d)    Langley’s evidence (in respect of the conduct the subject of the alleged contravention and more broadly) was demonstrably unreliable and lacking in credibility;

(e)    The learned Primary Judge failed to properly apply the burden of proof by reference to s 140(2) of the Evidence Act 1995 (Cth) and, in particular, the strength of the evidence required to make the relevant findings against Simpson.

9    The second ground of appeal alleges a consequential error in the assessment of penalties. It is not disputed that if the first ground is established, the orders imposing penalties should be substituted with orders that the CFMMEU and Mr Simpson pay pecuniary penalties totalling $21,600 and $3,240 respectively.

10    In respect of penalties, the appellants seek to challenge the finding that any contact was “more than incidental or unintended”. There is some controversy as to whether it was open to the appellants to advance such an argument in light of a concession said to have been made by them at first instance, and given their denial that there was any physical contact at all.

THE commissioner’s case at TRIAL

11    The Commissioner’s pleaded case in respect of the Gate 3 Incident was that:

45.    During the 9 May 2017 Entry:

(a)    When Simpson had finished checking the exclusion zone at the Gate 3 Site (as set out in sub-paragraph (d) of the particulars to paragraph 43 above), Simpson returned to the car parked in the Gate 3 Site and proceeded to walk in a westerly direction.

(b)    Inkster said words to the effect ‘James you have to stop. You are leaving Gate 3 and that’s what your Safety contravention applies to.’

(c)    Inkster stood in front of Simpson and said words to the effect ‘stop and get back in the car.’

(d)    Simpson physically pushed Inkster aside and/or physically pushed past Inkster, and continued to walk in a westerly direction.

(e)    Inkster stood in front of Simpson on two further occasions and on each occasion Simpson physically pushed Inkster aside and/or physically pushed past Inkster and continued walking.

(f)    Simpson proceeded to measure the distance between the barriers and the bollards in the Gate 3 to Gate 26 corridor, walking around live works and moving plant. Inkster and Langley followed Simpson in a vehicle.

(g)    At approximately 12:00pm, Simpson returned to the vehicle in which Inkster and Langley were sitting.

(h)    Inkster, Langley and Simpson then travelled back to the Belgrave-Hallam Road Compound.

46.    During the Second 9 May 2017 Entry, Simpson acted in an improper manner, within the meaning of section 500 of the FW Act.

Particulars

Simpson acted in an improper manner by physically pushing Inkster aside and/or physically pushing past Inkster on three occasions, as set out in subparagraphs 45(d) and (e) above.

12    Two observations may be made. First, the allegation of contravention was founded on three instances of physical contact. Second, the phrase “physically pushed Inkster aside and/or physically pushed past Inkster” appears to advance two alternate forms of contact, the first being potentially more serious. On this appeal it was submitted that a finding that a permit holder had physically pushed a person aside would necessarily include a finding of physical contact accompanied by deliberate intent, whereas a finding that a permit holder “pushed past” another might occur either negligently or recklessly. We will return to that topic in due course. As it transpires, the Commissioner’s lack of commitment to one or other form of contact in the pleading is a reflection of some discordance between the accounts of the Commissioner’s witnesses as to what in fact occurred.

REASONS OF THE PRIMARY JUDGE

13    The uncontested background facts may be summarised as follows.

14    The project for the expansion of the Monash Freeway was undertaken by Fulton Hogan Construction Pty Limited as the principal contractor for the works. The works included the creation of additional lanes for vehicular traffic, specifically between Warrigal and Koo Wee Rup Roads. The project site ran for some distance along the length of the freeway and was divided into multiple work locations, accessible via numbered gates.

15    In performing the construction works, Fulton Hogan had safety buffer areas (known as exclusion zones) installed, to protect construction workers from traffic and other safety hazards in the vicinity of the works. The exclusion zones were cordoned off by crash barriers and bollards defining “no go” buffer areas between work areas and traffic areas.

16    Mr Inkster and Mr Langley were each employed by Fulton Hogan and held senior positions of responsibility for the conduct of the works.

17    As has been mentioned, Mr Simpson held a permit under the FW Act. So too did his colleague Mr Peter Clark, also an officer and employee of the CFMMEU. An official must hold a permit under the FW Act in order to exercise a “State or Territory OHS right”:  FW Act, s 494(1). Section 87 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) confers a right meeting the description of a “State or territory OHS right”, namely a right to enter premises to investigate a contravention of its terms. Immediately upon entering a premises in the exercise of that right, the official must give a written notice in approved form including a description of the suspected contravention:  OHS Act, s 88.

18    Prior to the Gate 3 Incident both Mr Simpson and Mr Clark (individually and together) had attended the project site on other occasions giving rise to other allegations of contravention not directly forming the subject of this appeal. It was Mr Simpson’s evidence that the previous visits gave rise to a suspicion that the exclusion zones behind the crash barriers were not large enough to protect the safety of workers.

19    On 9 May 2017 Mr Simpson attended at Fulton Hogan’s project office where he was met by Mr Inkster and Mr Langley. Mr Simpson said that he wanted to inspect all exclusion zones throughout the project. Mr Inkster told Mr Simpson that he must first identify the particular work areas he wished to inspect and then show that he had formed a reasonable suspicion of contravention in relation to each of them. Mr Simpson then issued Mr Inkster with a notice under or purportedly under s 88 of the OHS Act relating to a work site at Gate 24, where a truck accident had occurred a few days prior. By that notice, Mr Simpson asserted that the no go area behind the crash barriers was not wide enough to meet “manufacturers/engineers specifications”. Mr Inkster, Mr Simpson and Mr Langley then drove to the Gate 24 site which Mr Simpson proceeded to measure. Mr Simpson then proceeded beyond the Gate 24 site and into an area at Gate 26 that was not the subject of the s 88 notice. The trio then returned to the project office. The next uncontested exchange is summarised by the primary judge as follows (at [37]):

Upon their return to the Project office, Simpson told Inkster that he wished to inspect the exclusion zones at ‘gate 22’. Inkster informed him that there were no exclusion zones at that location because nobody was working there. Simpson then indicated that he wished to inspect the exclusion zones at ‘gate 20’ and ‘gate 18’, apparently unaware that no such areas existed. Ultimately, Simpson fixed upon a gate that did exist:  gate 3. He wrote up another ‘NOTICE OF SUSPECTED CONTRAVENTION’ document pertaining to that location in terms materially identical to the document prepared in respect of the Gate 24 Site.

20    Mr Simpson, Mr Langley and Mr Inkster then drove to the Gate 3 site and Mr Simpson proceeded to measure the no go area there.

21    The Commissioner’s case as to what happened next is alleged in the pleading extracted earlier in these reasons. The primary judge summarised the Commissioner’s case at [74] as follows:

…

(1)    upon arrival at that area, Simpson proceeded (as he had sought to) to measure the exclusion (or ‘no-go’) zones behind the crash barriers in place within the Gate 3 Site;

(2)    as he proceeded city-bound along them, he came to the outer limits of that site;

(3)    at that point, Inkster requested that Simpson stop, as he had not given notice of any suspected occupational health and safety breach pertaining to any work area beyond the Gate 3 Site;

(4)    Simpson did not stop, prompting Inkster to walk in front of him and gesture with his hands raised that he (Simpson) had to stop;

(5)    Simpson ignored Inkster’s direction, walked around him and continued heading in a city-bound direction;

(6)    Inkster again made his way in front of Simpson, and again gestured and told him to stop;

(7)    Simpson ignored Inkster a second time and continued his procession along the crash barrier exclusion (or ‘no-go’) zone;

(8)    Inkster then, for a third time, positioned himself in front of Simpson, and gestured and told him that he could not proceed;

(9)    Simpson again ignored Inkster and, as he passed for a third time, pushed him, causing Inkster to stumble and fall.

22    That summary is not in accordance with the Commissioner’s pleaded case, which alleged that physical contact occurred on each of the three occasions that Mr Inkster positioned himself in front of Mr Simpson.

23    In respect of the witnesses who gave evidence at the trial, the primary judge made the following general observations:

83.    As might be expected in a matter such as this, where there are issues that turn largely upon which recitation of the facts the court prefers, both sides advanced submissions about the credit of the other’s witnesses, the quality of the evidence that they gave and why the evidence of their own witnesses should be preferred.

84.    It is not necessary that I should embark, at the outset, upon a detailed analysis as to why I have accepted certain parts of the evidence in preference to others. It is, however, appropriate to record at this juncture a general observation about the witnesses from whom oral evidence was received. With minimal exception, all of them impressed as honest and truthful. Although I have rejected, as I have had to, some aspects of the evidence of some witnesses, there is only one respect in which I have considered that evidence was embellished. For the most part, I attribute the evidential conflicts that arose in this matter to imprecise or imperfect recollections, rather than to any want of diligence or candour.

24    As explained below, the reference to there being one respect in which evidence was embellished is a reference to a particular aspect of the evidence given by Mr Simpson.

25    The primary judge summarised the evidence of the three witnesses at [299] – [312]. The summary of Mr Inkster’s evidence is as follows:

299    Inkster told the court that, after taking Simpson out to the Gate 24 Site, he, Langley and Simpson drove back to Fulton Hogan’s nearby Belgrave-Hallam Road Project office. Whilst there, Simpson indicated that he wished to check the exclusion (or ‘no-go’) zones throughout other areas of the Project. After nominating a number of areas that didn’t exist, he happened upon ‘gate 3’, which did. He wrote out a notice of suspected contravention under s 88 of the OHS Act pertaining to that gate, whereupon he, Inkster and Langley drove out to that site.

300    Upon arrival at the Gate 3 Site, Simpson began to check that the exclusion zones behind the crash barriers in place there were of a suitable depth. He proceeded in a city-bound direction, checking the bollards that marked out the exclusion zones as he went. Langley and Inkster followed him a few metres behind.

301    As had occurred earlier at the Gate 24 Site, Simpson eventually came to the limits of the Gate 3 Site. The crash barriers (and the exclusion zones adjacent to them) continued beyond that boundary into the next work site. As he had done at the Gate 24 Site, Simpson sought to continue to check the depth of the exclusion zones beyond the limits of the site that was the subject of the notice that he had issued under s 88 of the OHS Act.

302    It was at that point that Inkster stepped in and attempted to stop him. He told Simpson, ‘You can’t leave this area’. He walked from his position a few metres behind Simpson to a position immediately in front of him. With his hands raised so as to signal to Simpson that he should stop progressing along the crash barriers, he said ‘James, you can’t keep walking up the worksite. The safety notice doesn’t allow for you to go there.’

303    According to Inkster, Simpson responded, ‘No, I’m going to keep going [and] I want to continue and check the bollards up there’ (apparently referring to an area beyond the limits of the Gate 3 Site). He walked passed Inkster and kept progressing along the crash barriers. Inkster told the court that he again ‘chased’ Simpson, walked around him and said, ‘You’ve got to keep – you can’t keep walking up the worksite. You’ve got to stop. You’re not following a direction.’

304    Inkster told the court that Simpson, apparently undeterred, walked around him again and continued to progress along the crash barriers. Inkster then went around him a third time and said, again, ‘James, you’ve got to stop.’ His evidence continued:

At that point in time, James pushed past me with his arm. I stumbled and fell into, like, a pile of dirt, if you will.

305    Under cross-examination, Inkster said that, in response to Simpson’s attempt to venture beyond the limits of the Gate 3 Site, he said to Simpson, ‘James, your safety notice relates specifically to gate 3. You can’t just wander off through the work site. Okay? We’ve checked gate 3. There’s no issues. Get back in the car.’ He told the court that, at the point that Simpson made contact with him, Langley was approximately 10, perhaps 20, metres away. It was put to him that Langley was in his vehicle at the time, which Inkster denied.

306    Inkster accepted that he did not make any mention of Simpson’s having physically pushed him at the Gate 3 Site in any documents that he subsequently prepared in relation to Simpson’s visit to the Project on 9 May 2017. There were four such documents. The first was a file note in which he recorded the events of that day. The second and third were emails that were sent that afternoon to various Fulton Hogan management representatives. The fourth was an internal Fulton Hogan record entitled ‘Right of Entry Checklist’. I will return to those documents momentarily.

26    The four documents to which his Honour referred are before us on the appeal.

27    The first email was sent on 4:04pm on the day of the incident by Mr Inkster, apparently to colleagues at Fulton Hogan, with the subject “today’s antics”. It states:

Hi all,

Gordon and I had the pleasure of having the Union on Site all day today. They wanted to look at exclusion zones behind the barriers along the entire alignment.

We refused access as much as possible, however we did end up taking James Simpson down to Gate 24 to review exclusion zones in the area, due to the accident last week.

I would like to point out that the area was in immaculate condition, with exclusion zones all compliant, clearly marked, clear of all debris/materials and flagged off where required. It really provided the Union with nothing to complain about.

Great job Matt Boothey and the Area 2 team.

Cheers,

28    About 10 minutes later, Mr Inkster forwarded that email to two further recipients (apparently by way of report to more senior colleagues), adding the following:

FYI – I will still be submitting a report to ABCC on today’s visit, as ‘Simmo’ refused to follow direction whilst on site, trespassed through areas that were not part of his Safety Notice, walked unescorted around site and attempted to issue me with multiple Safety notices to walk through the entire project. After consultation with Worksafe they advised that if I felt that Simmo was just ‘fishing’ for issues whilst on site, then I could refuse to accept his Safety notice as being not genuine/reasonable. I did this after we reviewed the exclusion zones as per below. Simmo left site and has not been seen since.

I will provide a full report tomorrow.

I am meeting with the ABCC here at Monash on Thursday to provide a statement regarding Simmo’s activities on during the crane lift on Saturday 29 April. I will discuss todays antics with them also.

Happy to discuss further if required.

Cheers,

29    The “file note” is an undated statement prepared by Mr Inkster entitled “Matthew Inkster statement – James Simpson ROE Breach 9 May 2017”. The date of the preparation of the document was not the subject of evidence given by Mr Inkster or any other witness. The date on which it was prepared is not otherwise apparent on the face of the document, other than to observe that it is marked in a way that suggests it might previously have formed an annexure to another document that is not in evidence. The statement takes the form of a chronology of events commencing at 7.44am and ending at 2pm. It includes the following entry:

9:15am – GL and MI escorted James to Gate 3 to inspect barrier exclusion zones. James got out of the car and started measuring the bollards again. Once he finished with gate 3 (and found no issues) he then again proceeded to walk up past the area into a different work zone. I again asked James to stop as he was leaving Gate 3 which was specific to his Safety contravention. I stood in front of James and asked him to stop and to get back into the car, he pushed past me and continued walking up the project corridor.

30    Mr Inkster completed a pro-forma document titled “Right of Entry Checklist”. It is signed and dated 9 May 2017. The form contains a number of check boxes corresponding to provisions of the FW Act. Its apparent purpose is to assist Fulton Hogan employees to assess requests for access to the site by Union officials. In the “Notes” section of the form, Mr Inkster wrote the following:

CFMEU JAMES SIMPSON ATTENDED SITE TO INSPECT BARRIERS. WHILST AT SITE JAMES SIMPSON REFUSED TO FOLLOW DIRECTION OR FOLLOW SITE SAFETY PROTOCOLS. WORKSAFE WERE CONTACTED. MATT INKSTAR REFUSED TO ACCEPT FURTHER SAFETY NOTICES FROM JAMES. ABCC WERE NOTIFIED.

31    The primary judge commented that the appellants had made much of the fact that Mr Inkster had not recorded in the documents a reference to Mr Simpson pushing him. His Honour said this of the first three documents (at [317]):

The two emails contained nothing more than a summary statement of ‘the Union’ having visited ‘the Site’ and Inkster’s intention to discuss what occurred with the Commissioner’s staff (in the context of a meeting that appears to have been scheduled or at least in contemplation). The file note did not squarely record that Simpson had physically pushed Inkster; but Inkster did record that Simpson ‘pushed past [him]’. The ‘Right of Entry Checklist’ document, as its name suggests, recorded a series of yes/no questions concerning the statutory requirements that Simpson exercised or sought to exercise.  …

(original emphasis)

32    As to the checklist the primary judge said (at [318]):

Plainly, Inkster did not record in the checklist the physical interaction about which he gave evidence (and around which this aspect of the present matter revolves). I am not persuaded that much hangs on that. The checklist is, on its face, a document that is designed to assist Fulton Hogan managers in understanding when it is that permit holders are entitled to enter premises. Each of the questions that it poses touches upon a condition that a permit holder must satisfy in order validly to exercise a right in accordance with pt 3-4 of the FW Act. The document is split into sections, each pertaining to the different species of rights recognised under the FW Act. The section of relevance presently is headed, ‘Part 4:  Entry to Investigate a Suspected Safety Contravention (Excluding WA)’. It poses a series of questions, namely:  “Has the union official produced a Federal Right of Entry Permit…[?]’, ‘Has the union official produced a…WorkSafe notice of Suspected Contravention…[?]’, ‘Has the union official complied with reasonable security and safety requirements that apply within the workplace…[?]’ and ‘Does the relevant union have the right to represent workers on site…[?]’. The document is directed toward whether rights of entry exist, rather than the conduct in which a permit holder engages when exercising or seeking to exercise one. Inkster’s comments at the conclusion of the document are in that same vein. His failure to record within them the physical contact that is presently in focus is thus explicable. That failure does not warrant the rejection of his evidence.

33    The primary judge said that the evidence of Mr Langley about what transpired at Gate 3 was “largely (though not entirely) consistent with Inkster’s”. His Honour continued:

307    …  He told the court that, after he came to (or approached) the city-side boundary of the Gate 3 Site, Simpson attempted to continue towards the city. At that point, ‘Matt [Inkster] tried to stop him from going up there by standing in his way, saying ‘You’ve finished in gate 3’’. According to Langley, Simpson told Inkster that he wished to continue measuring the exclusion zones further along the crash barriers. Langley’s evidence was that ‘[Simpson] pushed [Inkster] aside, got past him, Matt got back in front again and this happened on two more occasions. And then I actually said to Matt, ‘Let him go. Hop in the car. We’ll follow him. We can’t leave him walk up the job on his own. He’s still our responsibility.’’ He and Inkster then followed Simpson in their vehicle as he (Simpson) proceeded to check the depth of the exclusion zones further along the crash barriers.

308    At the point that Inkster made his three attempts to stop Simpson from venturing beyond the limits of the Gate 3 Site, Langley was (according to him) standing a couple of metres behind them.

309    Under cross-examination, Langley told the court that Simpson pushed Inkster ‘…on at least three occasions’. He declined repeated invitations to resile from that evidence.

34    The primary judge summarised Mr Simpson’s evidence as follows:

310    Simpson’s account of what occurred at the Gate 3 Site was somewhat different. He told the court that, upon arriving at that site, he proceeded to check the exclusion zones adjacent to the crash barriers that were there in place. Invited by counsel to do so, he impressed upon the court that many of the bollards by which those zones had been established were placed too close to the crash barriers, prompting him to relocate them as he progressed along the corridor. Inkster and Langley refuted that evidence but nothing turns on that (overall, somewhat gratuitous) evidential conflict.

311    Simpson recalled a point at which Inkster ‘…came over and said, ‘See, mate, you’re now leaving gate 3.’’. His evidence continued:

What did you say?---I don’t believe I’m leaving gate 3, you know. And then he goes, no, you’re leaving. I said, all right. Well, I’ll roll one out for gate 4. No, that’s not gate 4. Well, I tried to roll one out for gate 2. If it’s not gate 2 or gate 4 – because I’m thinking that the – the gates are numerological. Is that the right word? Sorry. Then it must still be gate 3. I’m – I’m going to continue. At that point, Mr Inkster got in front of me and goes, “No, you can’t continue. You’re – you’re leaving gate 3.’ I said no, and I’ve walked around him. He has then done it again. I walked around him again. The third time, Mr Inkster has actually grabbed my book and said, ‘See, mate, we’re not going anything further. You’re leaving gate 3.’ I said, ‘Really?’ Got out me phone to film him – at that point, he’s given me his book back, and I’ve walked around him and continued.

Okay. And at any point, did either of you touch the other one?---No.

Do you have a recollection of where Mr Langley was at this point?---Mr Langley was still in the car.

And how far away was the car from where you and Mr Inkster were?---If I was down here, Matthew was in front of me. Gordon was in the car. He would have easily been 20 metres away.

Simpson’s reference to ‘roll[ing] one out’ was a reference to his preparing a notice under s 88 of the OHS Act.

312    Under cross-examination, Simpson denied that he had physically pushed Inkster. He maintained that, on the third occasion on which Inkster indicated to him that he should not proceed further along the crash barriers, he (Inkster) ‘…grabbed my book and [said], words to the effect, ‘That’s enough. No more.’’. His evidence continued:

I’ve grabbed out my phone and filmed him, because I felt threatened. I said, ‘No, you’re not taking my book”, you know, words to the effect. And he passed my book back and I walked around him and continued.

35    The primary judge said that he preferred “the evidence of the Commissioner’s witnesses” over Mr Simpson’s and that he was satisfied, to the requisite standard, that Mr Simpson had physically pushed Mr Inkster while present at or near the Gate 3 site. His Honour accepted that contact was made and that it was “more than incidental or unintended”.

36    The primary judge said that the evidence of Mr Simpson “gave pause for at least some concern”. He observed that the notion that Mr Inkster had grabbed Mr Simpson’s book or that Mr Simpson had taken out his phone to film had not been put to either Mr Inkster or Mr Langley. His Honour went on to say that the notion that Mr Simpson had felt “threatened” sat most uneasily with the impression he had formed of Mr Simpson from his time in the witness box. His Honour said (at [319]):

…  Simpson presented as a person of conviction and self-belief; a man possessed of a keen sense of the rights conferred upon him by the enactments presently within contemplation and an even keener determination to ensure that he should exercise them so as to ensure that work at the Project occurred safely. Although, substantively, it doesn’t matter if he was, I do not accept that Simpson felt threatened. That aspect of his evidence was embellished.

37    The primary judge went on to identify other bases for rejecting parts of Mr Simpson’s evidence, specifically (at [320]):

…  Simpson told the court not only that he did not physically push Inkster but also that Inkster did not fall. It might well be that Simpson did not see Inkster fall, perhaps because he continued beyond Inkster’s position and/or maintained his focus upon progressing along the crash barriers that he was there to inspect. Regardless, I reject that evidence. I accept, as Inkster testified, that Inkster was physically pushed and that he fell as a result.

38    The manner in which the primary judge reconciled discrepancies in the evidence given by Mr Inkster on the one hand and Mr Langley on the other will be discussed in the course of resolving the competing submissions on the appeal.

PRINCIPLES AND CONTENTIONS

39    This Court’s appellate jurisdiction is conferred under s 24 of the Federal Court of Australia Act 1976 (Cth). The appeal is in the nature of a rehearing. The principles concerning the content of the obligation to conduct an appeal of that nature are well established.

40    In Devries v Australian National Railways Commission (1993) 177 CLR 472 the majority (Brennan, Gaudron and McHugh JJ) said (at 479):

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’; or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.

(footnotes omitted)

41    Their Honours cited Jones v Hyde (1989) 63 ALJR 349 and Abalos v Australian Postal Commission (1990) 171 CLR 167.

42    In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow and Kirby JJ emphasised that Devries, Jones and Abalos did not constitute a departure from established doctrine, but were simply “a reminder of the limits under which appellate judges typically operate when compared with trial judges”. Their Honours continued (at [27]):

The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

43    Their Honours emphasised that the mere fact that a trial judge had reached a conclusion favouring the witnesses of one party over those of another did not and could not prevent the appellate court from performing the functions imposed upon it by statute. As their Honours explained:

28    …  In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(footnotes omitted)

44    More recently, in Lee v Lee (2019) 266 CLR 129 the High Court concluded that the Court of Appeal of the Supreme Court of Queensland had shown a degree of deference to the judgment of a trial judge that was not in accordance with principle, and so had failed to discharge its statutory function. The majority (Bell, Gageler, Nettle and Edelman JJ) criticised the Court of Appeal’s treatment of the trial judge’s advantage, articulated in this concluding observation of McMurdo JA (with emphasis added by the High Court):

This factually complex case was very closely balanced. The task of this Court is to rehear the case, but not without regard to the decision of the trial judge. Although there were limitations upon the use which the judge could make of the way in which the appellant and his mother gave their evidence, it is not demonstrated that the trial judge misused the advantage which he had from hearing and seeing this evidence as it was being given. The decision of the trial judge was neither ‘glaringly improbable’ nor ‘contrary to compelling inferences’. The appellant’s careful and sometimes forceful arguments do not demonstrate that the decision of the trial judge was erroneous.

45    See Lee v Lee (2018) 84 MVR 316 at [152]; Lee at [53].

46    In Lee, the majority said (at [55]):

A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.  …

(footnotes omitted)

47    The majority went on to conclude that the findings challenged on the appeal were not findings that were likely to have been affected by impressions about the credibility of witnesses formed as a result of the trial judge seeing and hearing the witnesses giving their evidence. The majority continued (at [56]):

…  It was an error for the Court of Appeal to dismiss the appeals in this ‘very closely balanced’ case on the footing that the trial judge’s decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of ‘weighing [the] conflicting evidence and drawing its own inferences and conclusions’ and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good.

(original emphasis, footnote omitted)

48    The judgment in Lee emphasises the importance of recognising when an occasion for the appellate restraint discussed in Fox v Percy properly arises and when it does not. The plurality confirmed that the relevant advantage to which the appellate court should ordinarily defer is the advantage of the trial judge enjoyed by virtue of being in a position to form impressions about the credibility and reliability of witnesses “as a result of seeing and hearing them give their evidence” (at [55]).

Submissions

49    At issue in the present case is the extent to which the factual findings of the primary judge were influenced by the impressions he formed of the witnesses, Mr Inkster, Mr Langley and Mr Simpson.

50    The appellants submit that the findings of the primary judge were not based on any relevant advantage so as to give rise to any need for appellant restraint of the kind referred to in Fox v Percy. They submit that the primary judge’s general assessment of the impression of witnesses recorded at [84] of his Honour’s reasons (extracted at [23] above) must be taken to record an acceptance of Mr Simpson as a witness of truth. In the alternative, they submit that the manner in which the primary judge reconciled the differences in the accounts given by Mr Inkster and Mr Langley was not a process of reasoning based on any relevant advantage, nor was it a process of reasoning that was open on the totality of the evidence. The appellants invite this Court to find, on its own review of the evidence, that the accounts of both Mr Inkster and Mr Langley were so divergent that the Commissioner’s case had not been established.

51    The Commissioner submitted that it was sufficient to demonstrate that it was “likely” (in the sense of the word used by the High Court in Lee) that the challenged findings were based on the kind of advantages enjoyed by a judge having the task of conducting a trial at first instance. The advantages were said to extend to the benefit enjoyed by the trial judge in having before him all of the evidence and in hearing and seeing all of the witnesses give their evidence. It was submitted that the findings concerning the Gate 3 Incident were plainly based on an adverse impression formed of Mr Simpson as a witness, resulting in the rejection of his version of events. The Commissioner submitted that the appeal must therefore fail, because the finding that Mr Simpson physically pushed past Mr Inkster was neither glaringly improbable nor contrary to compelling inferences, having regard to the evidence given by each of them.

52    The parties’ more detailed submissions are subsumed in the consideration that follows.

CONSIDERATION

53    The primary judge did indeed enjoy the advantage of seeing and hearing the witnesses give their evidence, as is the case in every trial at which oral testimony is given. We are satisfied that advantage was in fact employed by the primary judge as a basis for rejecting a particular aspect of Mr Simpson’s account. Relevantly, the primary judge formed an impression that Mr Simpson was (broadly summarised) resilient, forthright, self-assured and doggedly determined to exercise his powers as a permit holder. Those observations led his Honour to reject Mr Simpson’s assertion that he had taken out his phone to film Mr Inkster because he was feeling threatened. The primary judge concluded “that aspect of his evidence was embellished” (at [319]). The particular observations the primary judge made of Mr Simpson were clearly based on his advantage of seeing and hearing him in the witness box. In resolving the issues arising on this appeal, this Court must have due regard to those observations, based as they are on the advantages enjoyed by the primary judge.

54    However, it is also plain that the primary judge considered the embellishment to be limited to that part of Mr Simpson’s evidence concerning his assertion that he had attempted to film Mr Inkster because he felt threatened. The primary judge did not expressly state that the embellishment he had identified was a reason for rejecting the whole of Mr Simpson’s account by reference to a general lack of veracity. The primary judge went on to say that the substantive question of whether Mr Simpson did or did not feel threatened did not matter. We too consider that substantive question to be of little moment. The single instance of embellishment went to a peripheral issue. Moreover, the finding of embellishment was based on an inference the primary judge made about Mr Simpson’s personality traits (that is, the likelihood that he would feel threatened) rather than aspects of demeanour more traditionally indicative of a lack of truthfulness.

55    This aspect of Mr Simpson’s evidence was nonetheless identified as one of two matters that gave the primary judge “pause for at least some concern”.

56    The second matter was that Mr Simpson’s allegations that Mr Inkster had taken his book and that he had filmed Mr Inkster had been put to neither Mr Inkster nor Mr Langley in cross-examination. It appears that the primary judge was concerned that the failure to put that aspect of the account to the Commissioner’s witnesses was indicative of recent invention on Mr Simpson’s part. On appeal, it was shown that at some time prior to the trial, Mr Simpson had prepared a written statement which recorded the evidence he would give. It contains an account consistent with that given by him in his evidence-in-chief.

57    Having regard to that prior statement, if there was a relevant failure to put Mr Simpson’s account to Mr Inkster and Mr Langley, three things may be said about it. The first is that it does not appear that Counsel for the Commissioner sought to make anything of the failure in her cross-examination of Mr Simpson. Second, by reason of his prior statement, the failure cannot properly be characterised as one adversely affecting Mr Simpson’s credibility whether as a specific instance of recent invention or more generally. In all of the circumstances, the failure (if any) is at most one that might be attributable to the appellants’ legal representatives. Third, the factual inferences that may permissibly be drawn from the failure are not inferences that in the present case arose from the impressions formed by the primary judge of the witnesses, based on his advantage in seeing and hearing them give their evidence.

58    In all of the circumstances, we do not consider the concern expressed by the primary judge on this aspect of the evidence to have been warranted. In our view, concerns about recent invention ought not to have formed any part of the reasons for accepting the evidence of the Commissioner’s witnesses (discussed below) in preference over the account given by Mr Simpson.

59    Finally on the topic of Mr Simpson’s evidence, the primary judge also concluded that Mr Simpson was not likely to have seen Mr Inkster fall because of the direction in which he was facing and moving at the time. There is nothing problematic about that particular finding, and nothing turns upon it for the purpose of this appeal.

60    Contrary to the Commissioner’s submissions, we do not accept that the trial judge’s advantage in hearing all of the evidence at the trial is a relevant advantage in the circumstances of the present case. With the exception of the embellishment of Mr Simpson’s account, the primary judge expressly stated that he had attributed evidential conflicts that arose at trial “to imprecise or imperfect recollections, rather than to any want of diligence and candour” (at [84]).

61    We have already found that the embellishment to which his Honour referred was limited to an aspect of Mr Simpson’s evidence that he did not consider to be of substantive importance. In our view, having made that qualification at [84], the primary judge should be understood as confirming that he had not formed any negative views about the credit of any witnesses (Mr Simpson included) based on the manner on which they gave their evidence in the course of the trial. Later in his reasons, the primary judge expressly rejected the appellants’ invitation to conclude that Mr Langley’s account was due to a tendency on his part to exaggerate his evidence or that he was reluctant to make reasonable concessions. His Honour said that he “did not observe that he had any such tendency or reluctance” (at [314]).

62    It is plain from that passage (and the reasons as a whole) that his Honour’s reconciliation of the discrepancies between the evidence of Mr Inkster and Mr Langley proceeded from the starting point that their manner of giving evidence gave rise to no concerns about their veracity.

63    To the extent that their accounts differed, the primary judge concluded that the differences could be explained by reference to Mr Langley’s viewpoint. His Honour otherwise considered Mr Langley’s account to be largely consistent with Mr Inkster’s, and therefore corroborative of it.

64    At this juncture it may be observed that the primary judge conceived of his task as determining whether the evidence of the Commissioner’s witnesses should be preferred over the evidence of Mr Simpson. Submissions on the appeal at times presented the problem as one involving a choice between the three varying accounts. It is correct to say that a trier of fact may (indeed in many instances must) express a preference for the evidence of one witness over that of another. However, that is not a complete description of the Court’s task.

65    The Commissioner bore the burden of proof. When asking whether the burden of proof has been discharged, rejection of the alleged contravener’s exculpatory account (if there be one) may be a necessary step. But that rejection does not constitute proof of the prosecuting party’s case. It is one thing to reject a respondent’s account. It is quite another to find the prosecuting party’s case to have been positively established to the standard of proof prescribed in s 140 of the Evidence Act 1995 (Cth) as explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361.

66    Proof of a contravention may not in all cases be established by persuading the trier of fact to prefer the evidence of one witness over another. Rather, it must be shown that the contravention is established to the requisite standard, having regard to the totality of the evidence. In our view, the sufficiency of the evidence of a witness may be affected if it is at variance in critical respects with other evidence (particularly other evidence called by the prosecuting party) in circumstances where the discrepancies cannot be adequately explained. The sufficiency of the evidence might also be affected if there be no contemporaneous corroborative records in circumstances where such records ought reasonably be expected to exist. It is against that background that we consider the Commissioner’s burden of proof was not discharged in the particular circumstances of the present case, even if Mr Simpson’s account was first rejected and put to one side.

Discrepancies in the Commissioner’s case

67    Three discrepancies in the accounts of Mr Inkster and Mr Langley require attention.

68    First, contrary to the pleaded case, Mr Inkster said that there was one instance of physical contact, whereas Mr Langley (consistent with the pleaded case) said that there were three.

69    Second, Mr Inkster said that the single instance of physical contact caused him to stumble and fall, whereas Mr Langley gave no evidence that Mr Inkster stumbled or fell, and Counsel for the Commissioner did not ask questions of him on the topic.

70    Third, Mr Inkster said that Mr Langley was 10-20 metres away when the single instance of physical contact alleged by him occurred, whereas Mr Langley said that he was two metres away when all three instances of physical contact alleged by him occurred.

71    The primary judge reconciled these discrepancies by concluding that Mr Langley was not situated in sufficient proximity to Mr Inkster and Mr Simpson to reliably observe what happened between them. That conclusion was expressed as follows (at [134]):

…  The variance in his evidence (as compared with Inkster’s) is likely explained by the fact that he was some distance away from Inkster and Simpson at the relevant times, and that Simpson was faced away from him. It is not difficult to understand how Simpson’s efforts to proceed past Inkster despite Inkster’s attempts to stop him might have appeared, from Langley’s vantage point, to involve physical contact.

72    The expressions “at relevant times” and “some distance away” must be understood in light of what then follows (at [315]):

I accept Langley’s evidence that he was standing a couple of metres behind Inkster and Simpson, at least at the point that Inkster made his attempts to stop Simpson from progressing along the crash barriers. Simpson’s evidence was that Langley was in his vehicle at the time but, given that Langley was not in front of him, I prefer the evidence of Inkster and Langley, both of whom said that he (Langley) was on foot. Inkster’s evidence was that Langley was ‘10, 20 metres’ away when Simpson made contact with him. That is consistent with Inkster having walked around Simpson—away from Langley—in an effort to stop him (Simpson) from progressing.

73    We respectfully consider that passage to be problematic in several respects.

74    Mr Langley’s evidence was that he was standing behind Mr Inkster and Mr Simpson, at all times at a distance of two metres distance from them, including at each of the three instances when Mr Simpson (on his account) pushed Mr Inkster aside. There was nothing in Mr Langley’s account to suggest that the distance between him and the two others widened as the events unfolded. The transcript of Mr Langley’s evidence shows that he confirmed twice in examination-in-chief that he was but two metres away when all three instances of contact occurred, and again confirmed the distance in cross-examination. The three points at which Mr Inkster made attempts to stop Mr Simpson from progressing along the crash barriers (referred to by the primary judge in the above passage) are the very points at which the alleged physical contact (whether there be one or three) occurred. Mr Langley’s evidence that he was but two metres away is supported by his evidence that he was, at the time, talking to Mr Inkster about letting Mr Simpson proceed and urging him to return to the car. Such a conversation would not appear feasible if Mr Langley was 10 to 20 metres away.

75    In addition, it is not entirely correct to say that Mr Inkster’s evidence was that Mr Langley was on foot. In cross-examination, Mr Inkster’s recollection about whether Mr Langley was on foot was as follows:

Q:    Mr Langley was in the car behind you at the time?---

A:    He – I think he was out of the car. I think he was - - -

Q:    He was out of the car?---

A:    I think he was out of the car, yes.

A:    You’re not sure?---

A:    Not 100 per cent sure, no.

Q:    Okay. How far back was he?

A:    ---10, 20 metres

76    Mr Inkster’s inability to recall whether Mr Langley was on foot or sitting in the car is significant. If there was an actual memory of Mr Langley’s position, it must either be an actual memory of Mr Langley on foot, or an actual memory of Mr Langley sitting in the car. Mr Inkster’s assertion that he had any memory at all of the distance between him and Mr Langley in our view cannot logically be accepted, let alone preferred.

77    In addition, the analysis of the primary judge does not explain the absence of any evidence from Mr Langley about Mr Inkster falling into the dirt when he was pushed. We consider that to be a significant omission in the Commissioner’s case that could not be adequately explained by the problematic finding about Mr Langley’s vantage point. If a fall occurred, it is not at all clear why Mr Langley would not have seen it happen, whether he was situated at a distance of two, 10 or 20 metres from Mr Inkster. That gives rise to a real issue as to whether the reference to there being a fall was an embellishment on Mr Inkster’s part.

78    Finally on this topic, the primary judge does not refer to the circumstance that Mr Inkster did not come up to proof on the Commissioner’s pleaded case. Whilst it may be a minor point, it is apparent that the primary judge’s understanding of the Commissioner’s case was that it aligned with the evidence of Mr Inkster, when that was not so. Having said that, it does not appear that the discrepancy in the pleaded cases was the subject of evidence or submissions at the trial, and we do not place any weight on the circumstance in the resolution of the issues to be determined on this appeal.

79    As the primary judge said, the appellants placed particular emphasis on the circumstance that documents authored by Mr Inkster on the day of the events omitted any reference to physical contact, or contact causing him to fall.

80    In argument on the appeal, it was submitted for the Commissioner that the document referred to by the primary judge as a “file note” was created on the day that the incident occurred. That is not established on the evidence before us. This Court was told that the document was tendered and admitted in evidence as a prior consistent statement without objection. Even if the “file note” was created shortly after the alleged events, it would provide only the slightest corroboration of Mr Inkster’s account as given in the witness box. We consider that its corroborative effect is undermined by the absence of any reference to physical contact of sufficient force to cause Mr Inkster to stumble and fall. In our view, an incident involving physical contact and a fall would, as a matter of ordinary human experience, loom large as a significant event on that day. The file note otherwise sets out in some detail the things that were said and done throughout the day. We accept the appellants’ submission that the document lacks substantial corroborative force. In addition, we consider the absence of a reference to physical contact of a kind sufficient to cause Mr Inkster to fall is a further reason to reject Mr Inkster’s evidence that he fell at all.

81    The same may be said of Mr Inkster’s email communications to his colleagues on the afternoon that the Gate 3 Incident is alleged to have occurred. Whilst an author of emails of that kind may not ordinarily be expected to descend into every detail of the events, it is difficult to identify an event occurring on that day that could be more significant than an act amounting to an intentional physical assault resulting in a fall. We accept that the emails were not intended to provide a complete description of everything that occurred. However, the omission of any reference to something as significant as physical contact and a fall is significant when considered together with the other documents.

82    With respect to the checklist we respectfully disagree with the characterisation of that document given by the primary judge. Whilst the greater part of the form is in a check-a-box format, it remains that Mr Inkster voluntarily included a narrative of the events of the day at the end of the form and after the events of the day had transpired. The omission of any reference to the serious improper conduct that later formed the basis the particular allegation of impropriety is a matter of significance. On our review of the material, we consider the omissions in the documents is a substantive fact that ought to have been afforded considerable weight in assessing the sufficiency of the Commissioner’s case against the standard of proof.

83    The Commissioner submitted that no questions had been put to Mr Inkster in cross-examination in respect of the omissions. That may be so, however, the documents were adduced as a part of the Commissioner’s own case and the fact of the omissions is apparent on the face of the documents themselves. It was for the Commissioner to adduce evidence that might enable them to be considered in a different context. It was not for the appellants to adduce evidence to fill gaps or address deficiencies in the Commissioner’s case.

84    We conclude that the documents provide no meaningful corroboration of Mr Inkster’s account.

85    More than that, we consider that the absence of a contemporaneous documentary record corroborating the evidence given at trial undermines the Commissioner’s case in the particular legal and factual context of this case. It formed a part of Mr Inkster’s role to monitor compliance with the FW Act and to report instances of contravention to his superiors and the relevant authorities (including the Commissioner). He did in fact create contemporaneous records of the events that occurred on 9 May 2017, and yet he did not include in those records any reference to being struck with sufficient force to cause him to stumble and fall. The single reference in the “file note” to Mr Simpson having “pushed past” him is ambiguous – it does not provide meaningful corroboration of the evidence Mr Inkster subsequently gave at the trial as to the force and consequence of the alleged push.

86    In summary, we consider that the Commissioner conducted the trial in a manner that presented the primary judge with an unusual predicament. The Commissioner adduced evidence of two accounts that varied in significant respects, without adducing evidence upon which an explanation for the discrepancies could logically be founded. The partial rejection of Mr Langley’s account was based on facts that were inconsistent with the evidence that he gave concerning his short distance from the relevant events, and yet it was not suggested (nor was it found) that he was untruthful or mistaken in his evidence about that distance. As we have already explained, we consider Mr Inkster’s evidence about seeking Mr Langley at a distance of 10 to 20 metres away could not be based on an actual memory at all. In our view, the circumstance that Mr Inkster positively asserted seeing Mr Langley at a distance of 10 to 20 metres away undermines the reliability of the whole of his account.

87    We do not consider the resolution of the appeal (or the trial) to involve a simple choice between the evidence of Mr Langley on the one hand and Mr Inkster on the other. In the absence of an explanation properly founded in the evidence, the discrepancies undermine each of their accounts. In the particular circumstances of this case, it is not sufficient to point to only those parts of Mr Langley’s account that lend some support to Mr Inkster’s account and ignore those parts that describe quite different events. That is especially so in circumstances where the Commissioner argued against a submission that Mr Langley was prone to exaggeration or otherwise was an unreliable witness.

88    Nor do we consider the discrepancies to which we have referred are able to be resolved by reference to the impressions the primary judge formed based upon his advantage in seeing and hearing Mr Inkster and Mr Langley give their evidence. The primary judge did not purport to resolve the discrepancies by reference to any such advantage.

89    On our review of the evidence, we conclude that the Commissioner prosecuted a factually confused case. The evidence was not sufficient to establish a contravention of the FW Act, there being no single cohesive account of what in fact occurred. Having regard to the totality of the evidence, we do not consider the allegation of contravention to have been established to the requisite standard, notwithstanding that the conclusions of the trial judge were in accordance with the oral evidence given by Mr Inkster at the trial. On our review of the evidence, neither of the varying accounts advanced by the Commissioner should be preferred over the other. The proper conclusion is the evidence adduced at the trial did not enable a finding to be safely made as to what occurred, with the result that the contravention was not made out.

90    It follows that it is unnecessary to consider the appellants’ contention that the evidence did not establish deliberate physical contact, as opposed to contact that was accidental or incidental. We do not consider the Commissioner ran a case founded on accidental or incidental contact. To the extent that it was submitted that accidental or incidental contact may nonetheless constitute “improper” conduct within the meaning of s 500 of the FW Act, resolution of that question may be deferred to a case where the outcome depends upon it.

Associate:

Dated:    11 April 2022