FEDERAL COURT OF AUSTRALIA

 

Darlaston v Parker [2010] FCA 771

Citation:	Darlaston v Parker [2010] FCA 771
Parties:	PETER DARLASTON v BRIAN PARKER AND ORS
File number:	NSD 436 of 2010
Judge:	FLICK J
Date of judgment:	23 July 2010
Catchwords:	INDUSTRIAL LAW – power of entry upon premises – need to comply with an occupational health and safety requirement – entry upon premises for an unauthorised purpose – occupational health and safety requirement EVIDENCE – witness fails to attend in answer to subpoena – failure to provide “reasonable notice” of intention to rely upon evidence
Legislation:	Building and Construction Industry Improvement Act 2005 (Cth), s 9, s 57 Evidence Act 1995 (Cth), ss 63, 67 Federal Court of Australia Act 1976 (Cth), s 37M Federal Court Rules, O 33 r 16 Federal Magistrates Act 1999 (Cth), s 39(2)(b) Occupational Health and Safety Act 2000 (NSW) Workplace Relations Act 1996 (Cth)
Cases cited:	Adler v Australian Securities and Investments Commission [2003] NSWCA 131, 179 FLR 1, followed Australasian Meat Industry Employees’ Union v Australian Food Corporation Pty Limited [2001] FCA 1709, 111 IR 425, cited Australian Federation of Air Pilots v East-West Airlines (Operations) Ltd (1992) 40 IR 426, cited Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, 236 FLR 1, followed Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3, 106 FCR 482, cited Briginshaw v Briginshaw (1938) 60 CLR 336, considered Citibank Ltd v Federal Commissioner of Taxation (1988) 16 ALD 486, 83 ALR 144, followed Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403, cited Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, 162 FCR 466, cited Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90, cited Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241, considered Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543, cited Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477, considered Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118, [2000] QCA 108, cited Griffin v Pantzer [2004] FCAFC 113, 137 FCR 209, cited GTS Freight Management Pty Limited v Transport Workers Union of Australia (1990) 25 FCR 296, cited Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, 100 FCR 530, cited Hogan v Riley [2010] FCAFC 30, considered John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, 178 FCR 461, not followed by Jones v Bartlett [2000] HCA 56, 205 CLR 166, cited Jones v Dunkel (1958) 101 CLR 298, applied Knight v Maclean [2002] NSWCA 314, considered Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347, 235 FLR 122, cited Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, followed Leonard v Morris (1975) 10 SASR 528, cited Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696, cited Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51, considered Nicol v Parr (1985) 11 IR 141, discussed O’Reilly v The Commissioners of the State Bank of Victoria(1982) 153 CLR 1, followed Plunkett v Kroemer [1934] SASR 124, cited Pounder v Police [1971] NZLR 1080, cited Proudman v Dayman (1941) 67 CLR 536, considered Puchalski v Regina [2007] NSWCCA 220, cited Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, cited Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204, cited Reid v Howard (1995) 184 CLR 1, cited Sorby v Commonwealth of Australia (1983) 152 CLR 281, followed Standen v Feehan [2008] FCA 1009, 175 IR 297, cited Standen v Feehan (No 2) [2007] FCA 1865, cited Trade Practices Commission v Abbco Iceworks Pty Ltd(1994) 52 FCR 96, followed Tsang Chi Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273, cited The Commissioner of Taxation of the Commonwealth of Australia v The Australian and New Zealand Banking Group Limited; Smorgon v The Commissioner of Taxation of the Commonwealth of Australia (1977) 143 CLR 499, followed Walplan Pty Ltd v Wallace (1985) 8 FCR 27, cited
Books/Articles:	Ford, W J, ‘Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 AJLL 1
Dates of hearing:	31 May, 1-3 June, 9 June and 17 June 2010
Date of last submissions:	17 June 2010
Place:	Sydney
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	267
Counsel for the Applicant:	Mr I Neil SC with Mr E Young
Solicitor for the Applicant:	Bartier Perry
Counsel for the Respondents:	Mr J H Pearce
Solicitor for the Respondents:	Taylor & Scott

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 436 of 2010

 

BETWEEN:	PETER DARLASTON Applicant
AND:	BRIAN PARKER First Respondent   REBEL HANLON Second Respondent   ROBERT KERA Third Respondent   THOMAS MITCHELL Fourth Respondent   CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Fifth Respondent   CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) Sixth Respondent

 

JUDGE:	FLICK J
DATE OF ORDER:	23 july 2010
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.                  The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.

2.                  The costs of the proceeding to date are reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
FAIR WORK DIVISION	NSD 436 of 2010

 

BETWEEN:	PETER darlaston Applicant
AND:	BRIAN PARKER First Respondent   REBEL HANLON Second Respondent   ROBERT KERA Third Respondent   THOMAS MITCHELL Fourth Respondent   CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Fifth Respondent   CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NSW BRANCH) Sixth Respondent

 

JUDGE:	FLICK J
DATE:	23 July 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1                                             This proceeding was commenced in the Federal Magistrates Court of Australia. An Application was first filed on 23 December 2009 and a Statement of Claim was then filed on 1 March 2010. An Amended Application and an Amended Statement of Claim were thereafter filed on 1 April 2010. A Further Amended Application was filed on 8 April 2010, and a corrected Further Amended Application and Amended Statement of Claim were both filed on 14 April 2010.

2                                             The Applicant is the Acting Director of Operations at the Office of the Australian Building and Construction Commissioner. The office of Commissioner is established by s 9 of the Building and Construction Industry Improvement Act 2005 (Cth). The authority of the Applicant to commence the present proceeding and to seek the relief claimed is admitted on behalf of all of the Respondents.

3                                             On 22 April 2010 an order was made transferring the proceeding to this Court pursuant to s 39(2)(b) of the Federal Magistrates Act 1999 (Cth). That provision permits an order that a proceeding be transferred on the initiative of that Court. The transfer, apparently, was supported by none of the parties – all parties being in agreement that the Application was properly commenced in the Federal Magistrates Court and that that Court was the appropriate forum in which to resolve the issues. Concurrence is expressed with the views expressed by the parties. The proceeding, however, was listed first for directionson 3 May 2010 and then for hearing in this Court commencing on 31 May 2010. Arrangements had been made for the attendance of all witnesses and the hearing commenced. No further delay or inconvenience to the parties was warranted.

4                                             A number of contraventions of the Workplace Relations Act 1996 (Cth) (“Workplace Relations Act”) are alleged. Declaratory relief is sought together with orders for the imposition of penalties.

The Building Site & A Short Chronology 

5                                             The contraventions are alleged to have taken place over a two day period – being 3 and 4 December 2008. They are said to have occurred at a building site (“site”) in Manly, a suburb of Sydney.

6                                             The events that took place on those two days necessarily have to be placed in context.

7                                             The building project is a joint venture between Lend Lease Development Pty Limited (“Lend Lease”) and the Roman Catholic Church for the Archdiocese of Sydney at a site known as the St Patrick’s Estate, where an old seminary once stood. The project was broken down into four developable precincts. Two have been completed and two are yet to be completed. Of the outstanding two, one has not yet been commenced. It is the remaining precinct which is of present concern. That precinct is itself broken down into four stages, namely:

Stage 1	Being houses 1 – 8
Stage 2	Being houses 9-12
Stage 3	Being houses 13-19
Stage 4	Being houses 20-26

8                                             In August 2007 Berem Constructions Pty Limited (“Berem Constructions”) was awarded the contract to build houses 9 to 12. That company was engaged as the principal contractor. The company, however, fell behind in the construction schedule and went into voluntary administration on 5 September 2008. Approximately 50% of the works were incomplete. The contract was terminated on 8 September 2008.

9                                             On the day after the termination of the contract with Berem Constructions, there was a “demonstration”outside the offices of Lend Lease at 30 Hickson Road, Millers Point. A meeting was held that day at which the First, Second and Third Respondents (Messrs Parker, Hanlon and Kera) attended on behalf of the Construction, Forestry, Mining and Energy Union (“CFMEU”). In attendance on behalf of Lend Lease were Mr Andrew Tobin, a Project Director, and Ms Toni Milis. Also in attendance was Mr Carl McLennon, the foreman for Berem Constructions on the project.

10                                          Discussions on that occasion proceeded as to the manner in which the former employees and sub-contractors of Berem Constructions could be properly accommodated. The CFMEU advancedthe proposition that a particular accounting consultant should be retained by Lend Lease to give the CFMEU “confidence that the subcontractors would be properly represented”. 

11                                          Discussions with the CFMEU continued throughout September 2008. Agreement was reached to accommodate most of the sub-contractors – but not all. There remained outstanding discussions with a number of former sub-contractors of Berem Constructions. It was on 23 September 2008 that Mr Tobin was first advised by Mr Parker by telephone that the CFMEU were acting on behalf of at least some of those sub-contractors.

12                                          On 24 September 2008 there was a further telephone conversation between Mr Parker and Mr Tobin. Mr Tobin advised that Lend Lease was “still in the process of making contact with the previous subcontractors”. There was also a further telephone conversation on that day between Mr Kera and Mr Tobin. Mr Kera urged upon Mr Tobin that Lend Lease should consider making payment to the sub-contractors but Mr Tobin replied that he was unable to take that step. Mr Kera then said:

13                                          These events form part of the background against which the events of 3 and 4 December 2008 took place.

The Allegations Advanced

14                                          The Applicant is an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth).

15                                          The contraventions alleged may be summarised as follows:

(i)                 a contravention said to have occurred at about 8:30 am on 3 December 2008 when Messrs Parker, Hanlon and Kera entered the site and failed to comply with an “induction request”. By failing to do so, and by remaining on the site, it is said that there has been a contravention of s 758(3) of the Workplace Relations Act;

(ii)                a contravention said to have occurred at an unknown time on 3 December 2008 when Mr Mitchell entered the site and climbed or walked on scaffolding despite being requested on three occasions to immediately cease doing so. Again a contravention of s 758(3) is alleged;

(iii)              a contravention said to have occurred on 3 December 2008 when Messrs Parker, Hanlon and/or Kera induced persons working on the site to stop work and leave the site and that those persons were “hindered” or “obstructed”. A contravention of s 767(1) is alleged;

(iv)              a contravention said to have occurred at about 7:30 am on 4 December 2008 (when Messrs Parker, Mitchell, Hanlon and Kera entered the site) when Mr Parker failed to move a car parked in the vicinity of a crane which was to be dismantled. Reliance is placed upon ss 758(3) and 767(1) in respect to the contravention alleged;

(v)               a contravention said to have occurred at or about 11:00 am on 4 December 2008 when Mr Mitchell drove a car into a cyclone fencing gate thereby endangering an employee of Lend Lease. It is further said that Messrs Hanlon and Kera “failed or neglected to take any action to prevent or stop the Assault, or ameliorate the danger to which it exposed” the employee. Again a contravention of s 767(1) is alleged; and

(vi)              a contravention that by engaging in such conduct as alleged, Messrs Parker, Mitchell, Hanlon and Kera did so “for the purpose, or purposes which included, furthering a dispute between the CFMEU and/or CFMEU NSW on the one hand, and LLD on the other hand, as to the payment by LLD of subcontractors engaged to work on the Development by Berem Constructions Pty Ltd, which had acted as the builder on part of the Development”.

In each instance, it is alleged that the Fifth and/or Sixth Respondents also assume liability for the contraventions.

16                                          In advancing these claims, the Applicant assumes the role of a model litigant – but not the obligations imposed upon a prosecutor: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, 236 FLR 1. Austin J there reviewed the authorities and concluded in part as follows:

[530] My conclusion is that when it is a party, or intervenes, in civil proceedings, ASIC as an emanation of the Commonwealth has a duty of probity and fairness to act as a model litigant, which is higher than the duty of fairness owed to the court by civil litigants generally. That conclusion is generally reinforced by cases about the duty of fairness of the Commonwealth in commercial dealings (Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151 at 195-198 per Finn J; SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346 at 367-368 per Beaumont and Einfeld JJ), but it seems to me that the litigation duty is a special and higher one. To that extent I agree with the defendants that ASIC has a special duty as a Commonwealth agency, in civil proceedings, to act in a manner so as to facilitate a fair trial …, though I do not accept their submission that the content of this duty is analogous to prosecutorial fairness …

 

Concurrence is expressed with those observations.

17                                          By reason of the fact that the claim is for a penalty, the standard of proof is the civil standard – but to the level of satisfaction in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 361 to 362 per Dixon J. See also Evidence Act 1995 (Cth) (“Evidence Act”), s 140. In Briginshaw, Dixon J in an oft cited passage observed at 362:

… But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, 162 FCR 466, which was a proceeding involving the imposition of a penalty for a contravention of Pt IV of the Trade Practices Act 1974 (Cth), Weinberg, Bennett and Rares JJ observed at 497 to 480:

STANDARD OF PROOF

 

[29] It follows that proceedings for recovery of pecuniary penalties under the Act are civil proceedings. Accordingly, s 140 of the Evidence Act 1995 Cth requires the Court in such proceedings to apply the civil standard of proof on the balance of probabilities. In arriving at a conclusion of satisfaction that a case has been proved on the balance of probabilities, s 140(2) of the Evidence Act provides:

 

(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.

 

[30] The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

 

[31] Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account …

 

The same standard applies in a proceeding of the present kind: cf. GTS Freight Management Pty Limited v Transport Workers Union of Australia (1990) 25 FCR 296 at 301 per Keely J; Standen v Feehan [2008] FCA 1009 at [20], 175 IR 297 at 300 per Lander J.

18                                          Notwithstanding the standard of proof imposed by s 140(2) in a proceeding seeking the imposition of penalties, there is no reason to deny the applicability of the principles in Jones v Dunkel (1958) 101 CLR 298: Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [655] to [656], 179 FLR 1 at 146 per Giles JA (Mason P and Beazley JA agreeing); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission, [2007] FCAFC 132 at [76], 162 FCR 466.

The Course of the Hearing

19                                          Two aspects of the hearing should be noted at the outset.

20                                          First, although the entirety of the evidence for the Applicant had been reduced to the form of written statements, all the individual Respondents initially declined to make an election as to whether or not they would adduce any evidence in support of their own case. Through their Counsel they indicated that they would make an election as to whether they would waive a claim to privilege against self-incrimination at the conclusion of the case for the Applicant.

21                                          A claim to a privilege against self-incrimination remains a valuable right and one open to be claimed in a proceeding of the present kind.

22                                          The common law has long recognised the privilege of a witness to decline to give evidence if the giving of such evidence may incriminate him in an offence. The privilege has been described as “a basic and substantive common law right”: Reid v Howard (1995) 184 CLR 1 at 11. Toohey, Gaudron, McHugh and Gummow JJ there said of the privilege:

… The privilege, which has been described as a “fundamental ... bulwark of liberty”, is not simply a rule of evidence, but a basic and substantive common law right. It developed after the abolition of the Star Chamber by the Long Parliament in 1641, and, by 1737, it was said that “there (was) no rule more established in equity”. More recently, the privilege has been described as “deeply ingrained in the common law”. It operates so that a person cannot be compelled “to answer any question, or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal’”: (1995) 184 CLR at 11 to 12 (footnotes omitted)

 

The privilege has also been described as not merely a rule of evidence available in judicial proceedings but as a “fundamental right”: Griffin v Pantzer [2004] FCAFC 113 at [44], 137 FCR 209 at 228 per Allsop J (Ryan and Heerey JJ agreeing). See also: Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347 at [22], 235 FLR 122 at 128 per Basten and Macfarlan JJA and Sackville AJA. 

23                                          The privilege protects a witness “not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character”: Sorby v Commonwealth of Australia (1983) 152 CLR 281 at 310 per Mason, Wilson and Dawson JJ.

24                                          The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case. Hence, in the context of a crime, Deane, Dawson and Gaudron JJ in Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 observed at 532:

The privilege against self-incrimination confers an immunity which is deeply embedded in the law. In the end, it is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself. (footnotes omitted)

 

This statement also applies to the privilege against self-exposure to a penalty: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129 per Sheppard J; Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696 at [26] per Spender J; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at [31], 213 CLR 543 at 559. The privilege can only be abrogated by statute or waived: Reid v Howard (1995) 184 CLR 1 at 12. See also: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation (1979) 42 FLR 204; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 336 to 339.  

25                                          Section 128 of the Evidence Act now provides for the privilege against self-incrimination. That section provides in part as follows:

Privilege in respect of self-incrimination in other proceedings

(1)    This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a)     has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b)    is liable to a civil penalty.

(2)    The court must determine whether or not there are reasonable grounds for the objection.

(3)    If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:

(a)     that the witness need not give the evidence unless required by the court to do so under subsection (4); and

(b)    that the court will give a certificate under this section if:

(i)      the witness willingly gives the evidence without being required to do so under subsection (4); or

(ii)     the witness gives the evidence after being required to do so under subsection (4); and

(c)     of the effect of such a certificate.

(4)    The court may require the witness to give the evidence if the court is satisfied that:

(a)     the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and

(b)    the interests of justice require that the witness give the evidence.

(5)    If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.

(6)    The court is also to cause a witness to be given a certificate under this section if:

(a)     the objection has been overruled; and

(b)    after the evidence has been given, the court finds that there were reasonable grounds for the objection.

 

26                                          Section 128(1)(b), it will be noted, expressly provides that s 128 applies where the giving of evidence may tend to prove that the witness is “liable to a civil penalty”. A “civil penalty” is defined by clause 3 of Part 2 of the Dictionary to the Act as follows:

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

 

27                                          The privilege, it is considered, was thus available to the individual Respondents to invoke if they saw fit to do so.

28                                          For the purposes of s 128(4) it was not considered in “the interests of justice” to “require” each of the individual Respondents to give evidence that may have tended to incriminate them. Evidence as to the conduct sought to be established was available from other sources. There remained what Spender J referred to as “the fundamental distaste of compulsion to disclose information”: Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 696 at [33].

29                                          Although it was thus open to the Respondents to claim the benefit of the privilege against self-incrimination, each elected to waive the privilege at the conclusion of the case for the Applicant. A short adjournment of a few days was granted to afford the Respondents an opportunity to consider the further oral evidence that had been adduced and to prepare written statements addressing all such aspects of the evidence that they considered warranted their attention. The hearing resumed six days after the conclusion of the case for the Applicant.

30                                          The second aspect of the hearing which should be noted at the outset was the separation of the resolution of the contraventions alleged from any consideration as to the relief to be granted. Questions as to the form of any declaratory relief to be granted and the penalties to be imposed (if any) have been deferred such that submissions may be made based upon the findings presently made.

Sections 758 and 767

31                                          Although other statutory provisions assume some relevance, those statutory provisions of central relevance to the present proceeding are ss 758 and 767 of the Workplace Relations Act 1996 (Cth). These provisions were found within Part 15 of that Act.

32                                          Part 15, however, was repealed by the operation of Item 2 of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) as at 1 July 2009. The objects of Part 15 were set out in s 736 as follows:

Objects of this Part

In addition to the object set out in section 3, this Part has the following objects:

(a)    to establish a framework that balances:

(i)      the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and OHS laws; and

(ii)     the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment;

(b)    to ensure that permits to enter premises and inspect records are only held by persons who understand their rights and obligations under this Part and who are fit and proper persons to exercise those rights;

(c)    to ensure that occupiers of premises and employers understand their rights and obligations under this Part;

(d)    to ensure that permits are suspended or revoked where rights granted under this Part are misused.

 

But Item 11(1) of Schedule 2 to the 2009 Act has the effect that the Workplace Relations Act continues to apply, on and after what in that Act is referred to as the “WR Act repeal day”, in relation to conduct that occurred before that date.

33                                          Sections 758 and 767 thus remain the provisions of central relevance to the present proceeding.  

34                                          Part 15 of the Workplace Relations Act provided for what that Part described as a “right of entry”. Within Part 15, Division 5 provided that the Division had “effect in relation to a right to enter premises under an OHS law” in certain circumstances. The relevant “OHS law” in the present proceeding was Division 3 of Part 5 of the Occupational Health and Safety Act 2000 (NSW).

35                                          The “right of entry” referred to in such provisions may be accepted as a “vital part” of ensuring compliance with occupational health and safety requirements: cf. Australian Federation of Air Pilots v East-West Airlines (Operations) Ltd (1992) 40 IR 426 at 427 to 428.

36                                          A statutory right to enter private premises is a right now conferred in a variety of different circumstances. One of the most common is the right conferred by s 263 of the Income Tax Assessment Act 1936 (Cth). The right conferred makes lawful that which would otherwise be unlawful: The Commissioner of Taxation of the Commonwealth of Australia v The Australian and New Zealand Banking Group Limited; Smorgon v The Commissioner of Taxation of the Commonwealth of Australia (1977) 143 CLR 499 at 535 per Mason J. It is a right which has been strictly construed: See Commissioner of Taxation v Citibank (1989) 20 FCR 403 at 432 to 433. Another example is to be found in s 59 of the Building and Construction Industry Improvement Act (Cth).

37                                          Whether the same strict approach should be adopted when construing Part 15 of the Workplace Relations Act may be left to one side. Any present right of entry must necessarily be exercised by reference to the “objects” sought to be achieved by Part 15 as set forth in s 736, including “the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment”.

38                                          Part 15, it is considered, should be construed in a manner which both protects the private interests of employers to carry out their functions “free from harassment” and the interests of ensuring compliance (in this case) with applicable occupational health and safety requirements. When construing a provision of an award and s 42A of the Conciliation and Arbitration Act 1904 (Cth), in Meneling Station Pty Ltd v Australasian Meat Industry Employees’ Union (1987) 18 FCR 51 at 61 to 62, Keely, Gray and Ryan JJ observed:

... The right of entry contemplated by s 42A of the Act is available at any time during working hours, and for other purposes than the inspection of roster, time and wages records. It is also subject to conditions. Clause 23 has been framed, in our view, to strike a balance between the interest of a union party to an award in monitoring its observance and detecting breaches of it by an employer, and the interest, on the other hand, of an employer in carrying on business without interruption or harassment. A construction of the clause which favours one of those interests to a point where the other can be given scarcely any recognition is, therefore, to be avoided unless the language of the clause compels its adoption. Accordingly, since cl 23 of the Award provides a right to inspect records, it is reasonable to construe it as incidentally conferring a specific, preliminary, right to enter premises for that purpose.

 

A similar approach should be adopted when construing the terms of Division 5 of Part 15 of the Workplace Relations Act.

39                                          Unlike other provisions within Part 15 (eg., s 747 within Division 4), Division 5 itself confers no right of entry. That right is to be found in the present proceeding in s 77 of the Occupational Health and Safety Act 2000 (NSW). That provision is found within Division 3 of Part 5 of that Act and relevantly provides as follows:

77           Powers of entry of places of work

An authorised representative of an industrial organisation of employees may, for the purpose of investigating any suspected breach of the occupational health and safety legislation, … enter any premises the representative has reason to believe is a place of work where members of that organisation (or persons who are eligible to be members of that organisation) work.

 

Section 78 further provides that the right may be exercised “without notice”. Although it is this State provision which, together with s 755 of the Workplace Relations Act, confers the right of entry, other provisions within Part 15 impose conditions upon the exercise of the right. Thus, s 756 of the Workplace Relations Act requires that an official of an organisation who has such a right of entry must not exercise that right unless he has a “permit under this Part” and “exercises the right during working hours”. A “permit holder” is defined in s 737 as “a person who holds a permit”.

40                                          And s 758 of the Commonwealth Act relevantly for the purposes of the present proceeding imposes conditions upon the exercise of the right sought to be exercised in December 2008. That section provides as follows:

Limitation on OHS entry – failure to comply with requests of occupier

(1)    A permit holder must not enter, or remain on, premises under an OHS law unless the permit holder produces his or her permit for inspection when requested to do so by the occupier of the premises.

(2)    Subsection (1) is a civil remedy provision.

Note:    See Division 8 for enforcement.

(3)    A permit holder must not enter, or remain on, premises under an OHS law if:

(a)     the occupier of the premises requests the permit holder to comply with an occupational health and safety requirement that applies to the premises; and

(b)    the request is a reasonable request; and

(c)     the permit holder fails to comply with the request.

Note:    The Commission may make an order under section 771 if the request is unreasonable.

(4)       Subsection (3) is a civil remedy provision.

Note:    See Division 8 for enforcement.

 

The term “occupier” of premises is defined in s 4 of the Workplace Relations Act as including “a person in charge of the premises”.

41                                          The constraints upon the exercise of the right of entry otherwise conferred are not without practical importance. An employer whose premises are being entered must be entitled to know that the official who is purporting to exercise such a right has in fact been clothed with the authority that the legislationand a permit confer. A permit may, for example, be issued subject to conditions: ss 740 and 741 of the Workplace Relations Act. And, unless revoked, a permit expires at the earlier of either three years from the date of issue or when the permit holder ceases to be an official: s 743. It is presumably because of at least these reasons that s 758(1) does not confer any right of entry where there is a failure to produce an entry permit “when requested to do so by the occupier of the premises”. Whether a request is made or not remains a matter for the occupier. But where a request is made, a reasonable opportunity must be allowed to read any conditions that may be imposed. Unless such an opportunity is extended, the occupier is stripped of any opportunity to form a view as to whether he should accede to the right of entry sought to be exercised or whether he may resist an exercise of power on the basis that it is in excess of conditions imposed. The permit may even have expired.

42                                          The power conferred to enter premises under “an OHS law” may not be exercised where those purporting to exercise the power do not suspect any breach of any occupational health and safety legislation or where the right of entry is being exercised for a purpose other than investigating any such breach.

43                                          Mere status as a union official of itself confers no untrammelled right of entry to the premises of an employer. The evolution of rights of entry in industrial law, it may be noted, has been helpfully traced by W J Ford in ‘Being There: Changing Union Rights of Entry under Federal Industrial Law’ (2000) 13 AJLL 1.

44                                          To acknowledge such constraints is to do no more than to conclude that a right of entry conferred by law must be exercised in accordance with any such constraints and requirements as the law itself imposes. It could not be doubted that, as observed by Mason, Murphy, Brennan and Deane JJ in O’Reilly v The Commissioners of the State Bank of Victoria (1982) 153 CLR 1 at 48:

Like all statutory powers, that power must be used bona fide for the purposes for which it was conferred and that involves that its exercise be not excessive in the circumstances of the case.

 

It must be constantly recalled that any conferral of a statutory right to enter premises, be they private premises or business premises, is a serious encroachment upon liberty and all such statutory provisions must be construed so that “the encroachment is no greater than the statute allows, expressly or by necessary implication”: Citibank Ltd v Federal Commissioner of Taxation (1988) 16 ALD 486 at 490, 83 ALR 144 at 152 per Lockhart J. On appeal, see: Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403.

45                                          Within those constraints, s 758(3) provides that a permit holder must not enter or remain on premises if the occupier of the premises requires the permit holder to comply with “an occupational health and safety requirement that applies to the premises” and where the request to do so is a “reasonable request” and where the permit holder “fails to comply with the request”.

46                                          “[A]n occupational health and safety requirement that applies to the premises” is a statutory phrase not elsewhere defined.

Hindrance, Obstruction and Improper Manner

47                                          Section 767(1) and (2) provide as follows:

Hindering, obstruction etc. in relation to this Part

(1)    A permit holder exercising, or seeking to exercise, rights:

(a)     under section 747, 748 or 760; or

(b)    under an OHS law in accordance with section 756 or 757;

must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

(2)       Subsection (1) is a civil remedy provision.

Note:    See Division 8 for enforcement.

 

Section 767(1), it will be noted, provides that a permit holder must not “intentionally hinder or obstruct” any person or otherwise act in an “improper manner”. A number of potential sources of difficulty emerge from what may otherwise be regarded as a comparatively simple provision. These potential difficulties include establishing that any conduct was pursued “intentionally”; giving content to the expression “hinder or obstruct”; and identifying an “act” that constitutes acting in “an improper manner”.

48                                          A person can intentionally hinder or obstruct another person, it has been said, by an active act or by conduct which is essentially negative in character: cf. Standen v Feehan [2008] FCA 1009 at [21], 175 IR 297 at 300 per Lander J. Pincus J gave the term “obstruct[ion]”, then appearing in s 125(10) of the Conciliation and Arbitration Act 1904 (Cth), the same meaning in Nicol v Parr (1985) 11 IR 141 (at 143 to 144). In so concluding, Pincus J drew support as follows from a decision concerning the obstruction of a police officer:

Next, it was contended that some more positive action than that proved is necessary to constitute obstruction within the meaning of the statute. It was said that, in particular, merely requiring Mr Nicol to leave is insufficient. The weight of authority is against that contention. In Hinchcliffe v Sheldon [1955] 3 All ER 406, Lord Goddard CJ at 408, in a police obstruction case, said that “obstructing” means “making it more difficult for the police to carry out their duties”. What the defendant did certainly falls within that description. Further, the submission that in such a context the notion of obstruction requires some positive action is inconsistent with the view expressed by the High Court in O’Reilly v Commissioners of the State Bank of Victoria (1983) 57 ALJR 342 at 347.

 

The requirement that conduct be “intentional” may serve to exclude any accidental obstruction: cf. Pounder v Police [1971] NZLR 1080 at 1084.

49                                          Care must be taken in not too readily placing reliance upon the manner in which perhaps the very same statutory expressions as used in one context are incorporated in a different statutory context. Whilst recognising that qualification, the guidance gleaned by Pincus J, from a police obstruction case, remains of continuing assistance. The statutory expression used in s 767(1) that must constantly be recalled is “intentionally hinder or obstruct”. Again in the context of a police case, in Plunkett v Kroemer [1934] SASR 124 Napier J was considering an appeal from a summary conviction for hindering a police officer in the execution of his duties. The police officer was demanding entrance to licensed premises. In that context His Honour observed:

It must be conceded that, for the purposes of this charge, the complainant has to prove an actual hindrance, in the sense of some appreciable obstruction to, or interference with, the performance by the constable of his duty; but “hinder” is not a word of art, or capable of precise definition, and it is a question of fact and of degree whether in the circumstances of the particular case the obstruction or interference was appreciable. If the constable is frustrated in his attempt to perform his duty, or retarded in the execution thereof, then, clearly, he has been “hindered”; but I think that the fair and natural meaning of the word goes further than that. I think that a constable is “hindered” by any obstruction or interference that makes his duty substantially more difficult of performance. To take a simple illustration. If a constable is chasing a suspected person and a bystander deliberately trips the constable, but the agility of the constable enables him to keep his feet, and to continue the pursuit without any material delay, I think that the act of the bystander is a “hindrance” within the meaning of this section.

 

It seems to me that the plain commonsense of the case is in accordance with the findings and conclusion of the justices. It is impossible to separate the act of physical obstruction from the conduct that preceded it. Upon the reasoning of the Chief Justice in Lentahall v. Curran, [1933] S.A.S.R. 248, I think that the act of the appellant in warning those inside the hotel of the approach of the police was in itself a hindrance; but, however that may be, there is no doubt that it created a situation in which speed—upon the part of the police—was essential, and a comparatively slight delay might well be fatal to the successful performance of their duty. A delay that might be trivial in other circumstances might well be regarded as appreciable in the circumstances as found by the justices, and I see no reason for disturbing the conviction.

 

50                                          Not surprisingly, the same approach was followed in the subsequent decision of the Supreme Court of South Australia in Leonard v Morris (1975) 10 SASR 528. There in issue were the offences of “hindering a member of the police force in the execution of his duty” and “resisting a member of the police force in the execution of his duty”. In that context Bray CJ concluded at 530 to 531:

Everyone agrees that nothing is to be described as hindering or resisting unless it involves a conscious and voluntary act. But is that all? Is it enough if such an act does, objectively speaking, constitute a hindrance to or a resisting of someone who happens to be a member of the police force and who happens to be engaged at the time in the execution of his duty? I think not. In the analysis which follows I deal primarily with hindering. Resisting presents less difficulties. With regard to the actus reus which constitutes hindering I accept it that, while some overt act is required and mere inaction cannot amount to hindering …, any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance is a hindering within the meaning of the section (Plunkett v. Kroemer). But the mere performance of a conscious and voluntary act which makes the duty of the police officer substantially more difficult of performance cannot be enough to constitute the offence, otherwise a lame man crossing the road, without adverting to the consequences of his action and without any knowledge of the circumstances, who causes a police car in pursuit of a fleeing criminal, also in a car, to slow down or stop so that the fugitive car gets away would be guilty of the offence and that would be absurd. Some further mental element is necessary; in addition there may be possible justifications.

 

What is that mental element? I think the defendant must either intend substantially to impede the particular individual who happens, whether known or unknown to him, to be a police officer in the performance of whatever that individual is engaged in, which happens whether known or unknown to the defendant, to be in the execution of his duty as a member of the police force, or else he must, being aware that what he is doing or about to do is likely so to impede that individual, decide nevertheless to do it or go on doing it. (citations omitted)

 

51                                          In Curran v Thomas Borthwicks & Sons Ltd (1990) 26 FCR 241 Gray J again reviewed some of the authorities, including those concerning an obstruction of a highway and hindering police officers. There in issue was s 306 of the Industrial Relations Act 1988 (Cth) which made it an offence to “hinder or obstruct a person in the exercise of a power…”. The defendant had refused to allow union officers to see records. In that context Gray J gave content to the reach of the statutory provision there in issue as follows at 256 to 257:

The words “hinder” and “obstruct” have often been used in the creation of offences. Well-known examples involve such things as obstructing the highway, and hindering a police officer in the execution of his or her duty. The authorities dealing with those offences recognise the necessary connection between the concept of obstruction or hindering and the nature of the activity obstructed or hindered. For instance, it is plain that every person using a highway is, in a sense, obstructing it; the space occupied from time to time by one single user cannot be occupied simultaneously by any other user. The purpose of the highway, however, is passage and repassage, so that it is recognised that the user of the highway for this purpose will not amount to an obstruction. As the High Court (consisting of Latham CJ, Rich and Dixon JJ) said in Schubert v Lee (1946) 71 CLR 589, at p 594:

 

Where the alleged obstruction consists in the physical presence of the defendant upon the highway it becomes necessary to reconcile the prohibition of obstruction of a highway with the reasonable user of the highway by members of the public: See Adams v Horan (1906) 26 NZLR 169. Every user of a highway for the purpose for which a highway is intended may theoretically at least lessen its commodiousness for the use of other members of the public. But that arises from the nature of things. What is not permitted is the lessening in a substantial degree of the commodiousness of the use of the highway for legitimate purposes by using it for purposes other than a highway.

 

See also Haywood v Mumford (1908) 7 CLR 133 at 138 in the judgment of Griffith CJ. Similarly, with respect to the offence of hindering a police officer, it has been recognised that an act which might otherwise amount to a hindering will not do so if there is lawful excuse for it, or if it is reasonable in the circumstances not to regard the police officer as hindered. See Leonard v Morris (1975) 10 SASR 528 at 533 in the judgment of Bray CJ, with respect to the question of lawful excuse (advising a person not to answer questions) and in the judgment of Wells J (at 543-544), with respect to taking into account all of the circumstances to determine the reasonableness of what might otherwise have been a hindrance.

 

His Honour continued at 257 to 258:

Among the obligations of an employer pursuant to s 286 of the Act is an obligation to make available certain documents and records for inspection. If an authorised officer attends at premises, and asks to see certain documents or records which he or she is entitled to inspect, some positive act will usually be required on the part of the employer, or the occupier of the premises, to make those documents and records available. As Mr Heerey put it in argument, merely to indicate that the relevant documents and records can be found somewhere in a filing cabinet within a large building would amount to a hindrance or obstruction of the right to inspect. The exact content of the positive obligation will depend upon the circumstances. If records are stored in a computer, it may be necessary for an employee with knowledge of the operation of the computer and the relevant codes to make available the relevant records for inspection. Failure to do so will amount to a hindrance or obstruction. The fact that the employee concerned would otherwise be engaged in some other work will not mean that he or she has been hindered or obstructed by the inspecting officer. If that were not so, the right to inspect would be negated. Thus, it is open to the inspecting officer, as Mr Davey and Mr Dillon did, to examine a computer screen for the purpose of looking at relevant records, even though the particular computer might otherwise be used for some ordinary work of an employee, without hindering or obstructing that employee.

 

His Honour finally concluded at 258:

It follows that the proper construction of the phrase “hinder or obstruct” in the proviso to s 286(1) involves a requirement that the authorised officer do some positive act by way of hindrance or obstruction, or at least decline to move from a place in which he or she is likely to hinder or obstruct an employee. Apart from a failure to move, it is difficult to envisage a hindrance or obstruction that would fall within the proviso to s 286(1) but would not involve some positive conduct on the part of the authorised officer. Even if it is unnecessary to reach this conclusion, I am of the view that the mere presence of an authorised officer who is the subject of violent dislike by one or more employees, to the extent that those employees are prepared to cease work while the authorised officer is on the premises, cannot amount to a hindrance or obstruction by the authorised officer of those employees in the performance of their work.

 

52                                          For the purposes of s 767(1) it is considered that the reference to “intentionally hinder or obstruct” is a reference to any act or conduct that actually makes it more difficult for the person who is “hindered or obstructed” to discharge his functions, other than an act or conduct which is accidental. The act must be of such a nature that it is an “appreciable” obstruction or interference. A trivial act, or even an act which could not reasonably be regarded as an obstruction or interference, would not fall within s 767(1).

53                                          The Full Court has recently, in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90 considered the requirement of intention for the purposes of s 767. Spender J concluded that “whether in a criminal trial or in proceedings for civil remedy, the test for intention is a subjective not an objective one”: at [26]. Dowsett J also concluded that the “requirement that any hindrance or obstruction be intentional prima facie requires that there be a subjective intention to hinder or obstruct”: at [46]. But this decision had not been handed down at the time of the hearing and, accordingly, none of the parties either then or subsequently have made any submissions addressed to it.

54                                          Difficulty is also encountered in construing the last of the phrases in s 767(1), namely the proscription of a “permit holder” acting “in an improper manner.” Presumably the Parliamentary draftsman saw no need to confine an act which amounts to “act[ing] in an improper manner” to an intentional act. But conduct which falls outside of an intentional hindrance or an intentional obstruction of a person, and yet falls within an “act in an improper manner” is not further defined by either s 767 or the Act as a whole.

55                                          A contravention of s 767 on the basis of acting in an “improper manner”, however, is not made out merely by reason of a refusal on the part of those seeking access to premises to identify the particulars of any occupational health or safety concern that they may have in mind: Hogan v Riley [2010] FCAFC 30. Finn, Lander and Jessup JJ there concluded:

[22] The essence of the Federal Magistrate’s conclusion that Messrs Kivalu and O’Mara had contravened s 767(1) of the WR Act seems to have been their refusal to provide particulars of the “safety breach” which they alleged, other than to say that there had been an “incident”. In so ruling, however, his Honour was implicitly imposing upon the organisers an obligation to which they were not subject under the OHS Act. …

 

Their Honours then set out the terms of s 78 of the Occupational Health and Safety Act 1989 (ACT), which conferred a right of entry “without notice” and a right not to “tell the occupier of the premises that the representative is on the premises if … to do so would defeat the purpose for which the premises were entered”. They then continued:

... On the facts of the present case, therefore, the organisers were entitled to enter the Convention Centre site without providing Iqon with particulars of the safety matter which they wished to investigate. Section 767(3) of the WR Act takes the provisions of the OHS Act as its starting point. Save in a much more obvious case of hindrance or obstruction than the present one was, we would not regard s 767(1) as concerned to qualify or to reduce the underlying entitlement to enter upon the existence of which subs (3) is based.

 

Notwithstanding the difference in language between the language of this provision within the Australian Capital Territory legislation and ss 77 and 78 of the New South Wales Act, it may similarly be concluded that a contravention of s 767 would not be made out merely by reason of those seeking access not informing an occupier of the safety concerns they had in mind.

The Parties — Some Agreement as to the Facts

56                                          The Applicant, Mr Peter Darlaston, is an Australian Building and Construction Inspector duly appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth).

57                                          The following facts in respect to the Respondents were also the subject of agreement.

58                                          The First Respondent, Mr Brian Parker, was at all material times an officer and an employee of the Fifth Respondent, the Construction, Forestry, Mining and Energy Union, within the meaning of s 826 of the Workplace Relations Act 1996 (Cth). He was also at all material timesan officer and an employee of the Sixth Respondent, the Construction, Forestry, Mining and Energy Union (NSW Branch), within the meaning of s 826 and was at all material times acting within the scope of his actual or apparent authority. He was the holder of a permit issued under Part 15 of the Workplace Relations Act and the holder of a permit issued under Part 7 of the Industrial Relations Act 1996 (NSW) (“Industrial Relations Act”).

59                                         Each of the Second and Fourth Respondents, Messrs Hanlon and Mitchell, was at all material times:

(i)                 an employee of the Fifth and Sixth Respondents within the meaning of s 826; and

(ii)                the holder of a permit issued under Part 15 of the Workplace Relations Act and a permit issued under Part 7 of the Industrial Relations Act.

There was also the same agreement in the case of the Third Respondent, Mr Kera, other than that it was not agreed that he was an employee of the Sixth Respondent, the CFMEU NSW. Rather, it was agreed he was an employee of the Fifth Respondent and a “member” of the Sixth Respondent.

60                                          The Fifth Respondent, the CFMEU, was at all material times:

(i)                 an organisation of employees registered under Schedule 1 of the Workplace Relations Act and liable to be sued in that capacity; and

(ii)                a body corporate for the purposes of s 826 of the Workplace Relations Act.

A Permit Holder, A Genuine Belief and Occupation

61                                          Placed at the forefront of the written and oral submissions of the Respondents are a number of questions which should be addressed at the outset, namely:

·                    has the Applicant established that Messrs Parker, Hanlon, Kera and Mitchell are “permit holders” for the purposes of both s 758(3) and s 767(1)?

·                    was a right of entry being exercised “under an OHS law”?

·                    is the genuineness of the belief of the individual Respondents that they had a right of access or a genuine belief that conduct was lawful an answer to the contraventions alleged against them?

·                    has the Applicant established that Lend Lease is the “occupier of the premises” for the purposes of s 758(3)(a)? 

To some extent, although identified as separate questions, there is a degree of overlap.

Permit Holders?

62                                          There can be little doubt that Messrs Parker, Hanlon, Kera and Mitchell were asserting a right of entry upon the premises at Manly.

63                                          But the contraventions alleged against one or other of them depend upon the Applicant establishing that each is a “permit holder” – s 758 makes it an offence for a “permit holder” to enter and remain on premises in the circumstances there described; and s 767 prohibits a “permit holder” from engaging in the conduct there described.

64                                          If one or other of the individual Respondents was not a “permit holder”, they may each have been committing a trespass – but they could not be found to have contravened the Workplace Relations Act in the manner alleged.

65                                          It is considered that each is a “permit holder” for the purposes of s 758 and s 767 of the Workplace Relations Act.

66                                          Although it is s 737 which defines a “permit” as “a permit under this Part” and “permit holder” as a “person who holds a permit”, it is s 740 which provided for the mechanism whereby a “permit” may be issued. That section provides as follows:

Issue of permit

(1)    An organisation may apply to a Registrar for the issue of a permit to an official of the organisation. The application must be in writing.

(2)    The Registrar may issue a permit to the official named in the application.

(3)    The permit:

(a)     must include any conditions that are imposed by the Registrar under section 741; and

(b)    must include any conditions that are applicable under section 770 at the time of issue.

(4)    The regulations may make provision in relation to the following matters:

(a)     the form of an application for a permit;

(b)    the declarations and other documents that must accompany the application;

(c)     verification, by statutory declaration, of those documents;

(d)    the form of a permit.

 

67                                          In the case of each of the First to Fourth Respondents an application was made in accordance with s 740 of the Workplace Relations Act 1996 for the issue of a permit. In each case a permit was issued.

68                                          There was, in any event, agreement that each of Messrs Parker, Hanlon, Kera and Mitchell were the holders of permits for the purposes of Part 15 of the Workplace Relations Act and the holders of permits issued under Part 1 of the Industrial Relations Act. When entering the Manly site, no real distinction was sought to be drawn by any of the individual Respondents between each of the permits which they held.

69                                          For present purposes, however, it is concluded that each of the individual Respondents was a “permit holder” for the purposes of both s 758(3) and s 767(1).

A Right of Entry under an OHS Law?

70                                          Also rejected is a submission advanced on behalf of the Respondents that Messrs Hanlon, Kera and Mitchell did not have a “right of entry under an OHS law to enter premises” for the purposes of s 756. Section 756 provided as follows:

Permit required for OHS entry

(1)    An official of an organisation who has a right under an OHS law to enter premises must not exercise that right unless the official:

(a)     holds a permit under this Part; and

(b)    exercises the right during working hours.

(2)   Subsection (1) is a civil remedy provision.

 

“OHS law” is defined in s 737 of the Workplace Relations Act as meaning “a law of a State or Territory prescribed by the regulations for the purposes of this definition”.

71                                          The immediate relevance of the submission to the alleged contravention of s 758 may presently be left to one side. Section 758, it may be noted, simply imposes a constraint upon a “permit holder” to enter or remain on premises. No contravention of s 756 is alleged. But it may be that a contravention of s 758 involves both the necessity to prove that the person against whom the contravention is alleged is both a “permit holder” and a person who is asserting a right of entry “under an OHS law”.

72                                          If s 758 involves the necessity to establish both matters, it is considered that the Applicant in the present proceeding has done so.

73                                          In advancing the submission that Messrs Hanlon, Kera and Mitchell did not have a “right of entry”, Counsel on behalf of the Respondents relied upon the decision in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2009] FCA 645, 178 FCR 461 (“John Holland”). In that decision, Moore J concluded that a person who was not an “officer” as then defined in the Industrial Relations Act 1996 (NSW) was not an “authorised representative” for the purposes of s 76 of the Occupational Health and Safety Act 2000 (NSW) and had no right to enter a work site.

74                                          In the present proceeding it was said that Messrs Hanlon, Kera and Mitchell were similarly not “officers” and similarly had no right of entry pursuant to s 756(1) and (presumably) did not fall within the constraint otherwise imposed by s 758.

75                                          Although invited on behalf of the Applicant to conclude that the decision in John Holland was erroneous, Counsel on behalf of the Applicant also adopted the far more prudent course of seeking to contend that that decision should no longer be applied by reason of legislative amendments made in response to the John Holland decision.

76                                          The manner in which the decision in John Holland was reached is self-evident upon the reasons provided. Moore J there identified the issues to be resolved as follows:

[18] … The issue which arises in these proceedings is whether the instruments of authority issued by the Industrial Registrar held by the second and third respondent conferred a right of entry under the provisions in the OHS Act.

 

[19] In order to understand how the issue arises [it] is necessary to consider s 76 of the OHS Act and a number of definitions in the IR Act. Section 76 is in Div 3 of Pt 5 of the OHS Act which relates to the entry and inspection powers of authorised employees’ representatives. The section is a definitions section defining one word (“authorised representative”). It provides:

 

authorised representative of an industrial organisation of employees, means an officer of that organisation (including any person who is concerned in, or takes part in, the management of that organisation) who is authorised under Part 7 of Chapter 5 of the Industrial Relations Act 1996.

His Honour then went on to further identify the “questions for consideration” as follows:

[23] Two questions arise for consideration. The first is what is meant by “officer of that organisation (including any person who is concerned in, or takes part in, the management of that organisation)” in s 76 of the OHS Act. The second is whether, as a matter of fact, the second and third respondents were officers in this defined sense and were, accordingly, authorised representatives able to exercise a right of entry under the OHS Act.

 

His Honour relevantly concluded:

[25] The answer is, in my opinion, reasonably clear. Section 76 was enacted against a background where the scheme in Pt 7 of the IR Act was in place. It would have then been clear from Pt 7 that the Industrial Registrar could issue an instrument of authority to two classes of representatives of an industrial organisation. One class was officers of an organisation and the other was employees of an organisation. … The definition in s 296 was, in my opinion, intended to reflect the narrower definition of “officer” in the dictionary but widened by the expression “include[ing] any person who is concerned in, or takes part in, the management of the organisation”. Thus the special definition of “officer” for Pt 7 of the IR Act comprehended individuals who held the various offices specified in the definition of “office” in the dictionary together with any other person who was concerned in or took part in the management of the organisation.

 

[26] The formulation used to extend the meaning of the word “officer” in s 296, namely “include[ing] any person who is concerned in, or takes part in, the management of the organisation”, is repeated in parentheses in the definition of “authorised representative” in s 76. The repetition of this expression in s 76 reinforces what is relatively clear in any event, namely that a choice was made by Parliament to limit the class of representatives of an industrial organisation who could exercise a right of entry under the OHS Act to the first class who might be granted an instrument of authority under Pt 7, namely officers as defined in s 296.

 

77                                          If it were necessary to advance the submission, Counsel on behalf of the Applicant said that His Honour erred in construing s 76 by reference to s 296 as found in the Industrial Relations Act.

78                                          The preferred submission advanced on behalf of the Applicant was that the consequences flowing from the decision in John Holland received legislative attention and the result has been retrospectively altered by the Occupational Health and Safety Amendment (Authorised Representatives) Act 2009 (NSW). That Act by way of clause 1 of Schedule 1 amended the definition of s 76. That clause provided as follows:

Section 76 Definition

Omit the definition of authorised representative. Insert instead:

authorised representative of an industrial organisation of employees, means a person who is an authorised industrial officer within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996 in respect of that industrial organisation of employees.

 

Clause 3 inserted the following provision after Part 5:

Part 6       Provision relating to Occupational Health and Safety Amendment (Authorised Representatives) Act 2009

23              Authorised representatives

(1)     In this clause:

         amending Act means the Occupational Health and Safety Amendment (Authorised Representatives) Act 2009.

         authorised representative has the same meaning as in Division 3 of Part 5 of this Act.

(2)     Before the commencement of Schedule 1 [1] to the amending Act, a person who for any period was an authorised industrial officer within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996 is taken, for the purposes of this or any other Act or law, to have been an authorised representative during that same period.

(3)     Any act or omission of a person referred to in subclause (2), that would have been valid had Schedule 1 [1] to the amending Act commenced before the act or omission, is validated.

(4)     Subclauses (2) and (3) do not affect any decision of a court made before the commencement of this clause.

 

By reason of these amendments, it is said by Counsel for the Applicant that the express legislative intention achieved by the amendments was to make persons such as Messrs Hanlon, Kera and Mitchell persons who had a right of entry. The distinction drawn by Moore J, and His Honour’s reliance upon the definition of an “authorised representative”, had since been the subject of legislative amendment. 

79                                          The retrospective nature of the legislative amendment is evident from both its terms and from the supplementary legislative materials to which reference was made. The Second Reading Speech on 23 September 2009 thus expressly referred to the decision in John Holland and continued to state in part as follows:

For this reason, the amendment will be made retrospective to ensure that any powers exercised by authorised representatives before the commencement of the amendment are valid.

 

80                                          The submission advanced on behalf of the Applicant is thus accepted. It is not considered that the decision in John Holland is now a bar to a conclusion, should it be necessary, that Messrs Hanlon, Kera and Mitchell had a right of entry. It is now clear that Messrs Hanlon, Kera and Mitchell did have a right of entry for the purposes of the State and Commonwealth legislation.

A Genuine Belief?

81                                          In seeking to erect a further barricade in the cascading series of submissions advanced on behalf of the Respondents, it was next contended that even if:

·                    each of the Respondents was a “permit holder”; and

·                    each was exercising a “right under an OHS law”;

then each of the individual Respondents could not be found to have engaged in any contravention because:

·                    each Respondent had a genuine belief as to the existence of the right sought to be exercised or a genuine belief that their conduct was not a contravention of any Act.

82                                          In advancing a submission that each of the individual Respondents had “an honest and reasonable” belief that their conduct was lawful, reliance was placed upon Proudman v Dayman (1941) 67 CLR 536. Ms Proudman had there been convicted of permitting an unlicensed driver to drive on a road. Special leave was sought to appeal from the decision of the Supreme Court of South Australia. Special leave was refused. Rich ACJ and Dixon J concluded that an honest and reasonable belief that the driver was licensed was a defence to the charge. In so concluding, Dixon J observed at 540:

There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient in an offence created by a modern statute; but to concede that the weakening of the older understanding of the rule of interpretation has left us with no prima facie presumption that some mental element is implied in the definition of any new statutory offence does not mean that the rule that honest and reasonable mistake is prima facie admissible as an exculpation has lost its application also. …

 

His Honour continued:

The burden of establishing honest and reasonable mistake is in the first place upon the defendant and he must make it appear that he had reasonable grounds for believing in the existence of a state of facts, which, if true, would take his act outside the operation of the enactment and that on those grounds he did so believe. The burden possibly may not finally rest upon him of satisfying the tribunal in case of doubt. But, in the present case, the applicant assigned reasons for her alleged belief which neither the magistrate nor the Full Court found convincing or sufficient. Indeed, it may be doubted if she thought at all upon the question whether the person she permitted to drive her car did or did not hold a subsisting licence.

 

The difficulty confronting Ms Proudman was that there was “no support in the circumstances of the case for the defence of honest and reasonable mistake”.

83                                          The similar difficulty confronting this submission in the present proceeding is that each of Messrs Parker, Hanlon, Kera and Mitchell prepared a written statement of evidence that was ultimately admitted into evidence. Each witness was cross-examined. But there was no unequivocal evidence adduced from any of these Respondents – on oath – that they believed that they had a right (however mistaken) to engage in the conduct they each pursued. There was evidence as to what, for example, Mr Hanlon thought he would be doing on site: but such evidence fell short of asserting a genuine belief that he had a right to do so. The failure to adduce unequivocal evidence, in circumstances where each is represented by Counsel and where all other matters relevant to the contraventions have been put in issue, it is considered, is conclusive.

84                                          Even separate from any consideration as to whether the individual Respondents had stated on oath the genuineness of their belief as to the rights being exercised, it is not considered that the balance of the evidence would in any event have made out that defence. Mr Parker, for example, gave an account in his written statement that when being told by Ms Sokolich that he had to identify the safety issues that he was investigating, responded:

Whatever may have been the correctness of the competing views being expressed by Ms Sokolich and Mr Parker, the account provided by Mr Parker falls short of establishing the genuineness of any belief that he could enter the site without undergoing a site induction. Mr Hanlon gave the following account of his response when told by Mr Tsitsios on 3 December 2008 that he had no right of entry:

Again that account falls short of establishing a right of entry without first undergoing the site induction.

85                                          Moreover, the account of the exchange advanced by Mr Tsitsios and Ms Sokolich is preferred to that of Messrs Parker and Hanlon.

86                                          Any defence that may be available founded upon one or other of the individual Respondents having a reasonable belief as to the lawfulness of their conduct fails on the facts.

Was Lend Lease the Occupier?

87                                          The need for the Applicant to establish, at least for the purposes of s 758, that it was Lend Lease who was the occupier of so much of the Montpelier site to which the facts relate may be accepted: cf. Australasian Meat Industry Employees’ Union v Australian Food Corporation Pty Limited [2001] FCA 1709, 111 IR 425.

88                                          The Trustees of the Roman Catholic Church for the Archdiocese of Sydney are the owners of the Montpelier site. So much of the site upon which completed residential accommodation has been built is subject to leases expiring in June 2088.  

89                                          The development of the site was from the outset a joint venture between the Catholic Church and Lend Lease. Berem Constructions had, of course, been retained in August 2007 to build Houses 9 – 12, but that contract was terminated in September 2008. Thereafter, Lend Lease assumed responsibility for co-ordinating trades and sub-contractors and conducting general site inductions and general site safety.

90                                          It was in the vicinity of House 9-12, being Stage 2, that the events of 3 and 4 December 2008 took place. The officers centrally involved in those events were all employed by Lend Lease. Mr Justin Barrett was employed by Lend Lease as its Development Manager; the site foreman, Mr Tom Tsitsios, was seconded from Bovis Lend Lease Pty Ltd to Lend Lease in September 2008 to work at the site; and Ms Linda Sokolich had been employed by Lend Lease since March 2004 as its Environment, Health and Safety Manager for its Communities Division in NSW. Mr Andrew Tobin was the Project Director for Lend Lease. It was, for example, Mr Barrett who maintained that the individual Respondents should undergo a site induction. Even on the account of those Respondents, there was an insistence on the part of Lend Lease that the Register of Visitors be signed.

91                                          The Improvement Notices issued by the WorkCover Authority of New South Wales on 4 December 2008 identified Lend Lease relevantly as the “Controller of Premises”. 

92                                          As at those dates, it is considered that Lend Lease was the “occupier” of at least so much of the site as was the stage for the events of 3 and 4 December 2008 or was the entity “in charge” within the extended definition of the term “occupier”.

93                                          Rejected is a submission advanced on behalf of the Respondents that it was (for example) Upgrade Carpentry Pty Ltd or Sydney Plasterers and Painters Pty Ltd that were the occupiers of House 12 where some of the events took place, or that it was Harley Cranes Pty Ltd which was the occupier where other events took place. Albeit in the context of liability arising on the part of an occupier pursuant to the Occupiers’ Liability Act 1985 (WA), in Jones v Bartlett [2000] HCA 56, 205 CLR 166 Gaudron J observed:

[80] It is trite law that different persons may occupy the same premises at the same time …

 

And Gummow and Hayne JJ there observed:

[152] A person such as a builder in temporary control of the premises or parts therof may be “an occupier of premises” …

 

Whether or not one of the other entities identified on behalf of the Respondents may also have been an “occupier” of the relevant parts of the site presently in issue may thus be left to one side. To so conclude does not preclude any finding, as is made, that it was Lend Lease who was relevantly the “occupier”. Also rejected is a further submission advanced on behalf of the Respondents that the area in which the events took place were several“premises” of which there were a number of discrete “occupiers”.  

94                                          Given the conclusion that Lend Lease was the “occupier” for relevant purposes, it is not necessary to resolve a further submission advanced on behalf of the Respondents that “[t]he Act envisages that there will be only one occupier of a premises at any material time”. That submission was founded upon both the term “the occupier”in s 758(1) and the prospect of “conflicting requests … made of an unfortunate permit holder by different ‘occupants’”.  

95                                          The submission advanced on behalf of the Respondents that the contraventions alleged should be rejected either because it had not been established by the Applicant that:

·                    the First to Fourth Respondents were “permit holders” for the purposes of s 758; or that

·                    Lend Lease was the “occupier” for the purposes of s 758(3)(a)

is thus rejected.

The Occupational Health and Safety Requirements

96                                          On behalf of the Applicant, it is contended that the phrase “occupational health and safety requirement that applies to the premises” in s 758(3)(a) invites an exclusively factual analysis.

97                                          The “occupational health and safety requirement”, it is said, is a requirement which is formulated or imposed by the occupier of a particular site and by reference to the peculiar facts and circumstances of each building site. What may be an appropriate “requirement” for one building site may be totally inappropriate for another.

98                                          There remain, however, at least two constraints, namely:

·                    the “requirement” must be one which can properly be characterised as an “occupational health and safety requirement”; and

·                    the “request” to comply with the “requirement” must be “reasonable”.

On such an approach, the Applicant contends that s 758(3) does not impose any other constraint such that the “requirement” be:

·                    necessarily in writing; or

·                    a “requirement” which has been formulated inflexibly in advance of any right of entry being exercised.

On such an approach, the Applicant contends that:

·                    the requests made of Messrs Parker, Hanlon and Kera to undergo a safety induction before entering the site;

·                    the requests made of Mr Parker to move the vehicles from the vicinity where a crane was to be dismantled; and

·                    the requests made of Mr Mitchell to descend from some scaffolding;

were each an “occupational health and safety requirement that applies to the premises” within the meaning of and for the purposes of s 758(3)(a). To the extent that a “requirement” must also be sufficiently certain so as to permit compliance, each of these requests would satisfy such a test.

99                                          Each of these requests, it is concluded, is “an occupational health and safety requirement that applie[d] to the site” within the meaning of and for the purposes of s 758(3)(a) of the Workplace Relations Act. Each was concerned to ensure the safety of persons entering and remaining on site. 

100                                       The overall concern of Lend Lease to ensure safety, it may be noted, may be traced back to a document described as the “Montpelier Stage 2 EHS Plan & Guide” dated 24 September 2008. That document provided in part as follows:

Site Foreman will:

·    Be responsible for the day to day safety operations on the site

·    Deliver the inductions along with the nominated Construction worker

·    Review the SWMS and other material for all subcontractors

·    Participate in the daily site walks

·    Comply with the other requirements of the EHS Plan and it’s associated requirements

 

In addition to this document, Lend Lease had also prepared a document titled an “Induction Summary” which was a “power point presentation” covering such topics as:

·                    “What management expects of you”; and

·                    “What you can expect from management”.

Both of these topics were concluded by the message: “If you can’t do it safely, don’t do it”. The “Induction Summary” continued to address further topics, including:

·                    “House rules” – including the wearing of hard hats and steel capped footwear; and

·                    procedure in the instance of minor and major accidents and the location of the medical centre.

Mr Tobin maintained that he was involved in the drafting of this document.

101                                       The form and content of any particular “occupational health and safety requirement” must, however, be necessarily dictated by the conditions on site on any particular day and by reference to conduct as and when it occurs. An “occupational health and safety requirement”, it is concluded, need not be reduced to writing.

The Induction Contravention — 3 December 2008

102                                       The essence of this complaint is that at about 8:30 am on 3 December 2008 Messrs Parker, Hanlon and Kera entered the site and refused a request made by Mr Justin Barrett to undergo a site safety induction as a condition of remaining on, and walking through, the site. Mr Justin Barrett was the Development Manager employed by Lend Lease.

103                                       Messrs Parker, Hanlon and Kera arrived on site at about 8:00 am on 3 December 2008. Mr Peter Nash saw them arrive. Mr Nash was then employed by Lend Lease as the site engineer. Mr Kera introduced himself to Mr Nash and said “we’re from the unions. Can you tell me who is in charge of this site”. Mr Nash informed them that Mr Barrett was in charge. Mr Parker handed Mr Nash a business card stating his name and that he was from the Construction, Forestry, Mining and Energy Union. Mr Barrett was called and he arrived about 10 to 15 minutes thereafter. 

104                                       Mr Barrett gave evidence that on 3 December 2008 at about 8:30 am, Messrs Parker, Hanlon and Kera were in the site office. They introduced themselves. Mr Barrett had never before met these three men. They had what appeared to be permits hanging around their necks and they displayed them to Mr Barrett “briefly”. Mr Barrett’s account of what then happened was that Mr Parker advised that they had been called to the site “to inspect issues of safety concern to do with electrical works, falls from height issues and scaffolding set-up”. The following conversation, on Mr Barrett’s account, then occurred:

Mr Barrett’s account was also supported by some handwritten notes prepared at the time and an entry in his site diary. The handwritten notes recorded “more or less” what happened on 3 December 2008 and in the sequence in which those events occurred. Albeit written out of sequence, the explanation provided by Mr Barrett was that the notes first appearing were written whilst they were carrying out the site inspection and the entry as to the absence of an induction was written after the site inspection was completed. As to this entry being out of sequence, Mr Barrett said that this note “would be a case of less”. Whatever may be the sequence, it evidences the account provided by Mr Barrett in his written statement of evidence and during cross-examination. An entry in Mr Barrett’s site diary for 3 December 2008 also records “refused induction”.

105                                       Mr Barrett telephoned Ms Sokolich at about 9:00 am on 3 December 2008 and requested that she attend on site.

106                                       Mr Nash overheard part of the conversation that was taking part between Mr Barrett and Messrs Parker, Hanlon and Kera and his account was as follows:

Messrs Parker, Hanlon and Kera then entered the site.

107                                       It is said that these facts, if accepted, constitute a contravention by Messrs Parker, Hanlon and Kera of s 758(3).

108                                       Mr Parker’s account of these events was somewhat different; his account being that Mr Justin Barrett said that “You must do a site induction”. Thereafter, his account (provided in the form of a written statement of evidence) continued:

He was not sure if Messrs Hanlon or Kera “heard this brief verbal description”. Nor did he hear Mr Hanlon say “We don’t need a fucking induction”.

109                                       Mr Hanlon’s account also differed from that advanced on behalf of the Applicant. He accepted that a request was made by the “site manager” that he undergo an induction. His account thereafter in his written statement was as follows:

However he made no attempt to commence this and instead asked a leading hand or foreman words to the effect:

 

‘Will you tell these people about the site.’

 

That person, who did not introduce himself, then briefly told me orally where the evacuation points were and pointed to the amenities.

 

110                                       Mr Kera did not recall Mr Barrett “or anyone else ask[ing] me to do a site induction”.

111                                       The evidence of Messrs Barrett and Nash as to what was said to Messrs Parker, Hanlon and Kera is accepted and is preferred to the account advanced by Messrs Parker and Hanlon. Although there is reason to question whether all persons who entered the site on other occasions were in fact asked to undergo an induction, the detail of the responses made to the requests made on 3 December 2008 provided good reason why Messrs Barrett and Nash would recall the events more clearly than the account provided by Messrs Parker and Hanlon. That recollection is corroborated by the handwritten notes and the entry in the site diary. And the recollection of events advanced by Mr Kera should not be accepted. It sits ill with the account given by Messrs Parker and Hanlon.

112                                       It is concluded that a “request” was made of each of these three Respondents within the meaning of and for the purposes of s 758(3)(a). That “request” was that each of them undergo a “site induction” before they entered the site.

113                                       It is also concluded that the “site induction” that they were requested to undergo was “an occupational health and safety requirement that applie[d] to the premises” within the meaning of and for the purposes of s 758(3)(a) and was a “reasonable request” within the meaning of and for the purposes of s 758(3)(b).

114                                       It is further concluded that each of these three Respondents “fail[ed] to comply with the request” within the meaning of and for the purposes of s 758(3)(c). Each of these three individual Respondents entered and remained on the site without having undergone a safety induction.

115                                       A submission that the requests made were not “reasonable” was advanced on at least two fronts, namely:

·                    the requirement to undergo a “site induction” was not – as was the case as opened on behalf of the Applicant – a requirement of “universal” application; and

·                    each of Messrs Hanlon, Parker and Kera had previously been on site and had not been previously requested to undergo such an induction.

116                                       The evidence as to who was required to undergo an induction and who in fact underwent such an induction was less than consistent. There was a divergence of views as to who was required to undergo an induction. Those views were principally expressed by Messrs Tobin and Tsitsios and Ms Sokolich. Mr Tsitsios (for example) was of the view that “there was no need for” visitors to the site, such as Mr John Gil, to be inducted and that it was sufficient for him to sign the visitor’s book. And a person such as Mr Tony Papa, Mr Tsitsios believed, was “a company owner” who “didn’t actually work on site” and thus a person who need not be inducted.

117                                       There was also considerable uncertainty as to who in fact had been inducted and whether or not a site register containing signatures was conclusive evidence as to who had in fact been inducted.

118                                       People within Lend Lease who may be accepted as having an intimate knowledge of the content of any induction – but who nevertheless signed the site induction register included:

·                    Ms Sokolich.

But, as explained by Ms Sokolich, she did not undergo an induction each time she visited the site as she was already an “inducted person”. People within Lend Lease who apparently did not undergo a site induction included:

·                    Mr Tobin.

There was also some uncertainty as to whether persons who were performing work on site had undergone or been required to undergo an induction. There was thus some uncertainty surrounding:

·                    Mr Mark Moult, who did not sign the Register; and

·                    Mr Papa, although he was “pretty sure” that he did have an induction.

Recourse to the site induction register as evidence of those persons who had been inducted proved unreliable. Thus, Mr Gil (for example) was “pretty sure” that he had been inducted if not “certain that I was inducted on that site with my guys” – but his signature did not appear on the register. Mr Gil was the project manager for Sydney Plasterers & Painters Pty Ltd.

119                                       But such instances, it is respectfully considered, do not affect the reasonableness of the requests made of Messrs Parker, Hanlon or Kera. Whether or not Mr Tobin should have been required to undergo a site induction, notwithstanding his involvement in the drafting of the “Montpelier Stage 2 EHS Plan & Guide”, is considered to be no answer to the requests made of Messrs Parker, Hanlon and Kera and their failure to comply.

120                                       And, even if it were to be accepted that Messrs Parker, Hanlon and/or Kera had not previously been requested to undergo a site induction, there was little to suggest that the requests made of them in December 2008 were not “reasonable”.  

121                                       The reasonableness of any request made of someone entering the site must necessarily be gauged by reference to the events taking place on any particular day. On 3 December 2008, for instance, Ms Sokolich gave evidence that there were “lots of things happening”. She referred to what she saw as the importance of people visiting the site to sign the “visitor register” and explained the importance of doing so and the activity on site on 3 December 2008 as follows:

A little later she referred to people visiting the site as receiving a “verbal introduction” or receiving “some preliminary instructions”. She explained the content of what she meant by these terms during the course of her evidence on the following day of the hearing. She did not on the following day, however, say that this constituted an “induction”. In the absence of Ms Sokolich, it was suggested to Counsel for the Respondents that if he wished to ultimately advance a submission that a “verbal introduction” or the “preliminary instructions” to which the witness referred did not constitute an “induction”, he should in fairness put that proposition to Ms Sokolich. He rejected that course and preferred to leave the evidence as it was and to advance the submission foreshadowed.

122                                       The submission was advanced and is now rejected. Irrespective of whether the proposition was or was not put to Ms Sokolich in cross-examination, it was abundantly clear that she was referring to the importance of people receiving an induction – especially on 3 December 2008. The induction was to contain the “verbal introduction” and the “preliminary instructions” as to what was happening on site on that date.

123                                       The evidence of both Mr Tobin and Ms Sokolich as to the requirement to undergo an induction, and the importance of that induction, is also accepted.

124                                       The assertion being advanced that an induction was not required because Messrs Parker, Hanlon and Kera were “from the unions” is also rejected. The “occupational health and safety requirement” that applied to the premises at Manly was a requirement imposed for the benefit and safety of all entering the site – be they union officials or others. Contravention of s 758(3) is, again, alleged.

125                                       It is concluded that a contravention of s 758(3) by each of Messrs Parker, Hanlon and Kera has been made out.

126                                       It is also said that the Fifth and/or Sixth Respondents have contravened s 758(3) by the contraventions of their employees.

The Scaffolding Contravention — 3 December 2008

127                                       The essence of this complaint is that the Fourth Respondent, Mr Mitchell, entered the site on 3 December 2008 and declined requests to immediately stop climbing or walking on, or otherwise using scaffolding.

128                                       It is admitted that Mr Mitchell “climbed or walked on certain scaffolding on the exterior part” of the development known as ‘House 12’.

129                                       Nor could it be doubted that Mr Mitchell entered the site and walked on the scaffolding. Ms Sokolich’s evidence was that on 3 December 2008 she saw Mr Mitchell walk on to the exterior scaffold of House 12 unaccompanied. She said she called out to him:

Mr Mitchell, according to Ms Sokolich, ignored the request to come down off the scaffolding.

130                                       Mr Nash also gave evidence that he saw Mr Mitchell standing on the scaffolding and heard Ms Sokolich on a number of occasions requesting Mr Mitchell to “come off the site”.

131                                       Another employee of Lend Lease, Mr Phillip Johnston, also gave evidence to the same effect. He was the Project Quality Manager. Mr Johnston heard the requests made by Ms Sokolich to come down off the scaffolding and Mr Mitchell’s refusal to do so. He heard Ms Sokolich “repeat a few times” her request. Mr Johnston also gave further evidence that Mr Mitchell was saying that “a number of bar caps needed replacing immediately”. Mr Johnston replied:

Mr Mitchell’s reply was:

Not surprisingly, Mr Johnston did not know what Mr Mitchell meant by his response. Further requests were made for him to come off the site. Mr Mitchell did come off the site at that point of time when Mr Hinde had replaced the bar caps. Mr Johnston was not present throughout the entirety of the exchange between Ms Sokolich and Mr Mitchell.

132                                       Mr Johnston too requested Mr Mitchell to come down off the scaffolding.

133                                       Mr Nash gave evidence that he heard Mr Johnston say to Mr Mitchell:

Mr Nash did not hear Mr Mitchell’s response but he did hear Mr Johnston say:

The request to come off the scaffolding and the offer to replace the “bar caps” was thus repeated – as was the statement: “Are you brain dead”. Mr Johnston, by this stage, was becoming angry. It appeared that there was a bit of a stand-off. Mr Mitchell remained where he was. The “bar caps” were replaced and then Mr Mitchell came down. Mr Steve Nobilo also gave evidence that he heard “a woman” say:

She also said: “Get down”.

It was his recollection, however, that there were three union men on the scaffold. Mr Nobilo also overheard one of the union officials also saying to Mr Mitchell “this isn’t safe” in reference to the site.

134                                       There was (perhaps) uncertainty as to where Mr Mitchell was on the scaffolding and its height from the ground. Ms Sokolich said that Mr Mitchell mounted the scaffolding and it was some 400 mm off the ground and then proceeded further along the scaffolding. Mr Nash agreed that he saw Mr Mitchell “up one level” and that Ms Sokolich “was at the rear of the house. You could call it ground, She didn’t enter up onto level 1”. Such uncertainty as there was was made certain by the evidence of Mr Gil who explained the obvious. The scaffolding was next to a building which was on sloping ground. At the “back of the site, which is … level and … by the time you get to the front of the building it’s about two - two to three metres high”. Mr Gil also heard “a lady … saying, ‘Excuse me. Excuse me. You’re not allowed on the site”. That evidence is accepted as being evidence as to what Ms Sokolich was saying to Mr Mitchell.

135                                       The account given by Mr Mitchell was somewhat different to that advanced on behalf of the Applicant. Relevantly, he accepted that Ms Sokolich had said (“loudly”) to him “You shouldn’t be there. Come down, come down.” He also accepted that Mrs Sokolich tried to “usher me off the scaffold”. But his account was that Ms Sokolich did not say “We will fix that”. Mr Mitchell maintained that he did not say at any time “Are you brain dead?” and further maintained that the exchange between himself and Mr Johnston was as follows:

In Mr Mitchell’s view, it was not a question of Mr Mitchell “replac[ing]” the caps on the reo bars; it was the fact “that they were not on the reo bars at all”.

136                                       The allegation is that the requests made of Mr Mitchell by Ms Sokolich were occupational health and safety requirements that applied to the premises within the meaning of s 758(3)(a) of the Workplace Relations Act and were reasonable requests within the meaning of s 758(3)(b). The failure to comply, it is then said, falls within s 758(3)(c).

137                                       The evidence of Ms Sokolich as to the requests made of Mr Mitchell is accepted. The evidence of Ms Sokolich, in particular, was presented in a balanced and even manner. Her account was largely corroborated by Messrs Johnston, Nash, Nobilo and Gil. Their evidence is also accepted. To the extent that there is a divergence in the account provided by Mr Mitchell, the evidence of the Applicant is preferred to that given by Mr Mitchell.

138                                       It is concluded that a number of requests were made by Ms Sokolich for Mr Mitchell to come down off the scaffolding and that such requests were “requests” within the meaning of and for the purposes of s 758(3)(a). Such “requests” were requests to comply “with an occupational health and safety requirement” that applied to the site within the meaning of and for the purposes of the same provision. It is further concluded that the “requests”were “reasonable” within the meaning of and for the purposes of s 758(3)(b).

139                                       And it is further concluded that Mr Mitchell “fail[ed] to comply with the request[s]” made of him within the meaning of and for the purposes of s 758(3)(c). Although immediate compliance with a “request” may not in all circumstances constitute a “fail[ure]” for the purposes of s 758(3)(c), it is considered that the fact that repeated requests had to be made of Mr Mitchell to comply and the fact of his repeated non-compliance with those requests, constitute conduct which falls within the term “fails” as used in s 758(3)(c). It is further concluded that Mr Mitchell had no real intention to come down from the site or to comply with any request that was made of him until he decided in his own good time that he was willing to do so. Again that conclusion is founded upon the fact that repeated requests had to be made of him to comply, and also his responses to the requests made.

140                                       Those facts relevant to whether a “request” was “reasonable” and whether a person “fails to comply” may well overlap. The greater may be the concern as to safety, the greater may be the need for a person to more immediately comply with a request made. In the present proceeding, the legitimate concern as to the safety of Mr Mitchell being up on the scaffolding and the time taken to comply with the repeated requests made of him to “come down” only reinforce the conclusion as to a contravention of s 758(3).

141                                       The suggestion advanced in cross-examination that Ms Sokolich adopted an “aggressive” attitude towards Mr Mitchell, and presumably for that reason her request was not made reasonably, is rejected.

142                                       The assessment made by Mr Justin Barrett, albeit in a different context, that Ms Sokolich was being “authoritative” is accepted.

143                                       Given the resistance being demonstrated by Mr Mitchell to the requests being made, it is well understandable as to why Ms Sokolich was trying to exert some authority. Moreover, a request, even if made “aggressively”, may well remain a “request [which] is a reasonable request”. Indeed, in some circumstances a person making a “request” for the purposes of s 758 may well need to be “aggressive” in order to seek to protect a person from a risk to their own health or safety.

144                                       It is concluded that a contravention of s 758(3) by Mr Mitchell has been made out.

145                                       Again, it is also alleged that this conduct of Mr Mitchell exposes the Fifth and/or Sixth Respondents to liability.

The Upgrade & SPP Contraventions — 3 December 2008

146                                       On 3 December 2008 there were approximately 19 sub-contractors working on site, including carpenters and renderers. Contravention of s 767(1) is alleged.

147                                       The essence of these contraventions is that it is alleged Messrs Parker, Hanlon and/or Kera induced carpenters and renderers who were working on site to stop work and leave. The carpenters were employed or engaged by an entity known as Upgrade Carpentry Pty Ltd (“Upgrade”); the renderers were employed or engaged by Sydney Plasterers and Painters Pty Ltd (“SPP”).

148                                       The site foreman, Mr Tom Tsitsios, gave evidence that he was on site on 3 December 2008 when three union members attended. The three union members to whom Mr Tsitsios was referring were Messrs Parker, Hanlon and Kera. Given the conclusions which have otherwise been reached in respect to the contraventions in relation to the refusals to undergo a site induction, it matters little that Mr Tsitsios also gave evidence that Mr Barrett had said to him:

The importance of the evidence of Mr Tsitsios lies in what happened thereafter. He maintained that the three split up, with two (Messrs Hanlon and Kera) walking into the rear of House 12 on their own. The other (Mr Parker) remained near the site shed. Mr Tsitsios was present when Mr Barrett asked the two who had entered the house to be specific about items of concern. Messrs Hanlon and Kera then entered House 11 and whilst walking along picking out little items like a gap in the scaffolding would say to Messrs Barrett and Tsitsios things like:

and

This exchange lasted about an hour to an hour and a half.

149                                       Mr Tsitsios also gave evidence that Mr Parker then joined them and saw a power lead on the floor. At about 9:30 am Mr Parker then approached Mr Anthony Bangel. Mr Bangel is a carpenter and is employed by and is a director of Upgrade Carpentry Pty Ltd. Mr Tsitsios then gave an account of the following exchange:

Mr Bangel in his written statement said that the “older official” said:

This union official or the “older official” to which reference was made was Mr Parker. When Mr Bangel was cross-examined it was suggested to him that the union official had not made that remark.

150                                       Mr Bangel rejected the suggestion and maintained that “[t]hat was said to me”. Mr Bangel continued to recount that one of the union officials walked past him and “pulled out the leads” and said:

Although it was suggested to Mr Bangel that it suited him to “knock off early”, he added:

151                                       According to Mr Tsitsios, the same union official at about 9:45 am then approached one of the renderers working on site. The account given by Mr Tsitsios of that exchange was as follows:

The renderer to whom this exchange was directed was Mr Nobilo, a leading hand employed by Sydney Plasterers & Painters Pty Ltd. Mr Nobilo gave evidence confirming the account given by Mr Tsitsios. The evidence he gave in cross-examination was that it was Mr Parker who said:

Mr Nobilo accepted that he left the site because that is what he had been told to do by his boss. He also said that had he been told by his boss to stay, that is what he also would have done. Disturbingly, Mr Tsitsios also gave evidence of an exchange between a “gyprocker … who is of Asian descent” and Mr Parker as follows:

152                                       Mr Justin Barrett also gave evidence that he overheard a conversation between Ms Sokolich and Mr Parker in which Mr Parker said things like:

153                                       Mr Francisco Santana, gave similar evidence as to being told to finish off the wall he was working on “and don’t do any more”. He was given that instruction by a man who did not introduce himself but who had “CFMEU written on his shirt or vest” and who said that “he was from the union”. This man was Mr Parker. In cross-examination he agreed that he left the site because his “boss”, Mr Phillip Martin, told him to do so. He also said in cross-examination, however, that the man from the union told him “to finish my job and to leave the site”.

154                                       Further insight into the manner in which the union officials were discharging their functions (or at least Mr Parker) may also be gleaned from Mr Tsitsios’s evidence as to the following conversation which he overheard between Ms Sokolich and “the older union official” (Mr Parker):

Mr Mitchell then arrived and introduced himself. They all then went to one of the site offices where Ms Sokolich again asked to be informed of the specific safety concerns that were apparently being investigated. Mr Mitchell then turned to her and said:

Mr Tsitsios characterised the tone being used by Mr Mitchell as “very abusive”. To a suggestion that Ms Sokolich was “vigorous”, Mr Tsitsios’s response was:

Mr Tsitsios rejected a suggestion that the participants to the exchange were “talking over each other”, whereas Ms Sokolich accepted the same suggestion. Irrespective of such personal assessments, a conclusion that the exchanges directed to Ms Sokolich were “abusive” is nevertheless supported by the terms of the conversations themselves.

155                                       Mr Tsitsios was of the belief that these workers left the site because they were intimidated by the union officials. In cross-examination he rejected the suggestion that “Mr Hanlon never demanded that the site be halted” and the following exchange occurred:

156                                       There is no doubt that the three men to whom reference was made were the same three men who had presented themselves earlier to Mr Tsitsios and who Mr Barrett had introduced saying “these three gentlemen are from the union”.

157                                       Mr Parker did not accept that he said “Pack up and go. The power boards are unsafe”. And he maintained that he did not say “you boys better pack up we’re shutting this place down”. Mr Hanlon also maintained that he did not hear Mr Parker say “Stop work”. Mr Parker further maintained that he did not say to Mr Santana “Just finish the mud you have on the walls already and don’t do anymore”.

158                                       The Amended Statement of Claim alleges the present contravention as against Messrs Parker, Hanlon and/or Kera. And there was some uncertainty in some of the Applicant’s evidence as to the particular individual involved in the conduct on the part of the Respondents. That uncertainty was manifest in witness statements referring variously to “union officials” or the “older union official”. At the close of the evidence, however, it was apparent that it was Mr Parker who had engaged in the conduct the subject of the allegations.

159                                       Counsel for the Applicant, consistent with the role of a model litigant, quite properly accepted that such allegations as had previously been advanced against Messrs Hanlon and/or Kera in respect to this conduct were abandoned.

160                                       The evidence of Messrs Tsitsios, Bangel, Santana and Nobilo is accepted. It is concluded that Mr Parker in fact had the conversation with Mr Bangel in which he told him to “pack up and leave” and that Mr Bangel did so by reason of the statement made by Mr Parker. It is further concluded that Mr Parker told Mr Nobilo that he should “pack up” as “we’re shutting [down] the site.” It is further concluded that Mr Parker told Mr Santana not to “do any more.” Although Messrs Nobilo and Santana may well have remained on site had their “boss” told them to do so, the fact of the demands or instructions given by Mr Parker remains. The disruption to the work being carried out was appreciable.

161                                       An attempt by Counsel on behalf of the Respondents to contend that the Applicant had not established that the workers had not been “induced … to stop work or to leave the site” is rejected. The allegation in the Amended Statement of Claim that s 767 had been contravened was advanced by reason of the workers having been so “induced”. Reliance was placed upon Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3, 106 FCR 482. The submission of the Respondents is rejected.

162                                       A further attempt by Counsel for the Respondents to presumably colour the evidence given by Mr Tsitsios as being prejudiced because he regarded union officials as “dead shits” is rejected. The attempt was apparently based upon a mistaken assumption on the part of Counsel that a handwritten diary note prepared by Mr Tsitsios referred to the union personnel in the manner being suggested; the diary note correctly read referred to them as “delegates”. Mr Mitchell certainly did not hear anyone refer to the union officials in that manner and would have been “appalled” had such language been used. Mr Kera also gave evidence that he heard Mr Tsitsios yell out “Typical union fuckwits”.

163                                       The evidence of Mr Barrett and Ms Sokolich is also accepted.

164                                       Although the passage of time necessarily impacted upon the recollection of each of the witnesses called by the Applicant, it is accepted that they each attempted to give an accurate and impartial account of the facts. The fact that each had to be subpoenaed to give evidence against the Respondents is, perhaps in itself, some indication that they did not give the evidence they did voluntarily and did not see it to be in their interests to give anything other than a factual account of what had happened.

165                                       It is concluded that on 3 December 2008, Mr Parker:

·                    engaged in the conduct alleged;

·                    that such conduct was intentional;

·                    that such conduct both hindered and obstructed Lend Lease, Upgrade, SPP, and their employees in the discharge of their functions.

A contravention by Mr Parker of s 767(1) is made out. It is considered that in engaging in the conduct that he did, Mr Parker was “…seeking to exercise rights … under an OHS law in accordance with s 756” and that he intended to both hinder and obstruct the workers that he spoke to from carrying out the tasks they had been employed to do. Once the Applicant’s account of the events is accepted, there is not considered to be any scope for concluding that Mr Parker did not intend to interfere with the employment being undertaken at the time.

166                                       Again, a contravention is also alleged as against the Fifth and/or Sixth Respondents.

The Crane Contravention – 4 December 2008

167                                       The essence of this contravention is that it is alleged that Messrs Parker, Mitchell, Hanlon and Kera entered the site at about 7:30 am on 4 December 2008. The two vehicles in which they did so were parked in the vicinity of a crane that was being or was being prepared to be dismantled. It is contended that Mr Justin Barrett requested Mr Parker to move the cars at about 8:30 am and that Mr Parker failed to comply for a period of about 20 minutes.

168                                       The facts are within a narrow compass. The contravention alleged is confined to the conduct of Mr Parker.

169                                       On 4 December 2008 Lend Lease was proposing to dismantle a crane. The utility driven by Mr Parker was parked directly under the jib of the crane. The area where he parked had not at that stage been marked off as an exclusion zone.

170                                       Be that as it may, Mr Parker was initially talking on the telephone and when he finished his telephone call the following conversation occurred between himself and Mr Justin Barrett:

Mr Barrett said that the request to move the cars was repeated on two or three occasions. Messrs Parker, Mitchell, Hanlon and Kera talked among themselves. Mr Parker did move his utility. Estimates as to the amount of time taken before Mr Parker moved his car varied from about 15 to 30 minutes. But it was moved as was the other vehicle.

171                                       The manner in which the delay in moving the vehicles impacted upon the work to be undertaken on the crane was explained as follows in the cross-examination of Mr Barrett:

 

172                                       Mr Adam Little also gave evidence as to this contravention. He was the crane operator and had been retained “to, basically, remove it – fold it down”. Mr Little agreed that the area had not been set up as an exclusion zone but said that “you wouldn’t drive under it, basically”. He thought “common sense would prevail”. He estimated that the car was moved after “about half an hour”. He thereafter saw Mr Parker “walking around … on his phone”.Mr Nash also gave evidence and when questioned in cross-examination as to the request made by Mr Parker, the following exchange occurred:

Mr Nash could not recall how long it took Mr Parker to move his car.

173                                       Mr Parker was “absolutely certain” that he was not asked to move his vehicle from under the crane but he did “recall being asked to move my car from where it was parked” and he did so. He did not give any evidence as to how long it took him to move his car once a request had been made. 

174                                       The evidence of Messrs Barrett, Little and Nash is accepted. It is accepted that Mr Barrett did request that Mr Parker move his vehicle on a number of occasions and it is accepted that it took Mr Parker up to half an hour to do so. Given the evidence of Mr Little, it is perhaps surprising that Mr Parker in fact parked his car where he did. Given the passage of time since such an event took place, and perhaps the nature of the request being made, it is not surprising that Mr Parker may have a faulty recollection of the requests being made. Mr Parker may well have been distracted (in part) at the time by the telephone calls he was making.

175                                       It is alleged that the conduct of Mr Parker was intentional and that it hindered or, alternatively, obstructed Lend Lease.

176                                       A contravention on the part of Mr Parker of s 758(3) and s 767(1) of the Workplace Relations Act is alleged.

177                                       A contravention by the Fifth and/or Sixth Respondents is also alleged. 

178                                       It is concluded:

·                    that Mr Barrett requested Mr Parker to move the two vehicles on a number of occasions; and

·                    that Mr Parker failed to do so for a period of about half an hour.

179                                       A question does arise, however, as to whether his failure to do so was intentional, given his being possibly distracted by his telephone calls.

180                                       It is concluded that the request made of Mr Parker to move the vehicles was “an occupational health and safety requirement” within the meaning of and for the purposes of s 758(3)(a) and that the request was a “reasonable request” within the meaning of s 758(3)(b). The time taken by Mr Parker to move the vehicles, it is further concluded, constituted a failure to comply with the request within the meaning of and for the purposes of s 758(3)(c).  

181                                       A contravention of s 758(3), it is considered, has been made out.

182                                       But a contravention of s 767(1), it is considered, has not been made out, even if Mr Parker’s conduct can be characterised as “intentional”. To constitute a hindrance or an obstruction for the purposes of s 767(1)(b), it is necessary for the activities on site, or the activities that are planned for a particular day, to have been hindered or obstructed in fact. In the present proceeding, there was little evidence that the dismantling of the crane had in fact been delayed – or hindered or obstructed – by the failure on the part of Mr Parker to move the vehicles when requested to do so. The area where the vehicles were parked had not at the time been set up as an exclusion zone. Although Mr Barrett maintained that Lend Lease “was in the midst of dismantling a crane” on 4 December 2008, there was little evidence that any particular act of dismantling had in fact been hindered or obstructed and no evidence that Mr Parker’s conduct had appreciably hindered or obstructed the work to be undertaken or being undertaken by Mr Little.

The Assault Contravention — 4 December 2008

183                                       The essence of this allegation is that at about 11:00 am on 4 December 2008 Mr Mitchell drove a car into a cyclone fencing gate on the site and thereby endangered Mr Tom Tsitsios. It is alleged that the conduct was intentional and that Mr Mitchell thereby acted in an “improper manner” within the meaning of s 767(1). It is also alleged that Messrs Hanlon and Kera “failed or neglected to take any action to prevent or stop the Assault or ameliorate the danger” and that they too thereby acted in an “improper manner”. Contravention of s 767(1) is alleged.

184                                       Again, contravention by the Fifth and/or Sixth Respondents is also alleged. 

185                                       The principal evidence of this contravention was that advanced by Mr Tsitsios. He said that at about 11:00 am on 4 December 2008 “one of the Harley Cranes hydraulics technicians” told him he had to remove his van from the exclusion zone where the crane was being dismantled. Mr Tsitsios said that the technician removed his van and he then pulled the gates together to close them and he then put a chain through the two gates and padlocked them. He was about to turn away when he saw Mr Mitchell’s black utility come around the bend in the road and up towards the gate. The utility approached the gate and “drove straight into it sufficiently hard enough to bang the two sides of the gate hard towards me”. Mr Tsitsios said that had he not been standing about a metre back from the gate and had the gate not been chained they “would have hit me very hard”. Mr Tsitsios could clearly see Mr Mitchell’s face when he was driving his utility as Mr Mitchell was looking directly at him. Mr Tsitsios said to two of the other union officials who were observing the events:

In cross-examination, Mr Tsitsios maintained his account of what happened. He explained to his cross-examiner that Mr Mitchell “flew around the corner and drove into the gate”. His recollection of the event, perhaps not surprisingly, was clear. He said “[i]t happened in a split second”. He further explained in re-examination that, after having collided with the gate, Mr Mitchell put his car into neutral and let it roll back down the road. Mr Tsitsios maintained the ute driven by Mr Mitchell was black. He denied to his cross-examiner that he had exaggerated the incident and said that he should have“maybe rung the police”. In rejecting a suggestion that “the event wasn’t very serious”, Mr Tsitsios said:

When asked “How do you know he thought it was a joke?”, Mr Tsitsios replied:

186                                       The events were also observed by an electrician undertaking work on site, Mr Paul Barrett. Mr Barrett said that he observed a “white Ute or dual cab revving his engine” and that it was then driven “up to the gate.” He also rejected a suggestion in cross-examination that the vehicle stopped short of the gate. Mr Adam Hughes, a crane operator, also saw a car hit the closed gate and saw Mr Tsitsios jump back. Mr Hughes said that Mr Tsitsios “was a bit irate about it”. But Mr Hughes did not see who was driving the car and he was not “certain” that the car was white. He too rejected the suggestion that the vehicle stopped short of the gate during the following exchange in the course of cross-examination:

Mr Hughes, it may be accepted, had no current recollection of the vehicle hitting the gate and that such recollection as he was advancing was one refreshed from his having read his statement provided over a year earlier in February 2009, being itself a statement provided some two to three months after the events in December 2008. Such evidence, nevertheless, remains persuasive.

187                                       The account given by Mr Mitchell was different to that advanced on behalf of the Applicant. Mr Mitchell maintained that he had driven away from the site to get some morning tea for Messrs Kera and Hanlon. Upon returning to the site and as he approached the gate he was steering with one hand. Some coffee spilt onto his left leg and he momentarily looked down. He said his vehicle did not make contact with the gate. His written statement of evidence continued on to provide as follows:

But his account in cross-examination was somewhat different. In cross-examination the following exchange occurred:

188                                       The discrepancy between the accounts as provided by Mr Mitchell is reason in itself for reservation in accepting his evidence. It is considered that the accounts provided have been tempered by both the passage of time and by reason of how he may well now prefer to recollect those events rather than by reference to how those events actually unfolded. His evidence in cross-examination was, with respect, less than satisfactory. It had the hall-marks of self-interested qualification, if not evasion. 

189                                       The evidence of Messrs Tsitsios, Paul Barrett and Hughes is preferred and is accepted. The account provided by Mr Tsitsios alone presented as a clear recollection of the events; a recollection it is considered far more reliable than that provided by Mr Mitchell. Rejected is a submission advanced on the Respondents’ behalf during oral submissions that Mr Tsitsios had so exaggerated his account that it became “bigger than Texas”. The accounts provided by Messrs Paul Barrett and Hughes were also presented in a far clearer and more reliable manner than that provided by Mr Mitchell. Their evidence only provides further support for the account advanced by Mr Tsitsios.

190                                       It is concluded that on 4 December 2008:

·                    Mr Tom Mitchell drove a vehicle;

·                    that vehicle made contact with the gate and did so with “some force”;

·                    in doing so Mr Mitchell acted intentionally;

·                    the contact made with the gate was such as to cause Mr Tsitsios to jump out of the way; and

·                    these events took place in the presence of Messrs Hanlon and Kera, whose response was to laugh.

191                                       It is further concluded that in so doing Mr Mitchell was both “seeking to exercise rights … under an OHS law in accordance with s 756” and acted “in an improper manner”. For the purposes of acting in an “improper manner”, it is not considered necessary to prove that Mr Mitchell intended to act in any such manner. But it is nevertheless concluded that he subjectively did in fact intend to drive into the gates with knowledge that Mr Tsitsios was in close proximity.

192                                       Less clear is whether the conduct of Messrs Hanlon and Kera could properly be characterised as acting “in an improper manner”. Their response to the actions of Mr Mitchell may be characterised as simply inappropriate and immature, especially given the positions they occupied. But any necessity to make any further finding as to whether such conduct also falls within the ambit of acting “in an improper manner” was removed by the Applicant’s abandonment during closing oral submissions of any finding as to a contravention of s 767(1) as against Messrs Hanlon or Kera in this regard.

193                                       A contravention of s 767(1) by Mr Mitchell has been made out.

The Right of Entry Being Exercised & The Purpose Being Pursued

194                                       The essence of this allegation is that Messrs Parker, Mitchell, Hanlon and Kera engaged in the conduct the subject of this proceeding “for the purpose, or purposes which included, furthering a dispute between the CFMEU and/or CFMEU NSW on the one hand, and LLD on the other hand, as to the payment by LLD of subcontractors engaged to work on the Development by Berem Constructions Pty Ltd, which had acted as the builder on part of the Development”.

195                                       The contravention alleged is a contravention of s 767(1).

196                                       Again it is alleged that, by the conduct of the individual Respondents, the Fifth and/or Sixth Respondents are now also exposed to liability.

197                                       Although considerable reservation is expressed in concluding that this particular contravention has not been made out, it is ultimately concluded that the evidence is not sufficient to satisfy the requirements imposed by Briginshaw.

198                                       The factual matrix of evidence adduced by the Applicant, nevertheless, raised a sound factual basis upon which there was reason to question the purpose being pursued by the individual Respondents. The allegation was properly raised for resolution.

199                                       Prior to 3 and 4 December 2008 there had been the demonstration that took place outside of the offices of Lend Lease in Hickson Road at Millers Point immediately after the termination of the contract with Berem Constructions. In subsequent conversations, for example, one between Mr Parker and Mr Tobin on 23 September 2008 Mr Parker made clear the concern of the CFMEU to secure what it saw as an appropriate outcome for the former sub-contractors of that company. Mr Parker advised Mr Tobin that the CFMEU were acting for the outstanding sub-contractors with whom negotiations with Lend Lease had not by then secured a satisfactory outcome. And on 24 September 2008 Mr Kera telephone Mr Tobin and told him that “We are in dispute”.

200                                       An inference is open that it was in furtherance of this dispute that entry was sought to access the site in December 2008 – or, at least, was one of the reasons for access being sought.

201                                       Some limited support for such an inference may be gleaned from the following conversation between Mr Barrett and Mr Parker on 3 December 2008 as recorded in Mr Barrett’s statement. Whilst walking around the Manly site this conversation was as follows:

Although this conversation must be considered in light of the demonstration on 9 September 2008, the conversation on its own adds little to any conclusion as to the purpose for which the right of entry was being invoked. Indeed, it would have been perhaps surprising if the concerns that motivated the demonstration were not again mentioned when a later opportunity presented itself.

202                                       Further support for the same inference is also to be found in the evidence of conversations between the union officials and those working on site. Thus, for instance, Mr Moult was working on site as the leading hand. He gave evidence as to a conversation between himself and one of the union officials on 7 October 2008, namely after Berem Constructions had been placed into voluntary administration. He asked whether there was anything he could do and the following conversation occurred:

On 3 December 2008 at about 9:30 am Mr Moult also overheard one of the union officials say: “Lend Lease Development and Bovis Lend Lease you are all the same. We’ll have to make visits to all your other sites”.

203                                       Some limited further support may also be found in the evidence of Mr Hughes. He was a crane operator and he gave evidence that a person identified as “Brian”, namely Mr Parker, “explained that the union were there trying to get LLD to pay the boys that had been left out of pocket from the previous builder going bust”. “Brian” was “2^nd in charge or something like that”.

204                                       The written submissions provided on behalf of the Applicant identify the evidence of Messrs Barrett and Hughes as “the best evidence” of the improper purpose contravention. On behalf of the Applicant it is further submitted that neither Mr Barrett nor Mr Hughes were cross-examined on the account now relied upon. In advancing this submission, reliance was placed on the following passage in the judgment of Heydon JA in Knight v Maclean [2002] NSWCA 314:

[35] The other course open to the trial judge was to accept the independent witness’s evidence. He was not obliged to do this, particularly since the plaintiff contradicted it, but it would not have been unreasonable to do so. In Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426 Hope and Glass JJA said:

 

“A tribunal of fact may, and indeed generally should, have regard, in deciding what its findings of fact should be, to the failure of a party to cross-examine his adversary upon evidence which the adversary has given to satisfy the onus which lies upon him. As Browne v Dunn shows, it may be wrong in many cases for a party to suggest that the other party’s evidence should not be accepted, if there has been no relevant cross-examination; and, if a tribunal of fact rejects that evidence in those circumstances, the result may be a wrong finding of fact, or, to use other language, an unreasonable ... or even a perverse finding of fact.”

 

205                                       All of these accounts however, including those advanced by Messrs Barrett and Hughes, nevertheless remain explicable as simply evidencing the continuing concern of the individual Respondents to pursue the cause of the sub-contractors whenever possible and to explain their continuing concern. The accounts certainly do not negative a right of entry being sought for a genuine concern as to safety. A right of entry otherwise available to be exercised by reason of a genuine concern as to occupational health and safety cannot necessarily be denied to the individual Respondents because they also had an objective of securing redress for the sub-contractors if at all possible.

206                                       A separate source of evidence founding a reason to question the purpose motivating the right of access sought on 3 and 4 December 2008 may also be found (perhaps) in the failure on the part of the Respondents to explain to Lend Lease in any meaningful manner their concerns as to safety. Such explanations as were provided were, on one view, mere glib recitations of reasons that may have been genuine. But the decision of the Full Court in Hogan v Riley, supra, is a cautionary reminder of too readily inferring a contravention (of at least s 767) by reason of a failure to particularise areas of concern. But that decision, it is considered, does not stand in the way in an appropriate case of concluding that a right of entry ostensibly being exercised for one purpose is but a cloak for an improper purpose. Indeed, it would be surprising if an individual respondent would ever realistically concede his improper motives. A finding to such an effect must invariably be based upon inferences.

207                                       Subject to that qualification, the conduct of the individual Respondents when seeking entry and the explanations provided and conduct once upon the site certainly do not manifest an unequivocal pursuit of a genuine concern as to safety.  

208                                       Repeated requests were made of the union officials to identify the areas of concern to them. Mr Tsitsios gave evidence of the conversation he overheard between Ms Sokolich and Messrs Hanlon and Kera. Ms Sokolich herself also gave evidence of making requests. Mr Barrett had telephoned her at about 9:00 am on 3 December 2008 and requested her to attend. She arrived at about 9:40 am and had the following conversation with Mr Hanlon:

Mr Hanlon then “gesticulated all around with his arms”. The conversation continued:

There was no answer to that question. The identification of the “whole site” may potentially have identified the “whole site” as involving a series of undisclosed concerns as to safety or an exaggeration which did nothing to assist in any specific area of concern.

209                                       Ms Sokolich also gave evidence of the following exchange as between herself and Mr Parker:

The last comment he repeated at least ten times. Ms Sokolich formed the view that Mr Parker was “full of theatrics”. She did not believe that the union officials “had a valid safety concern”.

210                                       Ms Sokolich was not the only person asking for assistance in identifying the areas of concern as to safety. Mr Tsitsios gave evidence as to the following conversation between Mr Barrett and the three union officials:

He then looked at a temporary powerboard and said: “this board does not meet Australian standards code (some number …)”.

He then demanded all work on site be halted.

211                                       Ms Sokolich and Ms Tsitsios were in error in their belief that there was a need for a “specific safety concern” to be identified before entry could be effected on 3 December 2008.  In the absence of obstruction on the part of on occupier, it is nevertheless to be hoped that there would be a degree of co-operation between those investigating concerns as to safety and those being investigated. On the account of the evidence which is accepted, the individual Respondents had no reason to form any view other than that Lend Lease was willing to address any genuine concern as to safety which was raised for consideration.

212                                       The inability – or unwillingness – to divulge the areas of concern to them that they were investigating, it is considered, may say something as to the absence of any genuine concern that there were matters of safety on site that warranted investigation.

213                                       The dismissive manner in which Mr Hanlon, for example, refused to undergo an induction request; the refusal of Mr Mitchell to come down from the scaffolding; the repeated references to people having come out from “under a rock” or to them being a “joke”; and the unwarranted rudeness with which one or other of the individual Respondents treated the officers of Lend Lease says little as to the power being exercised in a bona fide manner. Such an attitude is only reminiscent of the song once popular that “I always get my way … You don’t get me I’m part of the union …”: The Strawbs, “Part of the Union” (1973).

214                                       Some support for drawing an inference that entry was being effected for the purpose of exerting pressure on Lend Lease to pay the Berem employees and sub-contractors may also be found in the following evidence of Ms Sokolich who said that Mr Barrett had said to her:

But Mr Barrett gave no such evidence. The failure on the part of Mr Barrett to give such evidence renders reliance upon Ms Sokolich’s account less certain.

215                                       Whatever criticism may be directed to the manner in which the right of entry was being exercised and the investigation undertaken, there nevertheless was some evidence as to some matters that could potentially have formed the basis for a concern as to safety, namely:

·                    the perimeter fencing being inadequate and having holes in it;

·                    the scaffolding having missing hand rails, kick boards and edge protection;  

·                    the absence of “bar caps”;  and

·                    the state of the electrical power lead on the floor where the carpenters were working.

Whether these were the concerns that those exercising the right of entry had in mind when first entering the site, or were concerns that emerged only thereafter, remained equivocal. Some of the concerns, it should be noted, were observable from outside of the site. But the expressed concerns as to safety, for example, that led to the carpenters and renderers being excluded from the site were far from satisfactory. Mr Bangel, for example, when giving evidence could “picture” one of the union officials snapping what was described as a “plywood step near the scaffolding in … a forceful manner”. The piece of plywood was some 600 mm x 200 mm and “was a step up from the concrete terrace of the … house ... to the scaffold”. He agreed that the union official “stepped on it and it broke”. When asked that it was “not very safe” he responded that “we’d been walking up and down it for about a month … It didn’t seem dangerous to me”. Similarly, the “bar caps” identified by Mr Mitchell as being in need of replacing were offered to be replaced immediately. And the exclusion of even those contractors who were not using electrical power tools was inexplicable. At least part of the area being reviewed by the union officials was, in any event, not a work zone and the process was underway of stripping the formwork and erecting scaffolding. On at least some of the scaffolding there were “Incomplete Scaffold” signs.

216                                       All of this evidence also has to be viewed in the context that at the close of business on 3 December 2008, five union Safety Audit Improvement Notices were issued. And, on the following day, WorkCover also issued three Improvement Notices. Complaints as to safety had also been made to WorkCover only a few days previously, on 28 November 2008.

217                                       Nor are the handwritten notes prepared by Mr Barrett as to the events of 3 and 4 December 2008 to be ignored. The first couple of pages of those notes do record at least a number of issues. There may have been some debate between Mr Barrett and his cross-examiner as to whether any of these issues were “specific” as was being suggested to him. A couple may have been “specific” – such as two references to handrails and the locations of concern. But no conclusion could satisfactorily be reached that any of these issues were raised with Mr Barrett prior to their entry upon site. Mr Barrett, not surprisingly, had little recollection of the sequence in which particular matters unfolded and his recollection was not assisted by reference to these notes. If any conclusion were to be reached based upon these notes, it would be that they record matters or issues mentioned after entry and whilst they were walking around the site.

218                                       On balance such evidence, in its entirety, does not make out the improper purpose being alleged by the Applicant against the individual Respondents to the standard required by Briginshaw. To make a finding as to the improper purpose being advanced by the Applicant would be to make a finding, contrary to the caution of Dixon J in Briginshaw, founded upon “inexact proofs, indefinite testimony or indirect inferences”.

219                                       Care must obviously be taken to ensure that a Court does not seek to substitute its own opinion or assessment for the beliefs or opinions of those in whom the right of entry is vested. The fact that no matter of occupational health or safety (or any substantial matter) may be discerned after premises have been entered by those clothed with authority to do so, does not carry the consequence that the right of entry may not have been properly invoked at the outset. Nor does the fact of those exercising the right raising with an occupier matters other than those relevant to health and safety, deny the lawful authority of those entering a site.

220                                       The conclusion is thus reached that the present contravention alleged by the Applicant has not been made out.

The CFMEU or the CFMEU (NSW)?

221                                       In addition to seeking the imposition of penalties upon the first four individual Respondents, the Further Amended Application as corrected also seeks the imposition of a penalty upon the Fifth and Sixth Respondents – namely the Construction, Forestry, Mining and Energy Union and the Construction, Forestry, Mining and Energy Union (NSW Branch) respectively.

222                                       The Fifth Respondent is and was at all material times an organisation of the employees registered under Schedule 1 of the Workplace Relations Act and a body corporate for the purposes of s 826 of the Workplace Relations Act.

223                                       The Sixth Respondent is a body corporate taken to be incorporated under s 222 of the Industrial Relations Act 1996 (NSW).

224                                       The Further Amended Application as filedseeks the imposition of penalties upon one or other of those two Respondents in respect to each of the contraventions alleged, namely:

·                    the induction contraventions – by reason of the conduct of each of Messrs Parker, Hanlon and Kera;

·                    the scaffolding contraventions – by reason of the conduct of Mr Mitchell;

·                    the Upgrade and SPP contraventions – by reason of the conduct of Messrs Parker, Hanlon and/or Kera;

·                    the crane contraventions – by reason of the conduct of Mr Parker;

·                    the assault contraventions – by reason of the conduct of Messrs Mitchell, Hanlon and Kera; and

·                    the improper purpose contraventions – by reason of the conduct of Messrs Parker, Mitchell, Hanlon and Kera.

225                                       Each of the allegations being advanced against the Fifth and/or Sixth Respondents adopted a standard format, it being alleged that the conduct of the individual Respondents identified:

·                    was engaged in “on behalf of the CFMEU and/or the CFMEU NSW”;

·                    was “within the scope of the actual or apparent authority of” the individual Respondents identified “as officers or employees of the CFMEU and/or CFMEU NSW”; and

·                    “in the premises, by the operation of paragraph 826(2)(a) of the Workplace Relations Act is taken for the purposes of the Workplace Relations Act to have also been engaged in by the CFMEU and/or CFMEU NSW”.

226                                       Section 826 of the Workplace Relations Act provides as follows:

Conduct by officers, directors, employees or agents

(1)    Where it is necessary to establish, for the purposes of this Act or the BCII Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a)     that the conduct was engaged in by an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b)    that the officer, director, employee or agent had the state of mind.

(2)    Any conduct engaged in on behalf of a body corporate by:

(a)     an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or

(b)    any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;

shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.

(3)    A reference in this section to the state of mind of a person includes a reference to the knowledge, intent, opinion, belief or purpose of the person and the person’s reasons for the intent, opinion, belief or purpose.

 

227                                       The phrase employed in s 826(2), “conduct engaged in on behalf of a body corporate”, is a phrase “not … with a strict legal meaning and it is used in a wide range of relationships … [I]t casts a much wider net than conduct by servants in the course of their employment, although it includes it”: cf. Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 37 per Lockhart J; Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 at [78], 100 FCR 530 at 549 per Ryan, Moore and Goldberg JJ.

228                                       And the phrase in s 826(2)(a), “within the scope of his … actual or apparent authority”, has also received attention. In Hanley, supra, Ryan, Moore and Goldberg JJ referred to an earlier decision of the Queensland Court of Appeal in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) [2001] 2 Qd R 118, [2000] QCA 108 and to the divergent approaches pursued by the trial Judge and McMurdo P and Williams J, on the one hand, and that of Pincus JA on the other. Ryan, Moore and Goldberg JJ then went on to make the following observations as to the manner in which a corporation may assume liability by reason of the acts of others:

[75] There is force in Pincus JA’s view in Evenco that in proceedings of a “quasi-criminal” nature, such as proceedings for civil contempt, vicarious liability should not be determined by the strict application of the “course of employment” test. A less stringent approach would expose a body corporate to liability by virtue of the conduct of an employee, however aberrant it might be, as long as it could be characterised as “in the course of employment”. The same considerations apply, in our opinion, to proceedings for a penalty in respect of proscribed conduct and intent under s 170NC. Consequently, to establish vicarious liability under s 170NC it is necessary to adduce evidence which establishes, on the balance of probabilities, that the act complained of was authorised. To use the language of Pincus JA, neither “inferences from what [the relevant employees] generally do” nor “judicial knowledge” are sufficient. That approach accords generally with observations of Moore J made in Kelly v Construction Forestry Mining and Energy Union (1994) 56 IR 373 at 381-382; 125 ALR 109 at 118.

 

229                                       Evidence of the authority being exercised by the individual Respondents is required if either the Fifth or Sixth Respondent is to be held liable: GTS Freight Management Pty Limited v Transport Workers Union of Australia, supra.

230                                       Within these constraints the liability of the Fifth and/or Sixth Respondents is to be resolved.

231                                       There is some uncertainty in the evidence adduced by the Applicant as to whether Messrs Parker, Hanlon and Kera were acting on behalf of the Fifth or Sixth Respondents. Mr Kera, it is accepted, said to Mr Nash that “we’re from the unions”, implying both. But Mr Parker presented his State right of entry; Mr Hanlon displayed his State right of entry and produced his Federal right of entry; and Mr Kera produced both his State and Federal rights of entry.

232                                       When Mr Mitchell entered the site in December 2008 he displayed his State right of entry but carried his Federal right of entry.

233                                       Given the professed purpose of entering the site to investigate matters of concern arising as to safety, there is little difficulty in concluding that Messrs Parker, Hanlon, Kera and Mitchell were acting within their “apparent authority” of the Sixth Respondent.

234                                       Notwithstanding some uncertainty in the evidence, it is also concluded that Messrs Parker, Hanlon, Kera and Mitchell were also acting within the “apparent authority” of the Fifth Respondent.

235                                       All four individual Respondents held themselves out as acting on behalf of the CFMEU and did not seek to draw any distinction between which authority they were seeking to invoke to gain entry to the building site at Manly. And such uncertainty as may otherwise have remained in the evidence was resolved by Mr Parker. He was the supervisor for Messrs Hanlon, Kera and Mitchell. When cross-examined on behalf of the Applicant he was questioned as to the responsibilities assumed by each of these Respondents. In respect to Mr Hanlon, one exchange was as follows:

The cross-examiner then shifted his attention to Messrs Kera and Mitchell and the following exchange occurred:

236                                       During the course of oral submissions, Counsel on behalf of the Applicant abandoned any claim as to contravention against Messrs Hanlon and Kera as a result of the Upgrade and SPP contraventions and also the assault contravention. Although not expressly stated, that presumably was a corresponding abandonment of any contravention on behalf of either the Fifth or Sixth Respondent, by reason of the conduct of Messrs Hanlon and Kera. As a result of the conclusion in respect to the improper purpose contravention, any liability of those two Respondents must also fail. The remaining contraventions, however, remain to be resolved.

237                                       It is, accordingly, concluded that both the Fifth and Sixth Respondent also assume liability for the conduct of the individual Respondents in respect to:

·                    the induction contraventions – by reason of the conduct of each of Messrs Parker, Hanlon and Kera;

·                    the scaffolding contravention – by reason of the conduct of Mr Mitchell; and

·                    the Upgrade and SPP contravention – by reason of the conduct of Mr Parker.

Matters of Evidence — Jones v Dunkel?

238                                       It is considered that the evidence adduced by the Applicant, to the extent that it has been accepted, makes out the contraventions that have been referred to.

239                                       To a limited extent, the Respondents seek to advance a submission that the Applicant could have called additional witnesses but failed to do so. That failure, it is then suggested, may be called in aid by the Respondents in evaluating the evidence advanced against them. Thus, for example, it is advanced on behalf of the Respondents that the Applicant failed:

·                    to tender the Joint Venture agreement as between Lend Lease and the Roman Catholic Church – which may have been relevant to the identification of the “occupier” of the relevant part of the Montpelier site at Manly;

·                    to produce the “written order that was raised by Justin Barrett” to Harley Cranes Pty Ltd whereby Harley Cranes were requested to assist in the dismantling of the crane – which again may have been relevant to the identification of so much of the site as was relevant to the crane contravention;

·                    to call Mr Hinde – who may have been able to give evidence as to the steps taken to fix the handrail on the scaffolding from which Mr Mitchell declined to descend.

240                                       This submission, with respect, is misplaced.

241                                       The evidence-in-chief of such witnesses as were called by the Applicant and the cross-examination of those witnesses, did not provide any real reason to question the accounts that those witnesses provided in their witness statements and the evidence they gave in response to the subpoenas that had been served upon them. 

242                                       There was thus no need to also invoke the so-called rule in Jones v Dunkel (1958) 101 CLR 298. In the passage oft-cited, Kitto J there said:

… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put a true complexion on the facts relied on as the ground for the inference, has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.

 

But the absence of a particular witness “cannot be used to make up any deficiency of evidence”: (1958) 101 CLR 298 at 312 per Menzies J. And these statements in Jones v Dunkel “give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence”: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100at 124 per Wilcox J.

243                                       To the extent that further evidence could have been called on behalf of the Applicant, but was not called, it is not considered that any such further evidence could have assisted in the resolution of the factual matters in dispute and no inference should be drawn by reason of the failure to call such evidence.

Matters of Evidence — The Absent Wattie Johnston

244                                       One of the witnesses upon whom a subpoena had been served failed to attend – Mr Wattie Johnston. No application was made to enforce compliance with the subpoena. He had provided a statement to the Office of the Australian Building and Construction Commissioner dated 12 March 2009. That statement addressed the events on 3 and 4 December 2008. He recounted Mr Parker saying to him:

He also recounted a conversation with Mr Tom Mitchell in which Mr Mitchell said:

Mr Johnston was also on site on 4 and 8 December 2008 but his evidence in respect to those dates took the factual issues to be resolved no further.

245                                       Senior Counsel for the Applicant sought to rely upon Mr Wattie Johnston’s statement even though he did not attend in answer to the subpoena and was not available for cross-examination. Senior Counsel called in aid ss 63 and 67 of the Evidence Act.

246                                       Section 63 provides as follows:

Exception: civil proceedings if maker not available

(1)    This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)    The hearsay rule does not apply to:

(a)     evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or

(b)    a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

 

Clause 4 of Part 2 to the Act’s Dictionary further supplements as follows what is meant by the “unavailability of persons”:

 

Unavailability of persons

(1)    For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(a)     the person is dead; or

(b)    the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact; or

(c)     it would be unlawful for the person to give evidence about the fact; or

(d)    a provision of this Act prohibits the evidence being given; or

(e)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f)     all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2)    In all other cases the person is taken to be available to give evidence about the fact.

 

Section 67 provides as follows:

Notice to be given

(1)    Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.

(2)    Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.

(3)    The notice must state:

(a)     the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and

(b)    if subsection 64(2) is such a provision–the grounds, specified in that provision, on which the party intends to rely.

(4)    Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.

(5)    The direction:

(a)     is subject to such conditions (if any) as the court thinks fit; and

(b)    in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.

 

Order 33 r 16 of the Federal Court Rules requires that a notice under s 67(1) is to be in accordance with Form 144 and may have attached to it an affidavit that sets out evidence of “the previous representation”. Compliance with r 16(3)(a) may be dispensed with if the Court is satisfied, having regard to all the circumstances, that the purpose of the paragraph has been satisfied: O 33 r 16(4).

247                                       The submission was that Mr Johnston was “not available” to give evidence; that the hearsay nature of his evidence fell within s 63(2); and that “reasonable notice” had been given to the Respondents within the meaning of s 67(1).

248                                       The subpoena was returnable on the first day of the hearing and was stood over from one day to the next when Mr Johnston did not attend when called upon. At the end of the third day of the hearing, being the day prior to the Applicant closing its case, notice was given to the Respondents of the Applicant’s “intention to adduce evidence”.

249                                       Notice in accordance with Form 144 was provided.

250                                       Given the non-attendance of Mr Johnston and the time at which the application was made, it was agreed that the use to be made of his statement (if any) could conveniently be deferred to closing submissions. Counsel for the Respondents was thus on notice that the statement may be admitted. His decision to call evidence from each of the individual Respondents exposed Counsel only to the prospect of putting to Messrs Parker and Mitchell the limited conversations asserted by Mr Johnston – should Counsel wish to do so. No real prejudice was raised by the Respondents by deferring any ruling upon the admissibility of Mr Johnston’s statement.

251                                       In the present proceeding, the address and location of Mr Johnston was readily available. He had been contacted on a number of occasions by the solicitor for the Applicant. The position simply was, rightly or wrongly, he feared retribution from the unions and did not wish to attend.

252                                       Reservation is expressed as to whether the mere service of a subpoena upon a witness who has demonstrated an unwillingness to comply with its terms will, in all cases, have the consequence that “all reasonable steps have been taken … to secure his … attendance” within the meaning of cl 4(1)(e) of the definition set forth in the Dictionary to the Evidence Act. But for present purposes it may be assumed that Mr Johnston was “not available” for the purposes of s 63(1).

253                                       It is, however, not considered that “reasonable notice” has been given. That which constitutes “reasonable notice” will obviously depend upon the facts and circumstances of each individual case: Puchalski v Regina [2007] NSWCCA 220. Smart AJ, with whom McClellan CJ at CL and Hislop J agreed, there observed:

[103] … What is reasonable will depend on the circumstances. … Reasonable notice enables the opposing party to reconsider how it is going to conduct its case and whether it needs to call another witness to prove what it reasonably hoped to elicit from the unavailable witness. Some of the evidence of the further witness may be adverse to the case of the accused and regarded by the accused as incorrect.

 

[104] In determining whether reasonable notice has been given regard must be had to the date when, and circumstances in which, the Crown became aware that a witness was not likely to be available or was not to be available and the interests of the accused. These matters would also have to be considered if the exercise of the power under s 67(4) was being contemplated.

 

254                                       And, even if it had, it is not considered that the discretion conferred by s 67(4) to give a “direction” should be exercised in favour of the Applicant. In Tsang Chi Ming v Uvanna Pty Ltd (t/as North West Immigration Services) (1996) 140 ALR 273 no notice had been given. In that context Hill J observed at 281 to 282:

As an exception to the hearsay rule, hearsay evidence is permitted to be given either where the person who made the relevant representation is not available to give evidence about the asserted fact or where, while that person is available, the circumstances are such that it would cause undue expense or undue delay or would not be reasonably practicable to call the person.

 

Section 67(1) requires, in effect, that if s 63 or s 64 is to be availed of, then the parties seeking to avail of them are to give reasonable notice in writing to the other parties of the intention to adduce the evidence. The Rules of the Court provide for the giving of the relevant notice. It is common ground between the parties in the present case that no notice was given. It is also common ground between the parties that it has been known for at least a year that the present evidence was intended to be relied upon.

…

 

The scheme of the Evidence Actis to require notice to be given if the maker of the representation is not to give direct evidence. That notice, under s 67, has to be “reasonable”. The theory presumably is to ensure that if one party does not propose to call the maker of the representation the other party at least may have the chance to do so. However, the court is given power to direct that either or both of ss 63(2) and 64(2) apply, despite the failure to give notice. No criteria are laid down by the Evidence Actupon which the court is to proceed. However, and without attempting to in any way define appropriate criteria exclusively, matters relevant to the court in exercising the discretion, which would need to be exercised judicially, would include the prejudice to the parties by dispensing with the requirement to give notice; as well as, for example, in a case involving s 64, matters of expense and delay which might point in favour of permitting the evidence to be adduced.

 

255                                       In refusing to permit the Applicant to adduce the evidence of Mr Johnston, it is considered that the Applicant was on notice from at least the first day of the hearing that Mr Johnston was not willing to attend – short of an application being made to enforce the subpoena. Whatever steps may have been sought to enforce the subpoena may be left unexplored. For a party to know from the outset of a hearing that difficulties were being experienced in securing the attendance of a witness, and to foist upon an opponent the evening before the final day of hearing of its evidence notice of an intention to rely upon such evidence, does not afford the opponent “reasonable notice”.

256                                       Presumably the Respondents in the present proceeding may have been relieved that Mr Johnston was not available to give evidence. They presumably did not want to take any efforts to secure his attendance. Even so, the Applicant should not be put in the position where it can use the evidence of Mr Johnston simply by giving notice under s 67(1) the evening before the Applicant’s evidence is to be closed even though difficulties were anticipated in securing his attendance and where an election was presumably made to take no steps to secure his attendance.  

257                                       It is concluded that the Applicant can place no reliance upon the statement of Mr Wattie Johnston. The tender of his statement is rejected.  

Costs

258                                       Section 824 of the Workplace Relations Act provided as follows:

Costs only where proceeding instituted vexatiously etc.

(1)    A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

(2)    Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.

(3)    In subsections (1) and (2):

         costsincludes all legal and professional costs and disbursements and expenses of witnesses.

 

Section 663 refers to applications for alleged contraventions of ss 659, 660 or 661 and has no application to the present proceeding.

259                                       No conclusion could be sustained that the present proceeding was instituted “vexatiously or without reasonable cause” within the meaning of and for the purposes of s 824(1).

260                                       Nor is there considered to be any basis upon which it could be concluded that the Respondents caused the Applicant to incur costs “by an unreasonable act or omission” within the meaning of and for the purposes of s 824(2). The Respondents were entitled to invoke their privilege against self-incrimination and to put the Applicant to the proof of its claims. By doing so, the Respondents could not be said to have acted in an “unreasonable” manner.

261                                       But the absence of any power to award costs, it should be noted, does little to facilitate the resolution of proceedings of the present kind in a manner “as quickly, inexpensively and efficiently as possible”: Federal Court of Australia Act 1976 (Cth), s 37M. The balance to be struck between affording Respondents the opportunity to conduct proceedings of the present kind in the manner presently pursued, and to do so in a manner relatively free of any real constraint as to the costs incurred, remains a matter for the Legislature.

262                                       The absence of a more traditional power to award costs nevertheless has the potential to place an impediment in the commencement of applications of the present kind and an impediment in the ability of the Court to resolve the real factual and legal matters in dispute in an inexpensive and efficient manner.

263                                       There remains, however, no basis upon which any order for costs should be made in the present proceeding.

264                                       Section 824 has no application where the person seeking costs is not a party to the proceeding: Standen v Feehan (No 2) [2007] FCA 1865 at [15] per Lander J.

Conclusions

265                                       For the reasons expressed, it is concluded that:

·                    Messrs Parker, Hanlon and Kera contravened s 758(3) by failing to undergo the safety induction as requested on 3 December 2008;

·                    Mr Mitchell contravened s 758(3) by failing to come down from the scaffolding when requested on 3 December 2008;

·                    Mr Parker on 3 December 2008 contravened s 767(1) by both hindering and obstructing Lend Lease, Upgrade, SPP and each of the carpenters and renderers by making the statements he did to persons on site;

·                    Mr Parker on 4 December 2008 contravened s 758(3) by failing to move the vehicles when requested but that he did not also contravene s 767(1) by reason of that conduct;

·                    Mr Mitchell on 4 December 2008 by driving at the gate behind which Mr Tsitsios was standing contravened s 767(1) by acting “in an improper manner”;

·                    Messrs Parker, Hanlon, Kera and Mitchell did not seek entry for the improper purpose alleged and did not thereby contravene s 767(1); and

·                    both the Fifth and Sixth Respondents also assume liability for such contraventions as have been established as against the individual Respondents by operation of s 826(2) of the Workplace Relations Act.

266                                       The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of penalties to be imposed and the making of such declaratory relief as is appropriate.

ORDERS

267                                       The Orders of the Court are:

1.                  The proceeding is stood over for further directions at 9:30 am on 30 July 2010 with a view to then giving directions and fixing a date for the hearing as to the making of further orders as to the quantum of any penalties to be imposed and the making of such declaratory relief as is appropriate.

2.                  The costs of the proceeding to date are reserved.

 

I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:         23 July 2010