FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Abbott (No 2)

[2011] FCA 308

RULING AS TO ADMISSIBILITY OF AIRC TRANSCRIPT

1    These reasons relate to the admissibility of part of the transcript of the evidence given by Mr Peter Stuurstraat, a witness for the applicant in this proceeding, during an Australian Industrial Relations Commission (AIRC) hearing on 14 October 2010.

2    The issue arose in this way. Mr Stuurstraat gave evidence to this Court that he had been told by a security officer at the site of the Phase V Expansion Project in Karratha that a Mr Brad Upton (a CFMEU employee) was trying to get a meeting together. His relevant evidence-in-chief is as follows:

Can you tell us how you became aware that there was a meeting that morning?We’d relocated the parking area for the crew to park in and we were having difficulties with logistics with teething problems so I went out there to ensure that people would be able to get in and park in the right areas and so forth with these new logistics that had been arranged, and that’s when the security chap came over and saw us and informed me that something was happening over in the car park.

What did he inform you?He said that Upton’s trying to get a meeting together.

And did you check that yourself?Yes.

By going to the what you have called the overflow car park?Yes, I went over there. Yes.

And you spoke to Mr Upton?Yes.

3    During cross-examination, counsel for the CFMEU and Mr Upton sought to have the witness agree that during the relevant conversation the security officer had not in fact mentioned Mr Upton. The evidence is as follows:

Well, I’m putting it to you, Mr Stuurstraat, that the security guard never said to you, “Upton is trying to get a meeting going”?Okay.

What he said to you was, “A meeting is being assembled in the car park.” Isn’t that what he said to you?Again, I’ll reply: along those lines is what he said.

HIS HONOUR: Mr Stuurstraat, you’ve been given two alternatives, it can’t be both?I’ve made a iteration of what happened along that line, it was along the lines of, “There is a meeting getting together, Upton is getting a meeting together.” That has been said to me, whether they’re the exact words that he used or not, I’m sorry, I don’t know, but they were along those lines.

MS VERNON: Well, was it along the lines of, “A meeting is being assembled in the car park” or was it along the lines of, “Upton is trying to get a meeting going”?I’m sorry, it’s along those lines of both of what you just said, it’s along those – it’s a long time ago and it was a long those lines of what was said to me.

4    Counsel for the CFMEU and Mr Upton then cross-examined Mr Stuurstraat as to evidence he had given in the AIRC hearing on 14 October 2008. This was an attempt to demonstrate that this evidence constituted a prior inconsistent statement. That evidence was recorded in the AIRC transcript Paragraph Number (PN) 115, which was read out to the witness. I required the transcript to be produced to the Court and directed that it be shown to the witness. The transcript relevantly contained PN 109-PN 123 of the examination-in-chief of Mr Stuurstraat. I will refer to this transcript in these reasons as “the document”.

5    PN 115 in the following terms:

Yes, let’s start with that. You turned up for work in the morning?---Yes, I turned up to work in the morning and was asked to – I was approached by the guards – by the security that a meeting was being assembled at the car park and that they – as far as they were concerned, it was not a meeting that was – had authority to proceed.

6    The relevant cross-examination in this Court of Mr Stuurstraat by counsel for the CFMEU and Mr Upton in respect to the content of the PN 115 was as follows:

You would agree with me that’s what you said? Yes, and I – it wasn’t a word for word, it was along those lines, so

Well, no, I’m putting to you what you actually said ? Okay.

to the Industrial Relations Commission on that day, you said:

. . .

Could you, please, look for PN115? Yes.

And then proceed to read it to yourself quietly, so not out loud? Yes.

Right, you have read that now? Yes.

And that is, you would agree with me, what you said to the Australian Industrial Relations Commission on the morning of 14 October 2008? Yes, sounds good.

All right. Thank you. You can return that now, please? Yes.

So, Mr Stuurstraat, I will ask you again to confirm that what you said on 14 October was, “Yes, I turned up to work in the morning and was asked to - approached by the guards, by the security, that a meeting was being assembled at the car park and that they - as far as they were concerned, it was not a matter that had authority to proceed’? Correct.

That’s what you said to the Australian Industrial Relations? That’s what I said and that wasn’t a quote.

Thank you. Sorry? And it wasn’t a quote. That’s not a quote in there; that’s what the guard had approached me with.

You would agree with me, wouldn’t you, Mr Stuurstraat, that you didn’t make any mention in your evidence before the Australian Industrial Relations Commission that Mr Upton was going to get a meeting going, did you? No, most probably wasn’t asked.

7    Section 45 of the Evidence Act 1995 (Cth) is thereby invoked. Senior counsel for the applicant invited Ms Vernon to tender the document but she declined.

8    The applicant has invited the Court to exercise its discretion to admit part of the document into evidence under s 45(3)(c) of the Evidence Act.

9    The applicant says that PN 112 to PN 122 should be admitted into evidence. The CFMEU and Mr Upton say that only PN 115 should be admitted.

10    There are a number of matters which I consider to be relevant in these circumstances to the Court’s discretion under s 45(3)(c).

11    First, it is relevant to consider whether the document or part of it should be admitted by the Court to enable it to fairly consider the cross-examination in this Court of Mr Stuurstraat upon the content of PN 115 and to weigh its effect. The applicant submits that the Court would be assisted in this respect by admitting into evidence not only PN 115 but also:

•    PN 112, which introduces Mr Stuurstraat and the issue.

•    PN 114 which explains the exact setting for the cross-examination.

•    PN 116-119, and 121 which identify the person who is the subject of the cross-examination, and

•    PN 113, 120 and 122, which set the context of the questioning in the AIRC.

12    Second, it is relevant to consider whether the document is required in order to decide whether the prior statement was inconsistent in the way asserted by cross-examining counsel. The applicant submits that the Court will be assisted as to this by PN 115-122, as they show that it was likely that it was Mr Upton who was said to be arranging the meeting, and hence tend to negate the basis of the cross-examination.

13    The CFMEU and Mr Upton submit that there is no basis for the admission into evidence of the entirety of paragraphs PN 112 to PN 122 in the document because:

(a)    those paragraphs other than PN 115 were not put to Stuurstraat;

(b)    those paragraphs go well beyond what was put to Stuurstraat;

(c)    PN 115 is a discrete paragraph containing a question that is answered within the paragraph, and it was put to Stuurstraat as being a prior inconsistent statement with that contained in paragraph 15 of Stuurstraat’s redacted statement and his oral evidence on the same point;

(d)    PN 112-114 and PN 116-122 are not required to make sense of PN 115 because they extend to conduct and conversations with persons other than Stuurstraat and the security officer,;

(e)    the Court does not need any assistance to:

(i)    introduce Stuurstraat because he gave evidence that PN 115 was his evidence, and the AIRC transcript containing PN 115 can be adequately reproduced to indicate PN 115 is his evidence;

(ii)    understand the exact setting for the cross-examination in the AIRC because only the cross-examination in this Court is relevant and that is contained in the Court Transcript;

(iii)    understand the identity and role of Stuurstraat as that is found in his witness statement supplemented by his oral evidence;

(iv)    understand the context of the questioning in the AIRC because the question and answer in PN 115 is clear;

(f)    Stuurstraat gave oral evidence about his recollection of what happened after the conversation with the security officer. He was not cross-examined on that evidence. Paragraphs PN 112-114 and PN 116-122 cannot be used to supplement the evidence that Stuurstraat otherwise gave, or fill in gaps in evidence he did not give;

(g)    Stuurstraat’s evidence in cross-examination was that what he was told by the security officer was “along the lines of “There is a meeting getting together. Upton is getting a meeting together” but he could not recall the exact words used but it was along the lines of both options. The evidence contained in PN 112-114 and 116-122 is not required to assist in assessing Stuurstraat’s credibility, because he himself admitted he could no longer recall exactly what was said, but both what he said in PN 115 and what he said in evidence was equally correct.

14    I accept the submission of the applicant to the effect that paragraphs other than PN 115 in the document ought be admitted with the purposes of enabling the Court to understand the context in which the question and answer found in PN 115 sits as well as to consider whether in fact the answer given is inconsistent with the evidence given to this Court as to the conversation between Mr Stuurstraat and the security officer. The submission as to inconsistency is a serious matter affecting as it does the credit of the witness. Fairness therefore becomes an important consideration.

15    These purposes will, in my opinion, be served by admitting into evidence not only PN 115 but also PN 114, 116, 117, 119 and 121. These paragraphs record the evidence of Mr Stuurstraat concerning the presence and conduct of Mr Upton in the vicinity of the security guard at the time of the disputed conversation and shortly thereafter. That additional evidence given to the AIRC is pertinent to assessing the question whether or not the evidence in PN 115 properly understood and in context is inconsistent with the evidence given by Mr Stuurstraat before this Court. I do not regard the content of PN 112, 113, 118 and 120 to be relevant in this respect and I would not admit them.

16    I will invite counsel for the applicant to arrange for a suitably redacted version of the document to be produced for tender to the Court.

Associate:

Dated:    31 March 2011

SCHEDULE 1 – THE RESPONDENTS

MURRAY ARCARO

Third Respondent

MOSES ASIATA

Fourth Respondent

SERGIO BAEZ

Sixth Respondent

FRANCISCO BARRAZA

Ninth Respondent

ROLAND BAZAEZ

Twelfth Respondent

LEON BECKER

Thirteenth Respondent

PATRICK BIRD

Sixteenth Respondent

TERRANCE BISHOP

Seventeenth Respondent

ROMEO BONCATO

Nineteenth Respondent

DARREN BOXALL

Twentieth Respondent

ROBERT BROWN

Twenty-Fifth Respondent

SLAVO CEKLIC

Twenty-Eighth Respondent

KIM CHENNELL

Twenty-Ninth Respondent

JASON CHROMIAK

Thirty-First Respondent

ROBERT CLARK

Thirty-Second Respondent

DAVID COLLINS

Thirty-Fourth Respondent

DONALD COLYER

Thirty-Fifth Respondent

CHRIS CORRIGAN

Thirty-Seventh Respondent

ALLAN COUTTS

Thirty-Eighth Respondent

LANCE CRONIN

Thirty-Ninth Respondent

ANDREW CROSIER

Fortieth Respondent

RENEE CUMBERS

Forty-First Respondent

KENNETH CUMMING

Forty-Second Respondent

ALASTAIR CUNLIFFE

Forty-Third Respondent

AIDEN DAVEY

Forty-Fifth Respondent

SCOTT DEVINE

Forty-Ninth Respondent

CLAUDE DEVOS

Fiftieth Respondent

JOHN DICKSON

Fifty-First Respondent

NORMAN DODGIN

Fifty-Third Respondent

DANIEL DOYLE

Fifty-Fifth Respondent

MATT DRUMMOND

Fifty-Sixth Respondent

JOHANNES DUPLESSIS

Fifty-Ninth Respondent

WARWICK FAULKNER

Sixty-Fourth Respondent

VICTOR FAUSTINO

Sixty-Fifth Respondent

JOSE FERREIRA

Sixty-Seventh Respondent

GEORGE FITZROY

Seventy-First Respondent

DAVID FRASER

Seventy-Second Respondent

SALVATORE FRONTE

Seventy-Third Respondent

PETER GARDINER

Seventy-Fifth Respondent

LOUIE GEROVICH

Seventy-Eighth Respondent

SIMON GILBERT

Eighty-Second Respondent

TAY GOODALL

Eighty-Third Respondent

DUANE GUYATT

Eighty-Eighth Respondent

JOHN HARVEY

Ninetieth Respondent

QUINTON HEBBARD

Ninety-First Respondent

ROBERT HOLT

Ninety-Fourth Respondent

STEPHEN HONICKE

Ninety-Fifth Respondent

ANDREW HORNBY

Ninety-Sixth Respondent

CHRISTOPHER HOWARD

Ninety-Seventh Respondent

VINCENT HOWES

Ninety-Eighth Respondent

NIKOLA IVKOVIC

One Hundred and Third Respondent

DENIS JACKSON

One Hundred and Fourth Respondent

MARK JOHNSON

One Hundred and Sixth Respondent

RICHARD JONES

One Hundred and Seventh Respondent

RAYMOND JONES

One Hundred and Eighth Respondent

TURIPI KARUTJINDO

One Hundred and Tenth Respondent

EMIN KECAP

One Hundred and Eleventh Respondent

SHAUN KEILY

One Hundred and Twelfth Respondent

LENKO KORLJAN

One Hundred and Thirteenth Respondent

DARRIN LANE

One Hundred and Fifteenth Respondent

SHANE LAVELLE

One Hundred and Sixteenth Respondent

CHRISTINE LEAHY

One Hundred and Seventeenth Respondent

CHARLIE LINESS

One Hundred and Eighteenth Respondent

CLIFFORD LOGAN

One Hundred and Nineteenth Respondent

KENNETH LOGAN

One Hundred and Twentieth Respondent

DONALD MACKAY

One Hundred and Twenty-Third Respondent

JAMES MANN

One Hundred and Twenty-Fourth Respondent

DENIS MARRINER

One Hundred and Twenty-Sixth Respondent

GHEORGHE MATEIU

One Hundred and Twenty-Seventh Respondent

GREGORY MCCARTHY

One Hundred and Thirtieth Respondent

PAUL MCGEADY

One Hundred and Thirty-First Respondent

RUSSELL MCGHIE

One Hundred and Thirty-Second Respondent

JOSEPH MCGRANE

One Hundred and Thirty-Third Respondent

ALASTAIR MCGUIRE

One Hundred and Thirty-Fourth Respondent

ALAN MCKENZIE

One Hundred and Thirty-Fifth Respondent

DEAN MEDLAND

One Hundred and Thirty-Seventh Respondent

BRAD MILLER

One Hundred and Thirty-Eighth Respondent

ROBERT MITCHELL

One Hundred and Fourtieth Respondent

PASKO MITRESKI

One Hundred and Forty-First Respondent

CHRISTOPHER MOORE

One Hundred and Forty-Third Respondent

LEONARD MUDRI

One Hundred and Forty-Fourth Respondent

DARREN NEWBY

One Hundred and Forty-Sixth Respondent

JAMIE NICOLAOU

One Hundred and Forty-Seventh Respondent

JAMES ODIAM

One Hundred and Forty-Eighth Respondent

BRIAN OTTAWAY

One Hundred and Fifty-First Respondent

MANDY-LEE PALMER

One Hundred and Fifty-Second Respondent

KEN PAYNE

One Hundred and Fifty-Fifth Respondent

LOUISE PFITZNER

One Hundred and Fifty-Eighth Respondent

RICHARD PHILLIPS

One Hundred and Fifty-Ninth Respondent

SHEREE PIKE

One Hundred and Sixtieth Respondent

JOE PIZZO

One Hundred and Sixth-Second Respondent

JOHN PRATT

One Hundred and Sixty-Third Respondent

DAVID ROSSITER-MCLAREN

One Hundred and Seventieth Respondent

PHILLIP ROWELL

One Hundred and Seventy-First Respondent

TOM SABINE

One Hundred and Seventy-Third Respondent

MICHAEL SANDERS

One Hundred and Seventy-Fifth Respondent

ANTON SAXER

One Hundred and Seventy-Seventh Respondent

KEITH SHIELD

One Hundred and Eighty-First Respondent

DALE SHIRTLIFF

One Hundred and Eighty-Second Respondent

DUSKO SOBOT

One Hundred and Eighty-Fifth Respondent

GRAEME SOWDEN

One Hundred and Eighty-Seventh Respondent

BRAD SPARK

One Hundred and Eighty-Eighth Respondent

JUSTIN STUURSTRAAT

One Hundred and Ninety-Second Respondent

WAYNE SUTHERLAND

One Hundred and Ninety-Third Respondent

ALLAN TAMAPUA

One Hundred and Ninety-Fourth Respondent

KEN THACH

One Hundred and Ninety-Fifth Respondent

MICHAEL TICEHURST

One Hundred and Ninety-Sixth Respondent

NEIL TOLLISON

One Hundred and Ninety-Seventh Respondent

BRYAN TONKIN

One Hundred and Ninety-Eighth Respondent

JOHN TUIVASA

Two Hundredth Respondent

GREG UCHWAL

Two Hundred and First Respondent

PETER VARIAKOJIS

Two Hundred and Second Respondent

MAREE WAINMAN

Two Hundred and Third Respondent

MITCHELL WEIR

Two Hundred and Fourth Respondent

MICHAEL WRIGHT

Two Hundred and Sixth Respondent

LESLEY YOUNG

Two Hundred and Eighth Respondent

PERO ZUVELA

Two Hundred and Ninth Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Two Hundred and Eighteenth Respondent

BRADLEY UPTON

Two Hundred and Nineteenth Respondent

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION

Two Hundred and Twentieth Respondent

JOHN WINDUS

Two Hundred and Twenty-First Respondent

ANDREW HOLDSWORTH

Two Hundred and Twenty-Second Respondent