FEDERAL COURT OF AUSTRALIA

Australian Workers’ Union v Registered Organisations Commissioner (No 6) [2019] FCA 194

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant, the Australian Workers’ Union (“the AWU”), has made an application under s 38(1) of the Evidence Act 1995 (Cth) (“Evidence Act”). The AWU has called, on subpoena, Mr David De Garis. As Mr De Garis was called by the AWU, the rule in s 37(1) of the Evidence Act that a leading question must not be put in examine-in-chief has application.

2    In the course of Mr De Garis’ examination-in-chief, the AWU has sought leave under s 38(1) to cross-examine Mr De Garis. Section 38 of the Evidence Act relevantly provides as follows:

(1)     A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

   (a)    evidence given by the witness that is unfavourable to the party; or

(b)    a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c)    whether the witness has, at any time, made a prior inconsistent statement.

(2)    Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3)    The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note:    The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

…

3    The AWU has sought leave to cross-examine Mr De Garis relying on both sub-paras (a) and (b) of s 38(1). I will deal firstly with s 38(1)(a).

4    In the case of s 38(1)(a), that “about” which the questioning may proceed is “evidence given by the witness that is unfavourable to the party” who called the witness. The relevant inquiry is directed at the character of the evidence which the witness gives, not on whether the witness himself or herself is unfavourable: Director of Public Prosecutions v Garrett [2016] VSCA 31 at [44] (Maxwell P, Redlich and Beach JJ). The term “unfavourable” is not defined in the Evidence Act. Its meaning has been the subject of discussion in case law, and I would, without setting it out here, respectfully adopt the distillation of that case law, as described by the Court of Appeal of the Supreme Court of Victoria in Garrett at [46]-[63].

5    Relying on those authorities, the Court of Appeal in Garrett expressed the meaning of “unfavourable” as follows:

[64]     The word “unfavourable” is not defined in the Act. It is an ordinary English word and, on accepted principles of interpretation, should be given its ordinary meaning. Perhaps unsurprisingly, the principal dictionary definition of “unfavourable” is “not favourable”. Other meanings given include “disadvantageous”, “adverse” and “ill-disposed”. In turn, the word “favourable” is defined to mean “affording aid, advantage, or convenience” and “advantageous, convenient; facilitating one's purpose or wishes; helpful, suitable”.

[65]    Nothing in the context, either of s 38 or of the Act as a whole, requires any departure from that approach to interpretation. As the High Court said in Spencer v Commonwealth:

“The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase … is to be avoided.”

[66]    Axiomatically, it is the words of the statute themselves which must govern the interpretation. As the authorities have made clear, “unfavourable” means simply “not favourable”.

[67]    This being a uniform provision applying in several jurisdictions, principles of comity mean that the interpretation adopted by other intermediate appellate courts should be applied in Victoria. The predominant line of authority in all relevant jurisdictions dictates that the phrase “unfavourable to the party” must be taken to mean unfavourable to the case which the party is seeking to advance in the proceeding. Whether evidence is unfavourable to the case that the party is seeking to prove will depend upon the circumstances of each case.

[68]    The party's case may be discerned from its opening, its pleadings and/or the evidence which the court has already heard or which is proposed to be called. If the evidence of the witness called by that party is inconsistent with, or “likely to be contradictory” of, that identified case, it will ordinarily satisfy the description of “unfavourable”.

[69]    The inconsistency or contradictory nature of the evidence may arise because the witness asserts a fact — or fails to give evidence of a fact — in circumstances that permit the conclusion that his evidence is unfavourable. Evidence may be unfavourable even if the witness whom it is sought to cross-examine gives no evidence that actually detracts from the case of the party by whom he or she is called. If the party calling the witness contends that the witness should be able to give evidence supportive of that party's case, and the witness does not give such evidence, that may suffice to make the evidence given by the witness “unfavourable” within the meaning of s 38.

6    The Court of Appeal in Garrett also emphasised that the determination of whether evidence is favourable does not depend on an objective assessment by the trial judge when the application is made of the truthfulness of the evidence. The Court of the Appeal said at [73] that:

Where the party’s case is clearly identifiable, the evidence of the witness called by a party will not cease to be unfavourable simply because there is other evidence inconsistent with that party’s case. In order to determine the threshold question, the judge is not called upon to ascertain whether the preponderance of evidence will substantiate the party’s case, nor to make some objective assessment of all of the evidence to ascertain where the truth lies.

7    The first respondent, the Registered Organisations Commissioner (“ROC”), referred to R v Hogan [2001] NSWCCA 292. That authority is of relevance to the exercise of my discretion under s 192 of the Evidence Act and I will return to that provision shortly. The ROC also referred to J A Westaway v Registrar-General (1996) 7 BPR 97,598 at 23 where Young  J said:

Despite the lowering of the barrier against cross-examining one’s own witness, it must not be thought that this is something that is likely to be permitted in every case. A lawyer who calls a witness who he or she knows is likely to be in an opposing camp has to make a conscious choice. If the witness shows by the way he or she gives evidence that there is some malice or hostility, which is likely to affect the acceptance of the evidence, then it may well be appropriate to grant leave to cross-examine to the person who called the witness. That did not happen in the instant case. Mr Naggs gave his evidence in a disinterested way. Accordingly I decline leave to cross-examine.

8    With respect, those observations seem to be in conflict with the approach taken by the Court of Appeal in Garrett, and in particular at [43] where the Court of Appeal said:

In particular, it is not necessary to demonstrate hostility by the witness to the party who has called him/her.

9    As earlier stated, I respectfully adopt the distillation of the case law and the meaning of “unfavourable” described in Garrett. I turn then to the relevant facts and circumstances.

10    The AWU’s case on improper purpose was broadly outlined by me in reasons for judgment delivered yesterday (Australian Workers’ Union v Registered Organisations Commissioner (No 5) [2019] FCA 188 at [9]-[10]).

11    In addition to the matters there referred to, and relevant to the present question, the AWU also contends in support of its case that the decision of Mr Christopher Enright was made for an improper purpose in that Mr Enright commenced the investigation for the improper purpose of aiding in, assisting or promoting the political purpose of Senator the Honourable Michaelia Cash, Minister for Small and Family Business, Skills and Vocational Education (“the Minister”).

12    The AWU contends that the Minister wanted the AWU to be investigated by the ROC in order to achieve a political purpose, namely, to discredit, embarrass or politically harm the Honourable Bill Shorten. That is described by the AWU as the Minister’s political purpose. The AWU contends that that political purpose ought to be inferred from a number of facts and circumstances, including the following. First, that staff of the Minister’s office informed the media on or about 20 October 2017 about the ROC’s investigation of the AWU to encourage media coverage of it that highlighted the AWU’s association with Mr Shorten. Second, that, consistently with a furtherance of the Minister’s political purpose, on 24 October 2017, the Minister’s staff were responsible for leaking information to the media about the imminent execution of the warrants at the AWU’s offices for the purpose of securing media coverage of the event.

13    Mr De Garis has given evidence to the effect that when he called several media outlets to inform them of the impending execution of the search warrants upon the AWU, his purpose was to get media coverage because this was one of the first investigations conducted by the ROC. He said, in response to a question as to why he wanted media coverage:

Because it was, again, one of the first investigations by the ROC. I didn’t understand the significance of the consequences of what I was doing undoubtedly, but my intention was to get media coverage.

14    The thrust of that evidence seems to be that Mr De Garis’ purpose was to give media exposure to the ROC’s exercise of its functions.

15    That Mr De Garis held that purpose derogates from the AWU’s case that the Minister held the political purpose for which the AWU contends, and also from the two circumstances I earlier identified and which the AWU relies upon as facts or circumstances which support the inference that the Minister held that purpose. In my view, in giving the evidence to which I have referred, Mr De Garis has asserted a fact, namely, the fact of his motivation for alerting the media, in circumstances that permit the conclusion that his evidence is unfavourable to the AWU.

16    Given that conclusion, it is not strictly necessary for me to rule on the AWU’s reliance upon s 38(1)(b). I will, however, briefly address that application. The AWU contended that s 38(1)(b) was enlivened because, in essence, when Mr De Garis gave his evidence as to his motivation for alerting the media, he was not making a genuine attempt to give evidence.

17    In my view, the submission is inconsistent with the terms of s 38(1)(b). Section 38(1)(b) is addressing a matter which may reasonably be supposed to be in the knowledge of the witness which it appears to the court that the witness is not making a genuine attempt to give evidence about. Section 38(1)(b) is not concerned simply with evidence not given genuinely, but its scope is directed to a failure by a witness to make a genuine attempt to give evidence about a matter that it may reasonably be supposed that the witness has knowledge of.

18    The first question to be considered under s 38(1)(b) is what is the “matter” of which the witness has knowledge that the witness is failing to make a genuine attempt to give evidence of. Here, the relevant “matter” is Mr De Garis’ motivation for contacting the media. Mr De Garis gave evidence as to his motivation. He dealt with that subject matter. It cannot be said that his motivation is a subject in relation to which he has knowledge which he has failed to make a genuine attempt to give evidence of.

19    I then turn to consider s 192 of the Evidence Act. Section 192 provides as follows:

Leave, permission or direction may be given on terms

(1)    If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)    Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b)    the extent to which to do so would be unfair to a party or to a witness; and

(c)    the importance of the evidence in relation to which the leave, permission or direction is sought; and

   (d)    the nature of the proceeding; and

(e)    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

20    Section 192 sets out a number of matters that the Court is to take into account. I have given consideration to each of the matters described in s 192(2) although none of those matters, in particular have been relied upon in the submissions of the parties. I have done that bearing in mind the cautionary observations made in Hogan at [80]-[81] (Greg James J), that leave to cross-examine ought not be misused so as to conduct collateral inquiries, or lead to the proceeding becoming distracted with side issues. In that respect, I have taken particular note of the case law addressing the ambit of cross-examination permitted when leave is granted under s 38(1).

21    The right to question “as though cross-examining” is not a right to cross-examine the witness generally on any topic. The right is limited by the word “about” in the chapeau to s 38(1). That is, depending upon the paragraph of s 38(1) to which the application for leave relates, the leave to cross-examine is granted in relation to the part of the witness’ evidence that is unfavourable, the matter about which the witness has not made a genuine attempt to give evidence or the making of a prior inconsistent statement: R v Le [2002] NSWCCA 186 at [55]-[56] (Heydon JA).

22    As Heydon JA went on to observe at [67], questioning may, however, be directed to establishing the probability of the factual state of affairs covered by the relevant paragraph of s 38(1) contended for by the party conducting the questioning, or the improbability of the witness’ evidence on those subjects.

23    For those reasons, I grant the AWU leave to cross-examine Mr De Garis about his intent or purpose in alerting several media outlets of the impending execution of search warrants upon the premises of the AWU.

Associate:

Dated:    22 February 2019