Federal Court of Australia

Australian Building and Construction Commissioner v Albert [2021] FCA 168

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, the affidavit of Michael Fischer dated 25 February 2021 are admissible as evidence in this proceeding.

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

REASONS FOR JUDGMENT

COLLIER J:

1    During the hearing yesterday, the parties sought a ruling by me on certain objections to evidence in this proceeding. These objections are referable, by way of example, to evidence of the applicant’s witness Mr Michael Fischer in paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, his affidavit dated 25 February 2021. In addressing these objections I will, at this stage, concentrate on this evidence of Mr Fischer.

2    The relevant paragraphs in Mr Fischer’s affidavit are as follows:

91.    On or around 30 July 2018, I prepared a statement outlining my recollection of the events that occurred during the night shift on 24 July 2018, which was true and correct at the time, and which remains true and correct to the extent of my knowledge and belief, except where I have corrected or added to it in this affidavit. Annexed and marked “MF2” is a true copy of this statement.

…

93.    On 10 September 2018, I signed a statement prepared by Inspector Van Tooren, which was true and correct at the time, and which remains true and correct to the extent of my knowledge and belief, except where I have corrected or added to it in this affidavit. On 17 January 2019, I signed a supplementary statement prepared by Inspector Van Tooren, which was true and correct at the time, and which remains true and correct to the extent of my knowledge and belief, except where I have corrected or added to it in this affidavit.

94.    Annexed and marked “MF3” is a true copy of the signed statement that I provided to Inspector Van Tooren o 10 September 2018.

95.    Annexed and marked “MF4” is a true copy of the signed supplementary statement and the attachments that I provided to Inspector Van Tooren on 17 January 2019.

3    The content of Annexures MF-2, MF-3 and MF-4 to Mr Fischer’s affidavit are apparent from their descriptions in the above paragraphs.

4    In summary, the respondents object to evidence of this nature as being:

    Prior statements made to the applicant (of which paragraphs 93, 94 and 95 and MF-3 and MF-4 are examples) (category 1 evidence); and

    Prior statements written, or purportedly written, by the deponent after the relevant events (of which paragraph 91 and MF-2 are examples) (category 2 evidence).

5    The respondents handed up written submissions in Court in support of their objections and made further oral submissions. Counsel for the applicant made oral submissions in response.

6    I understand it to be common ground that the outcome of my ruling in respect of this evidence will be relevant to similar objections by the respondents to other evidence of the applicant.

Submissions of the respondents IN SUPPORT OF THE OBJECTIONS

7    In relation to the category 1 evidence, the respondents submitted in summary:

    It was clear that the witness was not endeavouring to incorporate the contents of the statements as evidence in the proceeding, but rather to identify that the facts were true at the time the statement was made, except to the extent that they have been corrected or added to by their affidavits.

    The purpose of attaching the statements is not to set out the evidence of the events as that evidence is already contained in the affidavit material.

    The purpose of annexing the statements is to bolster the credibility of each witness, and to have the court accept that it is more likely their evidence is true because it is consistent with other statements made. It follows that the statements are clear examples of credibility evidence.

    Chief Justice Dixon and McTiernan J in The Nominal Defendant v Clements (1960) 104 CLR 476; [1960] HCA 39 examined the common law position concerning the admissibility of prior statements. Their Honours noted, in summary, that if the credit of a witness is impugned as to a material fact on the ground that his or her account is a late invention or reconstruction, a contemporaneous statement which is consistent with the witness’ account will be admissible. The general rule is that evidence of this type is credibility evidence, and inadmissible, except in limited circumstances to re-establish credit.

    The common law position is enacted by ss 101A, 102, 103-108C and 110 of the Evidence Act 1995 (Cth).

    The case of Temple v Powell (No 1) (2007) FCA 987 on which the applicant relied is not applicable in this case. In Temple v Powell (No 1) the applicant sought to rely on prior statements of witnesses adopted in their evidence, however, the witnesses had not otherwise given evidence independently on the same matters. Further in Temple v Powell (No 1), no objection was taken on the basis that the evidence was inadmissible because it was credibility evidence. In present proceedings the applicant’s witnesses have otherwise given evidence independently of the prior statements annexed to their affidavits, and seek to bolster their credibility by the annexure of those prior statements.

    The applicant has not demonstrated the relevance of this evidence other than to bolster the credibility of its witnesses. Simply seeking to repeat evidence already given did not make the repeated evidence relevant.

    The statements are hearsay and not admissible.

    The appropriate course is to rule the evidence in categories 1 and 2 inadmissible, and, if an issue arises during cross-examination of the relevant witness as to the credit of that witness and whether his account is a late invention or reconstruction, address any application by the applicant during re-examination for re-admission of that evidence.

8    In relation to the category 2 evidence, the respondents submitted in summary:

    These statements are an attempt to bolster the credibility of the relevant witnesses and are inadmissible for the same reasons as the category 1 evidence.

    Insofar as these statements are sought to be relied on to revive the memory of the witness, they are not permitted to be used unless the court gives leave taking into account matters including those set out in s 32(2) of the Evidence Act.

submissions of the applicant

9    In relation to the category 1 evidence, the applicant submitted in summary:

    The applicant did not seek to lead the statements in category 1 for credibility purposes. This case was to that extent distinguishable from Clements.

    The statements were part of the relevant witness’ evidence in chief. The witness was, in essence, adopting the veracity of statements he had earlier made, as evidence in chief.

    The statements were relevant evidence.

    Even if the statements repeated other evidence in the witness’ affidavit, this did not mean that the statements were not relevant and admissible.

    The relevant witness was adopting the veracity of the statement as evidence in chief, in accordance with principles stated in Temple v Powell (No 1).

10    In relation to the category 2 evidence, the applicant submitted in summary:

    The statements were not included in the affidavits as an attempt to bolster the credibility of the respective witnesses.

    Section 32 of the Evidence Act was not relevant in this case as the statements were not included in an attempt to revive memory of the witnesses in Court.

CONSIDERATION

11    The submissions of the parties were primarily referable to two authorities, namely Clements (on the part of the respondents) and Temple v Powell (No 1) (on the part of the applicant). There are, however, other authorities which in my view are relevant to the admissibility of the evidence currently in dispute. In particular I note Alfred v Lanscar (2007) 162 FCR 169; [2007] FCA 833 and Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2) [2018] FCA 1459.

12    It is useful to have regard these cases in the course of ruling on the objection to the admissibility of the evidence in categories 1 and 2.

Clements

13    In Clements the plaintiff claimed damages from the Nominal Defendant pursuant to s 30(1) of the Motor Vehicles (Third Party) Insurance Act 1942 (NSW) for personal injuries sustained by him in an incident involving an uninsured motor vehicle. The trial took place more than four years after the accident, and, inter alia, the plaintiff was cross-examined at the trial to demonstrate that he had no memory of the occurrence, and that his evidence was the result of coaching by his father to give certain answers to questions at the trial. To rebut the suggestion that the plaintiff’s evidence was reconstructed, the plaintiff tendered a statement obtained by a sergeant of police from the plaintiff two months after the accident. The statement was admitted into evidence, and the defendant appealed on the basis that the statement had been wrongly admitted by the trial Judge.

14    Chief Justice Dixon (with whom Kitto J concurred) observed at 479-480:

In all the circumstances of the case the contention that the statement ought not to have been admitted seemed a somewhat flimsy ground for a new trial application. On the other hand I have had some doubt whether the conduct of the trial by counsel for the defendant really gave sufficient ground for letting in the statement as evidence. The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance.

In the present case counsel for the Nominal Defendant disclaimed any attack on the honesty of the plaintiff's account of the accident. But although upon the evidence as recorded it is difficult to feel assured that a foundation had been laid for an attack upon the boy's story as a late reconstruction it was, I think, fairly open to the judge at the trial to conclude that the defendant would set up a case that the plaintiff's story was the result of the father's coaching and represented no antecedent memory of the events, and that is perhaps enough. But there is yet another difficulty. For after all the statement to the police sergeant says very little and might be explained not altogether unreasonably as the kind of thing a policeman might put down after obtaining but the barest account of the accident from a child, who ex hypothesi had little or no recollection of the event in detail. But that apparently was not the view taken at the trial by either party.

15    Justice McTiernan agreed, observing:

The defendant's counsel sought to make, upon the cross-examination of the plaintiff, the case that the plaintiff was playing with the children and ran on to the road after the ball. Having failed to get from the plaintiff any admission to support that case, he cross-examined the plaintiff at great length in order to destroy his credibility. The view which I take from reading the cross-examination is that the defendant's counsel sought to elicit from the plaintiff that he had no recollection whether he was standing still or running on the road when he was struck by the motor car, and that his father had coached him to give his evidence. If that view is correct, the cross-examination would have led the jury to think that counsel was suggesting that the evidence that the plaintiff was standing still when run down by the motor car was a recent invention. The statement dated July 1st, 1954 was consistent with the evidence given by the plaintiff, which the defendant's counsel sought to suggest was the result of coaching, not of the plaintiff's own recollection. In my opinion, the statement was receivable in evidence not as proof of the fact which it mentions, but to re-establish the plaintiff's credit. At the trial, counsel for the defendant disavowed that he intended to charge that the plaintiff's evidence that he was standing still when run over was an invention and that the only purpose of the cross-examination as to credit was to test the plaintiff's recollection and to show, if he could, that the plaintiff's father was endeavouring only to refresh it. But reading the transcript, the cross-examination seems to me to have gone further and to have suggested that the plaintiff's father did implant in the plaintiff the crucial idea that he was standing still when run over, not merely that he helped the plaintiff to recollect that fact. It may be that it is a fine point, which view of the cross-examination is the correct one. I think the cross-examination is reasonably capable of the inference which I have drawn from it. The learned trial judge who heard it was in the best position to consider whether the cross-examination was likely to impress the jury as an attempt to get from the plaintiff that his evidence was what his father told him to say, not what he himself recollected. The details of the questions asked in cross examination and the manner of asking them, revealed by the transcript, could reasonably lead to the conclusion that the cross-examination involved such an attempt. I think that it is not possible to hold that the learned judge erred by admitting the statement in question.

16    The principles articulated in Clements have been frequently discussed in subsequent cases. The Full Court of the Federal Court in Humphries v The Queen (1987) 17 FCR 182 for example observed at 192-193:

The first ground of appeal was that the learned trial judge erred in refusing to allow the appellant's counsel to cross-examine the witness Channell on certain statements which he had made which were favourable to the appellant and consistent with his evidence. During the course of the hearing of the appeal the ground was expanded to allege that the learned trial judge erred in refusing to allow counsel to cross-examine the witness generally. It was also alleged that the learned trial judge erred in allowing the Crown prosecutor to cross-examine that witness on matters outside the limits set by the leave granted under s 60 of the Evidence Ordinance 1971.

In Nominal Defendant v Clements (1960) 104 CLR 476, the High Court considered the rule that the testimony of a witness, given on oath in the witness-box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing. The rule was stated in the terms just used by Windeyer J at 490. Menzies J (at 490), referred to an exception to the rule:

"I regard evidence of an earlier consistent statement as admissible in accordance with this exception only when the court itself considers that the evidence of a witness has been impeached as a later contrivance and this has been done by the opposite party in the conduct of the case, whether by the cross-examination of the witness, or by eliciting evidence of the fabrication from another witness, or in some other positive way."

The nature of the exception was considered more fully by Dixon CJ, with whom Kitto J concurred….

…

The learned trial judge apparently took the view that the statement did not meet the test laid down in Nominal Defendant v Clements. In this I think that he was, with respect, quite correct. It could hardly be said that that statement, made as it was in the form of a statutory declaration some five days after the events complained of, had the requisite degree of contemporaneity with the statements of the witness as recorded in the record of interview. It follows that the rejection of the proposed tender and the refusal to permit cross-examination on the statutory declaration and the affidavit were in any event correct. It was a matter peculiarly within the province of the trial judge and this Court ought not to interfere with his ruling.

Alfred v Lanscar

17    In Alfred v Lanscar an Australian Building and Construction Inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) alleged contraventions of the Workplace Relations Act 1996 (Cth) (WR Act) by the respondents. An investigation into matters which became the subject of proceedings was carried out by a taskforce of the Commonwealth Department of Employment and Industrial Relations. As part of that investigation, statements were taken from witnesses within a number of weeks after relevant events. As Buchanan J noted at [2], when affidavits were later prepared for the purpose of the proceedings before the Court, a number of those statements were adopted as true and correct by the witnesses in the applicant’s case, and annexed to affidavits made by them. As his Honour observed:

2.    … For example, Mr Papas said in his affidavit:

‘2. Annexed hereto and marked "PP-1" is a true copy of a witness statement I signed on 11 February 2005, in relation to an investigation conducted by the then Building Industry Taskforce.

3. My statement was and remains, to the best of my knowledge and belief, true and correct, save for the following:-’

(the few amendments made are of no present relevance).

18    At the hearing before his Honour, eight statements, adopted in this fashion, were relied on as part of the evidence in chief in the applicant’s case. The respondents objected to the admissibility of these statements.

19    Justice Buchanan gave a ruling which his Honour incorporated into written reasons. In particular, his Honour stated as follows:

This morning a general objection was taken to the admissibility of the statements in that form. Ms Ronalds SC, who appears for the respondents with Mr Whybrow, drew my attention to Order 14 of the Federal Court Rules and submitted that the material was not in proper form principally, as I understood it, because the evidence was not first-person evidence in an affidavit as required under the Rules. The material is not advanced as proof of the contents of documents in their own right but as direct evidence of each of the witnesses in question.

Dr Renwick drew my attention to s 37 of the Evidence Act 1995 (Cth) (Evidence Act) which deals with leading questions, and in particular s 37(3) which contemplates the exercise by a court of power in the rules of court to allow a written statement or report to be tendered or treated as evidence-in-chief of its maker. In the Seventh Edition of Odgers' Uniform Evidence Law at page 107, that provision is referred to with a comment that the Supreme Court Rules (1970) NSW contain such a power, and there is also a reference to Platcher v Joseph [2004] FCAFC 68 (Platcher) and some observations of Weinberg J to the effect that the adoption by witnesses in the Federal Court of previous statements as true and correct is routine. I shall return shortly to mention that case again. Dr Renwick did not rely upon any specific part of the Federal Court Rules in that connection and I have not been able myself to identify a rule which would fall directly within the contemplation of s 37(3) of the Evidence Act.

The material which is sought to be relied upon is evidence of a previous representation and, on one view at least, is for that reason hearsay and, subject to relevant exceptions, prima facie inadmissible by reason of the hearsay rule incorporated in s 59 of the Evidence Act.

20    Subsequently his Honour continued:

Platcher is a case which arose under the Bankruptcy Act 1966 (Cth). One of the issues which arose, albeit somewhat tangentially, concerned the consequences of the rejection by the primary judge in that case, of particular paragraphs in an affidavit. Paragraphs not objected to in that affidavit recorded that the deponent had recorded an interview with officers of the Australian Securities and Investments Commission and stated, as part of the affidavit evidence, that the matters stated in that interview were true and correct.

All of the judges who constituted the Court in Platcher observed that the contents of the interview were admissible. Tamberlin and Emmett JJ at [101] referred to it as, ‘potentially admissible’ and, at [108], that the relevant paragraph in the affidavit as ‘verifies the correctness of the transcript’. At [109] their Honours appeared to accept that the transcript would be admissible when they said, ‘This statement [by the primary judge] reasonably conveyed that paragraph 6, which affirmed the correctness of Mr Pettenon’s statements in his interview, remained in the affidavit and that Mr Pettenon could be cross-examined on it’.

Weinberg J, who dissented from the result, but not on grounds which affect the present analysis, stated more positively that the transcript of the interview was admissible. He said at [127]:

‘The primary judge correctly ruled that paragraphs 4 and 5 of Mr Pettenon's affidavit should be excluded. Nevertheless, paragraph 6 of that affidavit still affirmed the truth and accuracy of the evidence given by Mr Pettenon in the course of his s 19 examination. There was no reason to prevent that paragraph from being read.’

He also said at [128]:

‘There were, in my view, a number of legitimate means by which the transcript of Mr Pettenon's examination could have been admitted into evidence. Either party could have called Mr Pettenon to prove that transcript, and to adopt what he had previously said as true and correct.’

Similarly, at [162] and [163] (the latter being the paragraph referred to by Odgers) Weinberg J said:

‘162. I can see no reason why Mr Platcher could not have called Mr Pettenon to give evidence, shown him the transcript of his s 19 examination, and asked him simply whether the contents were true and correct. In a sense, that is precisely what paragraph 6 of Mr Pettenon's affidavit purported to do. The only difference is that paragraph 6 did not exhibit the transcript of that examination.’

163. It is obviously vital to Mr Platcher's case that Mr Pettenon's evidence be admitted. I consider, with respect, that the primary judge did not make it sufficiently clear to Mr Platcher that there were several ways in which he could properly have had that evidence admitted. The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by section 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. The primary judge should, in my view, have made it clear to Mr Platcher that this course may have been open to him.’

Temple v Powell (No 1)

21    In Temple v Powell (No 1) proceedings were brought against union officials and two unions by an inspector appointed under the BCII Act for alleged contraventions of the WR Act in respect of, inter alia, unauthorised meetings and strike action of union members instructed and encouraged by the respondents. Filed with the application and statement of claim were affidavits which exhibited, and verified the truth of answers contained in, transcripts of interviews with the witnesses conducted by the Australian Building and Construction Commission (ABCC), and statements given by witnesses to the ABCC.

22    At a directions hearing French J directed that Mr Temple and the respondents to those proceedings file and serve written submissions as to the form of the evidence at the trial including:

(i)     whether such evidence shall be by way of written statements or affidavits affirmed or sworn to by the witness and subject to cross examination;

(ii)     if yes to the first question, whether its (sic) is appropriate that a direction be made allowing such evidence to consist of the transcript of examinations before the Australian Building and Construction Commissioner verified on oath or on affidavit by the proposed witness and otherwise in the form of the affidavits already filed by the applicant.

23    At [10] French J identified the procedural question before the Court as whether Mr Temple should be allowed to call the deponents to the various affidavits and be available for cross-examination, the consequence of which would be that where the relevant affidavits exhibited the transcript of interview or a witness statement to the ABCC, that material would, in effect, be the evidence in chief of the witness.

24    Relevantly, the respondents before his Honour contended that the applicant ought not be permitted to rely “upon those affidavits already filed which simply verify an annexure in the form of a statement given to the Commission or a transcript of an examination before the Commission.” (at [12])

25    Justice French observed as follows:

17.    There is no doubt that the Court may permit the evidence-in-chief of a witness in civil proceedings to be given by that witness orally swearing to, or affirming, the truth of a statement previously made. It is immaterial whether the statement previously made was by way of a witness statement or the transcript of answers given to questions put in the course of an oral examination whether under some compulsory process or not. It follows that a witness may by way of affidavit swear to or affirm the truth of a previous statement exhibited to the affidavit or to the truth of a transcript of a previous interview so exhibited. The affidavit may be read in evidence provided that the witness is available, if required, for cross examination.

26    Justice French then referred to observations of Weinberg J in Platcher v Joseph at [163], and Buchanan J in Alfred v Lanscar, and continued:

21.    … [Buchanan J] referred to the decision of the Full Court in Platcher v Jones [2004] FCAFC 68. He did not read the observations of their Honours as turning on the requirements of s 19 of the Australian Securities and Investments Commission Act. I respectfully agree with his Honour’s observations…

27    Importantly, French J then observed:

22.    In my opinion the nature of the proceedings is not such as to preclude the Court allowing the applicant to adduce his evidence-in-chief in the way in which he proposes. Nor is there any inherent unfairness in such a procedure particularly where the respondents have filed defences which simply put the applicant to proof. They raise no positive case and certainly no denial of any fact alleged against them which would depend upon the credit of any witness. How they can contend that there are "live issues of credit" in the case, is difficult to see.

Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2)

28    In this case the Australian Competition and Consumer Commission brought proceedings against the Australian Institute of Professional Education Pty Ltd for unconscionable and misleading or deceptive conduct, in breach of ss 18, 21 and 29(1) of the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth).

29    During the trial the Court heard legal argument on the admissibility of certain evidence concerning results of:

an audit of AIPE by the Australian Skills Quality Authority (ASQA) in relation to AIPE’s compliance with legal obligations under the National Vocational Education and Training Regulator Act 2011 (Cth) – the evidence was the auditor’s report, related material, and a covering affidavit, all of which were relied upon by ASQA in a prior proceeding in the Administrative Appeals Tribunal (AAT) brought against it by AIPE;

30    In relation to this evidence, Bromwich J explained:

11     Ms Ruth Cecilia Walker was employed by ASQA as the lead compliance auditor in the compliance team based in Sydney in the period between 4 February 2013 and 14 August 2015. On 14 April 2015, she conducted a site audit of the Sydney premises of AIPE. As part of the audit, a telephone survey was subsequently conducted with a sample of 24 AIPE students.

12     AIPE later brought a merits review proceeding against ASQA in the AAT in relation to the conclusions it reached about compliance. Ms Walker affirmed an affidavit which was relied upon by ASQA in the AAT proceeding. That AAT affidavit annexed 47 documents related to the audit. It also referred to a further 61 of the documents that the decision-maker provided to the AAT as required by s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), commonly referred to as “T documents”. Those 61 “T documents” were tendered in the AAT proceeding, including, in particular, the ASQA audit report titled “T12”, which was prepared by Ms Walker apparently with the assistance of another auditor.

13     For the purposes of this proceeding, Ms Walker affirmed a further affidavit, briefly providing the above summary of events and exhibiting a bundle of documents as a single exhibit comprising:

(1) a copy of her AAT affidavit and its 47 annexures; and

(2) a copy of the 61 “T documents” referred to in her AAT affidavit.

14     The applicants sought to rely upon Ms Walker’s affidavit in this proceeding and parts of the exhibit to that affidavit comprising the AAT affidavit, some of the 47 annexures to the AAT affidavit, an index to the “T documents”, and the ASQA audit report, T12.

15     AIPE objected to Ms Walker’s affidavit and to the parts of the exhibit to that affidavit that the applicants wished to rely upon, being the AAT affidavit, the selection of annexures to the AAT affidavit and the ASQA audit report. The index to the “T documents” was neither here nor there. AIPE’s objections to admissibility concerned relevance and form. If those objections were overcome by the applicants, AIPE sought discretionary exclusion under s 135(a) of the Evidence Act upon the basis that the probative value of that evidence was substantially outweighed by the danger that it might be unfairly prejudicial.

31    His Honour ruled that the relevant evidence (including earlier affidavits in the Administrative Appeals Tribunal proceedings) be admitted, for reasons including the following:

17     The relevant Evidence Act provision and related authority are as follows:

(1)     s 37(3) of the Evidence Act;

(2)     Platcher v Joseph [2004] FCAFC 68 at [101], [163], a case in which the adoption of the transcript of an examination conducted under s 19 of the Australian Securities and Investments Act 2001 (Cth) was permitted to be evidence in a bankruptcy proceeding;

(3)     Alfred v Lanscar [2007] FCA 833; 162 FCR 169, applying Platcher v Joseph to permit the adoption by affidavit of prior investigators’ statements in civil penalty proceedings under the former Workplace Relations Act 1996 (Cth); and

(4)     Temple v Powell (No 1) [2007] FCA 987; 164 IR 409 at [17]-[22], referring to and applying s 37(3), Platcher v Joseph and Alfred v Lanscar to permit the adoption by affidavit of prior investigators’ statements in civil penalty proceedings under the Workplace Relations Act.

18     When adoption by affidavit of prior evidence in written form takes place, the adopted evidence is no more hearsay than it would be if the text of the adopted material was instead simply copied into the adoption affidavit, but with the loss of the greater contemporaneity of the prior written account. It follows that there is nothing remarkable in a departure from formal requirements being permitted in such circumstances, such that substance can triumph over form. Indeed, the case for allowing a prior affidavit to be adopted is somewhat stronger than it is for the adoption of an examination transcript or an investigator’s statement because of the solemn nature of affidavit evidence and its status as a written form of evidence under oath or affirmation. However, the content of such adopted evidence is subject to any ordinary objections as to admissibility, including any that may arise from the original evidentiary account being prepared for a different forum or purpose: see Temple v Powell (No 1) at [23].

Findings

32    Having regard to these authorities, I find as follows.

33    First, s 55 of the Evidence Act provides that evidence is relevant in a proceeding where, if it were accepted, the evidence could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. I am satisfied that the evidence in categories 1 and 2 is evidence which is relevant in the proceeding. Indeed, even if (as submitted by the respondents) the evidence related only to the credibility of the respective witnesses, s 55(2)(a) of the Evidence Act makes plain that such evidence can nonetheless be relevant. Similarly, even if – contrary to my views in this case – the evidence in categories 1 and 2 were merely repetitive of other material in the relevant affidavits, it would still be relevant to the applicant’s case.

34    Second, I consider that the circumstances of Clements, and such cases as Humphries, are distinguishable from those before me. In particular, the evidence in categories 1 and 2 was, as Counsel for the applicant submitted, deposed by way of evidence in chief of the relevant witnesses. It was not evidence subsequently sought to be adduced by the applicant as credit evidence to counter allegations of invention or reconstruction, as was the case in Clements and Humphries. I am not persuaded that the inclusion of this evidence in such affidavits as that of Mr Fischer was an artifice to disguise credit evidence referable to those witnesses, as appeared to be the tenor of the respondents’ objections.

35    Third, although the applicant did not specifically rely on s 37(3) of the Evidence Act, that provision anticipates that a previous statement of a witness (such as those statements in categories 1 and 2) can be adopted by the witness as true and correct, and as evidence in chief, of that witness. Authorities for this proposition are Alfred v Lanscar, Temple v Powell (No 1), and findings the Full Court in Platcher v Joseph (to which Buchanan J referred in Alfred v Lanscar). In this regard I particularly note the following statement of Weinberg J in Platcher v Joseph:

163.    It was obviously vital to Mr Platcher’s case that Mr Pettenon’s evidence be admitted. I consider, with respect, that the primary judge did not make it sufficiently clear to Mr Platcher that there were several ways in which he could properly have had that evidence admitted. The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. The primary judge should, in my view, have made it clear to Mr Platcher that this course may have been open to him.

(emphasis added)

36    (see also Tamberlin and Emmett JJ in Platcher v Joseph at [101].)

37    Fourth, as matters presently stand, while denying the applicant’s allegations, the respondents have not yet filed a positive defence to the applicant’s pleaded claim. This was also the case in Temple v Powell (No 1). To paraphrase comments of French J in Temple v Powell (No 1), it is difficult to see any inherent unfairness in the present proceeding in ruling the evidence in categories 1 and 2 admissible where, to date:

    the respondents have filed defences which simply put the applicant to proof,

    the respondents have raised no positive case, and

    no denial by the respondents of any fact alleged against them would depend upon the credit of any witness.

38    It follows that it is difficult on the current state of the pleadings to identify any live issues of credit in this case in respect of the witnesses for the applicant (including Mr Fischer).

39    Fifth, and contrary to submissions of the respondents, I see no reason to limit the reasoning of French J in Temple v Powell (No 1) to circumstances where a witness merely gives evidence referable to annexed statements or transcripts. His Honour’s judgment supports the character of annexed statements and/or transcripts of interview as evidence in chief, aspects of which could be ruled as inadmissible depending on their content. Certainly his Honour did not qualify his comments in the manner submitted by the respondents.

40    Sixth, and importantly, such authorities as I have been able to identify overnight strongly support a finding that the annexation of statements in the form of the evidence in categories 1 and 2, with associated comments in the body of the relevant affidavit, is not merely unremarkable, but orthodox practice. That this is so is irrespective of any alleged repetitiveness as between the evidence in the body of the affidavit, and the evidence in annexed statements.

41    In addition to the cases I have identified, namely Alfred v Lanscar, Temple v Powell (No 1), and Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd, a further example is Spalla v St George Motor Finance Ltd [2004] FCA 470 where Ryan J made rulings in respect of various contested paragraphs in an affidavit of a witness. Relevantly for present purposes, his Honour ruled as follows:

(b) Paragraph 18

6.    This paragraph deposes to a conversation between Ms Katherine Horne, a senior associate in the firm of which Mr Sinn is a partner, and Mr Honey of the Australian Securities and Investments Commission ("ASIC"). The hearsay assertion is supported by exhibiting to Mr Sinn’s affidavit a contemporaneous file note said to have been made by Ms Horne. In the circumstances, I propose to admit paragraph 18, but the weight to be attached to it will depend on what emerges in cross-examination of Mr Sinn, and perhaps of Mr Honey, and the extent to which it is consistent or inconsistent with other direct evidence.

42    As is made plain by his Honour’s comments, the annexation of a contemporaneous file note to the witness’ affidavit referable to other evidence of the witness was considered unremarkable by his Honour, with such a file note being admissible evidence in chief.

43    The respondents submitted, in effect, that notwithstanding the applicant’s purported characterisation of the evidence in both categories 1 and 2 as “evidence in chief”, that evidence nonetheless bore the character of credit evidence because the only utility of that evidence was to bolster the other evidence of the witness. While I accept the proposition that a party’s characterisation of evidence as bearing a certain quality does not bind the Court in the Court’s interpretation of that evidence, I do not accept that the only utility of evidence in categories 1 and 2 was by way of credit evidence.

44    To that extent, I reject the submission that the evidence in categories 1 and 2 was inadmissible as credibility evidence within the meaning of s 101A of the Evidence Act.

45    Seventh, I reject the submission that evidence in categories 1 or 2 was inadmissible as hearsay. To paraphrase Bromwich J in Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (No 2), the adopted written statements and file notes were no more hearsay than they would be if the text of that adopted material was instead simply copied into the adoption affidavit, but with the loss of the greater contemporaneity of the prior written account.

46    Finally, I am satisfied not only that the category 2 evidence is not relied on by the applicant for the purposes of s 32 of the Evidence Act, but that s 32 is not relevant in the present context.

47    Section 32 (1) of the Evidence Act materially provides:

(1)    A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.

48    Mere annexation of file notes (included category 2 evidence) to the relevant affidavits in these proceedings does not, of itself, give rise to an inference that the witness was, or was intending, to use the document to revive his memory within the meaning of s 32 of the Evidence Act. This is particularly so in a proceeding such as this, where I made case management orders (on 17 April 2020) that evidence was to be by affidavit. As Lindgren J observed in Whittaker v Child Support Registrar [2010] FCA 43 at [334] in respect of s 32 of the Evidence Act, the concern of the section is confined to the giving of oral evidence in Court. I also note his Honour’s comment that:

341     In the present case, the affidavits had been made and the deponents’ memories already refreshed out of court before the objection was taken. The documents from which memory had been refreshed had been made available to the other party, copies having been annexed to the affidavits, and so the purpose of s 34 of the Evidence Act had been satisfied.

342     It sufficed as the ground for disallowing the objection in the way in which the objection was put, that s 32 simply had no application.

Conclusion

49    As matters presently stand I am not persuaded that the evidence in categories 1 and 2 is credibility evidence as contemplated by such cases as Clements, such that the proper way forward (as submitted by the respondents) is to refuse its admission, await the cross examination of the relevant witnesses, and then potentially evaluate its readmission in re-examination if leave were sought by the applicant.

50    I reject the respondents’ objections to the evidence of the applicant in categories 1 and 2, being paragraphs 91, 93, 94 and 95 of, and Annexures MF-2, MF-3, and MF-4 to, the affidavit of Michael Fischer dated 25 February 2021. For the reasons I have given, in my view this evidence is admissible.

Associate:

Dated:    3 March 2021

SCHEDULE OF PARTIES