Washington v Hadgkiss [2008] FCA 28 (29 January 2008)

INDUSTRIAL RELATIONS – Australian Building and Construction Industry Commission investigation into alleged breach of s 816 of Workplace Relations Act 1996 (Cth) – whether investigation tainted by improper purpose – whether improper purpose the substantial purpose of investigation – "substantial purpose" test – inference of improper purpose
Held: application dismissed – no improper purpose

Workplace Relations Act 1996 (Cth) ss 4, 816
Building and Construction Industry Improvement Act 2005 (Cth) ss 52, 53, Pt 5

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, considered
Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649, applied
The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175, applied
Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87, applied

NOEL WASHINGTON, JOHN SETKA, DAVID MIER AND IVAN BALTA v NIGEL HADGKISS, DEPUTY AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

VID 1051 OF 2007

MARSHALL J
29 JANUARY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1051 OF 2007

BETWEEN:	NOEL WASHINGTON First Applicant JOHN SETKA Second Applicant DAVID MIER Third Applicant IVAN BALTA Fourth Applicant
AND:	NIGEL HADGKISS, DEPUTY AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	29 JANUARY 2008
WHERE MADE:	MELBOURNE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1051 OF 2007

BETWEEN:	NOEL WASHINGTON First Applicant JOHN SETKA Second Applicant DAVID MIER Third Applicant IVAN BALTA Fourth Applicant
AND:	NIGEL HADGKISS, DEPUTY AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Respondent

JUDGE:	MARSHALL J
DATE:	29 JANUARY 2008
PLACE:	MELBOURNE

1 The applicants are officials employed by unions engaged in the building and construction industry. The respondent is the Deputy Commissioner of the Australian Building and Construction Commission ("the ABCC"). The ABCC has commenced an investigation into alleged contraventions of s 816 of the Workplace Relations Act 1996 (Cth) ("the WR Act"), that being one of the functions conferred on it by the Building and Construction Industry Improvement Act 2005 (Cth) ("the BCII Act").

3 Under s 4 of the WR Act, "Commission" means the Australian Industrial Relations Commission ("the AIRC").

4 The issue arising for determination is whether the investigation is being conducted for a purpose not permitted by s 52 of the BCII Act.

6 Under s 52(6)(b)(iii) of the BCII Act, if a person, who has been given a notice under s 52(1), fails to attend to answer questions at the time and place specified in the notice, that person is subject to a penalty of six months imprisonment. The same applies to a person who fails to answer questions relevant to the investigation while attending as required by the notice; see s 52(6)(v).

7 An investigation is defined by s 52(8) to mean: "an investigation by the ABC Commissioner into a contravention, by a building industry participant, of a designated building law."

8 "Building industry participant" includes a union official in the building and construction industry and "designated building law" includes the WR Act: see s 4.

9 Under s 53, a person is not excused from answering a question on the ground that the answer might tend to incriminate that person. However, such an answer, or information obtained as a consequence of it being given, is not admissible in evidence against the person in proceedings under the WR Act.

10 On 26 February 2007, Ms Melissa Martino, an inspector employed by the ABCC commenced a proceeding in the AIRC seeking the revocation of a permit held by Mr Adrian McLoughlin ("the McLoughlin proceeding"). The permit enabled Mr McLoughlin to enter and inspect certain premises in accordance with Pt 15 of the WR Act.

11 In the AIRC proceeding, Ms Martino filed witness statements of Craig Peterson and Stephen Broadhead on 4 April 2007. Mr Peterson and Mr Broadhead are each employed in a managerial capacity by a construction company called Bovis Lend Lease Pty Ltd ("Bovis").

12 The ABCC has raised an allegation contained in a notice sent to the first applicant, Mr Washington, to answer questions relevant to an investigation undertaken by it (being the investigation the subject of this matter) that the second applicant, Mr Setka, engaged in threatening, intimidating and prejudicial conduct towards Mr Peterson. The conduct was said to have occurred at a barbecue at Docklands Park on 23 May 2007 and to consist of derogatory comments made about Mr Peterson and also by Mr Setka including a direction to those at the barbecue to call Mr Peterson, "Lassie". The purported reason for the alleged conduct was that Mr Peterson had provided information to the AIRC and proposed to appear as a witness before it in the McLoughlin proceeding.

13 The ABCC has also raised an allegation that, on 20 June 2007, at a building site at 500 Collins Street, Melbourne, Mr Setka and/or Mr Washington and the third applicant, Mr Mier, threatened, intimidated or prejudiced Mr Peterson and Mr Broadhead by distributing a flyer which contained derogatory comments about them allegedly because they each provided information to the AIRC and each proposed to appear as a witness in the McLoughlin proceeding.

14 On 10 and 11 July 2007 respectively, Mr Broadhead and Mr Peterson gave evidence in the McLoughlin proceeding in the AIRC before Watson SDP.

15 In a decision published on 29 August 2007, in Re Australian Building and Construction Commission [2007] AIRC 717 at [233], Watson SDP ordered the suspension of Mr McLoughlin’s permit until 31 October 2007 and ordered him in the interim to:

16 The ABCC has raised further allegations that on 6 September 2007, outside the Yarra Arts site, Mr Setka threatened, intimidated or prejudiced Messrs Peterson and Broadhead allegedly because each of them had provided information to the AIRC and appeared as a witness in the McLoughlin proceeding. It is alleged that Mr Setka made threats of violence to Mr Peterson and assaulted Mr Broadhead.

17 By letter dated 6 September 2007, Mr Warren Cruse, an investigator employed by the ABCC, wrote to Mr Washington, requesting that he attend for an interview "in furtherance to" an investigation by the ABCC into "a suspected contravention of section 816 of the Workplace Relations Act 1996".

18 On 8 October 2007, the ABCC served a notice on Mr Washington requiring him to answer questions at an investigation. The notice was dated 28 September 2007. The investigation was said to concern suspected contraventions of s 816 of the WR Act by Mr Setka and Mr McLoughlin at four named construction sites.

19 After correspondence between the ABCC and the legal officer of Mr Washington’s union, the Construction Forestry Mining and Energy Union ("CFMEU"), the ABCC, by letter dated 22 October 2007, withdrew the notice dated 28 September 2007 directed to Mr Washington.

20 On 30 October 2007, the ABCC served a further notice on Mr Washington dated 29 October 2007. It differed from the 28 September 2007 notice in the following material respects:

21 On 15 August 2007, the respondent, Mr Hadgkiss, wrote to the Australian Council of Trade Unions ("ACTU") concerning the conduct of Mr Setka on 10 August 2007 towards two ABCC inspectors who attended the CFMEU office to collect documents. The letter alleged that Mr Setka had harassed and intimidated the officers, and requested an assurance that such behaviour was not endorsed by the ACTU, and that Mr Setka would be counselled in relation to it.

22 On 20 September 2007, Mr Hadgkiss again wrote to the ACTU. He referred to his previous letter of 15 August 2007 and attached an article from the "Herald Sun" newspaper dated 20 September 2007 concerning recent alleged conduct by Mr Setka. The article referred to a matter the subject of the investigation, stating: "The latest incident on September 6, involved an alleged assault on Steve Broadhead, a manager for developer Bovis Lend Lease."

23 On 15 October 2007, Mr Jeff Lawrence, the Secretary of the ACTU, wrote to Mr Hadgkiss saying that he had referred his correspondence to Mr Noonan, the National Secretary of the CFMEU’s Construction Division and had discussed the matter with him. The letter concluded:

24 On 1 November 2007, Mr Hadgkiss again wrote to Mr Lawrence. He agreed that the conduct of Mr Setka "as referred to in the Herald Sun article" is a matter most properly dealt with by the Victoria Police. However, Mr Hadgkiss was concerned that the matters alleged against Mr Setka on 10 August 2007 had not been addressed.

25 The fourth applicant, Mr Balta, also received a notice dated 28 September 2007 from the ABCC. It was in materially identical terms to the 28 September 2007 notice sent to Mr Washington.

26 Mr Balta also received a second notice dated 29 October 2007. In that notice the suspected contravention was confined to the alleged events of 6 September 2007. The only building industry participant the subject of the investigation was Mr Setka and the only site listed was the Yarra Arts site.

27 On 13 November 2007, the CFMEU in-house solicitor, Mr Chris Gamble, wrote to Mr Hadgkiss with reference to the notice dated 29 October 2007 served on Mr Washington. Amongst other things the letter said:

28 In a reply letter dated 15 November 2007, Ms Janine Drennan, an in-house lawyer with the ABCC, said that the subject matter of Mr Washington’s evidence relates to three specific dates which do not concern Mr McLoughlin. The letter also stated that: "it is now suspected that Mr Washington may be involved in suspected contraventions of s816 of the WR Act on 20 June 2007." (Emphasis added.) The letter also stated that:

29 The flyer is an appendix to the notice to Mr Washington dated 29 October 2007. It refers to Mr Peterson voluntarily going to the "Building Industry Taskforce" (a prior name for what is now the ABCC). It also refers to Mr Peterson as a "no good give up Dog".

30 The flyer contains a photo of a border collie resembling the television show dog called "Lassie" (to those old enough to remember). It describes Mr Peterson as "Lassie" and a "disgrace to the Building Industry" amongst other things.

31 On the top right hand corner of the flyer there is a boxed section darker in colour than most of the document and headed "COMING SOON: (MORE ON CRAIG LASSIE PETERSON)". It then contains three dot points, the first of which says: "OTHER BUILDING INDUSTRY GIVE UP DOGS. Their statements and denials in full."

32 The ABCC’s investigation, the subject of this proceeding, is one into suspected contraventions of s 816 of the WR Act. Mr Setka, Mr Washington and Mr Mier are named as persons subject to the investigation. Mr Washington and Mr Balta have been served with notices to attend at ABCC premises to be questioned concerning the investigation.

33 Counsel for the applicants contend that Mr Hadgkiss’s principal concern in conducting the investigation is the conduct of union officials in relation to the ABCC. They submit that that is the substantial concern of the investigation and not the alleged breaches of s 816 of the WR Act.

34 Counsel point to the correspondence from Mr Hadgkiss to the ACTU complaining about Mr Setka’s conduct and to the reference in the "Herald Sun" to an alleged incident the subject of the investigation. Counsel contend that the difference between the wording of the initial notices to Mr Washington and Mr Balta and the later ones shows that:

35 Counsel also contend that Mr Hadgkiss’s failure to give evidence in regard to the changes to the investigation is significant. Counsel submitted that the inference of an improper purpose raised, so it is said, by the changes to the investigation are not rebutted by Mr Hadgkiss and therefore, the inference should be accepted by the Court; see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Counsel submit it was not sufficient for the ABCC’s solicitor, through the admission of her letter asserting a changed position, to rebut the inference without Mr Hadgkiss deposing to the changed position himself.

36 Counsel also submit that there is nothing on the face of the flyer that would support an allegation of breach of s 816. Counsel suggested that the better construction of the flyer was that it admonished people who co-operated with the ABCC rather than those who gave evidence or intended to give evidence to the AIRC, as the flyer says nothing about AIRC proceedings. They contend that a substantial purpose of the investigation is to investigate lack of co-operation with the ABCC.

37 As Gaudron J said in Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649 at 672:

38 Justice Tamberlin (with whom Branson and Finn JJ agreed on that issue) applied that approach in The Wilderness Society Inc v Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 at [126] to [127]. His Honour also referred to "the test of substantiality necessary to establish improper purpose" referred to in Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87 at 106. In Thompson at 106, Williams, Webb and Kitto JJ said that a purpose is an "ulterior" one:

39 To meet the Thompson test of substantiality, the applicants must prove that the investigation by the ABCC into alleged contraventions of s 816 of the WR Act would not have been commenced had it not been for the desire to question union officials about their lack of co-operation or encouraging lack of co-operation with the ABCC.

40 The evidence can be reconciled with the proper exercise of power. Section 52 of the BCII Act has been engaged because Mr Hadgkiss is investigating an alleged contravention of a designated building law by building industry participants. The particulars given in the notices to attend for questioning refer to alleged breaches of s 816. It is not to the point that the allegations as particularised may be weak or that the flyer relied upon may be open to an explanation not related to s 816.

41 Further the test of substantiality is not met. The evidence does not support the proposition that the investigation would not have occurred but for a desire to question union officials about their attitude to co-operation with the ABCC. The 29 October 2007 notice to Mr Washington and Mr Balta make serious allegations about the conduct of Mr Setka with respect to Mr Peterson and Mr Broadhead which seek to connect that conduct with their provision of information to the AIRC and appearances before it.

42 The matter in respect of which Mr Washington is the subject of allegations, on the other hand, appears to be more trivial. However, its reference to Mr Peterson and Mr Broadhead proximate to their AIRC appearances may give rise to a legitimate suspicion of connection to co-operation with the AIRC rather than the ABCC.

43 The evidence of Mr Hadgkiss’s concern about Mr Setka’s alleged conduct on 10 August 2007, augmented by his reference to Mr Setka’s alleged conduct on 6 September 2007 is insufficient to show that the investigation is substantially about discouraging co-operation with the ABCC. The point of Mr Hadgkiss’s complaint about the 10 August 2007 matter is not lack of co-operation but lack of respect and dignity towards fellow human beings who are performing their duties as employees.

44 The applicants have not discharged their onus of establishing that the investigation was commenced for a purpose other than a purpose contained in the BCII Act for which the power to investigate is confined.

45 A person who is questioned by the ABCC is not required to answer questions which are irrelevant to the investigation. In the event that questioning of a person subject to a notice to attend from the ABCC strays into an extraneous area, an objection could be promptly taken to that line of inquiry. If it transpires from the questioning in the investigation that the investigation is not being conducted for its stated purpose it remains open to the building participant concerned to apply for injunctive relief to this Court at that stage.

46 In considering this matter I have been concerned about the change in focus of matters the subject of the two notices directed to Mr Washington and Mr Balta. I am satisfied that the ABCC re-focused its attention on the precision required for its investigation. I am content to accept that assurance, via Ms Drennan, however it would have been preferable had Mr Hadgkiss himself stated, on affidavit, the reason for the changes. That step may have obviated the need for this proceeding to have been heard to finality.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Applicants:	Mr H Borenstein SC with Mr C Dowling.

Solicitor for the Applicants:	Slater & Gordon.

Counsel for the Respondent:	Mr A Southall QC with Mr J Bourke.

Solicitor for the Respondent:	Australian Government Solicitor.

Date of Hearing:	11 December 2007.

Date of Judgment:	29 January 2008.

Federal Court of Australia

Washington v Hadgkiss [2008] FCA 28 (29 January 2008)