Barker v Queensland Fire and Rescue Authority [2001] QIRC 180 (2001) 168 QGIG 237

9 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 237 no.10 09.11.01 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Shane Barker AND Queensland Fire and Rescue Authority (No. B339 of 2001) COMMISSIONER FISHER 25 October 2001 Application for reinstatement – Charges laid – Resultant dismissal – Witness statements redrafted – Objections – Full evidence not put to applicant – Case for applicant – Case for respondent – Browne v Dunn – Case Law – Other Witness statements – Parties directed to confer – Parties to advise prior to 19 November 2001 of any outstanding matters. DECISION Shane Barker was dismissed from the Queensland Fire and Rescue Authority (QFRA) on 30 January 2001. His dismissal followed a complaint about his conduct by Belinda Dyer and a subsequent investigation by the QFRA. Six charges were laid against Mr Barker as a result of the investigation of that complaint. Five of the six charges were found to have been sustained. In the circumstances the QFRA considered the appropriate penalty to be dismissal. Mr Barker’s union, the United Firefighters’ Union of Australia, Union of Employees, Queensland Branch (UFU), has filed an application for the reinstatement of their member. It is inappropriate and indeed irrelevant to make any comment about the complaint, the process of investigation or the dismissal itself as at this point only the applicant’s case has been heard. The only uncontroversial comment that can be made is that the internal QFRA processes generated volumes of documents. Many of these and others are before or are to be before the Commission. The sheer quantity of material has led, in part, to the matter this decision now addresses. By the Directions Order issued by the Commission for this matter, each party was required to file and serve statements of witness evidence. The applicant and the respondent, in the case of Ms Dyer, prepared witness statements in the first instance which consisted of a statement largely documenting various attachments. The attachments were generally documents relating to the investigative process, for example, statements prepared for the process or transcripts of interview. A number of the issues contained therein do not address the case which is before the Commission. They referred to allegations being investigated at the earlier stage of the process, before being narrowed to the charges. The presentation of witness statements in this form has caused difficulties for the parties in understanding their respective cases as the evidence, especially that being relied on has not been clearly presented. These difficulties contributed to the Commission having to issue decisions that set the scope of the evidence to be adduced. In effect, the -- 1 of 4 -- 238 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2001 Commission decided to permit evidence about all six charges and matters which give context to the charges. These decisions caused the applicant to have redrafted a number of statements of evidence from witnesses being called for his case. As mentioned, the affidavit of Belinda Dyer, was in a similar form to many of the statements of witnesses for the applicant. It contained twenty attachments including the statement of her claim of sexual harassment against Mr Barker and transcripts of various interviews with the Investigation Team. The affidavit was provided to the applicant on 20 July 2001, with nineteen of the attachments being provided to the applicant’s solicitors on 21 June 2000 as part of the internal QFRA process. On 18 September 2001 the applicant received a fresh affidavit from Ms Dyer. It was a consolidated document, that is to say, rather than being a statement with a series of attachments, the affidavit contained her evidence in prose. It is a lengthy document running to 325 paragraphs over 48 pages. The affidavit was received by the applicant, after the case for the applicant had concluded and shortly before the proceedings were to resume. A final version of the affidavit was provided to the applicant on 25 September 2001, the day of the resumed proceedings and when Ms Dyer was to give evidence. In the circumstances the Commission adjourned the hearing on 24 September 2001 to allow the applicant to consider the affidavit and to discuss certain matters of concern with the respondent. When the hearing resumed on 25 September 2001, by consent, the respondent recalled Mr Barker and two other witnesses for the applicant to put certain matters that had been overlooked in the cross-examination. Counsel for the applicant then raised with the Commission a series of objections to the statement of Ms Dyer. In essence, the complaint was that many of the matters contained in Ms Dyer’s statement had not been put to the applicant in cross-examination. This was, in their submission, contrary to the understanding reached by Counsel for both parties and recorded on transcript (p. 97). Further, the omission by Counsel for the respondent breached the rule in Browne and Dunn (1893) 6 R 67. Accordingly, the material not put in cross-examination should not be admissible. Other objections were also raised about some matters in the statement being hearsay or opinion or conclusions not supported by admissible evidence. The complaint of the applicant goes beyond Ms Dyer’s statement and extends to statements from a number of other witnesses for the respondent. The Commission adjourned proceedings to allow Counsel for the respondent the opportunity to consider its position. On resuming the hearing, Counsel for the respondent argued “in a case where each side has provided the other with witness statements then there is no requirement to put each and every part of those witness statements to the witnesses.” (p. 798). After hearing the submissions, the Commission decided, with some reluctance, to abandon the remainder of the sitting days and to consider written submissions from the parties about the matters in dispute. The Case for the Applicant The applicant argues that its case would be seriously prejudiced if Ms Dyer’s statement (and others) were allowed to stand unchanged. The applicant contends there were many assertions and issues raised in Ms Dyer’s statement that were not put to the applicant or other of his witnesses where that evidence was at odds. It is submitted that the applicant was not and could not have been on notice of what the cross-examiner intended to rely on because at the time of giving his evidence there was no affidavit from Ms Dyer – only the various documents which formed the attachments to her July 2001 statement. Moreover, the rule in Browne and Dunn requires matters that are contrary to the interests of the applicant be put to him and his witnesses. The respondent has, in the submission of the applicant, breached this rule. The applicant argues that the appropriate course to afford fairness to his case is to have the Commission rule on those parts of the statements to which objection has been taken. The applicant opposes the recalling of witnesses (again) to have the objectionable matters put. The Case for the Respondent The respondent contends that the applicant has been aware of the matters contained in Ms Dyer’s statement for a considerable period as material had been provided to the applicant’s solicitors in June 2000. It submits there was no obligation, under the Browne and Dunn principles, to put all matters that were in contradiction of his evidence and the applicant has not been prejudiced by not having them put. The respondent also submits that consistent with the Commission’s usual practice and the provisions of s. 320(2) of the Industrial Relations Act 1999, these are matters which should be admitted. Submissions are also made about the course to adopt where matters consist of opinion or conclusion. The Principles in Browne and Dunn Both parties have argued that the principles emanating from the decisions in Browne and Dunn are applicable to proceedings in the Queensland Industrial Relations Commission, despite s. 320 of the Act providing that the rules of evidence do not apply in proceedings before the Commission. Reference was made to decisions of both the (then) Australian Conciliation and Arbitration Commission and the Industrial Commission of New South Wales, that the rule in Browne and Dunn should be observed as a matter of good practice (see Re: National Building Trades Construction Award 1975 (1983) 17 1R 446 and Pastrycooks Union v Gartrell White (1990) 35 IR 60). This Commission would generally share the views expressed in these decisions. In various matters, the Court and Commission have adopted the view that although the rules of evidence do not bind the Commission, they should generally be followed to ensure fairness and justice are served. To this end, the Browne and Dunn decision would appear to be applicable to proceedings in the Commission. While both parties have relied upon Browne and Dunn to support their respective cases, they are clearly at odds about the application of the “rule” or “principles” which arise out of that decision. They have each provided decisions which support the positions they advance. Each of these decisions has been duly considered. The starting point must be, however, the decision of Browne and Dunn itself. The relevant passage from the decision is by Lord Herschell LC at 70-71 where he said: “Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross-examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to be that a cross examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross examination, -- 2 of 4 -- 9 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 239 and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”. The principles to be derived from this decision were summarised by Newton J. in Bulstrode v Trimble (1970) VR 840 at 846: “The rule in Browne and Dunn has, in my opinion, two aspects. In its first aspect the rule in Browne and Dunn is a rule of practice and procedure designed to achieve fairness to witnesses and a fair trial between the parties. In the second aspect it is a rule relating to weight or cogency of evidence.”. A number of decisions have sought to expound or clarify the fairness aspect of the rule in Browne and Dunn. In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) (1983) 1 NSWLR 1, Hunt J said at 26, “I remain of the opinion that, unless notice has already been clearly given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witnesses in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from the evidence in the proceedings.”. In Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168, Toohey J. agreed with the point made by Hunt J. above. Similarly, the Full Court of the Federal Court of Australia in Flower & Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744 said at 757: “As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to given an explanation. However, there can be no need to put such an issue to a witness who has noticed that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness . . .”. On the same matter, Higgins J. said, in Hadzic v Bristol Paint Limited (1994) ACTSC 121: “The rule in Browne and Dunn, whatever its true scope, has no sensible application if a party or witness is on notice that his or her version of events is in contest (see Seymour v ABC (1977) 19 NSWLR 219; and Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168.”. The question for consideration in the case now before the Commission is whether the applicant was on notice that his version of events was in issue. In the event that he was, then the above decisions support the contention of the QRFA that the applicant and his witnesses did not need to be cross-examined on all matters. For the most part, I consider the applicant was generally aware that his evidence was to be contradicted and of the case against him. Ms Dyer’s original statement had been made available to the applicant in July 2001 and the applicant’s solicitors had been provided with nineteen of the twenty attachments in June 2000. The case against Mr Barker was known in some detail as evidenced by the vast amount of material which has been amassed and to which responses had been given in the various forums. The Commission acknowledges however that the sheer volume of material, the form of Ms Dyer’s original statement and the fact that much of the material provided did not form the basis of any charge, has caused difficulty for the applicant in being aware of all of the matters upon which the cross-examiner intends to rely to contradict his evidence. To paraphrase Newton J. in Bulstrode v Trimble (supra), the first aspect of the rule in Browne and Dunn is about fairness – fairness to the witnesses and a fair trial. My concern goes not to the contextual matters, for Mr Barker and his witnesses were allowed opportunity and latitude to address this at some length. My concern is about the six charges that were laid against Mr Barker by the QFRA. As I said in my first decision relating to the scope of the evidence able to be presented, the focus of my determination must be on these charges. The majority of charges against Mr Barker generally consist of a statement about conduct not fitting to an officer of the QFRA and then proceed to give particulars about such conduct. Some of the particulars are further particularised. The charges are thus multifaceted requiring a deal of evidence to be presented. The respondent’s initial submission about the scope of evidence to be called was that it should only relate to those charges that had been sustained. Early in its cross-examination the respondent put matters to Mr Barker about a number of particulars in Charge 1.2, a charge that was not sustained. In cross-examination evidence was not adduced about other charges or particulars that were not sustained. Exhibit 49, Ms Dyer’s statement, has a number of paragraphs which have been crossed out. In some instances these include paragraphs relating to particulars of charges that were not sustained. To clarify the matters upon which the respondent was intending to rely and to assist in the determination of the matters before me, the matter was relisted. The respondent confirmed that it only intended to rely on those charges or particulars that had been sustained. In relation to a number of particulars of Charge 1.2 cross-examination of the respondent had occurred for reasons going to credit of the witness. With this being established and having previously expressed the view that the applicant was generally aware of the case against him, I am satisfied that the respondent has acted in accordance with the first principle of Browne and Dunn. There are some matters in Ms Dyer’s statement that go to charges or particulars that were not sustained. For example, in paragraph 36 of her statement, Ms Dyer says: “Shane concentrated on the fact that Jay was going overseas and that if he really cared about me and loved me he would not go. . . . At this point I got up and told him I wanted to go downstairs.”. These statements directly give rise to paragraphs (vii) and (viii) of Charge 1.2. These, and any other similar statements that do not relate to the charges or particulars that were not sustained, should not be retained in the witness statement. I propose to allow the respondent to proceed with that evidence that goes to context (see my decision in transcript pp. 337-338). The matter will then become one of weight or cogency of evidence – the second aspect of the rule in Browne and Dunn, according to Newton J. in Bulstrode v Trimble. Where the respondent intends to rely upon such evidence it should give notice to the applicant prior to final submissions being made so that the applicant can prepare the necessary submissions about the weight and cogency of such evidence. -- 3 of 4 -- 240 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 November, 2001 Other Witness Statements The applicant also objects to the certain parts of other statements of evidence of witnesses for the respondent on the grounds that (a) material was not put in cross-examination, (b) hearsay, (c) opinion or conclusions or (d) beyond the scope of the Commission’s decisions. Many of these objections have been addressed by the respondent by either agreeing to withdraw the objectionable part or modifying it to overcome the objection. Some objections remain and the Commission is thus required to rule on them. I shall deal with all objections to each statement collectively. Maurice Cummings Paragraphs 8 to 10 contain material which has not previously been made known to the applicant. Paragraphs 8 and 9 are statements of fact, provide some background and will be allowed. In relation to paragraph 10, the respondent says that it, together with paragraphs 8 and 9, provides the background of events leading to Mr Barker’s preparation and the distribution of the options and ramifications paper. The applicant claims that this is the first time he has been made aware of this contention and accordingly is entitled to respond to the issues raised. The matter of the options paper is the subject of Charge 6. If the respondent intends to rely on paragraph 10 as supporting Charge 6, then Mr Barker should be recalled to give evidence on these matters. The same ruling applies to paragraphs 14 to 18 and the last sentence of paragraph 20, although the Commission notes the respondent’s comment that the contents of paragraphs 14 to 18 are to be found in the Statement of Cummings provided to the applicant on 21 June 2000. Paragraphs 30 to 35 will be allowed. There has been evidence generally from Mr Barker on this meeting. However, if these paragraphs, and especially paragraph 33, are also to be relied on to support Charge 6, then further evidence from Mr Barker about the matters raised in these paragraphs will be permitted. Carmen Hunter The paragraphs to which objection remains are the first sentence of paragraph 7 and paragraphs 8, 9 and 10. The content of the paragraphs had previously been provided to the applicant on 21 June 2000. In my decision on 20 July 2001 I permitted evidence to be called “on the nature of the work environment at the World Firefighters Games Brisbane 2002 office and the nature of the relationship between Mr Barker and Ms Dyer.”. The contents of these paragraphs fall within that decision, bearing in mind also that the applicant has called a deal of evidence of this kind. Renae Randle Paragraph 8 is objected to on the grounds the material was not put to Mr Barker in cross-examination. The respondent advises the contents of this paragraph have their origins in the Statement of Ms Randle given to the applicant on 21 June 2000. Matters raised in this paragraph relate to Charge Number 2 and especially 2.1 and 2.6. Evidence has been given by Mr Barker about these two matters. I am prepared to let paragraph 8 of Ms Randle’s statement remain, however, in the event the applicant believes he would be prejudiced by not having had the contents of this paragraph specifically put to him, then I will allow him to be recalled for this purpose. I emphasise my position on this matter has been taken as the contents of the paragraph relate to the charges. Norelle Dyer Paragraph 12 is objected to on the grounds of relevance and being outside the Commission’s rulings. I will allow it to remain on the grounds that is relevant, albeit marginally, to the nature of the relationship between Mr Barker and Ms Dyer. Patricia Gaudry The applicant takes objection to Ms Gaudry’s statement in its entirety. Although being aware of it, the applicant did not respond to it as it did not form the basis of a charge and was provided as evidence of “other material”. This submission was made in the applicant’s final submission on the matters objected to in witness statements and has not drawn a further response from the respondent. Until this submission was received only certain paragraphs had been objected to and the respondent had either agreed to modify them or argued for their retention. I have proceeded on the basis the respondent maintains relevance. Ms Gaudry’s statement does not relate to any of the charges. It is about the nature of the relationship between Mr Barker and Ms Dyer. Given the objection raised by the applicant, the fact it does not relate to a charge and does not generally take the case further, the Commission does not propose to admit the statement. The parties are directed to confer about the decisions now made to clarify whether Mr Barker or any other witnesses for his case need to be called. The Commission would propose to deal with any matters that cannot be resolved between the parties in the week of 19 November 2001. The parties should advise the Registry prior to that date if any matters remain outstanding. Order accordingly. G.K. FISHER, Commissioner. Appearances:– Mr W. Hinkley and Mr J. Nolan instructed by Ms A. Pratt (Hall Payne Solicitors) for the applicant. Released: 25 October 2001 Mr G. Martin SC and Mr C.J. Murdoch of Crown Law for the respondent. -- 4 of 4 --