100421930

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES JEFFREY KENNEDY MURRAY

APPLICANT

 -v-

 HAMERSLEY IRON PTY LTD

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE THURSDAY, 25 MARCH 2004

FILE NO/S APPLICATION 1302 OF 2003

CITATION NO. 2004 WAIRC 10967

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Catchwords  Industrial law – Procedure – Application to strike out parts of witness    statements – Objections raised – Relevant principles – Amendment to notice of answer – Commission satisfied that parts of witness statements should be struck out and answer amended in part – Industrial Relations Act 1979 (WA).

Result Application upheld in part.  Order issued

Representation

Applicant Mr D Schapper of counsel

Respondent Mr A Lucev of counsel

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Reasons for Decision

1          The applicant in this matter moves the Commission for orders that parts of witness statements filed by the respondent be struck out on various grounds including that the material is vague, irrelevant, contains multiple hearsay, and is scandalous or prejudicial.  The basis advanced for the application being determined now, rather than what would normally be the case, at the hearing of the matter, is that counsel for the applicant, Mr Schapper, submitted that the parties are in settlement negotiations and the statements have been made mala fide for the purpose of intimidating the applicant in relation to those discussions.  It is further submitted by Mr Schapper, that this material will adversely impact on the potential success of any settlement discussions. These allegations are resisted by counsel for the respondent, Mr Lucev.

2          Secondly, before the Commission, is a request by the respondent that its amended notice of answer filed on 28 January 2004, be further amended to bring in the following issues by way of an amended par 13 as follows:

“13 Further, reinstatement is impracticable by reason of:

(a) the Respondent’s complete lack of trust and confidence in the Applicant, and the Applicant’s ability to properly perform in the role of Emergency Management Adviser;

(b)               the Applicant having obtained other employment;

(c) the Applicant’s alleged sexual relationship with a contractor’s female employee, inappropriately conducted on the Respondent’s premises outside of working hours.”

3          In relation to the passages in the respondent's witness statements to which the applicant has taken objection, in the main, they go to statements made by witnesses to be called by the respondent, concerning the applicant's professional conduct and performance.  Furthermore, there are two passages in the witness statements in response of Mr Taplin, in relation to which the applicant has taken particular objection, which say that subsequent to the applicant's dismissal, it is alleged, without specificity, that the applicant may have “engaged in sexual relations with a contractor’s female employee on company premises, outside of working hours, prior to his termination.”  The statements objected to then further refer to the need for an investigation into these matters, if the applicant were to be reinstated.  As can be seen above, this issue is also the subject of an application by the respondent to further amend its notice of answer and counter proposal.

Consideration

4          The Commission is not bound by the rules of evidence and is able to inform itself as it sees fit for the purposes of hearing and determining an industrial matter under the Industrial Relations Act 1979 (“the Act”): s 26(1)(b) Act.  This has never meant however, that parties are absolved from the requirement to establish their cases by cogent evidence.  In relation to hearsay evidence, whilst often of little assistance to the Commission, the general approach to such matters by the Commission is to afford it such weight as is appropriate in the circumstances which is often little weight.  The Commission generally discourages the taking of points in relation to striking out evidence, for the above reasons.

5          Generally speaking also, it is the case that objections to evidence sought to be adduced, should be taken at the time at which evidence is proposed to be led, and this applies no less so in the circumstance where witness statements have been filed.  This is because the cross-examination and re-examination of witnesses may bring into play issues not readily apparent at the time the statements were filed.  This is not a universal rule however, as every attempt ought to be made by practitioners to ensure that witness statements are drafted in a suitable form, to resolve any issues concerning their content, prior to the hearing of a matter.   The Commission recognizes however, despite these principles, the circumstances in which counsel for the applicant now brings the matter before it.

6          In this case, the Commission has carefully considered the passages of the statements objected to, in light of the applicant's own witness statement.  Save for the allegations of sexual misconduct in the workplace, and the content of annexure BP2 to the statement in response of Mr Pett, about which more will be said below, my view is that on a fair reading of all of the material, the passages complained of contained in the respondent's witness statements are generally responsive to issues raised by the applicant in his own witness statement.  These issues go generally to his standard of work performance and behavior in his employment at the respondent at the material time.

7          However, the content of Mr Taplin's witness statement in reply at pars 39 and 40, and the respondent's proposed amendment to its notice of answer and counter proposal at proposed paragraph 13(c), is wholly of a different kind in my opinion.  Such allegations are in my view irrelevant to the issues to be determined in the substantive proceedings and are serious allegations, advanced without particularity or foundation.  To state at par 39, as does Mr Taplin, that “it has come to my attention…” without any substantiation as to the specific allegations and by whom they have been raised, is tantamount, in my opinion, to pleading an allegation of fraud in a pleading in civil proceedings, without particularity, which is expressly prohibited by rules of court.  The Commission as presently constituted has recently, in another matter, removed from the Commission's file, a witness statement containing scandalous material: Penn v Patricia Edward; Verschuer Edward, Barristers & Solicitors (2004) WAIRC 10887).  In my opinion, the material contained in Mr Taplin's witness statement in response, concerning these allegations, is quite inappropriate and I also do not consider it relevant for the purposes of determining whether reinstatement ought be ordered or not, in the event that the applicant is successful in his substantive claim.

8          I turn now to the content of annexure BP2 to Mr Pett’s witness statement in response. This annexure is a copy of emails with attachments, of further graphic material of a sexual nature, said to have passed between the applicant and other employees of the respondent. This is separate to that material which is the subject of the respondent's specific complaints in these proceedings, which is material that has been described by both parties as the “gay porn” email material, and is annexure BP1 to Mr Pett’s witness statement in response.

9          Counsel for the applicant complains that annexure BP2 contains material of the kind that was the subject of the Commission's direction of 5 December 2003 that related in part, to a proposed amendment to the respondent's notice of answer and counter proposal that was only granted by the Commission, on the fulfillment of certain conditions set out in the direction.  The respondent did not proceed with the proposed amendment, to bring in to play, the issues sought to be raised, which included other alleged inappropriate email material, of the kind contained in annexure BP2.

10       Mr Lucev submitted that annexure BP2 is able to stand, because, as the Commission understood the submission, the applicant referred at par 28 of his witness statement, to a “fair treatment” meeting which occurred on 9 September 2003.   At this meeting it was said that a representative of the respondent had referred to other emails alleged to have been found on the applicant’s computer, as further pornographic material, upon which the respondent would rely in making its decision about the applicant's future.

11       Whether or not the applicant in his witness statement referred to this material, in the context of the meeting convened by the respondent, or not, in my view is not relevant to the fact that this material would appear to fall foul of the Commission's direction made on 5 December 2003.  The conditions imposed by the Commission in relation to the adducing of this further material, was for the specific purpose of enabling a comparison to be made, as a matter of fairness, between the penalty imposed upon the applicant of dismissal, and sanctions, if any, imposed upon other employees who may have received such inappropriate material, and what they themselves may have done with it. 

12       Given that the respondent has elected not to pursue the matters raised in the earlier proposed amended notice of answer in connection with this sort of material, in my opinion, it should not now be able to be put before the Commission.  It has the potential to cause prejudice to the applicant, without a balanced assessment being made, as to the steps taken by the respondent, if any, in relation to those employees who may have received and dealt with this further inappropriate material.

13       For all of these reasons, pars 39 and 40 of Mr Taplin's witness statement in response will be struck out.  Annexure BP2 to Mr Pett’s witness statement in response will be struck out.  In all other respects, as to the objections taken at this stage, the witness statements will stand.    

14       As to the proposed amendment to the notice of answer, the Commission does not consider the proposed amendments to add pars 13(a) or (b) to be problematic.  Therefore, save for the proposed par 13(c) set out above, leave will be granted to amend and the proposed further amended noticed of answer and counterproposal will stand accordingly.

15       A minute of proposed order now issues.