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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052645
SENIOR DEPUTY PRESIDENT RICHARDS
RE2015/1117
s.512 - Application for a right of entry permit
Application by Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
(RE2015/1117)
Brisbane
10.12 AM, TUESDAY, 27 OCTOBER 2015
PN1
THE SENIOR DEPUTY PRESIDENT: Good morning everyone, please take a seat. Can I first of all just apologise for the delay. It appears we had some technical issues with our upgraded system. But that said, perhaps if I can take some appearances for the transcription purposes please.
PN2
MR WHITE: Yes, if the Commission pleases, I seek permission or leave to appear for the applicants in each of the two matters.
PN3
THE SENIOR DEPUTY PRESIDENT: Good. Thanks, Mr White.
PN4
MR HERBERT: Yes, if it please the Commission I seek leave to appear as counsel on behalf of the Director of the Fair Work Building Commission who has either been in the proceedings, at least, given notice to the Commission of its intention to make submissions in the matter and has done so in writing.
PN5
THE SENIOR DEPUTY PRESIDENT: Good. Thanks, Mr Herbert. Mr White, no objection?
PN6
MR WHITE: No.
PN7
THE SENIOR DEPUTY PRESIDENT: And equally so, Mr Herbert?
PN8
MR HERBERT: No.
PN9
THE SENIOR DEPUTY PRESIDENT: No objection in respect of Mr White, under section 596, is satisfied in the positive sense that the role of counsel would assist in the efficient conduct and expedition in relation to the matter. Mr White? I should first of all say that you can rest assured that I have read all the material including the - - -
PN10
MR WHITE: Sorry, your Honour?
PN11
THE SENIOR DEPUTY PRESIDENT: Sorry, if I can speak more loudly, I guess. You can rest assured that I've read all the material including what I'll call the evidentiary case, as well.
PN12
MR WHITE: Well, your Honour, one of the introductory matters to which I was going to go was that material, but first of all, just can I ensure the Commission has the application. There are two applications before the Commission. RE2015/1117 is an application by the CFMEU in Construction and General Queensland/Northern Territory branch and supported by declarations of Mr Abbar and Mr Bland. RE2015/1118 is an application by the Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland, the transitionally registered organisation supported by declarations of Mr Abbar and Mr Bland. And so that is material on which we rely.
PN13
Can I just also indicate, your Honour, there are two letters which can I tender now. They are letters from my instructors, Hall Payne Lawyers, of 29 September 2015, to the Fair Work Building Construction Commission, and a reply of 30 September 2015. Can I tender these, your Honour? I understand that's by consent that these letters are going in, your Honour.
PN14
THE SENIOR DEPUTY PRESIDENT: Yes.
PN15
MR WHITE: You will see the first letter from Hall Payne Lawyers requested that the well, first of all, indicated that Mr Bland in respect of matters that had been alleged in these proceedings but not the subject of court proceedings, had available to him the privilege against self exposure to a penalty and requested an undertaking that the Commissioner would pursue civil penalty claims in respect of the matters on which they rely in this proceeding. And the basis of that request was that it obviously places Mr Bland in an invidious position in that if he was to file material in these proceedings then he would have irrevocably elected to waive the privilege available to him. And you will see from the second letter that that undertaking was not given. So I tender those two letters, if the Commissioner please.
THE SENIOR DEPUTY PRESIDENT: I will mark them as CFMEU1. When I refer to CFMEU I refer to both applications.
EXHIBIT #CFMEU1 TWO LETTERS BETWEEN HALL PAYNE LAWYERS AND MR BLAND
PN17
MR WHITE: Your Honour, there is one other document on which we would seek to rely but that document which is a statement of a Mr Griffin is relevant only in circumstances where the statements on which the director relies are admitted to evidence. The director has filed three statements, those of Mr Kun, Mr McEwan and Mr Bell.
PN18
Now whilst it's slightly out of order, I've raised this with my learned friend and obviously subject to the convenience of the Commission, we are going to object to the admission into evidence of those statements. In the normal course those objections would be heard when the documents are sought to be relied on and tendered into evidence. In this matter where Mr Griffin's evidence will only be called if that other evidence is allowed, we had thought that it would be convenient if the objection to the admission of those statements was heard now, rather than at a later time. If it was heard now and if we were successful then we would not need to call Mr Griffin to give evidence and we'd shorten proceedings, at least by some margin.
PN19
THE SENIOR DEPUTY PRESIDENT: And hence you'd require a decision from me on that matter, as a matter of course, in the interim, if there is an interim.
PN20
MR WHITE: Yes, and really in the Commission's hands as to when I can foreshadow the objection will be taken. It's a question of when. We had thought it would be convenient now but of course, that's subject to your Honour's convenience or decision as to whether that's an appropriate course.
PN21
THE SENIOR DEPUTY PRESIDENT: Do you want to say anything about this, Mr Herbert?
PN22
MR HERBERT: My friend's entitled to take the objection and that will have to be ruled upon at some point. Again, procedurally we are in your Honour's hands about I don't have any objection myself to it being determined now because it will significantly regulate the length of the proceedings but of course that raises the issue of whether your Honour requires a little time to consider the objection, but that's a fence that we were always going to have to scale. So it may be as well to get it out of the way now, to hear what my friend has to say.
PN23
THE SENIOR DEPUTY PRESIDENT: Yes, okay. I think that's the best course. It may require us adjourning for a while for me to consider what's put but I think that's the best course to take.
PN24
MR WHITE: Thanks, your Honour. And once again, your Honour, without any disrespect, I'm a little deaf, unfortunately and I'm struggling to hear.
PN25
THE SENIOR DEPUTY PRESIDENT: Well, I'll probably annoy you over the course of the proceedings, so don't hesitate in telling me to speak up.
PN26
MR WHITE: Yes. Now, your Honour, the basis of the objection is that these matters are irrelevant, primarily, and a number of things flow from that. And I ask you to look at section 513. Section 513 sets out those matters the Commission must take into account in determining any application. Subsection(sic) 513(1)(a) speaks of matters past. That is, whether or not, in the past, the official for whom the permit is sought has received appropriate training.
PN27
Subsection (1)(b) talks about an event in the past, whether that is an applicant or an official for whom a permit is sought, has been convicted. Subsection (1)(c) similarly talks about whether the official has been convicted. These are all matters occurring in the past, and verifiable objective facts.
PN28
Subsection (1)(d), is in the same category of whether the official has been ordered to pay a penalty or another person has been ordered to pay a penalty. Subsection (1)(e), once again, speaks of a matter in the past, once again, a verifiable objective fact. And subsection (1)(f) is in the same category.
PN29
All of those matters, we say, are clearly referable to matters past and objectively verifiable. Subsection (1)(g) provides that the Commission must take into account any other matter the Commission considers relevant. Now in my submission subsection 513(1)(g) must be read ejusdem generis with the earlier parts of the section.
PN30
It's not, we say, open to the Commission, for example, to rely on conduct which in itself might constitute, for example, an offence against an industrial law or conduct which might lead to or render the official liable to pay a penalty under this Act or an industrial law. Rather, the Commission when considering the application, we submit, is constrained to consider only those matters which have occurred in the past and have been determined by an appropriate court or other Tribunal. We say that this is quite different from the circumstance where the Commission exercises what might on its face appear to be some judicial function for the purposes of determining its jurisdiction. That's not what the section provides and to that extent, your Honour, we say that the three statements to which I have referred are irrelevant and should not be admitted.
PN31
Now Vice President Watson in the CFMEU 2015 Fair Work Commission 4544 - -
PN32
MR HERBERT: your Honour, can I hand up a folder of authorities that actually contains that case. It's not every case we've referred to in the written submissions. Some of them are there for information only. They're the ones to which we think your Honour would need to have recourse.
PN33
THE SENIOR DEPUTY PRESIDENT: Okay. Well - - -
PN34
MR HERBERT: And that decision is in - - -
PN35
MR WHITE: Sir, perhaps if my learned instructor has less to carry back to the office I don't know what correlation there is between the list, your Honour. The case my friend referred to is under Tab 7 in the volume I've handed your Honour. At paragraph 9 of that decision the Vice President says, "At the hearing of the matter an application was made by Mr White to exclude the evidence proposed to be called in relation to matters that had not been the subject to a concluded proceeding". His contention was that paragraph (g) does not permit a consideration of matters that have not been the subject of consideration by a court. There are some other arguments and His Honour in paragraph 12, and can I say with all due respect to him, without reasons, did not exclude the evidence. That decision was given on 20 July 2015, coincidentally the same day that a decision in the CEPU Queensland Divisional Branch matter 2015 FWC 4450, which is Tab 2 in the bundle that we've handed to your Honour, was handed down by Gostencnik DP. Now in that decision one of the matters the Commission was asked to consider so that's Tab 2 in our bundle, if your Honour pleases one of the matters the Commissioner was asked to consider was whether or not an alleged failure to fully disclose matters was a matter which, (a), should be taken into account and, (b), the effect of that matter.
PN36
In paragraph 27 and 28 his Honour says, "That determination", talking about an interlocutory decision, "does not provide a foundation for conclusive factual findings as to conduct, nor as to the legal consequences of the conduct. It would, in my view, be most unsound to take into account allegations of conduct concerning that which were contested and which were ultimately not the subject of any finding of fact of conclusion of law". In paragraph 28 he says, "In those circumstances I can see no basis for concluding that a disclosure was required".
PN37
Now your Honour, we submit that the reasoning of Gostencnik DP is much to be preferred to the conclusion without reasoning of Vice President Watson, having regard to the specific terms of section 513 and also the more general discretionary comments which flow from Gostencnik DP's observations in paragraph 27 that it would be unsound to take into account matters which, at law, have not been proven. Now to some extent we say that should be conclusive and that the three statements on which the director seeks to rely should be excluded. But to the extent that His Honour Gostencnik DP's conclusions that it would be unsound to rely on a matter which had not been found as a question of fact permits the exercise of a discretion, then in any event under section 135 of the Evidence Act, any court or even though this commission is not bound by the rules of evidence, it's guided by them in significant part retained a discretion to exclude evidence, even relevant evidence and even relevant evidence with some probative value, if the evidence would be unfairly prejudicial to a party.
PN38
To the extent that the phrase or the conclusion that it would be "unsound to rely on matters not found in law to have occurred", then we say it clearly raises a question of discretion and that on the basis of the general discretion which courts have and which guide this Commission those statements should in any event be excluded because it's unfairly prejudicial. So your Honour, for those reasons we say that the three statements on which the director seeks to rely should not be admitted either fundamentally as a question of relevance and to the extent that there's a question of discretion, nor as a matter of discretion.
PN39
MR HERBERT: Your Honour, there is a reasonably succinct reason as to why this objection should not be entertained. In addition to the fact that in precisely analogous circumstances Vice President Watson did admit the material and act upon it, and did in the decision that you have before you, find expressly at paragraph 42 of the decision, "The evidence is highly relevant to my assessment in Mr Myles' fitness and proprietary to a right of entry permit". That's the last sentence in paragraph 42. I won't read the rest of the paragraph but it leads up to that conclusion. And the second point is that section 513(1)(g) should not be read and used in generous in the way in which my learned friend suggests. Because of it's very terminology, (a) to (f) is matters which must be taken into account and then (g) says, "any other matters that the Commission considers relevant". So it's in addition to, rather than, in conformity with, those matters.
PN40
And the discretion conferred upon the Commission by that provision is a discretion to consider whether the evidence is relevant to the core issue to be determined which, a few niceties, the parties are not at odds to that, and that is the question as to the general integrity issues and the fitness and the propriety of Mr Bland to hold a right of entry permit that gives him significant powers and privileges. One of the core issues that would need to be determined in that regard would be the question as was put in the MUA case in the Full Court of the Federal Court is under Tab 3. Now that is the issue and we've addressed this in our submissions but that is the issue of general integrity and that is to be found in paragraph 21 of that decision at p.8.
PN41
In dealing with the submission from the MUA that contraventions or penalties imposed in respect of other offences, that is offences other than those relating to rights specifically to right of entry, should not be taken as being relevant. The Full Court of the Federal Court rejected that argument for a number of reasons that are set out in paragraphs 21, 22, 23 and over to, I think, 24. And the key reasons why that rejection occurred are to be found in 21 and 22, and that is at the end of paragraph 21. "In the absence of clear words to the contrary there is no self-evident reason why an applicant's willingness to comply with any industrial law, may not be relevant to an exercise of power under section 512". If there is evidence before you of an unwillingness on the part of Mr Bland to comply with any industrial law, it's been specifically declared by the Full Court of the Federal Court to be a matter which is certainly likely to be relevant to the issue that is to be determined in the proceedings that goes to the question of fitness.
PN42
And secondly, this goes to the argument I put a moment ago. That's paragraph 22. "The language of section 513(1) supports, rather than denies, the ability of the Commission to take such matters into account. 513(1) Does not employ the language of exclusion. Section 513(1) simply identifies those matters which must be taken into account and the subsection does not provide that other matters may not be taken into account". Indeed, 513(1)(g) expressly provides any other matter the Commission considers relevant themselves must be taken into account.
PN43
Now there are a range of conducts and behaviours identified in the affidavit material which are matters which may or may not give rise to the imposition of penalties or proceedings but which are nonetheless behaviours which it is submitted are disqualifying behaviours for the purposes of these proceedings. To exclude such material on the basis that they have not yet, and may never be the subject of concluded proceedings in which a penalty is imposed, is to dramatically and inappropriately limit the scope of the matters to which the Commission might have regard. For example, if a candidate for such a right of entry worker habitually came onto building sites and shout foul abuse at everyone that they encounter as they walk around the site, and generally cause discombobulation amongst the public and the persons working on that site, in a manner which may not necessarily amount to hindering or stopping work and it may not amount to a criminal offence but it is nonetheless entirely objectionable and inappropriate and not befitting a person to be conferred with the right of entry, that is a matter which would be taken into account, notwithstanding that it hasn't been and may never be, the subject of any criminal or civic proceedings.
PN44
And so it is specifically in this case, evidence sought to be educed is that apart from the provisions of the Fair Work Act which say that 24 hours' notice must be given before exercising state or territory OH&S rights, the relevant provision of the state Workplace Health & Safety Act in Queensland, or Work, Health & Safety Act, as it is now called in Queensland, has a similar provision in it that requires persons exercising right of entry for safety purposes to give 24 hours' notice of their intention to do so and that is not a penalty provision, as far as it certainly doesn't express itself as such, and as far as can be determined. If it is not a penalty provision, it is nonetheless a provision of an industrial law and one in which it is sought to be proved that Mr Bland routinely and almost well, on every occasion of which we were able to call evidence, flatly refused to be bound by that provision or comply with it.
PN45
Now that is unlikely to be, and may well not be able to be, the subject of proceedings in an of itself but is nonetheless a matter which is properly the subject of consideration by the Commission. So to limit the Commission in a way of saying, well, you can only have regard to matters which are or have been or could have been the subject of concluded proceedings in which a penalty is to be imposed, would be to exclude things such as a whole range of things and including the example I've given, trespass, civil trespass, even criminal trespass onto sites in relation to which notoriously proceedings are almost never commenced but are nonetheless matters which go to the integrity of the person concerned. And the short submission from all of that is that the legislation does not permit the Commission or does not regard the Commission as being limited to have regard only to concluded criminal or civil proceedings by way of the contraventions but can have regard to any conduct of any behaviours which are shown to have occurred and which are decided by the Commissioner to be relevant in precisely the same way that Vice President Watson found such behaviours to be relevant to his determination in an analogous matter.
PN46
And the short answer to the contention that the decision of Gostencnik DP in some way is set against or in opposition to what was decided by Vice President Watson, Gostencnik DP was dealing with quite a different issue. The point that was made in those proceedings is that there were court proceedings on foot in relation to which the candidate in that case was named as a respondent but those proceedings had not yet been resolved. And it was argued in those proceedings that the fact of those proceedings should have been disclosed to the Deputy President in the course of the proceedings and his Honour held, well, no, there doesn't seem to be any particular reason why they should have been and there are no consequences if they didn't, because those proceedings, as such, have not been concluded and his Honour was not able to draw any inferences by virtue of the fact that the person was named as a respondent and that's all the material that he had before him and that is all that he had. There was no evidence called in those proceedings to show that not only was the candidate named as a respondent but he was in fact guilty of actual behaviours. It was only the fact of the proceedings was referred to.
PN47
That's in stark contrast and complete contrast to what happened before Vice President Watson. We actually called evidence in that proceeding. My client actually called evidence in that proceeding as to specific behaviours. We were not arguing in that instance and we don't argue in relation to this affidavit evidence, and we didn't argue in relation to the affidavit evidence before Vice President Watson, that that material, the fact of the proceedings per se, was sufficient to draw some adverse inference. What we did say is, you have hard evidence, unanswered evidence, as to how the candidate has behaved and you can have regard to that specific evidence. Whereas Gostencnik DP the only evidence he had before him was there were proceedings on foot. Nothing to say whether they were well-founded, ill-founded, misconceived, whatever. And His Honour in those circumstances determined that he wasn't going to have any regard to them anyway, so the fact of the nondisclosure of those proceedings was of no moment in the case before him.
PN48
Now there is no relevant connection between those two circumstances and the decision of Gostencnik DP has no bearing on the issue as to whether evidence should be admitted. The problem that Gostencnik DP identified was there was no evidence before him of the truth or otherwise in those matters. In this case we're seeking to admit exactly that, evidence of the truth or otherwise of particular matters which are themselves, not the subject of proceedings. And for those reasons there is nothing to be gleaned from the decision of Gostencnik DP and much to be gleaned from the decision of Vice President Waston, and on that basis, in my submission the more contemporaneous conduct of Mr Bland, not decisions of Tribunals which have proceeded at the speed of running treacle that are, by the time they are concluded, are three, four, five years old. It's not historical decisions which are of themselves, of course, important, but much more contemporaneous conduct by Mr Bland in order for the Commissioner to determine whether his claims of having been trained and having been instructed and fully understanding his obligations under the Act stand the test of contemporary evidence. And for that reason we urge that the objection be refused and that the evidence be admitted.
PN49
THE SENIOR DEPUTY PRESIDENT: There are two aspects of Mr White's submission I would like you to address, if possible. One is that if or one of the implications of Mr White's submission is the inconclusive nature of the materials and therefore what we have here is inconclusive in the sense that it's not determined. It's in the form of allegations, if you like. And are you saying there that subsection (g) is such that it facilitates the taking and giving of evidence and the contest and challenge to that evidence and the determination of that matter for the Commissioner's satisfaction under (g)?
PN50
MR HERBERT: Yes.
PN51
THE SENIOR DEPUTY PRESIDENT: Is that one - - -
PN52
MR HERBERT: Yes.
PN53
THE SENIOR DEPUTY PRESIDENT: That's one issue? Right.
PN54
MR HERBERT: Subsection (g) enables those materials to be the subject of an evidentiary contest. They are not the subject of an evidentiary contest other than cross-examination by my learned friend and on that basis we say that the Commission can deduce from that evidence what the Commission determines to be proven.
PN55
For example, if a witness who is in charge of a building site says, "this person entered my site on X number of occasions and on no occasion, despite my request, did they produce their permit or did they give me any notice whatsoever", or did they sign the visitors' book or did they do anything else? If that evidence is given and is not challenged by any other evidence or by any other means, then the Commission is at liberty to accept that evidence and determine the matter to finality for the purpose of these proceedings only because that's all it can be. There can be no civil penalty consequences or anything else flow from a thing of that kind. But you can draw conclusions about the conduct, as did Vice President Watson.
PN56
The conduct of that kind, unchallenged by any contravening evidence, is capable of supporting a finding that he did those things, and if he did those things that's capable of supporting an inference that he has scant regard for the law, et cetera. And you can pursue those matters to finality. There's no reason why these things need to be done on the basis only of historical records of court proceedings in the past. The Commission is, with due respect, is perfectly capable of making concluded findings about such matters as you wish to make findings about. If there are some allegations in relation to the matter that you determine are abridged too far in order to determine findings about those matters then that's a matter for the Commission to sort having heard the submissions in relation to those issues.
PN57
THE SENIOR DEPUTY PRESIDENT: Just putting aside those matters that aren't the subject potentially of a civil penalty, what do you say of the argument as to the defence of penalty privilege, expressly?
PN58
MR HERBERT: Well, that issue there wasn't much said about it but the issue in relation to by my learned friend, the issue in relation to penalty privilege is one in which it's been described and my friend didn't I expect that he may have perhaps referred to some authorities in that regard but the relevant authority and I don't think we have copies of it but there is Reid v Howard which is 1995 HCA 40, or 1995 184 CLR1. It is a decision of the High Court in which penalty privilege was described and in paragraph 8 of that decision, "More recently the privilege has been described as deeply ingrained in the common law. It operates so that a person cannot be compelled to answer any question or product any document or thing if to do so may tend to bring him into the peril and possibility of being convicted as a criminal". Elsewhere in that decision it's described as being a principle by which the prosecution cannot compel an accused person to make the prosecution's case for them by providing answers or things and it's a common law rule which is able to be abdicated by statute but a person who is charged with an offence or a civil contravention cannot be required to make the case against themselves.
PN59
This is an entirely different and separate circumstance. The applicant in these two matters makes application for a benefit or a privilege under the Act to be conferred upon one of their employees. In so doing it is absolutely necessary, because it's written into the Act, that the applicant demonstrate the fitness of that person to be the beneficiary of that entitlement. They must come forward and demonstrate that thing. If some other person such as my client wishes to demonstrate that there are behaviours which they say that have been carried out by that candidate which render them unfit then the applicant has one of two choices. They can challenge that material by other evidence and have the battle of evidence or they can yield the field and say, we don't challenge that evidence and we leave that material unchallenged. If they yield the field because they are concerned that in coming forward and answering those questions there may be the possibility of providing material which could lead to them being subject to criminal proceedings or penalty proceedings, that's entirely a matter for them to make that decision. But the one thing which is completely absent from these proceedings is any attempt by any person to compel Mr Bland, who isn't even a party to these proceedings, or the applicants to produce anything that could be used against Mr Bland or the applicant.
PN60
The common law rule of penalty privilege is that a person cannot be compelled to answer a question or produce a document. Nothing that my client is doing is compelling the applicant or Mr Bland to do anything. If he looks at the evidence brought against him and chooses not to answer it because of concerns well, the applicant does that, because of concerns about where that might lead, that's entirely a matter for them. There is no compulsion involved. They've brought these proceedings. They are the applicant. They have a certain evidentiary onus in relation to the matter and if they choose not to discharge it because they're concerned about the state of evidence that might be brought against them, well then they choose not to do that and that's a matter for themselves. There's no compunction whatsoever.
PN61
Mr Bland can cheerfully walk away from these proceedings without having answered anything and he's certainly not, by what my client's done, compelled to do so. And finally in relation to that, there would be an extraordinary outcome indeed if Mr Bland was to be put up as a fit and proper person and the condition which he puts on seeking to demonstrate that by evidence is that he requires that any evidence that he gives be the subject, in effect, of an undertaking by the regulator that they will not take proceedings against him in relation to that evidence. He would be the only person in Australia who would have that indemnity. And he gets it simply by dint of the fact that he wants to put forward material in proceedings to gain a right of entry permit and seeking to impose a condition on the regulator that they will give him a clear run at being able to do that thing, and that they will not bring any proceedings against him.
PN62
If he is going to call evidence which has the consequence that proceedings might be brought against him, well perhaps a decision not to call evidence is the best in his own interest. But it certainly shouldn't result in him being in a privileged position over and above every other citizen of Australia, that he has an indemnity because he wants to do so. He brought this application, or the unions brought this application on his behalf. This isn't something my client's brought on. And in those circumstances the bringing of such an application should not be the occasion for him to obtain indemnity against whatever it is he thinks he might have done, that he doesn't want to be the subject of such proceedings. No one in Australia gets that indemnity unless there's some extraordinary event happening and this certainly doesn't qualify for that.
PN63
So on that basis there's no question of unfairness. The rank unfairness would be, were a person to obtain an indemnity in respect of any contravening behaviour that they've engaged in, simply because they want to bring themselves forward as a fit proper person in proceedings of this kind. But if the evidence they want to bring forward isn't going to pass the test without such an indemnity, well then, again, they might be well advised not to bring it. But that's a matter for them. If they can't follow through with that application when the question of fitness is raised then the necessary consequence might well be that they are unsuccessful in their application. But that's a matter for them. It's entirely a decision for the applicant and nothing my client is doing is seeking to compel the applicant to do anything differently. We have not asked for any order that he answer any questions. We haven't asked for production of any material. We haven't asked him to provide anything, quite apart from the fact there are no penalty proceedings on foot at the present time. So for those reasons, unfairness would only be created where we do accede to the proposal that we give an undertaking in that regard and obviously that has been refused by my client. Is there anything further I can assist with?
PN64
THE SENIOR DEPUTY PRESIDENT: No. Thank you, Mr Herbert. Mr White in reply.
PN65
MR WHITE: Just briefly, your Honour, and I'll go through each of the points my learned friend made. I'll do it in order. First, can I address the first submission of my learned friend. He, in making his submission, relied or referred to paragraph 42 of Vice President Watson's decision in which the Vice President said that he found the evidence highly relevant. Can I just make this observation. The first basis on which I put the objection is not a question of relevance, it's a question of admissibility. It may be relevant, it may be all sorts of things but we say, properly construed it's inadmissible and I won't repeat the arguments about properly construed in relation to a ejusdem generis argument but make this observation about my learned friend's submission about that.
PN66
Section 513, subsection (1)(g), provides some scope for the Commission to consider matters that it considers to be relevant. The fact of the matter is though, section 513(1) still obliges the commission, mandates the Commission to take into account those matters. That was observed by the court in MUA in paragraph 22 where they say in the last sentence of that paragraph, "Indeed section 513(1)(g) expressly provides that any other matters that the Commission considers relevant themselves must be taken into account". So the mandatory language continues through all of the subparagraphs of section 513.
PN67
Next, in relation to the MUA decision itself, in my submission it doesn't support the propositions my learned friend puts. The question for determination in the MUA matter was that a submission that was made on behalf of the CFMEU that "the Commission could only take into account the contraventions offences and penalties in respect to the manner in which rights conferred on an entry permit had been exercised", and you'll see that question set out by the Full Court in paragraph 19. And it was in the rejection of that proposition that the Full Court thereafter made the observations to which my learned friend has taken you.
PN68
In paragraph 21 they talk about the general integrity of an applicant. That's in respect of the question of general integrity arising out of consequentially from contraventions or penalties imposed in respect to other offences created by an industrial law. And you will see that expression used in the last sentence at paragraph 20 of the court's decision. Paragraph 22 is not to the point in this case. In short, the Full Court there was considering a question far removed from the question or the basis upon which objection has been taken in this case. So in my submission paragraph 21 of the Federal Court decision in the MUA is not against the proposition that we've put to you dealing with the distinct issue.
PN69
The next matter that was addressed by my learned friend is the possibility that a person for whom a permit it sought might have engaged in a range of conduct which may not have any criminal or penal consequences. He relied in substantial part in making that submission on a person exercising their rights under the Queensland Work Health & Safety Act. Of course, under that Act the regulator has standing under Section 138 of the Act to apply to the Queensland Industrial Relations Commission for the Work Health Safety Permit to be revoked. And in that situation, your Honour, there would be in the event an application was successful, a finding, a question of fact which the Commission could then take into account under section 513(1)(g).
PN70
My learned friend submitted that the observations of Gostencnik DP were irrelevant and of no regard. Your Honour, the clear and precise words used by Gostencnik DP in paragraph 27 to which I have taken you, brought no misunderstanding or doubt as to their meaning. I submitted when I took your Honour to this case, the context in which it was made. That is, the context being an allegation of insufficient disclosure. There's nothing new about that. But the language, and I repeat, it would in my view be most unsound to take into account allegations of conduct concerning that which were contested and which were ultimately not the subject of any finding of fact or conclusion of law. Now that clearly has arisen out of a different circumstance contrasted to or compared with this case but we say the meaning brooks of no second guessing or misunderstanding as to its meaning.
PN71
My learned friend indicated that the case of Gostencnik DP was irrelevant. Further, as we apprehend his submissions, irrelevant, it being distinguishable from this case because there were proceedings on foot. If your Honour was to look at the words in paragraph 27 they do not depend at all on the existence or otherwise of proceedings being on foot.
PN72
Now what my learned friend has not addressed in my submission adequately is this. Your Honour asked my learned friend a question as to whether or not subsection 1(g) enabled the Commission to find to its satisfaction a state of affairs. Well, we say no, the Commission must take into account objective fact. That is, it is to be contrasted significantly with other parts of the act where in order for the Commission to do an act or thing it can be satisfied of the existence of a state of affairs. For example, order that an industrial action cease. That's in stark contrast to the provisions of section 413. What the Commission, in my submission, would be asked to do as a consequence of my learned friend's submission is to perform a judicial function about whether or not conduct which is in breach of particular standards has occurred in this case, the conduct that the director relies on, is conduct in breach of an industrial law, allegedly so. And the Commission, of course, doesn't have that power and nor can it give itself power. It's unnecessary to make that finding in order to exercise the jurisdiction and it's only in circumstances where as I indicated before, actions which might otherwise look as judicial functions can be done where it's necessary for the determination of jurisdiction.
PN73
The question of penalty privilege, perhaps my learned friend misunderstood. At this stage what is clear is this, that the director makes allegations that Mr Bland engaged in certain conduct. One can see from those allegations and the nature of the statements that the conduct in which Mr Bland allegedly engaged would be a breach of the Fair Work Act. In those circumstances it is not, we say, beyond contemplation that Mr Bland may face proceedings in court. Of course, it's not only the director who can bring those proceedings. Other people can. RCQ could bring those proceedings, for example. But it is once those proceedings are bought, if the Commission please, that the sharp end of Mr Bland's penalty privilege takes shape and if Mr Bland was to give evidence in these proceedings directly rebutting and directly responsive to the allegations made against him, then in my submission Mr Bland would have been taken to have waived that privilege. Hence the letters that were sent. So it's a more long-range or consequential submission that we put in relation to that and if the Commission please, that was one of the basis upon which was the unfairly prejudicial aspect, the discretionary aspect, which we relied on quite apart from the admissibility aspect.
PN74
So it's not a question of whether in these proceedings there's a compulsion. It's, we say, part of a bigger picture and a bigger process. So unless the Commission wants me to reply to any other aspect of my learned friend's submissions, those are the submissions.
PN75
THE SENIOR DEPUTY PRESIDENT: No. Thanks, Mr White. If you've been misunderstood or misrepresented in anyway, Mr Herbert, and you want to reply to, that's all. I don't want to go on forever but - - -
PN76
MR HERBERT: Reply to reply, no.
PN77
THE SENIOR DEPUTY PRESIDENT: All right, Mr - - -
PN78
MR HERBERT: No. I think it's evident from my friend's submissions as to - although he says that I seem to have misunderstood, my submission is I only - didn't and I have answered the whole of his submission in that regard. I don't wish to have a - - -
PN79
THE SENIOR DEPUTY PRESIDENT: Okay.
PN80
MR HERBERT: (Indistinct) about the matter.
PN81
THE SENIOR DEPUTY PRESIDENT: It's only that word was used in the (indistinct) interest.
PN82
MR HERBERT: Yes.
PN83
THE SENIOR DEPUTY PRESIDENT: We'll adjourn until midday. Thank you.
SHORT ADJOURNMENT [11.06 AM]
RESUMED [12.00 PM]
PN84
THE SENIOR DEPUTY PRESIDENT: Well, thank you for your submissions in relation to the threshold issue that we've dealt with this morning, and I'll give my decision in respect of that matter now. In doing so can I just indicate to the parties that I reserve the right to add to, or clarify, my reasoning in my final decision but I'll say enough to give you an indication of how we're to proceed.
PN85
It has been pressed upon me by the applicants that the evidentiary case presented by the Director should be considered inadmissible for reasons that the claims that reside therein are inconsistent with the statutory intention of section 513 of the Act. Now, that is insofar as the witness evidence led by the Director purports to reflect on the conduct of Mr Bland it stands outside of the relevant context of the matters to which the Commission is obliged to give attention in sections 513(1)(a) through to 513(1)(f) of the Act.
PN86
In essence counsel for the CFMEU argues that section 513(1)(g) of the Act is limited to relevant considerations to be given by the Commission in relation to matters which have concluded or which have occurred in the past and have been subject to determinative processes. The witness evidence led by the Director requires the Commission to consider claims as to the conduct of Mr Bland in relation to matters of various kinds which have not been subject to a prior determinative process, and in some respects are not exposed to particular determinative processes in any event. The Director's case therefore requires the Commission to engage what would amount to a contested evidentiary process, or what could amount to a contested evidentiary process, to satisfy itself as to the nature of the applicant's conduct and its relevance to the application.
PN87
The Director's argument in respect of construction is essentially that the scope of the Commission's considerations under sub-section 513(1)(g) of the Act may traverse matters which relate to past contraventions but may also have regard to other conduct on the part of the applicant such as, for example, only the measure of reasonable civility with which an applicant conducts himself on the building site which may be relevant to whether or not the person is a fit and proper person to be accorded the benefits and entitlements associated with a right of entry permit.
PN88
In my view, the construction of section 513 of the Act, as pressed upon me by the applicant, present too narrow a reading of the Act, and reads down the scope of relevant considerations available to the Commission under the sub-section, that is, sub-section 513(1)(g) of the Act. Further, it appears to me that section 513(1)(g) is not limited to past conduct which may have been the subject of a determinative process. The plain language of the sub-section does not so indicate. The scheme of section 513, to my mind, at least, merely indicates that the Commission is obliged by mandatory statute direction to take into account particular matters, that is, the matters set out in section 513(1)(a) to section 513(1)(f) of the Act.
PN89
Section 513(1)(g) of the Act provides scope for the Commission to consider any other matters which it considers relevant to the application. The Commission would need to approach section 513(1)(g) of the Act with some caution, however, in order to ensure that the relevant issues in respect of general integrity of the applicant are in respect of the relevant considerations and not in respect of the applicant's fitness at large as it were, and that, of course, is the general thrust of one of the findings in the Full Court decision MUA.
PN90
That all said, an applicant for a permit would appear to be required to make out the case that he or she is a fit and proper person, in the context of the legislation, to be accorded the rights and entitlements that flow from being given a right of entry permit. Where claims are made about a person's conduct, whether that is an applicant's conduct, whether they be claims that may consequentially have an implication in respect of the contravention of industrial law, or be in respect of some other aspects of the applicant's behaviour on a building site, the applicant has a duty to deal one way or another with those claims in order to establish that he or she is a fit and proper person to exercise a right of entry permit.
PN91
A person who seeks to agitate jurisdiction under section 512 of the Act, must be committed to establishing the requirements that need to be made out thereunder. If that person has doubts that in the process of so doing they may put themselves at risk of exposure to a penalty in respect of some other industrial law then that is a matter of judgement for themselves. A person so concerned and unwilling to challenge a particular evidentiary claim by a party by way of an application made under section 512 of the Act exercises that as personal judgement. Those concerns cannot be a cause for disregarding the claim about the person's conduct, as that may mean the Commission would never be able to entirely satisfy itself in respect of the requirements of section 513 of the Act as agitated by the application.
PN92
Given these findings that I've now communicated I would now ask counsel for the CFMEU whether he seeks to gather new instructions in relation to Mr Bland, and whether Mr Bland seeks to appear in these proceedings to give evidence. And in saying so I indicate that I am disposed to adjourn the matter to enable such instructions to be sought and to allow Mr Bland an opportunity to be present at the hearing, though I do add that Mr Bland had always been free to attend this hearing in respect of the application that he be granted a right of entry permit. All right. Mr White, how would you like to proceed?
PN93
MR WHITE: Perhaps if I could have five or 10 minutes?
PN94
THE SENIOR DEPUTY PRESIDENT: Yes. We'll adjourn.
PN95
MR WHITE: Thank you.
SHORT ADJOURNMENT [12.06 PM]
RESUMED [12.16 PM]
PN96
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr White?
PN97
MR WHITE: Yes. Thank you, Deputy President. We don't apprehend the ruling you made negated the proposition that to the extent a party seeks the propound appositive case then at least if there's an evidential persuasive onus, so, for example in this case to the extent the Director seeks a propound appositive case we don't understand your ruling to negate the proposition that the Director bears an evidential persuasive onus of the matters it seeks to agitate before you. That said, at this stage, we are content to proceed. If that changes, then we would make application to the Commission.
PN98
THE SENIOR DEPUTY PRESIDENT: Okay.
PN99
MR WHITE: Now, I don't know whether your Honour wanted to mark the declarations in support of the applications or do we take it they're all part of the file and before the Commission without the need to be marked?
PN100
THE SENIOR DEPUTY PRESIDENT: Well, I don't do they need to be marked for your purpose? I think they're uncontroversial and we'll take them as forming part of the evidence before us all.
PN101
MR WHITE: As the Commission pleases. The only other matter then is that we would seek to rely on a statement of Geoffrey Robert Griffin. A statement of 12 October 2015.
THE SENIOR DEPUTY PRESIDENT: You seek to tender that? I'll mark it as CFMEU2.
EXHIBIT #CFME2 WITNESS STATEMENT OF GEOFFREY ROBERT GRIFFIN DATED 12/10/2015
PN103
MR WHITE: Thank you. Mr Griffin is here to give evidence and I have some short CFMEU2, was it?
PN104
THE SENIOR DEPUTY PRESIDENT: That's correct.
PN105
MR WHITE: Yes. So Mr Griffin is here and we would seek to ask a couple of other questions of Mr Griffin.
PN106
THE ASSOCIATE: Could you please state your full name and address?
MR GRIFFIN: It's Geoffrey Robert Griffin (address supplied).
<GEOFFREY ROBERT GRIFFIN, AFFIRMED [12.19 PM]
EXAMINATION-IN-CHIEF BY MR WHITE [12.19 PM]
PN108
MR WHITE: Mr Griffin, could you please restate your name?‑‑‑Yes. Geoffrey Robert Griffin.
PN109
And your address, Mr Griffin?‑‑‑(Address supplied)
PN110
And your current employment?‑‑‑Construction site supervisor for Brookfield Multiplex.
PN111
Thank you. And do you have any other work?‑‑‑Yes. I'm also a member of the Australian Army Reserve.
PN112
All right. Now, on 12 October 2015 you made a statement in this matter?‑‑‑Yes.
PN113
Do you have a copy of that with you?‑‑‑Yes.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN114
Yes. All right. Now, can I ask you to look at paragraph 7 of that statement, where you refer to "Eddie". Do you see that?‑‑‑Yes.
PN115
Do you wish to make a change to that paragraph?‑‑‑Yes.
PN116
And what change do you wish to make?‑‑‑It was in relation to the CFMEU in general not just specifically Eddie.
PN117
All right. So do you wish to delete "Eddie" and insert in lieu "CFMEU"?‑‑‑Yes.
PN118
All right. Now, subject to that change, are the contents of that statement true and correct?‑‑‑From what I recount, yes.
PN119
All right. Now, Mr Griffin, do you know Mr Bland?‑‑‑I didn't know him prior to having the thing at the Proximity project.
PN120
All right?‑‑‑I knew of him but not ‑ ‑ ‑
PN121
Okay. But when did you first meet Mr Bland?‑‑‑When he introduced himself on site, and I don't recall the actual date, but it was whilst I was at the Proximity project.
PN122
And could you explain to the Commission the initial history of your involvement or dealings with Mr Bland whilst you were at the Proximity site?‑‑‑Most of the time Eddie would be on the site next door, which was a Hutchinson's job, and whilst I was on my project, if he would come on site, he'd make a phone call to say, "Hey Geoff, I'm down the gate, you know, there's an issue I've been told, on site", so, you know, he would then try and explain what the issue was.
PN123
All right?‑‑‑And I'd go and meet him.
PN124
And what did you do after Mr Bland rang you and said that there was an issue on site and he wanted to attend the site?‑‑‑I would either ring my immediate project manager, Mick McEwan.
PN125
Sorry. What was his name again, sorry?‑‑‑Michael McEwan. Mick McEwan.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN126
Michael McEwan. Yes. Mick McEwan?‑‑‑If I couldn't get a hold of him via voice I would then send him a text to say that I had Eddie from the CFMEU on site.
PN127
Yes?‑‑‑And then I would go down and meet Eddie.
PN128
Yes. And what would you talk about when you went and met him?‑‑‑Predominantly it was what he was there for.
PN129
Yes?‑‑‑If he had an issue on site, he'd be straight up and tell me that somebody had rang his office and he was then coming down to sort out a safety issue or whatever it was.
PN130
All right. After he spoke to you about the issue what would you and he then do about that issue?‑‑‑I would then contact the safety advisor, Alex and we'd go and have a look at the issue on site that he's brought up.
PN131
And of all the issues that Mr Bland raised with you, that you went to see with the site safety supervisor, were there issues that required attention?‑‑‑Look, jobs are they're messy all the time, but, yes. So yes, there were issues that got addressed. And quite frankly, I've never seen it before, but the union were quite upfront and there was no issues. You know, assisted us with the sub-contractor in keeping the job clean.
PN132
Right?‑‑‑So ‑ ‑ ‑
PN133
When you say "assisted"?‑‑‑There was communication.
PN134
Could you give an example?‑‑‑Communication. If we had access way issues then, you know, he'd put his opinion of a way we could keep the job better and talk to the form workers or talk to the other subbies who were the instigators of the mess, and, like I said, communication between all parties.
PN135
All right. You said on occasions when Mr Bland rang you that you then rang or texted Mick McEwan. When you were able to reach him on the telephone, what did he say to you?‑‑‑All I basically I explained to Mick what the issue was, if there was one, that was you know, explained to me. And then Mick would say, "Okay, well, if it's something we've got to rectify then your judgement, Geoff. You're the site manager. I can't be there all the time." So it was my judgment, whether to let him on or take it further.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN136
All right. Did he always leave it to your judgement?‑‑‑No, he came himself.
PN137
All right?‑‑‑There were other times where he was staying in a motel across the road, so he would be there, and he would then talk to Eddie himself.
PN138
All right?‑‑‑So gave a copy I'm not sure what they did, but yes.
PN139
All right. Now, you said earlier that, there was a Hutchinson site next door to the Proximity site?‑‑‑Yes.
PN140
Did you have any involvement with Mr Bland in respect of the Hutchinson site?‑‑‑There was one particular occasion, on a Saturday. Hutchinsons were pulling their tower crane down. Subsequently they wanted to set their mobile crane up on our site or part our site, so we had meetings with Hutchinsons. Eddie Bland was involved in that. Now, I believe Hutchies called him into it as a sort of a mediator I suppose. And it was agreed that we would Hutchies would not pull their crane down until a certain time on the Saturday to enable our workers to be able to work on our job, which was all agreed by all parties on the Friday. The Thursday and the Friday, sorry. Come the Saturday morning I arrived at quarter to 6, whatever time it was and Hutchies were already half-way through pulling the crane down, so my site couldn't work because of the exclusion area for the crane to be dismantled. I believe some of the steel fixers, reo fixers who were on the deck rang Eddie, because he was there not long after I was. And basically gave Hutchies a mouthful so to speak.
PN141
Well, did he seek to involve himself in how RCQ was going to operate that morning?‑‑‑Because everything was agreed to on the Thursday and Friday between all parties, he was a bit excuse the French, bit pissed off, that Hutchies had reneged on the agreement by pulling their crane down when they did, because it basically meant my site couldn't work. So in saying it was basically me versus five of the Hutchies management and Eddie was came in and he actually was on RCQ's side. So ‑ ‑ ‑
PN142
On RCQ's side. Yes. How would you described, from RCQ's point of view, or from your point of view, his involvement on that day?‑‑‑Well, like I said, I was a bit overwhelmed by the Hutchies' presence, the site management. They had their national, or their state OH&S manager there, and I can't recall his name, Brian Murphy or something like that, who he's known to Eddie, and those two were actually having a yelling match at each other. So as far as I'm concerned he assisted me in getting the disappointment message over to Hutchies.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN143
Now, you've said earlier that Mr Bland would ring when he was coming on to site. Did you, at any time, when you were there, ever tell him that he could not come on?‑‑‑Not that I recall. No.
PN144
On any time that he visited the site, did you ever ask for a right of entry permit?‑‑‑No.
PN145
At any time that he went on did you ever instruct him to sign the visitors' book?‑‑‑No.
PN146
At any time that you were there, while Mr Bland visited the site, did you ever get instructions from Mr McEwan or other senior management that you were to ask Mr Bland for a right of entry permit?‑‑‑Not Eddie Bland, but other union officials, yes.
PN147
Right. And did you ever get any instructions from Mr McEwan, or any other senior management, to instruct Mr Bland, or ask him, to sign the visitors' book?‑‑‑Not that I recall, no.
PN148
All right. Now, can I ask you to look at paragraphs 8 and 9 of your statement. And that's in relation to a meeting?‑‑‑Yes.
PN149
Do you know a Gary White?‑‑‑He's, I believe, still the RCQ construction manager, yes.
PN150
And do you know someone called Steve Cole?‑‑‑Again, I believe he still is the general manager of RCQ Constructions. Yes.
PN151
Were those names mentioned in this meeting?‑‑‑Yes.
PN152
That you give evidence of in paragraphs 8 and following?‑‑‑Specifically not their names but senior management was mentioned, so senior ‑ ‑ ‑
PN153
Yes. So who mentioned senior management?‑‑‑Mick McEwan.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN154
What did he say?‑‑‑This all relates back to the discussion that we had as a team that Mick wanted to try a different approach because at the time we were getting quite heavily smashed by the union. So his different approach was that he was going to invite Eddie down for a meeting, have a walk through and see if he can have a different working relationship. Now, I objected to that purely because we had been subject to their visits quite frequently and stoppages at work. So - - -
PN155
When you say "their" - - -?‑‑‑As in CFMEU officials. So there was other - - -
PN156
Do you include Mr Bland in that?‑‑‑My recollection, Eddie Bland never once stopped the job while I was there. That's in my recollection. I know other union officials did and hence why I was opposed to Mick's work relationship proposal.
PN157
Now, I want you to look at some photographs. Do you see the first photograph there, Mr Griffin? It's got a blue pipe or something coming up from the bottom?‑‑‑That's a post-tension grout tube, yes.
PN158
From your experience in the building industry, does this photograph present any safety issues or problems?‑‑‑Yeah, well, the first thing is the grout tube as such and the second thing is that the steps on the - - -
PN159
MR HERBERT: Well, before this happens, this is all brand new evidence. We have not received any notice at all. I object to this going in this direction. I have been very tolerant with the sort of evidence that has been led up to this point, but the opportunity to put on the evidence that is to be led in these proceedings for Mr Griffin has long since passed and he put on a statement that hasn't contained a syllable of the evidence he has given today and now we are just being presented with some anonymous photographs without knowing who took them, when they took them, what they are of or what they're about and I have got absolutely no opportunity to get any instructions whatsoever about any of this material.
PN160
Now, the Commission made directions that was designed to stop this sort of ambushing and this is exactly what, with respect, is now being perpetrated. It's a whole new evidentiary case that we have never heard of before. It's never been hinted at and I have no opportunity to get any sort of instructions about this and the usual way in which matters of this kind are addressed are to identify the photographs by reference to the person or took them or who was present rather than just sticking a photograph in front of somebody and saying, "Does what's in that photograph present a problem to you?" We've got absolutely no idea when, where, how or why and certainly no opportunity to get some instructions in the context of this case and I object to this line of questioning going any further with this photographic material being relied upon at all in these proceedings.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN161
THE SENIOR DEPUTY PRESIDENT: It is true, Mr White, that none of this material has been alluded to nor much of what has been said today is present in the original statement. I'm not sure what the strategy is in this respct and I don't - the very question was on my lips as well as to I don't know what these photographs are of or when and taken by whom in what circumstance or anything. So, what are we going to do with this situation?
PN162
MR WHITE: Well, can we break it down into some component parts? First of all, we can identify what's in the photographs. That's one issue. Secondly, I will be asking Mr Griffin if he is able to recognise the site on which these photographs were taken. If he is able to do, I will tender them. If he is unable to do, I would mark them for identification. Thirdly, in terms of my learned friend obtaining instructions, our contention will be that these are photographs at the Proximity site and he has got two officials of the company with direct managerial responsibiilty from the Proximity site from whom he can get instructions. These aren't photographs which were in the possession of Mr Griffin. It wasn't for him to put these photographs on, it wasn't within his ken and he is able, as an experienced person in the building industry, to proffer a view as to what they show.
PN163
THE SENIOR DEPUTY PRESIDENT: Well, let's see whether we can - first of all, I am giong to give - I will give the director whatever time he needs to seek instructions in relation to this matter in respect of these claims that are being made. So, Mr Herbert, if you need to look at all of these matters and - - -
PN164
MR HERBERT: Well, Your Honour, the difficulty is - - -
PN165
THE SENIOR DEPUTY PRESIDENT: The difficulty that you are going to present with me is asking me to strike out, effectively, someone's case that is presented on the run. It's always an extremely difficult issue, particularly for the Commission, to close down a case even though where lines are drawn on when statements are due. There is always, I have to say, some liberal view taken of the capacity to extend evidence that's put in. I know that creates difficulties for parties, but the only way it can, in the end, be resolved is to ensure, if you have been taken by surprise, to give you whatever time you require to put yourself back in a position where your client is not disadvantged.
PN166
MR HERBERT: I was going to say, Your Honour, the difficulty is; (a) Mr Griffin has not mentioned anything to do with safety in his primary evidence at all. The matter isn't gone to. Secondly, no specificity of anything whatsoever. Secondly, without knowing who took the photograhps and when and what the date and timing and place is, it's an absolutely - there is no prospect, I suspect, of being able to get any instructions about these matters because the witnesses may well not be able to put these things in time and place context.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN167
THE SENIOR DEPUTY PRESIDENT: Well, these all go against the other side because the evidence doesn't have the specificity or particularity to sustain the claims.
PN168
MR HERBERT: Well, before I do seek the opportunity to take instructions, I should hear what it is that is going to be attempted to be done to try and identify these photographs because until I have that information, I am, with respect - - -
PN169
THE SENIOR DEPUTY PRESIDENT: I understand your position.
PN170
MR HERBERT: - - - asking my witnesses to identify things that haven't been identified in the evidence as yet.
PN171
THE SENIOR DEPUTY PRESIDENT: Mr White, what can be said about these documents as to their specificity?
PN172
MR WHITE: As to specificity, Your Honour, instructions from my instructors are these were taken on 26 March.
PN173
THE SENIOR DEPUTY PRESIDENT: Does the witness know that?
PN174
MR HERBERT: He wasn't employed at that time.
PN175
MR WHITE: No - - -
PN176
THE SENIOR DEPUTY PRESIDENT: So the witness - sorry, I will let you - - -
PN177
MR WHITE: The witness may or may not proffer a view as to whether he recognises these as from the site. If he is unable to do that, then I would propose that they marked for identification. What the witness can do is proffer a view as to whether they reveal any safety issues. You see - yes, I won't go further than that at this stage.
PN178
THE SENIOR DEPUTY PRESIDENT: Yes, I think it's - go on.
PN179
MR WHITE: So the first photograph, Mr Griffin, has got a pinkish background in the top of the page with a blue hose coming up?‑‑‑Yes.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN180
Now, does that photograph raise any issues as far as you're concerned as to safety?‑‑‑In my opinion, being in the industry for as long as I have, yes.
PN181
What are those issues?‑‑‑The fact that it's a grout tube for post-tension in an access way. Designated access way. The fact that the stair treads are of different separation and the fact that I don't know whether the grout tube has been grounded. If it hasn't been grounded, well, then you're going to have a slippery surface there once they grout it.
PN182
Do you recognise where that photograph was taken?‑‑‑No.
PN183
Do you recognise any of the scaffolding in that photograph?‑‑‑The job that - the Proximity job, we had a blue scaffold mesh and a red scaffold mesh to indicate the stairs. That's pretty common around the industry, so I can't say that this is the Proximity project.
PN184
Is that the - - -?‑‑‑But it's definitely - I mean look, when I was there - it's the same size precast panels that we used, but I - again - - -
PN185
You're unable to say?‑‑‑I'm can't say, yeah.
PN186
Can I ask that this be marked for identification 1 if the Commission please?
THE SENIOR DEPUTY PRESIDENT: For that limited purpose only, I will mark it for identification.
MFI #A PHOTOGRAPH 1
PN188
MR WHITE: The second photograph, Mr Griffin, has got at the bottom half a black colour with a black strip thorough it and in the top half there's a range of red scaffolding or struts. How would you describe this photo - sorry. Is there anything in this photograph which would cause you in your experience to have some safety concerns?‑‑‑Well, again, if it's - in my experience, if it's a designated access way, then the water is obviously an issue. The fact that there is a large amount of water there that people walk through, especially if you've got electrical tools, et cetera, et cetera, yeah, it is an issue.
PN189
Are you able to recognise the scaffolding in this photograph?‑‑‑Again, it's the same formwork frames we used. No, I can't. I can't say that that's a particular part of the project from memory.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
I would ask that this be received MFI B.
MFI #B PHOTOGRAPH 2
PN191
Now, the next one, Mr Griffin, has got two squarish holes in it. From a safety point of view, are you able to make an observation as to safety, if any, issues that are shown in this photograph?‑‑‑Well, the fact that you've got holes in the concrete slab. Again, if it's a designated access way, then it's an issue. It should have a cover on, a PT pocket. So we actually stress your PT cable and industry practice is we normally put a cover over it.
PN192
Are you able to see anything in this photograph which indicates where it was taken?‑‑‑Look, again it was - we had that on the project - on the Proximity, but no, I can't.
I ask that this be marked for identification C.
MFI #C PHOTOGRAPH 3
PN194
The next photograph, Mr Griffin, is somebody's leg. Is there anything in this photograph which would cause you to have any safety concerns?‑‑‑Well, this refers back to the first photo. It's got the blue PC conduit and the steps - like I said, the treads are of different equal heights. You can clearly see that it's above standard where you're stepping out onto the scaffold. You can clearly see that it's a designated scaffold because it's got the red, which again is what we use in the industry, whereas the rest of the scaffold has got blue mesh on it, so it is a designated access way. With them being different heights, yeah, with people carrying tools it proposes a risk.
PN195
Are you able to tell from this photograph where it was taken?‑‑‑No.
I would ask that be marked for identification D.
MFI #D PHOTOGRAPH 4
PN197
The next photograph, Mr Griffin, in the top quarter there is some red mesh. In the top third on the right-hand side there is a range of scaffolding and on the left on the top third there is some poly pipe. Do you have that photograph?‑‑‑Yes.
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN198
Is there anything in this photograph which would cause you to have any safety concerns?‑‑‑Again, if it's a designated access way, yes. I mean it's - again, you've got the PT that's in the slab which aren't covered. They've full of water. As well as the material, again, if it's a designated access way, then there's really no access through there.
PN199
Are you able to tell from this photograph whether it's a designated access way?‑‑‑No.
PN200
Are you able to tell from this photograph where it was taken?‑‑‑No.
I would ask that that be marked for identification E.
EXHIBIT #E PHOTOGRAPH 5
PN202
The last photograph there is - across the middle third a fairly dark colour. Do you see that?‑‑‑Yes.
PN203
Is there anything in this photograph which would give you any concern for safety issues?‑‑‑Well, apart from the water, the formwork frame sitting on the ramp, that's not wedged, so industry standard and even engineers sign off. If you're on a ramp, you wedge them, so that's actually supporting your formwork above. So it's either got to be bolted or a wedge.
PN204
So when you say "sitting on the ramp" is that coming down from the middle of the top of the page? Is that so?‑‑‑You've got two orange posts right in the middle. You've got one with a square plate on it and one that looks like it's submerged in the water. So it's the one on the left which is a type C. That sits on a ramp. So if that's supporting the formwork, it potentially, with the weight of wet concrete, could slip and again, if it's a designated access way, you would block it off during the concrete pour, but open it once it's poured.
PN205
Is there anything in this photograph which would suggest to you where it was taken?‑‑‑No.
I ask that that be marked for identification.
MFI #F PHOTOGRAPH
PN207
Thank you, Your Honour. No further questions.
PN208
THE SENIOR DEPUTY PRESIDENT: Mr Herbert, do you want time?
*** GEOFFREY ROBERT GRIFFIN XN MR WHITE
PN209
MR HERBERT: Well, if the witness can't identify any of the locations I don't think there's much point talking to him about any of that, but I will want that before I do call any witnesses.
PN210
THE SENIOR DEPUTY PRESIDENT: Sorry? You - - -
MR HERBERT: I will want some time before I call my own witnesses in this regard.
CROSS-EXAMINATION BY MR HERBERT [12.46 PM]
PN212
Mr Griffin, you have given an amount of evidence here today about telephone conversations you had with Mr Griffin in relation to him entering the site. Is that right?‑‑‑Sorry, can you repeat the question.
PN213
Yes. You gave some evidence here today - - -?‑‑‑I'm sure I heard my name twice. I'm not sure.
PN214
You gave some evidence here today - - -?‑‑‑Yes.
PN215
- - - about having telephone conversations with Mr Bland - - -?‑‑‑Yes.
PN216
- - - about entering the site?‑‑‑Yes.
PN217
When was the first time that you recall having had those conversations with him in relation to these proceedings? Was it before or after you made your statement?‑‑‑This statement?
PN218
Yes, that statement?‑‑‑This was eight months ago when I was actually working on the Proximity project.
PN219
When you were working on the Proximity project - - -?‑‑‑Yeah.
PN220
- - - you made this statement?‑‑‑No, no, no, the conversations I had for him to come on site. Sorry, I'm misunderstanding the question.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN221
Yes. Did you recall having had those conversations with Mr Bland on the telephone about him entering the site - had you recalled them at the time you made this statement in these proceedings?‑‑‑The statement I made - the conversations I had with Eddie Bland prior to him coming on site were whilst I was working on site. This statement was made - - -
PN222
After you left the site?‑‑‑After I left, yeah.
PN223
Yes, after you left your employment?‑‑‑Yes.
PN224
Well, my question then again, if you don't mind, when did you first recall having had those conversations with Mr Bland on the telephone about you having a cooperative arrangement for him to enter the site? When did you first recall that? Was it after you made this statement?‑‑‑No, no, it was well before.
PN225
Well before?‑‑‑Yeah.
PN226
Is there any reason why you didn't mention that in the course of this statement about this wonderfully cooperative arrangement you had with Mr Bland about he phoned you and you said, "I'll meet you down the gate", and then you would talk about things in a cooperative sort of what? Any reason why you didn't mention that in your original statement?‑‑‑Well, this is my original statement, isn't it?
PN227
Any reason why you didn't mention any of that in your original statement?‑‑‑To be honest, I was never asked.
PN228
You were never asked?‑‑‑No.
PN229
You knew you were being spoken to about the relationship with Mr Bland in relation to entering the site. It didn't occur to you that your cooperative arrangements with Mr Bland might have been relevant to that question?‑‑‑No.
PN230
No?‑‑‑No, I'm sorry, I didn't.
PN231
You say in your statement you left the site on 14 March 2015. That's right, isn't it?‑‑‑Yes.
PN232
You have some particularly adverse views about Mr McEwan in particular, don't you?‑‑‑I'll disagree with that. I left of my own accord. There was no issues.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN233
No issues?‑‑‑(No audible reply)
PN234
Did any issues arise after you left?‑‑‑Not that I know of, no.
PN235
Not that you know of?‑‑‑Mm-hm.
PN236
Have a look at this, if you wouldn't mind. Ignore the name at the top. Do you recognise that email?‑‑‑Yes.
PN237
That was an email by you to Chantelle Murray?‑‑‑Yes.
PN238
Chantelle Murray was employed?‑‑‑She was head of HR RCQ.
PN239
You see - - -?‑‑‑Yes.
PN240
Have you read that again or you don't need to read it?‑‑‑I wrote it, so yes.
PN241
You wrote it. "Out of respect to you" - the third last line:
PN242
Out of respect to you, even though we had limited contact meetings, that if this doesn't stop, then I will be talking to a law firm to take further action whatever that may be.
PN243
?‑‑‑Yes.
PN244
Now, the "this" that you wanted to stop and you were threatening legal action was:
PN245
Mick has stated he sacked the previous team being myself, Alex and Matt due to piss poor performance.
PN246
?‑‑‑Yep.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN247
He then states he now has the A Team on site who will turn things around and build the project. This has been said by Mick not only out on site, but also whilst holding subbie meetings.
PN248
?‑‑‑Yes.
PN249
You were absolutely furious about that, weren't you?‑‑‑Of course.
PN250
So you sent a letter to the HR Manager threatening legal action if Mick didn't stop saying those things about you?‑‑‑Yep.
PN251
Do you want to revisit your evidence that you just gave two minutes ago that there were no issues between you and Mick after you left?‑‑‑There are no issues. It stopped, so - - -
PN252
So there was no issue at all?‑‑‑No.
PN253
At all?‑‑‑There's no follow up - - -
PN254
Even though you had to threaten legal action to bring it to a halt?‑‑‑Well, okay, there are no issues because I no longer work there. I left of my own accord. Now, this happened after I left and it wasn't only me he was saying it about, so let's get one thing clear, okay. Other - the other three people that - other two people I've mentioned here were all talking the same, so - - -
PN255
Well, the one thing that's clear, Mr Griffin - - -?‑‑‑Yep.
PN256
- - - is that after - at this time, that is on 1 April, you were furious enough about Mr McEwan's conduct that you threatened legal action to stop him from doing what it was that you said he was doing. Is that right?‑‑‑Yes.
PN257
And you remain very angry at Mr McEwan, don't you?‑‑‑I disagree.
PN258
If you had an opportunity to score a point off Mr McEwan, you would do that, don't you?‑‑‑I've got no - I've got no interest. I've got no motivation to be here to either have a go at Mick McEwan or have a go at RCQ. To be honest, I wish I wasn't here.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN259
Well, Mr Griffin - - -?‑‑‑But I am, so - - -
PN260
- - - do we take that evidence as - - -
PN261
MR WHITE: Excuse me, let him finish.
PN262
MR HERBERT: Yes?‑‑‑Like I said, I've come here because whilst the union official, Eddie Bland, came onto my project and said to me that he had been subpoenaed or whatever it is that you call it to - for his right of entry that - he spoke to me and I recall the conversation which is on my statement that Mick McEwan said, "I want to have an open house. I want to have a better working relationship with him." I confirmed that to Eddie, hence why I am here, okay.
PN263
I see?‑‑‑Alex Volante can also confirm that because he was - - -
PN264
Well, without you telling us that - - -
PN265
MR WHITE: Excuse me, I object - - -
PN266
MR HERBERT: No, I - - -
PN267
MR WHITE: I object to that.
PN268
MR HERBERT: (Indistinct.)
PN269
MR WHITE: I object and I would ask that the witness be permitted to complete his answer without interruption.
PN270
MR HERBERT: And I am entitled - if a witness is going to embark on some hearsay exposition of that kind I am entitled to interrupt him because he is not entitled to simply blurt out hearsay material of that kind, in my submission, as he was proceeding to do with someone else who is going to say something?‑‑‑Well, sorry, I object to be being bloody put up with us to say that I've got a problem with Mick McEwan - - -
PN271
MR HERBERT: I tender that - - -
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN272
THE WITNESS: - - - when this happened in April and it's now October.
PN273
MR HERBERT: I tender that email.
PN274
THE SENIOR DEPUTY PRESIDENT: Let me tender this, first of all.
PN275
THE WITNESS: I've got no - there's no - nothing in it for me to be here.
PN276
MR HERBERT: On 1 April - - -
THE SENIOR DEPUTY PRESIDENT: Just before we go on - - -
EXHIBIT #FWB1 EMAIL FROM G. GRIFFIN TO C. MURRAY DATED 01/04/2015
PN278
THE SENIOR DEPUTY PRESIDENT: Let's see if we can get back on track. Do you want to ask the question again and we will see whether the question remains relevant or if it's - - -
PN279
MR HERBERT: Mr Griffin, as at 1 April this year - - -?‑‑‑Yes.
PN280
- - - you were absolutely furious with Mr McEwan, I suggest to you, and that you have since that time harboured a fairly significant grudge against him for what it is you think he did.
PN281
MR WHITE: I object to that.
PN282
THE WITNESS: Okay.
PN283
MR WHITE: That's a question in two parts.
PN284
MR HERBERT: I think he has answered the first part already, but we'll take it in two parts, Mr Griffin?‑‑‑Okay.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN285
As of 1 April you were absolutely furious with Mr McEwan. Is that so?‑‑‑Put it this way; the construction industry is a very small industry, okay. When you get a project manager who you used to work with who is now ridiculing the way you ran a job and now he's got the so-called A team in because he had deemed that we couldn't build it even though I left of my own accord, yeah, it would piss people off and it pissed me off. But have I harboured any grudge with that? Of course not. I'm in a better position, I'm in a better job, I'm in a better paid job. Do I really care what Mick McEwan does? No. Do I really care what RCQ does? No. So I take offence that you would think I would harbour a grudge, okay. The statement was that if it didn't stop, then yes, I would take legal action because it's my name he's defaming around the industry, not his. That's why I took offence, okay. So if you think I've still got that harbour of grudge against him you are sadly mistaken.
PN286
In paragraph 7 of your statement - - -?‑‑‑Yes.
PN287
- - - you became aware that there was an ongoing issue in relation to Eddie attending the site. You now say when you gave your evidence earlier that it was the CFMEU in general, not just Eddie?‑‑‑It was - at the time we were having visits from Kevin Griffin, Mick Myles and Eddie Bland, yes.
PN288
So the three of them are attending the site?‑‑‑At various points. Not together.
PN289
None of them were providing right of entry permits before they entered. Is that right?‑‑‑That's right, yeah.
PN290
That's the problem that you have averted in paragraph 7?‑‑‑Yes.
PN291
And that was causing some serious difficulties on the site and the management were, as it were, barring up about them doing that?‑‑‑Yep.
PN292
Including Mr Bland?‑‑‑I don't recall.
PN293
Including in relation to Mr Bland doing the same thing as the other two you have named?‑‑‑I don't recall. The relationship was - Eddie Bland would come in and actually say something to you. He would actually come in and say, "Hey, I've got a safety issue whereas - - -
PN294
Without a right of entry permit?
PN295
MR WHITE: I object - - -
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN296
THE SENIOR DEPUTY PRESIDENT: Yes, I take the point. Let's just let that question finish - response finish. You just finish that response?‑‑‑Okay. So Eddie Bland would contact me to say, "Hey, I'm in Hutchy's. I'm coming next door. There's been an issue." "That's fine, yep. What's the issue?" I would then contact Mick, like I've said in the statement all along. Kevin Griffin and Mick Myles wouldn't. They would just walk on and then say, "Hey boys, sit in the sheds." So then I would go and approach and say, "Guys, you can't do that. Where's your right of entry?" Okay.
PN297
MR HERBERT: You know that the site rules required a right of entry to be - - -?‑‑‑Yes.
PN298
A notice of entry to be given - - -?‑‑‑Yes.
PN299
- - - on 24 hours and for a right of entry to be produced once they arrive?‑‑‑If requested. That's my belief.
PN300
Yes, that was the rules. And you knew that they were the rules that operated on the site when you arrived there. Is that so?‑‑‑(No audible reply)
PN301
You've got to answer?‑‑‑Yes.
PN302
It's all being recorded?‑‑‑Yes, I believe that if you request a right of entry, they can't come on site unless they produce that and they've got to give you 24 hours to be able to come on site. That's what I believe was the law.
PN303
And Mr Bland and two others were not, in fact, complying with those requirements when they came onto the site?‑‑‑Well - - -
PN304
Were they?‑‑‑No.
PN305
Thank you. Now, did you have the authority on that site to waive the safety and site entry requirements yourself?‑‑‑No. Hence why I used to either ring Mick or text him to say the CFMEU were there.
PN306
You ring and tell him that because he - - -?‑‑‑If I couldn't get hold of him I would then text him to say that, "The CFMEU are here. What do you want me to do?"
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN307
And he told you - what did he tell you when you made these calls?‑‑‑Well, if I spoke to him, the majority of the time he'd say he'd be there in five minutes, sort it out, what do you need to do? What is the issue, for one? Is it a safety issue, is it IR issues? What is the issue?
PN308
You never issued any message to Mr Bland or anyone else that they didn't have to comply with the right of entry or safety requirements for that site, did you?‑‑‑No.
PN309
And you had no authority to do that?‑‑‑No.
PN310
Can I suggest in relation to paragraph 8, that conversation did not occur?‑‑‑Okay.
PN311
What do you say to that?‑‑‑I disagree.
PN312
The words "open door policy" was never ever mentioned at any point of time by Mr McEwan was it?‑‑‑Possibly not.
PN313
Possibly not?‑‑‑It was a conversation that we had as a team. Now, for a project manager to turn around and make a statement that he wants to have a better working relationship - well, maybe I've turned around and said there was an open door policy, but he certainly had the conversation along those lines.
PN314
He wanted a better working relationship?‑‑‑Which he's going to invite him down, so - - -
PN315
I see. You have then turned that around to - you have used the expression "open door policy"?‑‑‑Well - - -
PN316
MR WHITE: I object to that. That's a misrepresentation of - - -
PN317
THE WITNESS: Invite people down. That's what it is, I think, isn't it?
PN318
MR HERBERT: No, I'm sorry, that's what the witness said, with respect.
PN319
THE SENIOR DEPUTY PRESIDENT: Sorry, what's your - - -
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN320
MR WHITE: With respect, paragraph 8 says "words to the following effect". It's not put as a verbatim and if it's going to be cross-examined on as a verbatim, then it is misrepresenting what was said. Not misrepresenting. It is inaccurately reflecting what paragraph 8 says.
PN321
MR HERBERT: With respect, I am entitled to cross-examine the witness and then to deal with the answers as I get them. If the witness said words that I have turned that around to these words. He said a better working relationship. I have turned that around.
PN322
THE SENIOR DEPUTY PRESIDENT: I'll allow the continuing question to try and get a construction of the conversation.
PN323
MR HERBERT: Mr Griffin a moment ago you said that there was a discussion about a better working relationship and you said you have turned that around to the words that you've used about an open door policy. Is that right? Is that what you said a few minutes ago?‑‑‑Yes.
PN324
The words open door policy were not used?‑‑‑Look, I can't recall if they were or they weren't. So if you have a look at item 10 it says I disagreed with him inviting Eddie down.
PN325
You disagreed with him inviting Eddie down, why?‑‑‑Because we had already set the precedent where Fair Work were called for Mick Myles and the Police were called for Kevin Griffin entering a site without showing the right of entry which I believe someone's put in a complaint against that. Now, why would you then turn around and say, hey, I'm going to ring him and invite him down so he can walk the job. To me, that sends a mixed message to the site, hence why I've put it in there. So I disagreed with Mick when he said he wanted to have a better working relationship. You've already stirred the hornet's nest, why invite somebody down.
PN326
A better working relationship doesn't necessarily mean that all right of entry obligations were going to be suspended or cancelled or thrown out the window, does it?‑‑‑I don't know. I don't know what the law says.
PN327
But that working relationship was what I'm asking you?‑‑‑I believe if you - my understanding of it is if you invite somebody in, then the right of entry no longer applies. That was my understanding at the time.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN328
That's the understanding you say you took away from that conversation?‑‑‑Yes, that was my understanding at the time when I said to Mick I disagree with you inviting Eddie down because it means you have opened the door by inviting him down.
PN329
Alright, now you left on 14 March and you don't know what happened on site in relation to Mr Bland or how he conducted himself after that time, is that right?‑‑‑No.
PN330
You agree, don't you, that up till that point in time that you had the better working relationship conversation with Mr McEwan, that the site had been administered in such a way that there was a consistent view of insisting upon right of entry notices, right of entry permits being produced and all of those formalities being observed. Is that right?‑‑‑Yes.
PN331
You also agree that there was a requirement on the site, was there not, to sign the site attendance record, attendance book or whatever name it had?‑‑‑If you were a site visitor, that was part of the induction, yes.
PN332
To your knowledge, to your experience, Mr Bland never produced a right of entry. To you knowledge, is that right?‑‑‑I never requested one, no.
PN333
You were never aware of him producing one?‑‑‑Not in my time while I was there, no.
PN334
So far as you were aware, he never gave 24 hours' notice of his intention to enter the site, so far as you were aware?‑‑‑No.
PN335
So far as you were aware, he did not sign the site visitor's book on any occasion?‑‑‑No. But neither did Kevin Griffin or Mick Myles. None of them did.
PN336
The site visitor's book is an important safety measure, isn't it, so that if there has to be an evacuation?‑‑‑If you're not inducted on a site, then you should sign the site visitor book so that if we have an evacuation we know who's on site.
PN337
Yes, so there was a potential problem if you had unregulated visitors on the site and you didn't know that they were there because they were not in the book?‑‑‑100 percent.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN338
THE SENIOR DEPUTY PRESIDENT: Could I just ask the witness myself, you gave evidence earlier on about these - I hope I'm characterising it the right way - reasonably positive interactions with Mr Bland over such issues to do with the Hutchinson's crane remover and so on over a particular weekend. You say that you had telephone calls between yourself and Mr Bland at that time about when he was coming on site. Is that right? When did that all take place in what period of time?‑‑‑It would have been more than likely between November - or maybe December to February/March.
PN339
So December 2014 to February/March 2015, to when you left?‑‑‑Yes.
PN340
Can I just ask you then, when you say in your statement you resisted Mr McEwan's policy in February 2015, as you say it was, why did you resist it, given that up until that point you had been allowing Mr - you had been having these telephone calls with Mr Bland and he had been coming on site pursuant to those telephone calls and you had been having these positive interactions. Why do you then turn around in February?‑‑‑There were other officials involved as in Kevin Griffin.
PN341
So this wasn't just Mr Brand?‑‑‑No, it was a whole CFMEU, we were being shoved down by CFMEU officials where we took the stance that Fair Work were contacted, the police were contacted to remove one official. The guys were going home from work, so in my opinion if Mick was to invite the union down, then it would send a mixed message to the guys out on site that here we are calling the police one minute and then - - -
PN342
So it was the general application of that policy, not in respect of Mr Bland?‑‑‑No.
PN343
Are you aware that there was a particular policy in respect of Mr Bland over this period that was different from other unions?‑‑‑It was to all CFMEU officials.
PN344
Sorry, which? Are you saying for all CFMEU officials - when you say there was a change of policy, it was in respect of all CFMEU officials, is that what you are saying?‑‑‑Mick was going to contact Eddie Bland because Eddie Bland was - - -
PN345
No, no. Can we just stop for a second?‑‑‑Sorry.
PN346
When you say there was a change in policy at paragraphs 8 through to 11, in respect of whom was that a change of policy? Everyone bar Mr Bland?‑‑‑It was for the CFMEU. Eddie Bland, it was area of control, so Mick was meeting Eddie to get him down to get him down to have a conversation with him regarding the CFMEU.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN347
No, it's not quite my question?‑‑‑Don't understand the question, sorry.
PN348
My question still is before this, there was a policy of letting Mr Bland on site with no requirement for right of entry. Are you saying that?‑‑‑No. He would ring me to say there was an issue on site.
PN349
Did someone tell you to let him on site without a right of entry?‑‑‑If I couldn't get hold of Mick, then my job as a site manager was to then ascertain what the issue was and try and resolve him.
PN350
Did you ever ask him for his right of entry?‑‑‑No.
PN351
Why was that?‑‑‑Because he would pre-phone me to say that he was coming down there for a safety issue.
PN352
Were you aware of any policy existing at the time about right of entries on the site?‑‑‑I was aware that you had to produce it or give notice within 24 hours, yes.
PN353
When you say at paragraph 11 "Mick went and had a meeting with Eddie shortly after that meeting with me" are you aware of that meeting taking place, are you?‑‑‑I wasn't at the meeting, no.
PN354
You weren't at the meeting?‑‑‑No.
PN355
You say "From time onwards, there was an open door policy" as you say it was "that applied to everyone, including Mr Bland" from that time onwards?‑‑‑That was my interpretation, yes.
PN356
Did you know that for a fact?‑‑‑No. But it wasn't long after that I left.
PN357
Thank you.
PN358
MR HERBERT: What that statement in paragraph 11 that his Honour has just taken you to, to say the site had an open door policy from that point in time, that was just an interpretation you had from the fact that a meeting had been held?‑‑‑Yes.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN359
When you had these telephone contacts that you talk about from Mr Bland, and he said he was coming on site because there was a problem, did you require him to go through the right of entry processes that existed on the site?‑‑‑No, and I said that before.
PN360
You simply permitted him to come onto the site without observing those matters, did you?‑‑‑He advised me what the issue was and I, as a consultive method of trying to keep the boys at work, keep them working, yes I invited him on.
PN361
Isn't that exactly the mixed message that you say that you resisted being given by Mr McEwan?‑‑‑No.
PN362
Why not? What's the difference?‑‑‑The difference was the other organisers when they came to site, wanted to send the guys home, whereas Eddie Bland was there to assist to not ensure they didn't go home, but to sort out the issue.
PN363
But you see, you've already told the Commission you had no authority to waive the right of entry policy?‑‑‑And I didn't.
PN364
But you just said that you did. You invited him onto the site?‑‑‑Yes, so after trying to get hold of Mick McEwan, whether it was via phone in conversation or text, it was my job as the site manager to keep the job working. So if it was a safety related issue, then I invited him on, yes.
PN365
You invited him on. So you bypassed the right of entry requirements on that site without authority to do so?‑‑‑Yes.
PN366
How many times did this happen?‑‑‑Twice, maybe three times.
PN367
In three months? But you do see in your statement though that you thought that would have been to invite people onto the site, which is what Mr McEwan was proposing to do, would have been a big mistake and cause confusion and mixed messages?‑‑‑Yes, this was - Eddie coming to site and me inviting him on was prior to the issues we had with Kevin Griffin and Mick Myles.
PN368
But you see, paragraph 13, an open invitation to site to Eddie from the union and not requiring right of entries would create problems and confusion. From what you say, your telephone conversations with Eddie achieved exactly that outcome, that you thought was a bad thing?‑‑‑I disagree.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN369
Do you? I have nothing further?‑‑‑The guys stayed at work. That's the whole idea, they stayed at work, they didn't go home. So when Mick Myles and Kevin Griffin came onto site they went home. They didn't have the dialogue, it was just boys in the shed, we're going home. So when Eddie came on site, he'd ring and say hey Geoff, there's an issue. I'm coming in to - not assist, but I'm coming in to see what it is and then the guys would rectify the issue, stay at work.
PN370
Nothing further, your Honour
PN371
THE SENIOR DEPUTY PRESIDENT: Re-examination?
PN372
MR WHITE: No re-examination.
THE SENIOR DEPUTY PRESIDENT: Thanks Mr Griffin, you're excused. Thank you for your attendance today.
<THE WITNESS WITHDREW [1.12 PM]
PN374
MR WHITE: Subject to assist my friend, and by making instructions from the Bar table, that those photographs are marked for identification and tabled on 26 March 2015.
PN375
THE SENIOR DEPUTY PRESIDENT: How do we know that, sorry?
PN376
MR WHITE: Your Honour, my learned friend has said he wants to take instructions, I'm telling him now and I'm telling the Commission what my instructions are making a statement from the Bar table that my instructions are that those photographs were taken on 26 March 2015. Hopefully that might assist my learned friend in obtaining instructions. Subject to any further dealings with the photographs, that's the case for the applicants.
PN377
THE SENIOR DEPUTY PRESIDENT: Mr Herbert do you want to take instructions? I'm happy to adjourn for lunch and take what time you need. As I said, this material, a dealer's material is new and you have a right to get instructions. So I'll give you what adjournment length you wish.
PN378
MR HERBERT: I don't think it will take long to get instructions about a series of undated, unidentified photographs, but - - -
PN379
MR WHITE: You can choose to describe them as that. That's a matter for you.
*** GEOFFREY ROBERT GRIFFIN XXN MR HERBERT
PN380
MR HERBERT: Well that's what they. Well announcing something from the Bar table doesn't make it evidence. There must have been a camera. We'll deal with that in the submissions. It won't take terribly long for me to get those instructions. I have three witnesses, two of them are here, one of whom is due to be on the video link from Hobart where he's doing what the rest of us should be doing, having a holiday and he'll be - we understand arrangements have been for the Hobart Registry to put him on at 3pm our time, so if we can work around that, because that's a bit of a - he's actually there from - he'll probably be there pretty much now. So we'll be able to put him on, we'd like to put him on sometime this afternoon, because we won't be able to get him after this afternoon, we're told. That might be the useful thing. That's Mr Bell.
PN381
THE SENIOR DEPUTY PRESIDENT: If we resume at 2.30 and bring him on.
PN382
MR HERBERT: We're in your Honours hands.
PN383
THE SENIOR DEPUTY PRESIDENT: If you need to get instructions.
PN384
MR HERBERT: I won't be long, that won't delay, and I can do that. If we have a luncheon adjournment and resume. Would it be appropriate to resume at 2 o'clock?
PN385
THE SENIOR DEPUTY PRESIDENT: Yes, I'm fine.
PN386
MR HERBERT: Because it's daylight savings time in Hobart, we lose an hour, so we don't want to have the registry being kept open in order to do this. If we could do it 2 o'clock our time and we're told he will be there then and we can notify him to do that. Can we call Mr Bell at two and then follow on with the other two witnesses after that?
PN387
THE SENIOR DEPUTY PRESIDENT: We're adjourned until two and we'll start with Mr Bell.
PN388
MR HERBERT: Thank you.
LUNCHEON ADJOURNMENT [1.15 PM]
RESUMED [2.04 PM]
PN389
THE SENIOR DEPUTY PRESIDENT: Thanks everyone, take a seat.
PN390
MR HERBERT: Your Honour, our first witness is Mr Darrell Bell. He's in the witness box in Hobart, I understand.
THE SENIOR DEPUTY PRESIDENT: Can you swear him in.
<DARRELL LEE BELL, AFFIRMED [2.05 PM]
EXAMINATION-IN-CHIEF BY MR HERBERT [2.05 PM]
PN392
MR HERBERT: Mr Bell, could you please just for the record repeat your full name please?‑‑‑Darrell Lee Bell.
PN393
Are you employed by LendLease Building Pty Ltd as a site manager?‑‑‑Yes.
PN394
Have you been asked to prepare an affidavit containing evidence that you're able to give in these proceedings, which affidavit was sworn by you in Perth on 18 September 2015?‑‑‑Yes.
PN395
And it consists of 59 paragraphs?‑‑‑I believe so.
PN396
Mr Bell, are the facts and circumstances set out in that affidavit to the best of your knowledge, true and correct?‑‑‑They are.
PN397
I tender that affidavit.
PN398
MR WHITE: I've got a number of objections to that if the Commission please. The first is to the last clause in the second sentence of paragraph 8 which is rank hearsay. Query also the relevance. Certainly, not directly relevant to the issue before the Commission but in any event, it is so obviously hearsay that it should be excluded.
PN399
MR HERBERT: It's not pressed your Honour.
PN400
MR WHITE: The second objection is to paragraph 9. Paragraph 9 in its entirety for the same reasons.
PN401
MR HERBERT: Again your Honour, not pressed.
*** DARRELL LEE BELL XN MR HERBERT
PN402
MR WHITE: Next objection is to paragraph 23. Once again where it commences Rodney in the last line - hearsay.
PN403
MR HERBERT: Where 23? Rodney says - - -
PN404
MR WHITE: What Rodney says is hearsay.
PN405
MR HERBERT: Plainly not hearsay at all, your Honour. It's this witness deposing to what one of his employees told him he would do, or he proposed to do. It's part of the - he gives direct evidence of a conversation in which he was a participant and it's for the purposes of establishing the chronology of the events that occurred. It's not hearsay at all. We don't propose to rely on that as being a statement as to what he did, it's a statement to what he said he would do and for those reasons, we do press it.
PN406
MR WHITE: Clearly what someone else says if the director is relying on the truth of what he said and what he would do, then it's hearsay. I press the objection.
PN407
THE SENIOR DEPUTY PRESIDENT: Well I won't strike it out, I'll retain it and I'll give it the weight that I consider it appropriate.
PN408
MR WHITE: I understand your Honour's ruling and I don't seek to cavil with it. Your Honour would be much more au fait with how rules of evidence are approached in this Commission than I, but can I just hand to the Commission a decision which we say is a proper guidance in relation to how a Tribunal such as the Commission, who are, pursuant to the statute not bound by the rules of evidence, are to approach the rules of evidence. That's a matter Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64.
PN409
Unfortunately the Auslin version which I printed off here, isn't numbered by paragraph but at page 8, and the numbers appearing at the bottom right hand side of the page contains what Brennan J then on the AAT set out, perhaps commencing at the last paragraph on page 7. I won't read all of page 7 and page 8, but in my submission the effect of Brennan J's decision in this matter is that - whilst Tribunals such as this domestic tribunal or administrative tribunals may not be formally bound by the rules of evidence, they are nonetheless not to be set aside too lightly. Of course we understand that in this Tribunal as in equivalent Tribunals, there's a question of weight which resides in the Tribunal in relation to evidence which is led, but as a guiding principle, we would urge the approach of Brennan J in that case.
*** DARRELL LEE BELL XN MR HERBERT
PN410
THE SENIOR DEPUTY PRESIDENT: It's just that in this particular matter, I'm not sure what turns on this ultimately anyway, but this particular piece of evidence at paragraph 23, Rodney isn't conveying something that's within his knowledge and about which Mr Bell has no knowledge himself. It's a response - Mr Bell says that Rodney gave to him. That's still too far out, is it on Mr Bell's direct knowledge?
PN411
MR WHITE: If the Commission please, we did press it on the basis of hearsay, but I also indicated we are not cavilling with your Honour's rule and approach that you've indicated you would take to this piece of evidence. The case I just handed to your Honour, is not for the purpose of going back and rearguing or cavilling with your Honour's ruling that you've already made, in respect of this.
PN412
The next objection is to paragraph 25 on the same basis.
PN413
MR HERBERT: It's part of the chronology of events which is explained in paragraph 26 immediately following that as a result of the phone call he went to a certain place and observed exactly what he had been told was the case. It's of no consequence whatsoever and is not something that excluding or otherwise wouldn't change the fact of the matter. He simply explains why it is that the witness went to the place that he went in the circumstances, and is part of the chronology and is not in any sense seeking to get in evidence something that's not within the knowledge of this witness because paragraph 26 explains what he then saw with his own eyes. I press the paragraph.
PN414
MR WHITE: I've made the submissions about - - -
PN415
THE SENIOR DEPUTY PRESIDENT: It's the same - I really would need to consider this in the context of the evidence and whether I should give it any weight in the end, if it has any determinative value at all. It's the same proposition essentially.
PN416
MR WHITE: I understand, your Honour. The next one is to paragraph 38, similar objection in respect to what Mr Hooper said. This is a bit more problematic, that is compared with the last two matters to which I have taken objection in that Mr Hooper is then reported to have said what he, that is Mr Hooper had said to another or to others. So this is significantly more problematic. It is pressed on the grounds of hearsay and it should not be admitted.
*** DARRELL LEE BELL XN MR HERBERT
PN417
MR HERBERT: It's a matter of weight at the end of the day, your Honour. Again, it's part of the chronology of matters and is explained by the following paragraphs and is significantly corroborated by the following paragraphs as to what it is that he said. It's a matter for your Honour.
PN418
THE SENIOR DEPUTY PRESIDENT: It's the same situation that applies.
PN419
MR WHITE: Your Honour can I reply to that. One of the matters that the director is going to ask you to find, according to the director's submissions, is that Mr Bland is someone who ignores right of entry and direction in relation to entering the site. Now this paragraph contains an assertion by Mr Hooper that he said words in relation to Mr Bland asking him, he says, not to go on site. Now that evidence is hearsay and it should not be relied on at all in relation to the substantive case that the director wants you to find at the end of the day.
PN420
THE SENIOR DEPUTY PRESIDENT: You want to add anything to this Mr Herbert, or not?
PN421
MR HERBERT: Again your Honour, part of the chronology of events in that sense, it's neither here nor there because in paragraph 40 there is a direct conversation with Mr Bland where he was told to leave and he refused.
PN422
THE SENIOR DEPUTY PRESIDENT: I really think in relation to these sorts of matters, and I take your point Mr White, I think it would be remiss of me to give particularly great weight in determining this matter to what was said at paragraph 38 by someone else to Mr Bell. It's as close as I can get to saying that I wouldn't place great weight on this particular alleged exchange as being determinative of anything. It's not a matter on which a decision would turn.
PN423
MR WHITE: Paragraph 47, it is the conversation that the policeman had alleged with Mr Bland and Mr Vessel to which we object. And the same objection to paragraph 51 on the same basis, your Honour.
PN424
MR HERBERT: Your Honour, they're not hearsay. It's direct evidence by this witness of a conversation or of an instruction being given by a police officer at a time he was present. It's direct evidence of what he say, what he heard, what he experienced and he's entitled to give that. It's not a matter of seeking to inform the Tribunal of something that is outside the direct knowledge of this witness, because this witness had direct knowledge of those matters. It's not hearsay at all.
*** DARRELL LEE BELL XN MR HERBERT
PN425
MR WHITE: Your Honour, in reply, at one level that is true, but at another level it is not. To the extent that looking at paragraph 47 what the police officer there is expressing a conclusion as to his belief as to whether Messrs Bland and Vessel had right of entry, then it's expressing a substantive matter. If the director seeks to rely on it only for the fact of it being said, rather than the truth of the content of it, then I don't object.
PN426
MR HERBERT: Well we can set on that point yes, it's only evidence of what was said. The police officer's knowledge in that regard could only be something imparted to him by my client and the evidence speaks of that. If we only rely on it for the purposes of demonstrating that an instruction was given to those persons at that time in both of the paragraphs referred to.
PN427
MR WHITE: In relation to the second paragraph "boys hurry up" implicit within that could possibly be something assumed as to the speed at which they were moving, but if my learned friend only relies on it not for the substantive matters, including the implicit matters within it, but for the words having been spoken, then I don't object.
PN428
THE SENIOR DEPUTY PRESIDENT: That's your position Mr Herbert, is that right?
PN429
MR HERBERT: Yes, quite so, your Honour.
PN430
MR WHITE: Those are the objections to the statement.
PN431
THE SENIOR DEPUTY PRESIDENT: Thanks Mr White.
I haven't marked it as yet and I will mark it now given those objections, FWB2.
EXHIBIT #FWB2 WITNESS STATEMENT OF DARRELL LEE BELL
THE SENIOR DEPUTY PRESIDENT: Cross examination.
CROSS-EXAMINATION BY MR WHITE [2.21 PM]
PN434
MR WHITE: Now Mr Bell, can I suggest to you that you never met Mr Bland in Mackay. The reason I suggest that to you is that Mr Bland, I suggest he never worked in Mackay. That's right, isn't it?‑‑‑Well, about 10 days out from hand over of Canelands he turned up. There were four of them that turned up. They were only there for an hour or two, but that's it.
*** DARRELL LEE BELL XXN MR WHITE
PN435
I just want to go through a number of things in your statement. By paragraph 7 of your statement you say that there was an established procedure for right of entry of union officials?‑‑‑Yes.
PN436
Have you got your statement on an ipad have you Mr Bell?‑‑‑Yes.
PN437
Have you got no other documents on your ipad which are open?‑‑‑No.
PN438
In paragraph 7, you say that there was an established procedure for right of entry of union officials on the Stockland project. That established procedure, that was a procedure that was put in place by LendLease, was it?‑‑‑I think it was a legal way of putting it in.
PN439
When you say a legal of way of putting it in, was it done by LendLease's lawyers?‑‑‑No.
PN440
The established procedure, did you have an established procedure on the Stockland project for right of entry by union officials?‑‑‑Yes.
PN441
That was a procedure was it, that was designed and created by LendLease?‑‑‑I don't believe so.
PN442
You don't believe so? What was your answer?‑‑‑I don't believe it was totally designed by LendLease. I think it was pulled up out of the regulation.
PN443
Who pulled it up out of the regulation?‑‑‑I don't know.
PN444
Did you see it written down in any LendLease documents?‑‑‑Yes.
PN445
You never provided the document in which it was written down to any union official, did you?‑‑‑Not me, no.
PN446
In particular, you never provided what was written down in that document to Mr Bland, did you?‑‑‑No.
PN447
Indeed, not only did you never give it to Mr Bland, but you never discussed it with him either, did you?‑‑‑Every time they entered site I discussed it with them.
*** DARRELL LEE BELL XXN MR WHITE
PN448
According to your statement you say when they entered site that you had to have a right of entry permit. That's the extent of your discussion, wasn't it?‑‑‑Yes.
PN449
You never said that there's a policy that LendLease have, here it is, this is what is says, anything like that, did you?‑‑‑I would have.
PN450
See, you're just making that up a bit now, aren't you?‑‑‑No.
PN451
Because it was important when you made this statement to put down the whole truth. That was true, wasn't it?‑‑‑That's the truth.
PN452
If you say that you'd discussed with the union officials the right of entry procedure that was written down, you would have put that in your statement, wouldn't you?‑‑‑If I was asked I would have said it.
PN453
Well you were asked about the right of entry procedure and whether the union officials had complied with it. That was the sole subject matter of your statement, wasn't it?‑‑‑Say that again, sorry.
PN454
You were asked about the right of entry procedure and the union officials' compliance with it. That was all that the statement was about, wasn't it?‑‑‑Yes.
PN455
If you had discussed the procedure with the union officials that would have been an obvious thing to put in your statement. You agree with that, don't you?‑‑‑Yes.
PN456
Had you discussed the procedure with the union officials, you would have put it in your statement, wouldn't you?‑‑‑Possibly.
PN457
When did the Stockland project start?‑‑‑April 2013.
PN458
You were on that project from the start?‑‑‑Yes.
PN459
You can recall can't you, in June 2013 that Mr Bland attended the project?‑‑‑June 2013, yes. Yes, I think he could have.
PN460
He spoke to a number of LendLease managers when he was there, didn't he?‑‑‑I can't recall what he actually did, it was very early days in the project.
*** DARRELL LEE BELL XXN MR WHITE
PN461
He spoke to you when he was there, did he?‑‑‑Yes.
PN462
That was on site?‑‑‑At the site office, yes.
PN463
You didn't ask for right of entry then, did you?‑‑‑He didn't go on site.
PN464
The site office?‑‑‑The site office wasn't on site.
PN465
In 2014 you were aware once again that Mr Bland contacted LendLease, the principal contractor and senior officials in LendLease.
PN466
MR HERBERT: Well a date in 2014 might be handy.
PN467
MR WHITE: Can you answer my question.
PN468
MR HERBERT: Well I object to that question to say in 2014 contacted people. Something a bit more specific might assist the witness, so that there's some meaning to the question.
PN469
MR WHITE: Alright, we'll go through things slowly then Mr Bell. In early 2013, can I suggest to you that Mr Bland attended the project?‑‑‑Yes.
PN470
And not only he attended the project, but attended the site?‑‑‑The site office.
PN471
Who was the project manager for that job?‑‑‑The construction manager was James Foreman.
PN472
Are you aware of meetings in 2013 between Mr Foreman and Mr Bland?‑‑‑No, not really.
PN473
Did you ever attend meetings between - sorry. Did you ever attend meetings with Mr Foreman or Mr Bland?‑‑‑I'd say we did meet with him on that day but that's only what I think would have happened, I can't be certain.
PN474
There were two or three meetings in early 2013 weren't there, between Mr Bland, Mr Foreman?‑‑‑Possibly, yes.
*** DARRELL LEE BELL XXN MR WHITE
PN475
Can I ask you did you attend those meetings, each of those three meetings?‑‑‑I think I - I'm pretty sure I was in one of them. But if there was two or three definitely not, but I'm pretty sure I was with one of them, when we were first starting on site.
PN476
In that meeting was that the meeting when Mr Bland asked Mr Foreman, the project manager, whether he'd be allowed onto the site to meet with subcontractors and their workers?‑‑‑Sorry?
PN477
I beg your pardon?‑‑‑I don't recall what he actually asked.
PN478
Can I also suggest to you that senior officers of Lend Lease, Mr Bland and an organiser called Dan? Do you know an organiser called Dan, Dan Dessel?‑‑‑Yes.
PN479
Can I suggest to you that Mr Bland, Mr Dessel, yourself and other officials, or officers of Lend Lease, walked the site in early 2013?‑‑‑I honestly don't recall.
PN480
Can I suggest to you that when that walk occurred Mr Bland said to a number of employees on the site that as there was no delegate on the site they should call him in the event that there were problems? Do you remember that?‑‑‑No.
PN481
In June 2014, on 3 June, Mr Bland attended the site. Do you remember that?‑‑‑Was this June did you say?
PN482
Yes, I said 3 June 2014?‑‑‑I thought you said pre, sorry.
PN483
You met him?‑‑‑Yes.
PN484
Can I suggest to you that he told you when you met, and you met him on site didn't you?‑‑‑Site office I think at that time.
PN485
Was the site office away from the site was it, is that what your evidence is?‑‑‑That's correct.
PN486
How far away?‑‑‑It was separately fenced from the site.
*** DARRELL LEE BELL XXN MR WHITE
PN487
And other than - - -?‑‑‑You had a separate - so you had an access point from the street that separated you, the site office, from the site.
PN488
So other than the fence it was on the same block of land as the site?‑‑‑Yes.
PN489
He attended your office and said that he was there and would like to meet with Morris. Morris was the delegate wasn't he?‑‑‑Yes.
PN490
You said, "Well, we haven't got a problem with Mr Bell meeting with Morris." You told him that, didn't you - Mr Bland meeting with Morris. You told him you had no trouble with that?‑‑‑Yes.
PN491
A meeting between Morris, Dan, Mr Bland and you occurred?‑‑‑No, it was a five minute conversation between Eddie Bland and Morris McIntyre.
PN492
From what Mr Bland told you, after meeting with Morris, Morris had raised concerns about a column being taken down where there was insufficient lighting. He told you that didn't he?‑‑‑No he didn't.
PN493
He told you that there was a lack of exclusion zones, or that Morris had raised that with him as a question?‑‑‑No he didn't.
PN494
Can I suggest to you that he did and that when you walked with Mr Bland and Morris there was a space where there was insufficient lighting on which Mr Bland and Morris commented? That's right isn't it?‑‑‑That could be correct, yes.
PN495
In your view, it having been pointed out to you, you agreed with them that the lighting was inadequate?‑‑‑I can't comment on that, I don't know whether I did or didn't.
PN496
The lighting that was inadequate, I can suggest to you, had only been improved relatively recently, being much worse before. That's right isn't it?‑‑‑If it's an access way we put lighting in, if its cast lighting the subcontractor lights it.
PN497
This was in a shop in the Stockland expansion that we're talking about?‑‑‑That would have been a subcontractor requirement.
*** DARRELL LEE BELL XXN MR WHITE
PN498
Well, whether it be the subcontractor or your obligation, when it was pointed out to you the inadequacy of the lighting you agreed that it was inadequate didn't you?‑‑‑Yes. So I probably did something about it if I agreed with it.
PN499
Whilst you were there looking at the lighting one of the employees who was working in the shop complained about how bad the lighting had been up until recently?‑‑‑I wouldn't have thought so.
PN500
You've got no independent recollection of that now, do you?‑‑‑No.
PN501
Even after the problems with the lighting with which you agreed had been pointed out, you didn't say anything about it, though, did you, or did you not?‑‑‑Like I said, I don't really recall the conversation. If they pointed it out I would have, without a doubt, said we would fix that straight away, we'd have something done about it if it was an issue.
PN502
After the problems with the lighting had been indicated Mr Bland left the site didn't he?‑‑‑Yes.
PN503
You were quite content for Mr Bland and Morris to meet weren't you?‑‑‑Yes.
PN504
You were quite content for them to meet on the site weren't you?‑‑‑No, no. At the site office, site office only.
PN505
When the issue was raised you accepted it as a genuine issue which you then took steps to fix?‑‑‑I would have done that, I would have done so, yes.
PN506
Mr Bland visited the site again later in June. Do you remember the date in June?‑‑‑25th.
PN507
Why do you remember that date?‑‑‑Because it's in my statement.
PN508
You've got no independent recollection of that have you?‑‑‑No independent recollection?
PN509
Yes of that being the date?‑‑‑I'm not sure of the question?
*** DARRELL LEE BELL XXN MR WHITE
PN510
Sitting in the witness box now you're unable to say whether it was the 24th, 25th or 26 June that he visited are you?‑‑‑No, I'm telling you it was the 25th.
PN511
The reason you are able to say that is, as I understood your answer before, it was because it was in your statement?‑‑‑That's what I wrote down, yes.
PN512
When did you write it down?‑‑‑Where did I write it down?
PN513
When?‑‑‑I normally do a quick few notes after the Union leave site each time they turn up, a few notes of what happened, that's why.
PN514
You haven't put, or attached those, to your statement have you?‑‑‑No, because they're probably in a notebook.
PN515
Does Lend Lease have photocopiers?‑‑‑Possibly.
PN516
Possibly?‑‑‑Yes.
PN517
When did you make this statement, when did you first write down this statement? You're looking at it now, are you, to see what the answer is?‑‑‑No, I'm not. I (indistinct) stand off. My first - look I don't know, I haven't got it sitting in front of me, I can't tell you what date I did it, but it was quite a while ago.
PN518
Quite a while ago. Did you sit down and type this up yourself?‑‑‑No.
PN519
Who typed it up?‑‑‑That statement?
PN520
Yes?‑‑‑A lawyer in Perth typed that up.
PN521
They typed that up in September?‑‑‑That particular one, yes.
PN522
Sorry, is there another statement somewhere is there?‑‑‑Yes I did do another statement.
PN523
When did you do the other statement?‑‑‑Probably not long after the job completed I guess.
*** DARRELL LEE BELL XXN MR WHITE
PN524
You didn't think to attach that to your statement here, did you?‑‑‑I wasn't asked to.
PN525
So this is the third statement after the events, your notes then the other statement, and then this one. Is that right?‑‑‑Correct.
PN526
This one in September is obviously some months after the events about which you speak in June?‑‑‑Yes.
PN527
That is June 2014 isn't it, so it's about 15 months after these events, this statement?‑‑‑Yes.
PN528
When you had contemporaneous, you say, statements which you chose not to attach. That's right isn't it?‑‑‑Yes.
PN529
Can I suggest to you that your recollection by the time it came around to making the third statement, 15/16 months after the events, is becoming pretty blurry isn't it?‑‑‑I don't think so.
PN530
On 25 June 2014 Mr Bland attended site and they walked through an open gate, didn't they?‑‑‑The gate with the security guard on it, yes.
PN531
Was the gate open?‑‑‑They'd asked them not to enter, yes.
PN532
Were you there were you?‑‑‑Yes, I was on site, yes.
PN533
Were you there when you say the security guard asked them a particular thing?‑‑‑No, I wasn't standing there.
PN534
You've got no idea whether the security guard said that or not, do you?‑‑‑No.
PN535
So why did you decide just to slip that in as a little bit of evidence; was that just to try to be a little bit argumentative, was it?‑‑‑That's what I asked the security guards to do, not to let anyone in unless they've got an induction sticker on their hard hat and they know who they are.
PN536
You see, that wasn't my question was it?‑‑‑Sorry.
*** DARRELL LEE BELL XXN MR WHITE
PN537
I asked why did you put in that little bit of argument in your evidence about which you had no knowledge?‑‑‑That's what I asked them to do.
PN538
There was a subcontractor on the site, a Siganto. Do you remember Siganto?‑‑‑I do.
PN539
Did they go broke?‑‑‑Yes.
PN540
Whilst working on a Lend Lease project the subcontractor went broke?‑‑‑Yes.
PN541
Mr Bland raised with you the problem of Siganto going broke didn't he?‑‑‑We did speak about it, yes.
PN542
You got very sarcastic with him, didn't you, you came up to him and said why didn't you just come up and speak with them and do your job, speaking about Siganto employees. That's what you said wasn't it?‑‑‑No.
PN543
Think carefully about this answer, Mr Bell. Can I suggest to you in the conversation with Mr Bland about Siganto you were quite rude and sarcastic about why Mr Bland hadn't come up and done his job in respect of Siganto employees?‑‑‑That's not how I said it, definitely not.
PN544
You don't deny that you did say it, though, is that right?‑‑‑I said, "It'd be good if you guys could come up and help these guys out", and there was nothing sarcastic or rude about it.
PN545
There was a conversation in which there had been assertions made that one of the reasons Siganto had gone broke was of the conditions imposed on them by Lend Lease, wasn't there?‑‑‑That's what Eddie implied.
PN546
You said, "Why don't you come up and look after them?" You said it rudely and sarcastically didn't you?‑‑‑Untrue.
PN547
It was after that conversation with Siganto that you said, well, you've got to have a right of entry and I'm going to call the police. That's right isn't it?‑‑‑No.
*** DARRELL LEE BELL XXN MR WHITE
PN548
Do you agree with the proposition it was after the conversation with Mr Bland about Siganto that you told him that you'd call the police?‑‑‑No, I don't think so. I think how it went was I asked him to leave site because he didn't have a right of entry and then I told him I was going to call the police, when he kept walking, and that's what we did.
PN549
I was asking you, you stayed and had a conversation with him on site about Siganto, didn't you?‑‑‑Yes.
PN550
You say, do you, that out of a matter of concern you were saying that Mr Bland should have been up earlier to look after Siganto employees. Is that right?‑‑‑Out of concern for the Siganto employees, yes.
PN551
So you were engaging in a conversation with Mr Bland out of concern for Siganto employees on site. That's correct isn't it?‑‑‑Yes.
PN552
And certainly engaging in conversation with somebody about an issue which has been raised is inconsistent, isn't it, obviously, with any so-called direction about them leaving the site immediately, isn't it?‑‑‑I don't think so.
PN553
So you say it's consistent saying to someone leave the site immediately but stay here while we have a conversation about something; you say that's not inconsistent do you?‑‑‑Well, no. We can walk and talk.
PN554
But you weren't walking when you were talking about Siganto were you?‑‑‑No.
PN555
You see, not long after the Siganto conversation, not long after that you told Mr Bell[sic] you'd called the police - told Mr Bland you'd called the police?‑‑‑Yes. Sorry, not after I'd spoken about Siganto. It was like about the second or third thing I said to him.
PN556
You see you're giving this evidence now 15 months after the event, aren't you, and your recollection is not all that good is it?‑‑‑It's pretty good.
PN557
You had contemporaneous notes which you had chosen not to attach. In any event, shortly after the Siganto conversation, can I suggest to you, that Mr Bland then left the site, that's right isn't it?‑‑‑Once he was asked to leave by the police, yes.
PN558
That was shortly after the Siganto conversation wasn't it?‑‑‑Yes.
*** DARRELL LEE BELL XXN MR WHITE
Thank you.
RE-EXAMINATION BY MR HERBERT [2.53 PM]
PN560
MR HERBERT: Just one matter, Mr Bell, if we could just get a little bit of - I'm not too sure about the clarity of some of the matters that were raised with you in respect of 3 June 2014. Could I take you back to paragraphs 13 and 14 and 15 in your statement?
PN561
MR WHITE: Clarity or otherwise re-examination has to arise out of cross-examination and so far there has been no basis established.
PN562
MR HERBERT: I am sorry, but he was asked extensively about those matters, extensively, about the conversation with Mr McIntyre and where it was and what happened, and it was left in a - I don't know, it's a matter for your Honour, but there seemed to be some lack of clarity about the way it was left, and that's exactly the purpose of re-examination. I wasn't going to somewhere that my friend didn't go to.
PN563
THE SENIOR DEPUTY PRESIDENT: I am not sure where you say it left - the situation it was left in was that Mr Bell merely said that the invitation to meet was limited to the site office which in his view wasn't entry onto the site, didn't constitute entry onto the site.
PN564
MR HERBERT: It didn't constitute entry onto the site and there was no - and that's my understanding of his statement. But I'm not too sure because my friend seemed to be talking about people working in places on the site that were included within the conversation, which I don't know if my friend was suggesting - - -
PN565
THE SENIOR DEPUTY PRESIDENT: Ask the question and we'll see where it takes us.
PN566
MR HERBERT: The conversation on 3 June with Mr Bland that involved Morris McIntyre where did that conversation occur?‑‑‑Outside the front door of the site office.
PN567
Were you involved in that - do you recall being involved in that conversation in any way?‑‑‑I wasn't involved in it, I was standing on one end of the veranda while they stood at the other end and had a short conversation.
*** DARRELL LEE BELL RXN MR HERBERT
PN568
Do you have any recollection of there being a conversation with you at about that time, in connection with that conversation, about lighting on the site, do you actually recall such a thing?‑‑‑No.
PN569
At that point, that is, at the point immediately following that conversation, did Mr Bland enter onto the site at that stage?‑‑‑No.
PN570
Did he enter onto the site at any other stage on that date?‑‑‑Yes.
PN571
Do you remember what gate he went in?‑‑‑Gate 3.
PN572
They are the events you describe in your statement, is that right?‑‑‑Yes.
PN573
I have nothing further by way of re-examination.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Bell. Thank you for your appearance today, you're excused.
<THE WITNESS WITHDREW [2.56 PM]
PN575
MR HERBERT: The next witness, your Honour, is Michael McEwan. There are two filed statements from Mr McEwan. One is 11 September - - -
PN576
THE SENIOR DEPUTY PRESIDENT: Sorry, would you have a copy of the second one in response to Griffin's statement by chance, I have just misplaced mine at the moment?
PN577
UNIDENTIFIED SPEAKER: It has not been served.
PN578
THE SENIOR DEPUTY PRESIDENT: This is the one in response to Mr Griffin's. I have seen it.
PN579
MR WHITE: I hesitate to challenge the proficiency of my instructor but - - -
PN580
THE SENIOR DEPUTY PRESIDENT: That's all right, I think it came in - I do have it, dated 21 October 2015. It came in by email last week if I remember. So I have my copy but we best to check to see what the situation is with Mr White. You can make a copy if you like.
*** DARRELL LEE BELL RXN MR HERBERT
PN581
MR HERBERT: It was served on my learned friend's instructor by the same email - - -
PN582
THE SENIOR DEPUTY PRESIDENT: Yes, we have just confirmed the same situation.
PN583
MR HERBERT: It's the same address that was used to serve the first statement.
PN584
MR WHITE: Regardless - whilst Mr Tyler is copying that - I haven't got a copy and I'd like to have a copy and look at a copy and it may require the Commission to stand down for a short period.
PN585
MR HERBERT: Would it assist - I can't oppose that but it's not - it's definitely the case, as I'm instructed, that it was served by the same email. I have provided a copy to my friend now.
PN586
THE SENIOR DEPUTY PRESIDENT: Do you want some time, Mr White?
PN587
MR WHITE: Yes, please.
PN588
THE SENIOR DEPUTY PRESIDENT: How long would you like? Have a chance to look at it and my associate will remain - - -
PN589
MR WHITE: Then just to try and figure out what - - -
PN590
THE SENIOR DEPUTY PRESIDENT: That's all right. We'll adjourn and you'll communicate what you need through my associate, thank you.
SHORT ADJOURNMENT [3.00 PM]
RESUMED [3.18 PM]
PN591
THE SENIOR DEPUTY PRESIDENT: So how are we positioned?
PN592
MR WHITE: Well, we are positioned in this way, if the Commission please, and that is this, despite apparently the best efforts of my learned friend's instructor to serve, with the same email, the statement - the affidavit, the second affidavit, my instructor has no record of receiving it.
PN593
I haven't seen it, because it certainly wasn't passed on to me, which has left us in this position. There are aspects of that statement, which I want to discuss with Mr Griffin, so we will need to speak to Mr Griffin if we are able to and there's some evidence there in respect of a conversation with Mr Bland, so we would need to speak with Mr Bland.
PN594
So accordingly, we can proceed today with my learned friend's other witness, Mr Kun, and hopefully we can get back on track tomorrow morning with Mr McEwan. I don't know what position Mr Griffin is in, if we need to recall or who wants to answer any of the matters that are put or who wants to give an explanation as to the matters which are put. I just don't know that this stage.
PN595
THE SENIOR DEPUTY PRESIDENT: Well, we'll just cross that bridge. Mr Herbert, do you have any objection to that course?
PN596
MR HERBERT: No, but it's a mystery as to what happened. As you've seen from the email header, it was sent in accordance with the usual address to which those things are sent and I am instructed there was no bounce-back so it has disappeared into cyberspace, it would appear, but if my friend hasn't got it and Mr Griffin's evidence is in, we really need to - which is why I put the statement on, to warn my friend about those matters and to deal with them in writing beforehand so that there would be no surprises, but if he hasn't seen it, then he hasn't seen it and there's nothing we can do about that.
PN597
We have arranged for Mr Kun to be here as well and we can call him now and we may well finish him this afternoon.
PN598
THE SENIOR DEPUTY PRESIDENT: Okay. I think it was part of the same email we received the statement in, but who is to tell? Look, let's go to Mr Kun then.
PN599
MR HERBERT: Yes, thank you.
PN600
MR WHITE: I assume that by saying "no bounce-back" that you are not suggesting that we have it?
PN601
MR HERBERT: No.
PN602
THE ASSOCIATE: Please state your full name and address.
SPEAKER: Daniel Robert Kun (address supplied)
<DANIEL ROBERT KUN, AFFIRMED [3.21 PM]
EXAMINATION-IN-CHIEF BY MR HERBERT [3.21 PM]
PN604
MR HERBERT: Mr Kun, could you please repeat your full name?‑‑‑Daniel Robert Kun.
PN605
And your surname is spelt K-u-n?‑‑‑K-u-n, yes.
PN606
You are employed as a site manager for RCQ Constructions Pty Ltd?‑‑‑That's correct.
PN607
And have you prepared an affidavit - signed an affidavit - containing evidence that you were able - you have been asked to give in these proceedings, is that so?‑‑‑Yes.
PN608
Is that - does that affidavit consist of 70 paragraphs and was sworn by you on 11 September 2015?‑‑‑I think so, yes.
PN609
Have you - do you have a copy of it with you in the witness box?‑‑‑I have it over there, yes.
PN610
I wonder if we could make sure the witnesses got it, just to be sure.
PN611
Could you confirm for the Commission that that is the affidavit that is sworn by you on 11 September 2015 consisting of 70 paragraphs and a number of exhibits?‑‑‑Yes, that's correct.
PN612
Now, at the facts and circumstances set out in affidavit and the best of your knowledge true and correct?‑‑‑Yes.
PN613
I tender that affidavit.
PN614
MR WHITE: I've got some objections, if the Commission please. The first one is to paragraph 15 and paragraph 17. Paragraphs 15 and 17 attach as annexures or exhibits short videos marked respectively DK01 and DK02. I have been unable to - I have been able to listen, but not take a transcript of the videos. My recollection is, however, that there are parts of the conversation, being the soundtrack to the videos, in which Mr Kun expresses conclusions.
*** DANIEL ROBERT KUN XN MR HERBERT
PN615
I wonder whether or not my learned friend is to rely on the video for the audio as well as the visual. If my learned friend is to rely on the audio, then I'd ask that those parts of the audio which are sought to be relied on be identified. As it is, there's a bit of a mix in the audio; Mr Kun expressing conclusions about earlier matters rather than it being a record of precisely what has happened.
PN616
So if my learned friend is able to do that, and it might short-circuit this, but other than that it may well have to come to the looking and listening to the video and having a discussion at that time.
PN617
MR HERBERT: I am not sure that I know what's being referred to, but if there is some reference to this witness making statements about some earlier events they would constitute one would have thought a very contemporaneous statement by him of his understanding of the position at that time and recorded on the - as the events were occurring, and to that extent they are a part, as it were, of the res gestae; that is, part of the events and then is speaking of the events as they occur and that's very freshly after they've occurred.
PN618
Now, if my friend takes issue with the accuracy of those matters and suggests that they are not true, then he can certainly put that to the witness and the witness is at liberty to answer as to whether he knows whether those things are true or not, but the fact that he's stated them as conclusions doesn't render them objectionable. They are conclusions stated by him as in the course of the events actually unfolding as he is filming the events in question and they form part of the record that was made at the time and they all come together - they are all part of the one record that was taken of those events. It's a matter of cross-examination by my friend to determine whether the witness has knowledge of those matters; whether they are true and how he came to know them to be true and things of that kind, but they are part of the one record that was actually recorded at the time and they are not divisible, and in that sense we press those - the video and the audio - as being part of the same record, contemporaneous record.
PN619
THE SENIOR DEPUTY PRESIDENT: If that's so, the Mr White I presume we have to step through the video.
PN620
MR WHITE: We'll have to do that.
PN621
THE SENIOR DEPUTY PRESIDENT: And ask the witness as we go along about each of those observations and conclusions that he asserts. Is that - - -
*** DANIEL ROBERT KUN XN MR HERBERT
PN622
MR WHITE: Well, as we step through the video, I might at that stage make objection. I am not sure how my learned friend intends to play the video, but we can deal with that as he takes his witness through the video.
PN623
The next objection then is to paragraph 21. I object to the word "directed". This is a conclusion. It is not, "I heard", it is not saying what words Mr Kun heard or actions that Mr Kun saw, it is a conclusion. It is not evidence in that regard and therefore I object to the paragraph 21 insofar as it says that Mr Bland "directed" workers to do a particular thing.
PN624
MR HERBERT: With respect he's not contented himself with using the word "directed", he's actually set out the words that were used. If the Commission considers that the word "directed" is an overstatement of the position, the Commission has the benefit of actually seeing the words and it would be a perfect reasonable conclusion, in my submission, that in those circumstances the use of, "Come on, guys, we are going down to have a meeting", was a direction.
PN625
If the Commission has another view that it was a solicitation or an admonition or something else, then the Commission disregards the word "directed" but it doesn't, the word in itself isn't objectionable for being a purported characterisation of the words that he's actually quoted and which actually follow. We press the word "directed".
PN626
MR WHITE: The matter has been clarified. I had not read that paragraph to be directed to the words which are thereafter set out, "Come on, guys, we're going to have a meeting." If the so-called direction is only those words, then the objection doesn't hold, because there's evidence given of what was said. So on the basis of what my learned friend has just said, then he's limiting the so-called direction to those words and I will withdraw my objection.
PN627
The next objection is paragraph 22. There are two matters there. One, the "continued to force" is once again a conclusion. It is not evidence of what he heard or saw. "He told them to continue to leave" is in the same category. If, however, the allegation that "Mr Bland continued to force" if referrable back to the words in quotations set out in paragraph 21, then I don't press the objection. However, I do press the objection, "He told them to continue to leave" on the basis I've explained.
PN628
MR HERBERT: That will be the subject of some further evidence by this witness too. So rather than me seeking to add or subtract any words the matter can be clarified in evidence‑in‑chief. In that sense it's not objectionable.
*** DANIEL ROBERT KUN XN MR HERBERT
PN629
THE SENIOR DEPUTY PRESIDENT: I agree with you.
PN630
MR HERBERT: On reading it, and I intend to clarify it in evidence‑in‑chief.
PN631
MR WHITE: It's objectionable in my submission and it should be struck out. In terms of leading further evidence‑in‑chief I merely avert to my learned friend's cries of protest this morning about matters not being put in statements.
PN632
THE SENIOR DEPUTY PRESIDENT: We'll come back to that one. What else is there, Mr White?
PN633
MR WHITE: Well, in addition to those, paragraph 43 contains in it attachment DK03. DK03 is said in paragraph 43 to be notes which Mr Kun made, and once again in those notes for example in paragraphs 5 and 8 Mr Kun uses language in paragraph 5, "I continued to force the men off deck". Once again it's not evidence of what he heard or saw. It is a conclusion and objectionable for the same reasons the part in paragraph 8, "Where Eddie pulled the steel fixers back" is not evidence of what he heard or saw and on that basis is objectionable. If the notes are attached as a contemporaneous note, the fact that he took notes, then so be it. If they're relied on for the content or truth of them then I object to those parts of paragraph 5 and 8 I've identified. Do you want me to go through the list or one by one?
PN634
THE SENIOR DEPUTY PRESIDENT: No, that's all right. We're just dealing with the notes at five and eight at the moment though, I think.
PN635
MR HERBERT: They're matters that can be either clarified in evidence‑in‑chief or cross‑examined about. They are observations made by the witness which were notes that were taken at the time, or the effect of his observations at the time. If my friend objects to the English words that he used to convey the things that he says that he saw and heard, then he can certainly deal with that in cross‑examination as to the basis of that.
PN636
I can deal with it, as I intended to do, in relation to the substantive paragraphs in the affidavit by way of examination‑in‑chief. But the comments are not objectionable because my friend doesn't like what they say. There is no legal basis upon which words of that kind can't be received. The Commission may or may not place much emphasis on them as being more or less dramatic in the circumstances of the case, but the witness is entitled to express himself in his notes as he sees fit.
*** DANIEL ROBERT KUN XN MR HERBERT
PN637
THE SENIOR DEPUTY PRESIDENT: Yes, let me just deal with paragraph 22 and five and eight on the contemporaneous notes. Look, these aren't words that are a surprise or an ambush. They don't come in from the ether in not having been mentioned at any point. They are words that exist in the materials. But as to why the witness chose to use those particular verbs is unknown to me. I think it would be reasonable to inquire of him as to exactly what he meant in using those particular verbs through further evidence‑in‑chief, and I'll give weight to that to the extent that weight ought to be attributed to it.
PN638
It may well be the case that he has no foundation for using those particular words, that they're chosen for dramatic effect and that might not put his evidence in good stead. But equally so he may be using them as informal terms and not with some adverse intent, but use them loosely and without regard to the careful attention that we may pay to such terms. So I think I'll allow you to use evidence‑in‑chief to clarify what the nature of this evidence is.
PN639
MR HERBERT: Thank you.
PN640
MR WHITE: Your Honour, so the next one is paragraphs 47, 48 and 49. Paragraph 47 may fold into the category on which you have just ruled, if the Commission please. Saying someone directed something is a description or a conclusion. It is not evidence of what he heard or saw. I understand your Honour's ruling that you have just made.
PN641
THE SENIOR DEPUTY PRESIDENT: Look, I have to say to you I agree with your concern about the use of these terms and they do need to be unpacked for our purposes.
PN642
MR WHITE: Yes, and perhaps should have been unpacked now. If my learned friend is concerned about ambushing that should have been unpacked well before. But I understand your Honour's ruling that you made earlier in respect of the (indistinct) objections but nonetheless in respect of paragraph 47 I formally press that, albeit I may well expect the same ruling that you made earlier in respect to 47. In paragraphs 48 and 49 there's a different hearsay. In paragraph 48:
PN643
One of the formworkers said "We are fed up with this crap".
PN644
Now if that's relied on only for what he said rather than the truth of what he said, not objectionable. If it is put in - - -
PN645
MR HERBERT: The former is the case, your Honour.
*** DANIEL ROBERT KUN XN MR HERBERT
PN646
MR WHITE: So not relied on for the truth of it?
PN647
MR HERBERT: It can't be, your Honour.
PN648
MR WHITE: It's hearsay.
PN649
THE SENIOR DEPUTY PRESIDENT: Yes, it is what it is and that's all.
PN650
MR HERBERT: Yes.
PN651
MR WHITE: All right, and secondly in paragraph 49 that is hearsay - sorry:
PN652
Pask: "We would but it's not worth the retribution."
PN653
It is hearsay. It's particularly prejudicial hearsay and it should be excluded.
PN654
MR HERBERT: It falls into the same category as 48, your Honour. There are statements made in the heat of the exchange between relevant parties. We can't know and we haven't sought to prove via Mr Pask whether that's a view that he genuinely holds or what the truth of the matter might be. It's simply as your Honour puts it, it is what it is and we can take it no further than that.
PN655
MR WHITE: If it's not put as the truth there is no relevance, quite apart from it being hearsay. What is it doing there if my learned friend is not relying on it?
PN656
THE SENIOR DEPUTY PRESIDENT: Do you want to reply, Mr Herbert, or are you leaving it to me to?
PN657
MR HERBERT: I've said what I need to say about it.
PN658
THE SENIOR DEPUTY PRESIDENT: Yes.
PN659
MR HERBERT: It is part of the events that occurred at that time between the relevant players. Beyond that we don't purport to - we haven't called Mr Pask to swear up to all of that.
*** DANIEL ROBERT KUN XN MR HERBERT
PN660
THE SENIOR DEPUTY PRESIDENT: Yes. As with the other statement, Mr Pask is not here to attest to what was behind his ostensible comment and whether he understood something by that or misunderstood what was said to him. I can't take the matter any further. They are words that sit on the sheet and I don't know what sits behind them, so that tells you something about the weight that I can attribute to them in these contexts.
PN661
MR WHITE: I understand what your Honour says.
PN662
THE SENIOR DEPUTY PRESIDENT: Yes.
PN663
MR WHITE: But I have a formal objection for the reasons that I've indicated.
PN664
THE SENIOR DEPUTY PRESIDENT: Yes.
PN665
MR WHITE: The next objection is to paragraph 57, similar to what has just been discussed. It says:
PN666
One of the formworkers said to me words to the effect of -
PN667
And then this matter is - - -
PN668
MR HERBERT: I don't press that, your Honour.
PN669
MR WHITE: And the last one, your Honour, is paragraph 62 where he purports to give evidence about the state of knowledge of Mr McEwan. He obviously - - -
PN670
THE SENIOR DEPUTY PRESIDENT: It's just - - -
PN671
MR WHITE: Sorry, your Honour?
PN672
THE SENIOR DEPUTY PRESIDENT: It's just the "Mr McEwan and" that's the problem?
PN673
MR WHITE: Yes.
*** DANIEL ROBERT KUN XN MR HERBERT
PN674
MR HERBERT: I don't ask that your Honour have regard to the words "McEwan and" in that sentence.
PN675
MR WHITE: Those are the objections, your Honour.
PN676
MR HERBERT: Mr Kun, could I ask you a couple of things. Paragraph 21 you say that:
PN677
At approximately 7.50 am Bland started to talk to all the workers on the top deck and directed them to go down to the driveway area for a meeting. The following conversation took place in the words to the effect of "Come on guys, we're going down to have a meeting".
PN678
Do you see those words there?‑‑‑(No audible reply)
PN679
Have I correctly characterised what you said before, that the words "Come on guys, we're going down to have a meeting" is the direction that you heard being given that you've referred to in the earlier paragraph. Is that so?‑‑‑That's correct. Yes.
PN680
Now then at paragraph 22 you say:
PN681
Bland continued to force the men off the deck. He told them to continue to leave.
PN682
Do you recall the words the he was using in - - -
PN683
MR WHITE: Don't lead.
PN684
MR HERBERT: Do you - - -
PN685
MR WHITE: There's no suggestion that he used any words.
PN686
MR HERBERT: Did he use words to do the thing that you refer to in paragraph 22?‑‑‑Yes.
*** DANIEL ROBERT KUN XN MR HERBERT
PN687
Do you recall what the words were to the best of your recollection, and if you could actually recall as precisely as you can the actual words that he used to achieve that thing that you've mentioned there?‑‑‑Well, on the deck, you know, I mean at any time there's probably up to 30 workers. So he would've been walking around saying "Come on. You know, you come on as well".
PN688
MR WHITE: Objection.
PN689
MR HERBERT: Now "would have been". Could you say what he did - - -
PN690
THE SENIOR DEPUTY PRESIDENT: I always get concerned when someone says "would have been".
PN691
MR HERBERT: Yes.
PN692
THE SENIOR DEPUTY PRESIDENT: It doesn't connote direct knowledge certainly.
PN693
MR HERBERT: No.
PN694
THE SENIOR DEPUTY PRESIDENT: No.
PN695
MR HERBERT: Mr Bland[sic], you've said that he continued to force the men off the deck. Did you hear him say some words that caused you to write that in the paragraph?‑‑‑Yes, he would have said "Come on" - - -
PN696
If you could say rather than what he would have said?‑‑‑Okay.
PN697
Could you explain what he did say?‑‑‑He said from the best of my recollection words in the effect of "Come on. Come down. Come on, we're going down. You guys, we're going down" and the - - -
PN698
And was he standing in one place when that happened or was he moving from place to place?‑‑‑Moving from place to place, yes.
PN699
On the deck?‑‑‑On the deck, yes.
*** DANIEL ROBERT KUN XN MR HERBERT
PN700
And you say he told them to continue to leave?‑‑‑Yes.
PN701
Do you recall what words - were there any different words to the ones you've just spoken?‑‑‑Not to my recollection. Not exact words but in that effect.
PN702
Can I now ask you to go please to paragraph 47:
PN703
At approximately 7.30 am Bland started to talk to the workers, directed them to leave the site and go down to the driveway area for a meeting.
PN704
Did he use words to direct them or it was hand signals or how did he do it?‑‑‑Predominantly words.
PN705
And what words did he use? Not words he would have used, what words do you recall he did use?‑‑‑Similar to the words previously used "Come on, we're going down for a meeting".
PN706
And now in relation to the notes that you have taken that are annexure DK03 that's in a typed form. Did you type that in that form?‑‑‑Sorry, I don't have the annexures. I've only got the seventy - - -
PN707
We'll get you a copy, one with the annexures attached. That's you say the copy of the notes that you took, if it's DK03? If you check on the page immediately preceding that there should be "This page and the following page are annexure marked DK03"?‑‑‑Yes, that's correct. Yes.
PN708
And the next page is that page there. Did you type those notes?‑‑‑Yes I did.
PN709
And in relation to the events that are set out in there, that is that refer to 26 March 2015, at approximately when did you type those notes?‑‑‑Approximately within a week. The actual typing of the notes, yes.
PN710
Now when you say - if you go to paragraph 5 the last sentence?‑‑‑Yes.
PN711
"Eddie continued to force the men off the deck", that's the same event is it that you've described as when you used the word "force" in your affidavit? The last sentence of paragraph 5?‑‑‑Yes, that's correct. Yes.
*** DANIEL ROBERT KUN XN MR HERBERT
PN712
Yes, and what did he do to achieve the outcome of forcing the men off the deck?‑‑‑Just by continually saying "Come down. We're going for a meeting. Continue going down".
PN713
At paragraph 8?‑‑‑Yes.
PN714
That same note:
PN715
By 10.30 am the men went back to work but Eddie then pulled the steel fixers back down for another -
PN716
Mack Steel:
PN717
- back down for another two hour delay.
PN718
?‑‑‑Yes. Yes.
PN719
You've used the word "pulled". What did he do, what did Eddie do to in your words pull the steel fixers back down? How did he do that?‑‑‑From my recollection he called up the foreman of the steel fixers.
PN720
Yes?‑‑‑That was present back there and told them to go back down, so.
PN721
Told the foreman?‑‑‑Yes, told the foreman. There was only the foreman and one other worker at that point in time that was back up on the deck.
PN722
Yes?‑‑‑So - and the other ones didn't - weren't actually back up on the deck, so.
PN723
How many steel fixers were there in total on that site?‑‑‑On that day there would've been six, six or seven steel fixers.
PN724
If there was only the foreman and one other back up on the deck, where were the other four?‑‑‑They were still down in the lunch sheds.
PN725
From the earlier meeting?‑‑‑From the earlier meeting, yes. I presume. They were downstairs, somewhere down that way, so.
*** DANIEL ROBERT KUN XN MR HERBERT
PN726
But they weren't on the deck?‑‑‑No, they weren't on the deck.
PN727
And then in the balance of paragraph 8 you say:
PN728
Mick McEwan and I approached Eddie and the steel fixers in the sheds.
PN729
When you approached them in the sheds by 10.30 am were all the steel fixers then in the sheds?‑‑‑That I can recall of, yes.
PN730
And where should they have been, had they been at work?‑‑‑Up on the deck tying steel.
PN731
All right.
PN732
Your Honour, I hadn't arranged for the logistics of having the DVDs played. I had, I must say, assumed that those interested would have done that as part of reading the material. So I'm unsure as to whether you have the capacity to be able to?
PN733
THE SENIOR DEPUTY PRESIDENT: We can play them through the TV.
PN734
MR HERBERT: Yes. May we have DK01 played, and I have a copy of it here if need be?
PN735
THE SENIOR DEPUTY PRESIDENT: Yes, I have it.
PN736
MR HERBERT: So you should have a copy on the file. While that's being done perhaps I could deal with another matter. Is that - - -
PN737
THE SENIOR DEPUTY PRESIDENT: There's a presumption in that statement.
PN738
MR HERBERT: I beg your pardon?
PN739
THE SENIOR DEPUTY PRESIDENT: There's a presumption in that statement.
*** DANIEL ROBERT KUN XN MR HERBERT
PN740
MR HERBERT: Are we getting - - -
PN741
THE SENIOR DEPUTY PRESIDENT: I don't know.
PN742
MR HERBERT: Are we making progress in the sense of moving forward?
PN743
THE SENIOR DEPUTY PRESIDENT: I don't know whether there's movement forward.
PN744
MR HERBERT: I'll move to another matter if I may. If the witness could see - - -
PN745
THE SENIOR DEPUTY PRESIDENT: My associate is obviously very embarrassed.
PN746
MR HERBERT: No, she's a long way ahead of anywhere I would be.
PN747
THE SENIOR DEPUTY PRESIDENT: No, it's we're yet to master the upgraded system in many respects.
PN748
MR HERBERT: It's upgraded beyond human comprehension.
PN749
THE SENIOR DEPUTY PRESIDENT: This is like we started the day like this, we should end it like this shouldn't we?
PN750
MR HERBERT: I'll hand the witness copies of the MFI exhibits that were tendered earlier.
PN751
There are a number of photographs there, Mr Kun. Could I just ask you briefly, the first one - if you leave them in the order that they were given to you for a start. The first one which shows a blue and yellow tube protruding from the concrete, do you recognise that location?‑‑‑Possibly. I mean, possibly. It - are you referring to the location on my particular site, or?
PN752
Do you know what - it plainly appears to be building works on a building site. Do you know the building site that they are on?‑‑‑I couldn't - I've - not definitely, no. I couldn't definitely say that was my site.
*** DANIEL ROBERT KUN XN MR HERBERT
PN753
Right, could you move to the next one please which is - do you see the next photograph which shows some concrete and then there's some water puddled? Are you able to recognise the building site on which that photograph was taken?‑‑‑Not definitely. It could possibly be the ramp area but I'm not a hundred per cent sure.
PN754
The ramp area of what?‑‑‑Of our basement leading up to the ground floor.
PN755
Yes, that location that you can see there, if it is the ramp area?‑‑‑Yes.
PN756
Was that a designated thoroughfare or access point?‑‑‑No it wasn't. No.
PN757
Could you go to the next one which shows two rough looking square shapes with water in them?‑‑‑Yes.
PN758
On a concrete floor. Do you recognise that location at all?‑‑‑Not location, no.
PN759
Could you move to the next one which shows the leg of somebody with some blue jeans on and it appears to me the same location as in the first photograph. Are you able to say what building site that may have been on?‑‑‑Not a hundred per cent, no. It may be one of our areas but not - I couldn't be a hundred per cent confident.
PN760
And the next photograph, it shows some steel braces on a couple of pieces of timber and some white poly pipe and some water lying on a concrete floor. Is that a site or a location that you recognise?‑‑‑Again not a hundred per cent but it may be the ground floor area near the ramp. I can see a ramp in the background. That might possibly be that area of our building site.
PN761
And was that in March 2015, was that area a designated access area or a thoroughfare?‑‑‑No, not that area.
PN762
Not the area. If that is the area on the ground floor that you think it might be, was that area itself a designated access area?‑‑‑No.
PN763
And finally the last one it appears to depict in the upper quartile in the middle of the page the foot of some scaffold which is - the foot itself is horizontal but it's on a sloping surface and doesn't appear to have any form of brace or chock or support under it. Do you see that there?‑‑‑(No audible reply)
*** DANIEL ROBERT KUN XN MR HERBERT
PN764
Now have you seen that before? Do you know where that is?‑‑‑I couldn't be a hundred per cent sure, no, but it may be the ramp area again.
PN765
And what is the significance - - -?‑‑‑or the basement, but.
PN766
- - - of that support not being braced or supported in that way? What does that tell you about the sufficiency of that scaffold?‑‑‑Well it's very hard to tell because I mean any one time on our building site we could have up to 5000 square metres of formwork.
PN767
Yes?‑‑‑Some of it's back propping which has already been stripped and it's just back propping. Other areas are actual proper formwork supporting, ready to support a concrete pour.
PN768
Yes?‑‑‑But I don't know what's the actual question? What are you referring to?
PN769
Yes is that in the situation where it's there, are you able to say without knowing any more than what you see in that photograph whether that is adequate support for the base of that piece of scaffold?‑‑‑No, absolutely no. That might - may be just a piece of back propping and we get it all engineer-inspected before anything happens anyway, so it's - - -
PN770
Yes, but if that was intended to take the weight of a concrete pour on it would it have been assessed - - -
PN771
MR WHITE: I object. He's asking the witness to speculate.
PN772
MR HERBERT: No, I'm not. I'm sorry.
PN773
MR WHITE: It's a hypothetical question.
PN774
MR HERBERT: It's not a hypothetical question.
PN775
MR WHITE: There are two hypotheticals in it.
*** DANIEL ROBERT KUN XN MR HERBERT
PN776
MR HERBERT: Mr Kun, what is the purpose of scaffolding of that kind?‑‑‑To me it looks like formwork and formwork is there to support concrete pours when you pour them.
PN777
Yes?‑‑‑And then until they go hard enough to be able to support themselves.
PN778
And if you pour concrete on the formwork being supported by that?‑‑‑Yes.
PN779
Those props or that scaffolding, is that scaffolding taking a significant load?‑‑‑Yes, it can. Yes, depending on the situation. Yes.
PN780
And what was your practice, what is your practice or what was during this project your practice before you poured concrete onto the formwork in relation to having the scaffolding checked for its structural sufficiency; what did you do?‑‑‑Have the formwork checked - sorry, the scaffolding and formwork are two different things.
PN781
I'm sorry?‑‑‑Yes.
PN782
The formwork, what do you do about having the formwork checked to make sure it's properly done?‑‑‑Well, as part of the QA process we require the formworker to have an engineer inspect the formwork before any load is put on the formwork.
PN783
Yes?‑‑‑Which then they provide us with that engineer's certificate to say we're right to pour concrete.
PN784
Would that foot that you see there in that photograph just as it appears there now, would that in your view pass an engineering check for scaffolding that's about to have concrete loaded on it?‑‑‑It could do depending on the load in the area. Again that would be an engineer would make that decision more than myself.
PN785
Yes, but just looking at that you're not able to say?‑‑‑No, not looking at that. No, I - like I said it could even be - just be back propping which has got virtually no load on it, so.
PN786
Yes?‑‑‑I don't know what's above that, looking at that photo.
PN787
Thank you.
*** DANIEL ROBERT KUN XN MR HERBERT
PN788
Do we now have - could you start to run - this is DK01.
DVD PLAYBACK [4.00 PM]
PN789
MR HERBERT: Now could you stop at that point?
PN790
Who was the person with the - now at the lower part of that film footage you can see from about his waist up, who was the first person you could see down right in the middle of the picture there who has just turned his back? Are you able to tell from there or do you need to get - - -?‑‑‑Not a hundred per cent. It looks like - can I get - walk up and get a bit closer?
PN791
Yes, we'll keep on going.
DVD PLAYBACK [4.00 PM]
PN792
MR HERBERT: Yes, the person looking over now?‑‑‑Yes, that's - yes, Eddie Bland.
PN793
Sorry?‑‑‑Eddie Bland.
PN794
Right. Do you know who the other person is with his back turned?‑‑‑It looks like - I can't think of his name - from the ETU.
PN795
All right, if you keep running please.
DVD PLAYBACK [4.01 PM]
PN796
MR HERBERT: We don't appear to have - - -
PN797
THE ASSOCIATE: It's muted.
PN798
MR HERBERT: We would need to have the sound.
DVD PLAYBACK [4.01 PM]
PN799
MR HERBERT: Now could you stop there?
*** DANIEL ROBERT KUN XN MR HERBERT
PN800
Who spoke and said those words:
PN801
"He's been asked to leave site and he continues to walk onsite".
PN802
?‑‑‑That was me.
PN803
And what was the basis that you have for making that statement? What basis did you have for making the statement that he had been asked to leave the site?‑‑‑We've asked him - or I asked him for his permit and his 24 hours' notice.
PN804
Yes?‑‑‑Which he couldn't produce, so I asked him to leave site. Yes.
PN805
MR WHITE: I'm sorry, I didn't hear the answer.
PN806
MR HERBERT: "So I asked him to leave site".
PN807
Was that the end of it?
PN808
THE ASSOCIATE: Yes.
PN809
MR HERBERT: Could you go back to the beginning with the sound just in case there's any more that my learned friend wants to hear?
DVD PLAYBACK [4.02 PM]
PN810
MR HERBERT: Whose voice is that?‑‑‑Michael McEwan's it sounds like.
PN811
I've got Michael - excuse me, could you stop it at that point?
PN812
The words are said "I've got my procedures here. You know that". That was Michael McEwan?‑‑‑Yes.
PN813
Yes, all right. Continue on please.
DVD PLAYBACK [4.03 PM]
*** DANIEL ROBERT KUN XN MR HERBERT
PN814
MR HERBERT: Now when he came down and walked off in that direction, when he walked away where was he heading in that direction? What is in that direction?‑‑‑Towards the building site.
PN815
Yes, and where he was standing on the upper levels above where you were filming, what is that structure?‑‑‑Well, just this side of the structure is our site sheds.
PN816
Yes?‑‑‑So you walk up and over that piece of scaffolding to get to the actual building site, work area.
PN817
So that scaffolding is over the top of the site sheds?‑‑‑Yes.
PN818
And he went up and over and then into the site proper?‑‑‑That's right.
PN819
At the end of that film. That's what we see?‑‑‑That's correct.
PN820
Thank you. Could we have DK02? I notice the time, your Honour.
PN821
THE SENIOR DEPUTY PRESIDENT: Yes, let's just move through this and we'll get ourselves to a point where we can start it tomorrow at least.
DVD PLAYBACK [4.04 PM]
PN822
MR HERBERT: Is that what is described as the scaffold bridge?‑‑‑Bridge, yes.
PN823
Yes?‑‑‑Yes.
PN824
And that's on the site, not part of the site office?‑‑‑That leads from the site office to site.
PN825
Yes?‑‑‑So it's a - there's a gas enclosure that goes over the top of it to be able to access site, yes.
PN826
Yes, so when he goes to the other side and comes down those other steps at the end of that film footage, that's actually in the site?‑‑‑Yes, that's correct.
*** DANIEL ROBERT KUN XN MR HERBERT
PN827
Thank you. DK02.
DVD PLAYBACK [4.05 PM]
PN828
MR HERBERT: Now can you stop it there please?
PN829
The chap on the left, do you know who that is?‑‑‑That's Michael McEwan, yes.
PN830
The chap on the right with the orange Hi Vis vest and the black hard hat?‑‑‑That's Eddie Bland.
PN831
And the chap immediately behind him with the ETU shirt?‑‑‑Yes, that's Bateman.
PN832
Yes, all right?‑‑‑Yes.
PN833
Thank you.
DVD PLAYBACK [4.06 PM]
PN834
MR HERBERT: Excuse me, can you stop again?
PN835
The words are said "Now they've been asked to leave and continue to walk". Who was that speaking?‑‑‑That's me.
PN836
And what is your basis for saying that, "They've been asked to leave"?‑‑‑It's just a continuation of the previous video showing that they've actually entered site.
PN837
Yes?‑‑‑Walking up the ramps.
PN838
Where are you walking there?‑‑‑From ground floor leading up to the first car park level.
PN839
Yes, on the site?‑‑‑On - yes, inside the site. Yes.
PN840
Yes. Thank you.
DVD PLAYBACK [4.07 PM]
*** DANIEL ROBERT KUN XN MR HERBERT
PN841
MR HERBERT: Now if you could just stop there.
PN842
Whose voice is that?‑‑‑That's my voice.
PN843
"Four times they've been asked to leave now". Did you hear - - -?‑‑‑Yes, I heard Michael asking them to leave site too, so.
PN844
Yes, were you keeping count of the number of times?‑‑‑I must have been back then. I can't recall four times but yes.
PN845
Yes all right. Yes, if you can continue.
DVD PLAYBACK [4.07 PM]
PN846
MR HERBERT: And that voice again is yours, the voice at the end?‑‑‑Yes.
PN847
Is that the end of it? Yes. Thank you. That's the evidence of this witness.
PN848
THE SENIOR DEPUTY PRESIDENT: We'll have to leave it there and start from there tomorrow, Mr White, if that's all right? Is there anything else that needed to be done overnight? You're getting your other instructions in relation to - - -
PN849
MR WHITE: Yes, we've got to try and do what we can about this second affidavit. Can I just ask an administrative question, and that is whether I can leave some of this stuff here?
PN850
THE SENIOR DEPUTY PRESIDENT: By all means. I am, so you should as well. No, by all means.
PN851
MR HERBERT: You hope someone would steal some, were you?
PN852
MR WHITE: I was hoping someone steals it, yes.
THE SENIOR DEPUTY PRESIDENT: I wouldn't leave anything electronic though. Thanks very much everyone, we're adjourned.
<THE WITNESS WITHDREW [4.08 PM]
*** DANIEL ROBERT KUN XN MR HERBERT
ADJOURNED UNTIL WEDNESDAY, 28 OCTOBER 2015 [4.08 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #CFMEU1 TWO LETTERS BETWEEN HALL PAYNE LAWYERS AND MR BLAND..................................................................................................................... PN16
EXHIBIT #CFME2 WITNESS STATEMENT OF GEOFFREY ROBERT GRIFFIN DATED 12/10/2015............................................................................................................... PN102
GEOFFREY ROBERT GRIFFIN, AFFIRMED.............................................. PN107
EXAMINATION-IN-CHIEF BY MR WHITE.................................................. PN107
MFI #A PHOTOGRAPH 1................................................................................... PN187
MFI #B PHOTOGRAPH 2................................................................................... PN190
MFI #C PHOTOGRAPH 3................................................................................... PN193
MFI #D PHOTOGRAPH 4................................................................................... PN196
EXHIBIT #E PHOTOGRAPH 5......................................................................... PN201
MFI #F PHOTOGRAPH...................................................................................... PN206
CROSS-EXAMINATION BY MR HERBERT................................................. PN211
EXHIBIT #FWB1 EMAIL FROM G. GRIFFIN TO C. MURRAY DATED 01/04/2015 PN277
THE WITNESS WITHDREW............................................................................ PN373
DARRELL LEE BELL, AFFIRMED................................................................ PN391
EXAMINATION-IN-CHIEF BY MR HERBERT............................................ PN391
EXHIBIT #FWB2 WITNESS STATEMENT OF DARRELL LEE BELL... PN432
CROSS-EXAMINATION BY MR WHITE....................................................... PN433
RE-EXAMINATION BY MR HERBERT......................................................... PN559
THE WITNESS WITHDREW............................................................................ PN574
DANIEL ROBERT KUN, AFFIRMED............................................................. PN603
EXAMINATION-IN-CHIEF BY MR HERBERT............................................ PN603
THE WITNESS WITHDREW............................................................................ PN853
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