In general protections and unfair dismissal cases which proceed to a hearing, whether in the Fair Work Commission or the Federal Court of Australia or the Federal Circuit Court of Australia, it is almost always the case that the person hearing the case will need to make decisions about who is telling the truth. My experience as a court lawyer over the decades, and now also as an industrial agent conducting unfair dismissal cases in the Fair Work Commission has taught me that it is very rare indeed for the employer’s witnesses to agree entirely with the employee’s witnesses as to the facts.
Often this is because some witnesses do not tell the truth, or the whole truth, and sometimes this is a deliberate act and sometimes it is because the witness simply misunderstood an event, or a time line of events, and sometimes it is as simple as that the witness is just wrong.
How does the member of the Commission, in unfair dismissal cases and consent arbitrations, or a judge on a general protections case, sort this out? I recently came across this very useful passage from a general protections case in the federal Circuit Curt dealing with just this issue.
In addressing the next issue, that is to say, in considering whether ACA took adverse action against the applicant for a prohibited reason it became necessary to scrutinise the whole of the evidence more thoroughly. In making the observations that follow it is useful to highlight the advantages that a trial judge enjoys when synthesising competing versions about the same or similar contested issues. Kirby ACJ spoke of those advantages in the decision of the Court of Appeal of the Supreme Court of New South Wales in Galea v Galea.
In Galea, Kirby ACJ (as his Honour once was prior to his Honour’s appointment to the High Court) pointed out an array of advantages that a trial judge enjoys in the fact-finding process. Those observations apply to any decision‑maker, curial or administrative, who sees and hears a witness giving evidence before that decision-maker, it seems to me. Those advantages include the decision‑maker –
- a) hearing the evidence in its entirety;
- b) hearing and seeing all evidence in context, chronologically and logically advanced;
- c) having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
- d) hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
- e) observing body language, sometimes important for interpreting communication.
In this case, it was necessary for me to make findings of fact in respect of conflicting factual evidence. It was necessary in that situation for me to determine whose version of a particular event I preferred. Part of the process of assessing a witness’s evidence involved not only hearing what the witness actually said but also observing the manner in which the witness said it. Another point of the process involved assessing the extent to which one witness’s version of events was corroborated by one or more other witnesses who gave evidence on the same issue. Similarly, the existence or otherwise of contemporaneous documentation supportive of the version of events given by a particular witness was relevant. I have taken those matters into account in arriving at the factual findings that are recorded below.
In arriving at conclusions about the veracity of witnesses in their evidence, to some extent it was necessary for me to address the demeanour of those witnesses in the witness box. The task of assessing a witness’s demeanour in an oath against oath case, as was this case, is of special relevance, as Kirby J pointed out in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq). Yet that is not to say that every case involves an assessment of a witness’s demeanour in isolation. In fact, in Devries v Australian National Railways Commission, Deane and Dawson JJ held that cases in which findings of fact and assessment of credit are based on demeanour are the exception rather than the rule. In the later decision of the High Court in Fox v Percy, Gleeson CJ and Kirby J observed that judges increasingly tend to limit their reliance upon the appearances of witnesses and to reason their conclusions as far as possible on the basis of contemporaneous materials, objectively established fact and on the apparent logic of events.
As I stated in AKD16 v Minister for Immigration and Border Protection & Anor, the significance of the decision maker assessing a witness’s demeanour has been the subject of a large volume of judicial writing at the highest level over the last century. Not all observations in those decisions point in the same direction. Many of the observations in the decided cases were made in the context of whether an appellate court was in as good a position as was the trial judge when assessing credit or whether the appellate court should defer to the trial judge’s assessment of a witness’s credit. The authorities are extensive and they include Coghlan v Cumberland, Dearman, Owners of SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v SS Durham Castle, Paterson v Paterson, Warren v Coombes, Brunskill v Sovereign Marine and General Insurance Co Ltd, Jones v Hyde, Galea v Galea, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation), Fox v Percy and Husain v O & S Holdings (Vic) Pty Ltd.”
Butlin v ACA Home Improvements Pty Ltd (2018) FCCA 3555 delivered 05 December 2018 per Wilson J