In general protections’ cases, the outcome will often depend upon whether the respondent (normally an employer) is able to discharge the reverse onus of proof provided for by sec 361 of the Fair Work Act. The following passages from a recent Federal Court trial in such a case set out some of the complex legal principles which apply to a resolution of disputes as to facts.
“The Scope of the Rule in Browne v Dunn and its Present Application
- It might be thought trite to set out the true ambit of the rule deriving from such a famous case, but given its prominence in the final submissions of Qantas and the competing position of the parties, it is necessary that I do so. This can be done by gratefully adopting what Goldberg J said in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 (at 216–8) and by setting out the summary of the relevant principles by Vickery J in Amcor Ltd v Barnes  VSC 434 (at ), where the following appears:
(a) The rule in Browne v Dunn is a rule of fairness which requires a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation: Browne v Dunn  6 R 67 Lord Herschell LC (at 70), Lord Halsbury (at 76-7); Bulstrode v Trimble  VR 840 at 849; Karidis v General Motors Holdens Pty Ltd  SASR 422 at 425-6; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623; White Industries (Qld) Pty Ltd v Flower & Hart (a firm)  FCA 806; (1988) 156 ALR 169 at 216.
(b) The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness’ evidence where that attack is not otherwise apparent to the witness. The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness: Browne v Dunn, Lord Herschell LC (at 70); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217.
(c) Where, it is manifestly clear that the party or witness has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling, such as where notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so obvious, that it is not necessary to waste time in putting questions to him upon it, the rule may be dispensed with, where no unfairness will arise: Browne v Dunn, Lord Herschell LC (at 71); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217.
(d) Notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made: Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 per Hunt J (at 623); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217-218.
(e) The necessary notice may be effected in pleadings, in an opening or in the manner in which the case is conducted: Seymour v Australian Broadcasting Commission  19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 218. To this list I would add notice given through witness statements or affidavits exchanged in advance of the trial.
(f) The rule has its foundation in the fair administration of justice: Browne v Dunn, Lord Halsbury (at 76-7).
- At least at first glance, the Browne v Dunn criticisms of Qantas might have an understandable genesis. The cross-examination of each witness called by Qantas did follow a common pattern. In large part, the cross-examination involved a type of “page turning” exercise whereby the witness was asked to read a particular part of a business record (on occasions not prepared by the witness) and then the cross-examiner put propositions to the witness based upon a representation contained in the document: on occasions simply by asking the witness to confirm the existence of the representation. On more than one occasion, I indicated to the cross-examiner that such an approach may not be of optimal assistance (given I could read the documents myself) and, if propositions were to be put to a witness, they should be put directly: see, for example, T133.20–30.
- Of course, as noted above, Mr David gave his reasons for the outsourcing decision, and Messrs Paul Jones, Colin Hughes and Paul Nicholas gave evidence as to their actual reasons for any involvement in the decision and each specifically denied that any part of their reasons included any of the proscribed reasons. Qantas contends that their “evidence as to those reasons was not directly the subject of cross-examination or any challenge in the course of their oral evidence”: QFS1 [3(e)–(f)]. It followed, Qantas submitted, that the evidence of the witnesses in this regard ought to be accepted.
- The cross-examination was thorough and senior counsel for the Union displayed a mastery of the detail of the documents but, with no intended disrespect to the cross-examiner, although not milquetoast, it was not particularly direct nor forceful. Qantas asserts there was no suggestion put to any of these witnesses that their evidence given orally and in their affidavits as to their reasons was concocted, mistaken or unreliable: see, for example, QFS1 . But it is important not to confuse different (and legitimate) styles of cross-examination with substance.
- It must be accepted that as a general proposition unchallenged evidence which is not inherently incredible, ought to be accepted by the tribunal of fact (although such evidence can be rejected if it is contradicted by facts otherwise established by the evidence or particular circumstances point to its rejection): Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 (at 370–1 per Gibbs J, with whom Stephen J agreed, and Murphy J generally agreed); Ashby v Slipper  FCAFC 15; (2014) 219 FCR 322 (at 347  per Mansfield and Gilmour JJ).”
Transport Workers’ Union of Australia v Qantas Airways Limited  FCA 873 delivered 30 July 2021 per Lee J