Case: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 ; (2004) 141 FCR 183
Outcome: cited
the history of the proceeding, the Union and Mr Mates put forward various explanations for Mr Mates' conduct on 21 February 2006, some of which were not pursued at trial and others were not pressed in final submissions, whether because of the Union's and Mr Mates' election not to call evidence or otherwise. Thus, [17A] of an amended defence dated 17 August 2007 pleaded that the crane was removed because of a malfunction and/or because of concerns about payment. Neither explanation was pursued at trial. I reject counsel for Mr Cahill's submission that I should treat this conduct on the Union's and Mr Mates' part as evidence of consciousness of guilt. I would not regard the relevant principle as applicable in the circumstances shown: compare Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678 ; (2004) 141 FCR 183 at 215-6 [244] - [248] . It is undeniable, however, that there is no evidence that might explain Mr Mates' conduct other than that to which I have already referred. For the reasons that appear below, I would not regard the evidence concerning the events of 22 February 2006 and thereafter as having much, if any, bearing on this incident. There was no evidence to support a suggestion that safety concerns motivated Mr Mates' conduct: compare [17] of amended defence and further amended defence dated 14 July 2008. In cross-examination, Mr Moresi, who had 10-15 years experience in the construction industry and with cranes, said that he had not heard Mr Mates or anyone else raise any safety issue when Mr Mates was on site on 21 February 2006. Mr Moresi said that responsibility for any safety issue affecting the crane lay with the crane crew and the site safety officer, managers and engineer. Mr Palmer's evidence was to the same effect, including that no safety issues touching the crane were raised with him on 21 February 2006. Mr McMahon's evidence was that, if there had been a safety issue with the crane, then, as a matter of practice, the crane crew would have immediately notified him as one of the site management personnel. Mr McMahon added that no-one from Independent Cranes and none of the crane crew had raised any safety, location, or other problem concerning the crane on 21 February 2006. The evidence established that Mr Mates told Mr Moresi, Mr Palmer and Mr McMahon that he had shut down the crane because there was no shop steward or OH&amp;S representative on site. When Mr Moresi informed him that Mr Van Senten was shop steward and OH&amp;S representative, Mr Mates persisted, saying he did not care. There is no reasonable explanation for Mr Mates' conduct once he was given this explanation. The only tenable explanation is that Mr Mates was carrying out his threats of 15 and 17 February 2006 that the project at Mount Street would not recommence unless Mr Deans, Mr O'Donnell and Ms Singleton were re-employed and took on their former responsibilities, including that Ms Singleton assumed OH&amp;S responsibilities. It was telling that Mr Mates gave as his reason for his action that there was no shop steward or OH&amp;S representative, because this reflected the demands that he had made to Mr Goss at his earlier meetings with him on 15 and 17 February 2006. The nature of Mr Mates' demands was reflected in that fact that, when he was told that Mr Van Senten was shop steward and OH&amp;S representative, he said he did not care. In effect, Mr Mates signalled that he was only interested in his people being appointed to these positions. This too was consistent with his demands of 15 and 17 February 2006.