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Monday, 21 May 2012
Page: 4982

Mr MELHAM (Banks) (21:29): I want to bring to the attention of the parliament the case of Ballard v Multiplex, where judgment was delivered on 13 May 2012 in the Supreme Court of New South Wales's equity division. At the outset I want to indicate that I am a director of the Committee to Defend Trade Union Rights, and that has been declared in the Register of Members' Interests. Also, I have been a friend of Andrew Ferguson for almost 38 years.

The New South Wales Supreme Court dismissed a 15-year-old case accusing the CFMEU of conspiring with construction giant Multiplex to drive a subcontractor, David Ballard, out of the industry. Justice Robert McDougall rejected evidence of a conspiracy after finding Ballard's key witnesses, ex-union-organiser Craig Bates and ex-Multiplex financial controller Ian Widdup, were not credible.

I propose to read excerpts from the judgment in relation to a number of witnesses. Paragraph 113 states:

I accept, of course, that an assessment of the credibility of any particular witness must take into account the extent to which the testimony of that witness is, or is not, conformable to other evidence in the case …. To take an example from this case: the evidence of Mr Bates (which, as I shall show, must be regarded as untrustworthy, having regard to admissions as to dishonest, discreditable and corrupt conduct in which he engaged and to admissions of serial perjury) may, nonetheless, find corroboration in other parts of the evidence ….

Paragraph 139 states:

At the outset, two points should be made. The first is that, as he—

Mr Bannon—

frankly conceded, Mr Ballard has become "obsessed" about the subject matter of this litigation. Even had he not conceded this, the conclusion would be inevitable, both from a reading of his evidence overall and from observations made by other witnesses. Secondly, and again as Mr Ballard frankly conceded, his memory is poor. Again, the conclusion is manifest from even a casual perusal of his affidavit and oral evidence.

Paragraph 148 states:

There were other aspects of Mr Ballard's evidence that, on a fair reading, are unacceptable. They include:

   …   …   …

(3) his unimpressive attempt to suggest that his pleas of guilty to two charges of giving false evidence were entered on the advice or instruction of a detective, and that as soon as he was in a position to do so he would take action to have the convictions reversed. It may be noted that at the relevant time, Mr Ballard was, on his evidence, doing well in business, and lack of funds could hardly have been a reason for a failure to defend the charges;

(4) more generally, the pervasive tendency to attribute blame or responsibility to others for deficiencies in his evidence;

(5) the related tendency, when confronted with inconsistent or inaccurate propositions in his affidavit, to suggest that he had not read them thoroughly before swearing them, and had relied on the solicitor to ensure that they were accurate; …

Paragraph 148 states:

Further, Mr Ballard's affidavit evidence was not entirely candid about his earlier brushes with the law. … It is sufficient to say that Mr Ballard was either extremely forgetful or, perhaps, selectively cautious in his recollection. Neither interpretation is supportive of an assessment that, in general, his evidence should be treated as credible. … The point is that the way in which Mr Ballard approached the question of his criminal history is less than impressive.

Paragraph 150 states:

… I have come to the view that I should not accept Mr Ballard's evidence unless it is supported by the evidence of other, credible, witnesses; or is supported by contemporaneous documents; or is consistent with what I regard as the probabilities, objectively ascertained.

The judgment continues at paragraph 151:

151   Mr Bates is the only witness who gives express evidence of the alleged conspiracy. He is described in Multiplex's submissions (MS) at para 178 as "a totally disgraced former Union official and serial liar". That description is not far from the truth.

152   Mr Bates has an extensive criminal history, dating (on the evidence) from 1985 to 2006. It includes numerous offences of dishonesty. It does not include any convictions for false swearing. However, Mr Bates admitted that, in relation to a particular subject matter, he lied repeatedly and on numerous occasions when giving evidence to the Cole Royal Commission. That does him no credit.

153   The occasion for those lies does Mr Bates no credit either. He (and apparently other union officials) had concocted a corrupt scheme whereby they extorted payments from contractors or subcontractors, threatening that industrial action would be taken on their sites if the payments were not made, and promising industrial harmony if they were. …

154   Not only did Mr Bates confess his involvement in that behaviour, he sought, in my view falsely, to implicate Mr Ferguson in it. I say "falsely" because there is no other evidence to suggest that Mr Ferguson had been involved in such behaviour.

   …   …   …

156   Quite apart from these matters, which go to credibility in the broad sense, there is another major problem with Mr Bates' evidence. In his affidavit sworn 19 October 2009 (paras 19 to 39), Mr Bates effectively suggested that the conspiracy arose from Mr Ferguson's continuing anger at the ACA broadcast and Mr Ballard's role (as, apparently, Mr Ferguson is said to have perceived it) in procuring that program to be made. Had the conspiracy followed immediately on the screening of the ACA broadcast, that might be understandable. But in circumstances where the conspiracy meeting is said to have happened some 11 months after the program was screened, and after excerpts from it were twice repeated, and where (as I have said) Mr Ballard through Stoneglow had been engaged in demolition projects in the Sydney metropolitan region since then, to the knowledge of the union but without any interference, this seems somewhat tenuous.

Paragraph 165:

In my view, Mr Bates' evidence as to the preferred contractor scheme is fabricated. That reflects adversely on his credibility, and not in any peripheral way. It goes to the heart of his evidence, because the existence of the preferred contractor scheme is said to be either the, or at least a supplementary or alternative, explanation for the hatching of the conspiracy.

Paragraph 167:

In my view, this whole aspect of Mr Bates' evidence is utterly implausible: not only in its substance, but also having regard to the way in which and the belated time at which it emerged. I cannot regard it as anything other than something intended both to buttress the central plank of Mr Bates' evidence—the coffee shop meeting—and to embarrass or discredit Mr Ferguson.

Paragraph 170:

In truth, I think, Mr Bates was motivated by a desire to obtain revenge.

Paragraph 172:

But to be put against them is the history of lying, deceitful, corrupt and dishonest conduct in which Mr Bates has, on his own admission, engaged over some years. It defies human experience to suggest that a person who has demonstrated such disdain for the mores of society, for notions of proper and ethical dealing, and for the concept of testimony on oath, should be accepted as a witness whose evidence should be given inherent credibility in the absence of powerful corroboration.

Paragraph 173:

Be all that as it may—and inquiries as to motive are not always capable of satisfactory resolution—the simple fact is that the combination of Mr Bates' past criminal history, including many offences of dishonesty, his admission of widespread corrupt behaviour, and his reluctant admissions of widespread on oath lying about that behaviour are such as to make him a witness whose evidence is not worthy of belief unless it is supported by other, credible, evidence.

Paragraph 257:

At the very least, Mr Widdup's memory of events relating to the Finger Wharf demolition contract—which is a key part of the case for Mr Ballard—is shown to be faulty. A less charitable view, which in my view is the correct one, is that there are numerous elements of fabrication.

Paragraph 271:

I do not accept Mr Widdup as a witness on whose uncorroborated evidence I can rely, unless that evidence happens to coincide with what I perceive to be the probabilities, objectively ascertained.

Paragraph 379:

Consideration of the transcript of the cross-examination of each of Mr Sharkey and Mr McClelland does not suggest that either of them was being obstructive, or seeking to do anything other than tell the truth to the best of his recollection. It is obvious that each of them had a less than perfect recollection of the central events. But there is nothing in the evidence that, to me, suggests that it represents anything other than the best effort of each to give honest evidence as to his recollection of what had happened.

Paragraph 469:

The only evidence that there was a meeting of the kind alleged comes from Mr Bates.

Paragraph 471:

For the reasons that I have given, I am not prepared to accept any uncorroborated evidence given by Mr Bates. I do not accept his evidence of the occurrence of the meeting, or as to what was said.

Paragraph 472:

Further, even if Mr Bates' evidence on this topic should be accorded any shred of credibility, it is clear that there were grave problems with his recollection (or purported recollection).

Paragraph 750:

Before I leave the Rech conversation, I wish to make it clear (if I have not done so already) that I regard this aspect of Mr Ballard's evidence as entirely unacceptable. In my view, whether fabricated consciously in an attempt to shore up his case, or unconsciously, as a result of his obsession with the alleged conspiracy and the harm done to him as a result …

Mr Deputy Speaker, journalists around the country relied on that fabricated material to attack the credibility of Mr Ferguson and the CFMEU. They owe them an apology. This judge—the independent umpire—has basically discredited the case against Mr Ferguson and the CFMEU and exposed what in effect was a conspiracy of lies, put together by a number of people to attack the union, which was itself seeking to get rid of corruption within the industry. These so-called credible journalists were on a jihad to destroy decent people, and it has blown up in their face.