Australian Building and Construction Commissioner v Rielly

[2020] FCCA 3181

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v RIELLY & ORS [2020] FCCA 3181

Catchwords:
PRACTICE AND PROCEDURE – Rulings on evidence.

Legislation:

Evidence Act 1995 (Cth), ss.63, 135

Applicant: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent: DEAN RIELLY

Second Respondent: PAUL FITZPATRICK

Third Respondent: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

File Number: SYG 1031 of 2020

Judgment of: Judge Driver

Hearing date: 27 October 2020

Delivered at: Sydney

Delivered on: 27 October 2020

REPRESENTATION

Counsel for the Applicant: Mr M White SC, with Mr D Fuller

Solicitors for the Applicant: Clayton Utz

Counsel for the First and Second Respondents:	Mr I Latham
Solicitors for the First and Second Respondents:	Taylor & Scott Lawyers

Solicitors for the Third Respondent: Mr I Simic of Taylor & Scott Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1031 of 2020

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

And

DEAN RIELLY

First Respondent

PAUL FITZPATRICK

Second Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Third Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. My written reasons having been requested for certain of my rulings on evidence made on 27 October 2020 at the trial of the matter, I provide them. I ruled as follows. First, I accept from the affidavit of Mr Oshie Fagir that Mr Jason Ryan is unavailable for the purposes of s.63 of the Evidence Act 1995 (Cth) (Evidence Act), and hence his evidence can be received as an exception to the hearsay rule. Secondly, and on the other hand, I accept the submissions of the respondents, at least in part, in relation to their exposure to prejudice, calling into play s.135 of the Evidence Act.

2. I will not receive the unsigned affidavit by Jason Ryan, having regard to the respondents' risk of prejudice, and also to the fact that statements in that affidavit, in my view, go further than Mr Ryan has recently indicated he is willing to go in assisting the applicant.  So the unsigned affidavit is excluded.  I will receive the signed witness statement by Mr Ryan and its annexures.  The witness statement I will only accept as evidence of the representations or statements in it, not the truth of them.  However, I may have regard to the annexures, being the SMS messages and the apparently contemporaneous note made by Mr Ryan in assessing the weight to be given to the statements in the witness statement.  That concludes the ruling on the evidence.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  20 November 2020