Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers' Union (AMWU)) v Sunstate Coatings Pty Ltd

[2011] FCA 390

FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as The Australian Manufacturing Workers’ Union (AMWU)) v Sunstate Coatings Pty Ltd [2011] FCA 390

Citation:		Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as The Australian Manufacturing Workers’ Union (AMWU)) v Sunstate Coatings Pty Ltd [2011] FCA 390
Parties:		AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU)) v SUNSTATE COATINGS PTY LTD ABN: 52 007 170 470, DAVID LEW and DAVID CUSICK
File number:		QUD 464 of 2010
Judge:		REEVES J
Date of judgment:		1 April 2011
Date of hearing:	1 April 2011
Place:	Brisbane
Division:	FAIR WORK DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Applicant:	LS Reidy
Solicitor for the Applicant:	Australian Manufacturing Workers’ Union
Counsel for the Respondents:	AK Herbert
Solicitor for the Respondents:	Ai Group Legal Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 464 of 2010

BETWEEN:

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU))
Applicant

AND:

SUNSTATE COATINGS PTY LTD ABN: 52 007 170 470
First Respondent

DAVID LEW
Second Respondent

DAVID CUSICK
Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	1 APRIL 2011
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The respondents’ notice of motion filed on 31 March 2011 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 464 of 2010

BETWEEN:

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU))
Applicant

AND:

SUNSTATE COATINGS PTY LTD ABN: 52 007 170 470
First Respondent

DAVID LEW
Second Respondent

DAVID CUSICK
Third Respondent

JUDGE:	REEVES J
DATE:	1 APRIL 2011
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an unusual application.  The respondents have filed a notice of motion seeking to have this trial, which is due to commence on Monday, 4 April 2011, adjourned on the ground that the applicant’s main witness, Mr Daamen, is in a fragile mental condition and its counsel does not want to cross-examine him while he is in that condition, for fear it may cause him distress and injury.  The respondents’ counsel says that I should adjourn the trial and allow a doctor of the respondents’ choice to examine Mr Daamen, so that the respondents can decide how to proceed with the cross-examination, in particular so that the respondents’ counsel can decide how to proceed with the cross-examination in a way that protects his client’s interests and yet avoids undue distress and injury being caused to Mr Daamen.

2. I might add that there is no longer a relationship of employer and employee between Mr Daamen and the first respondent.

3. For his part, Mr Daamen has told the applicant’s solicitors that he is willing and able to give evidence, and he wants the matter to proceed.  Indeed, Mr Daamen says that he thinks an adjournment of the matter would cause him more stress.

4. I have before me a report by Mr Daamen’s psychologist, a Ms Turner, where she says:

   In terms of Mr Daamen’s cognitive function, he is able and willing to provide evidence.  In terms of the court process, Mr Daamen may become distressed.  Mr Daamen would likely suffer more distress should this matter be postponed.

5. I also have a report from Mr Daamen’s psychiatrist, Dr Majumdar, where he says:  “Mr Daamen’s psychiatric condition doesn’t make him unfit to appear before the court.”

6. However, Dr Majumdar does go on to express the view that:

   In view of his fragile condition, consideration should be given to defer the case for another couple of months.

7. Dr Majumdar also says that:

   Mr Daamen’s condition is still fragile and being cross-examined in a court case could exacerbate his anxiety, particularly if unnecessarily challenged or the presence of the manager at the factory who allegedly threatened him.

8. After I queried those qualifications in his report, Dr Majumdar produced a further report where he says:

   I am of the opinion that your client, Mr Daamen, from a psychiatric point of view, is fit to give evidence and be cross-examined.  However, it is possible that his anxiety level could escalate a bit during his court appearance if he is unnecessarily challenged and/or possibly in the presence of the manager at the factory who allegedly threatened him.

9. He goes on to express some views about stress levels and Mr Daamen’s adjustment disorder, and he concludes with this statement:

   As he is currently receiving treatment, it is expected that his condition would improve considerably within the next few months, and therefore his emotional liability could be expected to be minimum or non-existent if he were to appear before the court in a couple of months time.

10. Taking into account all this material, I am not satisfied that there is a good reason to adjourn this trial.  I have the power to deal with these specific concerns raised by Dr Majumdar in his first report.  In particular, I have the power to prevent Mr Daamen being subjected to unnecessary challenges and I will do that if the need arises during his cross-examination.  I also have the power to order that the respondents’ factory manager not be present during Mr Daamen’s cross-examination, and I will deal with that if an application is made on Monday.  If any other problems arise during the course of Mr Daamen’s cross-examination, I will deal with them when they arise.

11. As to the respondents’ counsel’s dilemma, I consider he will have to resolve that himself based upon the materials that have been produced about Mr Daamen’s condition and, of course, consistent with his duties to his client.  I do not consider that Mr Daamen, the applicant, or indeed the Court, has any obligation to assist in the resolution of that dilemma.  I certainly do not consider it provides any sufficient reason to adjourn this trial.

12. As to the last opinion expressed by Dr Majumdar (see [9] above), while it might be so that Mr Daamen would probably be in a better condition to handle cross-examination in a few months time after he receives further treatment, Mr Daamen has made the choice to continue with this matter and, based on the material before me, that choice appears to be a considered and deliberate one.  I see no reason not to give effect to that considered and deliberate choice.

13. For these reasons I dismiss the respondents’ notice of motion filed 31 March 2011.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:
Dated:        21 April 2011