Drury v Andreco Hurll Refractory Services Pty Ltd (No.2)
[2005] FMCA 1029
•19 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DRURY v ANDRECO HURLL REFRACTORY SERVICES PTY LTD (No.2) | [2005] FMCA 1029 |
| PRACTICE & PROCEDURE – Human Rights – calling of evidence from a witness where affidavits make no reference to it – unfairness to applicant. |
| Applicant: | RAYMOND DRURY |
| Respondent: | ANDRECO HURLL REFRACTORY SERVICES PTY LIMITED |
| File Number: | SYG55 of 2005 |
| Judgment of: | Raphael FM |
| Hearing dates: | 18 & 19 July 2005 |
| Date of Last Submission: | 19 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Shoebridge |
| Solicitors for the Applicant: | Taylor & Scott |
| Counsel for the Respondent: | Ms C Ronalds |
| Solicitors for the Respondent: | Cutler Hughes & Harris |
ORDERS
Application declined.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG55 of 2005
| RAYMOND DRURY |
Applicant
And
| ANDRECO HURLL REFRACTORY SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
I am asked to permit a witness, Mr Ian Mepham, to give oral evidence concerning discussions which he has allegedly had with the applicant about the applicant's work performance on previous engagements by the respondent company.
The respondents were ordered to provide their affidavit evidence in response and an affidavit was filed on behalf of Mr Mepham and sworn by him on 31 May 2005. The affidavit makes no mention whatsoever of these discussions nor does it suggest in any way that the applicant's work in previous engagements was being called into question or constituted a reason why Mr Mepham did not offer the applicant further employment with the respondent.
The applicant was asked a general question in cross-examination as to whether or not he had been spoken to by Mr Mepham previously concerning the standard of his work in previous engagements and he denied that he had. Mr Shoebridge, who appears on behalf of the applicant, objected to the question because it was non-specific. The applicant, as was his want, had already answered the question with a generalised answer of "No".
Ms Ronalds did not press the point further or indicate that she was in a position to provide specific days and times at that stage. She now suggests that she should be allowed to pull this evidence from Mr Mepham and that the applicant can respond to it by being re-called. I do not think this is an acceptable way of dealing with the matter. If the respondents claim that they have a good reason for not offering the applicant further engagements with them because of his conduct in previous engagements, as opposed to his conduct deposed to by Mr Mepham between paragraphs 19 and 24 of Mr Mepham's affidavit, then they really should have said so earlier Mr Drury would have had an opportunity not only of denying the matters himself or commenting upon the allegations but possibly of bringing evidence from other employees that might have supported his case. I decline to allow evidence of this type to be given.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
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