FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Valuair Limited [2014] FCA 404
Citation: Fair Work Ombudsman v Valuair Limited [2014] FCA 404 Parties: FAIR WORK OMBUDSMAN v VALUAIR LIMITED (200302952W), TOUR EAST (T.E.T) LTD (31629391) and JETSTAR AIRWAYS PTY LTD (ACN 069 720 243) File number(s): NSD 719 of 2012 Judge: BUCHANAN J Date of judgment: 29 April 2014 Catchwords: EVIDENCE – out of court statements contained in transcript of interview – applicant sought to admit parts of transcript into evidence as admission – mixed statement containing inculpating and exculpating representations – whether entirety of the record of interview should be admitted into evidence at the same time – entirety of transcripts admitted into evidence Legislation: Evidence Act 1995 (Cth), ss 59(1), 59(2), 81, 81(2)(b), 87(1) Cases cited: Jack v Smail (1905) 2 CLR 684
Lopes v Taylor (1970) 44 ALJR 412
Mahmood v State of Western Australia (2008) 232 CLR 397
Mule v R (2005) 221 ALR 85
Spence v Demasi (1988) 48 SASR 536Lexis Nexis Butterworths, Cross on Evidence (at Service 165) [33455]
Date of hearing: 7, 8, 15, 16, 22 April 2014 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr JJE Fernon SC, Ms E Raper, Mr D Chin Solicitor for the Applicant: Baker & McKenzie Counsel for the First and Second Respondents: Dr CS Ward, Mr A Macauley Solicitor for the First and Second Respondents: Arnold Bloch Leibler Counsel for the Third Respondent: Mr F Parry QC, Mr R Dalton, Mr J Darams Solicitor for the Third Respondent: Herbert Smith Freehills
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 719 of 2012
BETWEEN: FAIR WORK OMBUDSMAN
ApplicantAND: VALUAIR LIMITED (200302952W)
First RespondentTOUR EAST (T.E.T) LTD (31629391)
Second RespondentJETSTAR AIRWAYS PTY LTD (ACN 069 720 243)
Third Respondent
JUDGE:
BUCHANAN J
DATE:
29 APRIL 2014
PLACE:
SYDNEY
REASONS FOR RULING ON EVIDENCE
BUCHANAN J:
For the purpose of the present judgment, which concerns a ruling on evidence made on 15 April 2014, the factual position described briefly hereunder has been derived from the pleadings and the affidavit evidence as filed. This judgment does not state final conclusions about factual matters which remain for debate in the proceedings.
The first and second respondents are each foreign corporations. The first respondent is incorporated in Singapore; the second respondent is incorporated in Thailand. The third respondent is an Australian corporation which operates both international and Australian domestic airline services, under the name “Jetstar”.
The first and second respondents each employ cabin crew who are provided to the third respondent for its international services. The proceedings concern allegations that the first and second respondents breached an Australian award applying to aircraft cabin crew and that the third respondent was (at least) knowingly concerned in those breaches.
The cabin crew employed by the first and second respondents are permanently based in Singapore (in the case of the first respondent) or Bangkok…
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- Case
- [2014] FCA 404
- Decision Date
CaseChat Overview and Summary
The legal question before the court was whether the whole of a document or record containing admissions and self-serving statements should be admitted into evidence, as per the established rule of fairness, or whether only the adverse admissions should be admitted as per the statutory provisions of the Evidence Act. The court examined the statutory language of sections 59, 81, and 87 of the Evidence Act and compared it with the common law rule requiring the admission of the entire statement. The court also considered the principle that the weight to be given to different parts of the statement is a matter for the trier of fact.
The court found that while sections 59 and 81 of the Evidence Act provide exceptions to the hearsay and opinion rules for admissions and related representations, the longstanding practice in criminal trials supports the admission of the whole relevant document or record unless there is agreement to the contrary or exclusions can be made on the ground of relevance. The court held that the statutory provisions do not preclude the application of the common law rule, which mandates the admission of the entire statement, including both admissions and self-serving portions. The court concluded that the trier of fact is entitled to consider the entire statement, with the understanding that the weight to be given to different parts of the statement is a matter for their determination.
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Background
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Evidence
Evidence Before The Court
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