Ponzio v Multiplex Limited (ACN 008 687 063) - [2005] FCA 522

FEDERAL COURT OF AUSTRALIA
Ponzio v Multiplex Limited (ACN 008 687 063) [2005] FCA 522
GARY PONZIO v MULTIPLEX LIMITED (ACN 008 687 063)
VID 381 of 2004
RYAN J
3 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 381 of 2004

BETWEEN:

GARY PONZIO
Applicant

AND:

MULTIPLEX LIMITED (ACN 008 687 063)
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

3 MAY 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. Paragraphs 2, 3 and 4 of the Orders of Ryan J of 28 May 2004 be set aside.
2.The applicant file and serve by 20 May 2005 any affidavit or affidavits, in addition to those already filed, on which he intends to rely in support of his application.
3.The respondent file and serve by 10 June 2005 a statement of contentions in respect of any parts of the applicant’s evidence referred to in paragraph 2 above which it contends to be inadmissible, together with any affidavit or affidavits on which it intends to rely in support of its said contentions.
4.The trial of the application herein be fixed to commence on 29 August 2005 and proceed, if necessary, for the whole of the week commencing on that day.
5.There be a directions hearing on a date to be fixed being after 10 June, and before 12 August, 2005.
6.The costs of both parties of respondent’s motion on notice dated 24 August 2004 be reserved.

7. The said motion on notice dated 24 August 2004 be otherwise dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 381 of 2004

BETWEEN:

GARY PONZIO
Applicant

AND:

MULTIPLEX LIMITED (ACN 008 687 063)
Respondent

JUDGE:

RYAN J

DATE:

3 MAY 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
Background

An application was made under s 170NC of the Workplace Relations Act 1996 (Cth) (“the Act”) seeking relief from the respondent, Multiplex Limited (“Multiplex”), in relation to a claim that Multiplex took action with intent to coerce No Bolt Operations Pty Ltd (“No Bolt”) into entering into a certified agreement. Whether the applicant is entitled to the relief that he seeks still awaits determination.
The question presently requiring resolution arises from a notice of motion filed on behalf of Multiplex seeking orders pursuant to O 29 r 2 of the Rules of this Court for the determination separately from, and before, any other issue in the proceeding, of certain questions going to the admissibility of passages of evidence contained in affidavits filed on behalf of the applicant.
It is submitted on behalf of Multiplex that, in the exercise of the Court’s discretion under s 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”), the applicant should be precluded from relying on those passages. The passages in question are directed to conversations and interviews and all written and taped records of such interviews between Mr Tolly Baharis, an employee of No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 522
Decision Date: 3 MAY 2005

CaseChat Overview and Summary

The case involves a legal dispute between Ponzio and Multiplex Limited (ACN 008 687 063). The primary focus of the litigation is the admissibility of certain evidence presented by Ponzio. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining whether specific parts of Ponzio's evidence should be excluded from the trial due to contentions raised by Multiplex.

The legal issues before the court centred around the admissibility of evidence in the trial. Multiplex argued that certain parts of Ponzio's evidence were inadmissible and sought to have these parts excluded prior to the trial. The court needed to assess the validity of these arguments and decide whether to allow the evidence or not. Additionally, the court had to consider the procedural aspects of the case, including the appropriate timing and method for presenting and responding to evidence.

In its ruling, the court decided to set aside specific paragraphs of a previous order and allow Multiplex the opportunity to challenge the admissibility of certain parts of Ponzio's evidence during the trial itself. The court believed this approach would be more appropriate and efficient. The court also set out a timeline for the filing and serving of additional affidavits and contentions. Furthermore, the court fixed the trial date and scheduled a directions hearing to ensure all procedural matters were addressed before the trial commenced.

The court made several orders to manage the proceedings effectively. It set aside specific paragraphs of the previous order, required both parties to file additional affidavits by specified dates, and fixed the trial date. The court also mandated a directions hearing to be held before the trial and reserved the costs of a previous motion. The motion itself was dismissed, but the costs were left pending to be decided later in the proceedings.

Orders

Orders of the court

1. Paragraphs 2, 3 and 4 of the Orders of Ryan J of 28 May 2004 be set aside.

2. The applicant file and serve by 20 May 2005 any affidavit or affidavits, in addition to those already filed, on which he intends to rely in support of his application.

3. The respondent file and serve by 10 June 2005 a statement of contentions in respect of any parts of the applicant’s evidence referred to in paragraph 2 above which it contends to be inadmissible, together with any affidavit or affidavits on which it intends to rely in support of its said contentions.

4. The trial of the application herein be fixed to commence on 29 August 2005 and proceed, if necessary, for the whole of the week commencing on that day.

5. There be a directions hearing on a date to be fixed being after 10 June, and before 12 August, 2005.

6. The costs of both parties of respondent’s motion on notice dated 24 August 2004 be reserved.

7. The said motion on notice dated 24 August 2004 be otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RYAN J

In the circumstances, I consider it appropriate to revoke paragraphs 2, 3 and 4 of the order of 28 May 2004 and to afford Multiplex an opportunity, in the course of the trial of the action, before adducing its own evidence by way of substantive defence, to obtain a ruling on the admissibility of the impugned parts of the applicant’s evidence.Conclusion In the result, I shall order that:1. Paragraphs 2, 3 and 4 of my order of 28 May 2004 be set aside.2.The applicant file and serve by 20 May 2005 any affidavit or affidavits, in addition to those already filed, on which he intends to rely in support of his application.3.The respondent file and serve by 10 June 2005 a statement of contentions in respect of any parts of the applicant’s evidence referred to in paragraph 2 above which it contends to be inadmissible, together with any affidavit or affidavits on which it intends to rely in support of its said contentions. I propose to direct that the trial to which I have referred in [43] above commence on 29 August 2005 and proceed, if necessary, for the whole of the week commencing on that day. There should be a directions hearing on a date to be fixed, being after 10 June and before 12 August 2005, to ensure that the trial, including the dispute as to admissibility of the applicant’s evidence, will be ready to proceed on 29 August 2005. The costs of both parties of Multiplex’s motion on notice dated 24 August 2004 should be reserved and that motion should otherwise be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: RYAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 381 of 2004

BETWEEN:	GARY PONZIO Applicant
AND:	MULTIPLEX LIMITED (ACN 008 687 063) Respondent
JUDGE:	RYAN J
DATE OF ORDER:	3 MAY 2005
WHERE MADE:	MELBOURNE

JUDGE:	RYAN J
DATE:	3 MAY 2005
PLACE:	MELBOURNE