Radisich v CFMEU and Ors (No.2) - [2010] FMCA 156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v CFMEU & ORS (No.2)

[2010] FMCA 156

EVIDENCE – Witness – application to cross-examine own witness under s.38 of the Evidence Act 1995 (Cth) – purpose of s.38 – evidence unfavourable to the party calling the witness – meaning of “unfavourable” – whether evidence unfavourable, neutral or inconsistent – discretionary considerations under ss.38(6) and 192(2) of the Evidence Act 1995 (Cth).

INDUSTRIAL LAW – Penalty proceeding.

WORDS AND PHRASES – “unfavourable”.

Evidence Act 1995 (Cth), ss.38(1)(a) and (6), 135, 192(2)(b)

Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150
Radisich v Molina & Ors [2009] FMCA 1121

Applicant:

JEFFREY RADISICH

First Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Third Respondent:

JOSEPH MCDONALD

File Number:

PEG 167 of 2009

Judgment of:

Lucev FM

Hearing date:

4 March 2010

Date of Last Submission:

4 March 2010

Delivered at:

Perth

Delivered on:

4 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Snaden

Solicitors for the Applicant:

Blake Dawson

Counsel for the First and Second Respondents:

Mr K Bonomelli

Solicitors for the First and Second Respondents:

Construction, Forestry, Mining and Energy Union

Counsel for the Third Respondent:

Mr G MacLean

Solicitors for the Third Respondent:

Gavin MacLean

ORDERS

That the applicant’s application under s.38(1)(a) of the Evidence Act 1995 (Cth) to cross-examine Mr Seth be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 167 of 2009

JEFFREY RADISICH

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Second Respondent

JOSEPH MCDONALD

Third Respondent

REASONS FOR JUDGMENT

(Edited from ex tempore Reasons for Judgment)

Introduction

There is an application before the Court under section 38(1)(a) of the Evidence Act 1995 (Cth),[1] made just prior to lunch today for the applicant to cross-examine one of its own witnesses, Mr Seth. The relevant law and cases are set out and analysed in Radisich v Molina & Ors[2] and in the oral Reasons for Judgment delivered in this case yesterday morning concerning a similar application related to Mr Royle, and those parts of those judgments are adopted here.[3] The general background to this case is also set out in the oral Reasons for Judgment delivered yesterday and those are adopted here.[4]
[1] “Evidence Act”.
[2] [2009] FMCA 1121 especially at paras.13-34 and 36 per Lucev FM (“Molina”).
[3] Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150 at paras.18-22 per Lucev FM (“CFMEU”).
[4] CFMEU at paras.3-11 per Lucev FM.
The transcript of the ABCC Hearing[5] attended by Mr Seth on 4 February 2009 was handed to the Court for the purposes of the application. The Court notes that Mr Seth’s examination was some four-and-a-half months after the event. In his evidence today Mr Seth said that he thinks that his evidence before the ABCC Hearing would have been fresher than evidence he may give…

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: [2010] FMCA 156
Decision Date: 4 March 2010

CaseChat Overview and Summary

The case of Radisich v CFMEU and Ors (No.2) involved a dispute where the applicant sought to cross-examine their own witness under section 38 of the Evidence Act 1995 (Cth). The nature of the dispute was primarily around the interpretation and application of section 38 of the Evidence Act, which governs the circumstances under which a party may apply to cross-examine its own witness. The case was heard in the Federal Court of Australia.

The legal issues the court had to decide centred around the interpretation of the term “unfavourable” as used in section 38 of the Evidence Act. Specifically, the court needed to determine whether the evidence provided by the witness was unfavourable, neutral, or inconsistent with the party's case. Additionally, the court had to consider the discretionary factors under sections 38(6) and 192(2) of the Evidence Act when deciding whether to allow the cross-examination. The court's decision was crucial in setting a precedent for the application of section 38 in future cases.

The court found that the evidence provided by the witness, Mr Seth, was not unfavourable to the party calling him. The court interpreted “unfavourable” to mean evidence that is harmful to the party’s case, rather than merely evidence that is not helpful. Given that Mr Seth's testimony did not harm the applicant’s case and was consistent with it, the application to cross-examine was dismissed. The court also noted that the discretionary factors under sections 38(6) and 192(2) did not support the applicant's case for allowing the cross-examination.

The final orders were that the applicant’s application under section 38(1)(a) of the Evidence Act to cross-examine Mr Seth be dismissed. This decision reinforced the requirement that evidence must be truly detrimental to a party's case for cross-examination to be permissible under section 38.

Orders

Orders of the court

That the applicant’s application under s.38(1)(a) of the Evidence Act 1995 (Cth) to cross-examine Mr Seth be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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