Radisich v CFMEU and Ors (No.2)
[2010] FMCA 156
•4 March 2010
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 today, and that he was careful to tell the truth as he recollected it at the ABCC Hearing. The Court, notwithstanding that evidence, has some reservations about how much better his recollection would be today as opposed to four-and-a-half months after the event, particularly in circumstances where he has not, as he gave evidence, read more than the first page or two of the transcript of the ABCC Hearing and has otherwise only flicked through it.
[5] “ABCC Hearing Transcript”.
The application relates to the following passages of Mr Seth’s ABCC Hearing. They are:
a)a passage where Mr Seth, in the context of questions concerning the position of the shop steward on the Mirvac[6] site,[7] a permanent shop steward at that time being Mr David Simpson,[8] says this:
[6] “Mirvac”.
[7] “Site”.
[8] Whom Mr Seth refers to as “Dave”.
“And so then there was a lot of – this is during the election period and the person that Joe suggested to take Dave’s place was sort of on his side of the election because Dave was on the opposition so that just sort of caused arguments between people voting for either side and then there was just a lot of arguing for a while.”[9]
b)in the context of discussing options with respect to a resolution, apparently, at a meeting which is said to have been conducted by Mr McDonald, Mr Duggan asks at line 25:
“Did he propose any other options?”[10]
and Mr Seth replies:
“Not really, he just said there was, you know, no point in working for three or four hours.”[11]
[9] ABCC Hearing Transcript, page 12, lines 42-45 and page 13, lines 1-2.
[10] ABCC Hearing Transcript, page 14, line 25.
[11] ABCC Hearing Transcript, page 14, lines 27-28.
An application with respect to part of ABCC Hearing Transcript page 11 was ultimately not pursued by the applicant.
Mr Seth gave evidence today that, in the Court’s impression at least, indicates that he has done so thus far – in evidence-in-chief, he is yet to be cross-examined – in an open and unaffected manner, and in a manner which has evinced an intention to do his best to remember what occurred in relation to relevant events and to recount them to the Court.
Mr Seth has given evidence:
a)that Mr McDonald mentioned Noel Washington and the conduct of a march in relation to him;
b)concerning the position of the shop steward:
i)that he was not sure of what the process for the election of a fill-in shop steward was;
ii)that the fill-in shop steward was, apparently, one of the labourers on site;
iii)that he had no idea who suggested the fill-in shop steward for election, and
iv)that, at the time, he was not paying much attention, either at first, or at the time of the shop steward’s discussion;
c)that Mr McDonald left the meeting part or midway through it but, before he did so, he said that the meeting was not official or approved and Mirvac were not paying for the four hours, and he said that that matter was mentioned “not at the end of the meeting”;
d)of what Mr McDonald said would be the consequences, and that the immediate consequence that he identified was that the workers might be sitting in the shed not working and not getting paid;
e)that Mr McDonald left the meeting for about five minutes, came back and said to the workers that they were not being paid for four hours, and that Mr McDonald then:
i)proposed the terms of a resolution to be voted on as to whether the workers would stay at work or go home;
ii)put the vote;
iii)counted or called the show of hands; and
iv)then said words to the effect of “that’s it boys, end of the day” but critically, in terms of the application, Mr McDonald did not really advocate a position. He simply “threw them (that is, the options and the resolution) both out there.”
On the critical issues, those that are relevant and are central to proof of the contraventions, Mr Seth has said much that is favourable to the applicant which goes to proof of the contraventions either directly or in corroboration of some other evidence that the Court has already heard. It is in the context of those particular issues and their overall effect that the question of unfavourableness falls to be considered. In that regard:
a)the applicant clearly had an expectation that Mr Seth would have given evidence of what Mr McDonald said or did in relation to the alleged suggestions with respect to the election of the shop steward and in advocating for one or other of the resolutions allegedly put to the meeting;
b)by not giving the evidence referred to Mr Seth has not come up to the statements in the ABCC Hearing Transcript; and
c)that the evidence now given by him cannot, in the Court’s view, be said to be of significantly less assistance to the applicant in proving its case in relation to, put broadly, the alleged involvement in or organisation of alleged industrial action by the CFMEU, CFMEUW and Mr McDonald, than the evidence that he might have been expected to give.
The evidence with respect to the shop steward is given in the context of what Mr Seth describes as “a big commotion” of which he says “there was a lot”. It was during that commotion that “the person that Joe suggested to take Dave’s place was, sort of, on his side in the election.” It is not apparent to the Court that it was necessarily the case that Mr Seth heard Mr McDonald, or understood from Mr McDonald, that the person – whoever he was, who was standing by or on his side, or the suggestion was made with respect to – was a person who was mentioned directly by Mr McDonald, or whether that is something that Mr Seth heard in the course of the commotion.
With respect to the resolution in relation to working for three or four hours and the evidence in relation to that, the Court is of the view that, whilst that evidence was apparently given to the ABCC Hearing, it does not really take the matter considerably further than the evidence that Mr Seth has already given to the Court today.
As such, the Court is not persuaded that the evidence detracts from the applicant’s case. The evidence has been given, and if anything, as already indicated, it is quite favourable to the applicant. It cannot be said either that it is simply neutral because it is, overall, favourable to the applicant’s case and, unlike the other two s.38 applications which have been made in this case,[12] this is not a situation where there appears to be a substantial lack of relevant recall with respect to the relevant events, either generally, or it might be said, particularly.
[12] A reference to CFMEU cited above, and another s.38(1)(a) application which was granted in relation to the evidence of Mr Lammas.
The Court is therefore of the view that it is not the case that the evidence is unhelpful to the applicant. The Court, therefore, considers that the evidence given by Mr Seth is not unfavourable to the applicant, and the application ought to fail.
The Court would also, were it required to do so, dismiss the application in the exercise of the discretion under s.192(2)(b) of the Evidence Act on the basis that the not inconsiderable delay between the events and the examination means that the recollection of the witness was being tested by the ABCC examiners some not inconsiderable time after the events and, in those circumstances, the Court would not be satisfied that Mr Seth’s recollection of those events would necessarily be accurate after such a delay.
Mr Seth’s evidence may have been fresher than it is today, but in the Court’s view it might simply end up having before it two versions of events which are more or less accurate, as the case may be. In those circumstances, were it necessary to do so, the Court would exercise the discretion under s.192(2)(b) of the Evidence Act to dismiss the application as well.
The discretions under ss.38(6) and 135 of the Evidence Act do not arise.
For the above reasons, the application to cross-examine Mr Seth is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 9 March 2010
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