Radisich v CFMEU and Ors (No.3)
[2010] FMCA 178
•16 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADISICH v CFMEU & ORS (No.3) | [2010] FMCA 178 |
| EVIDENCE – Application for documents to be admitted into evidence – documents used to cross-examine own witness under s.38 of the Evidence Act 1995 (Cth) – discretionary considerations. INDUSTRIAL LAW – Civil penalty proceeding. |
| Building and Construction Industry Improvement Act 2005 (Cth), s.52 Evidence Act 1995 (Cth), ss.38(1)(a), 45(1)(a) & (b), (3) and (5), 135(a), 192(2)(b) & (c) |
| Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150 |
| 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: | 9 March 2010 |
| Date of Last Submission: | 9 March 2010 |
| Delivered at: | Perth |
| Delivered on: | 16 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
The applicant’s application for the admission into evidence of the following documents:
(a)MFI 1 – examination under s.52 of the Building and Construction Industry Improvement Act 2005 (Cth) of Glenn Charles Royle; and
(b)
MFI 2 – the statement of Karl Raymond Lammas dated
2 December 2008, given to an investigator of the Office of the Australian Building and Construction Commissioner,
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
(Delivered in Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))
Application
In the course of hearing this matter the Court allowed two applications under s.38(1)(a) of the Evidence Act 1995 (Cth)[1] for the applicant to cross-examine two of its own witnesses, namely:
a)Glenn Charles Royle;[2] and
b)Karl Raymond Lammas.[3]
[1] “Evidence Act”.
[2] See Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150 (“CFMEU”).
[3] Transcript at p.201. The Court indicated that its reasons for allowing the application with respect to Mr Lammas were essentially the same as those in CFMEU, which had been handed down orally earlier that day (3 March 2010), and was later reduced to writing. The parties indicated to the Court that they did not, in the circumstances, require the Reasons for Judgment with respect to Mr Lammas to be reduced to writing.
In both cases leave to cross-examine was limited to cross-examination on particular aspects of a document. In the case of:
a)Mr Royle, that document was the transcript of an examination under s.52 of the Building and Construction Industry Improvement Act 2005 (Cth);[4] and
b)Mr Lammas, a signed written statement provided by him to the Office of the Australian Building and Construction Commission.[5]
[4] “ABCC Hearing Transcript”.
[5] “Written Statement”.
In the case of Mr Royle, the Court ordered that:
1.Leave be granted to the applicant to cross-examine:
(a)Mr Royle under section 38 of the Evidence Act 1995 (Cth); and
(b)limited to cross-examination on the following passages in the Australian Building and Construction Commission transcript of the Examination of Glenn Charles Royle under section 52 of the Building and Construction Industry Improvement Act 2005 dated 30 October 2008:
(i) page 32, lines 10-20;
(ii) page 35, lines 43-45;
(iii) page 37, lines 10-13; and
(iv) page 39, lines 9-11, lines 26-28, lines 39-43.
Mr Royle’s subsequent cross-examination by Counsel for the applicant was composed entirely of positive responses to the questions asked, save for one answer where he sought clarification in relation to the question asked, and another answer where he indicated that it was all written in the ABCC Hearing Transcript, but to which he subsequently gave a positive response to the question when required to answer the question.[6]
[6] See cross-examination of Mr Royle by Counsel for the applicant at Transcript at p.132-134.
Counsel for Mr McDonald, the third respondent, cross-examined
Mr Royle in relation to different pages (pages 16 and 17) of the ABCC Hearing Transcript from those for which leave to cross-examine had been given to the applicant. Again, Mr Royle’s responses to cross-examination questions in this part of the transcript are positive.[7]
[7] See cross-examination of Mr Royle by Counsel for the third respondent at Transcript at p.143-147.
In the case of Mr Lammas, the Court ordered as follows:
2.Leave be granted to the applicant to cross-examine:
(a)Mr Lammas under section 38(1)(a) of the Evidence Act 1995 (Cth); and
(b)limited to cross-examination on the following passages in the Australian Building and Construction Commission Statement of Karl Raymond Lammas dated 2 December 2008:
(i) Mr McDonald’s alleged statement in paragraph 11;
(ii) the first and second sentences of paragraph 13; and
(iii) paragraph 14.
Mr Lammas’ very brief cross-examination by Counsel for the applicant consisted entirely of positive responses to the questions that he was asked in relation to the Written Statement. Mr Lammas was not cross-examined on the contents of the Written Statement by Counsel for the respondents.
The applicant now applies to have the ABCC Hearing Transcript and the Written Statement admitted into evidence.
Applicant’s argument
The applicant acknowledges that whether the two documents are admitted into evidence, in whole or part, is a matter within the Court’s discretion. The applicant argues that the Court can admit the documents on two bases:
a)that in the case of Mr Royle’s ABCC Hearing Transcript, he was cross-examined by Counsel for the third respondent on it as a prior inconsistent statement;[8] and
b)in the case of both Mr Royle’s ABCC Hearing Transcript and Mr Lammas’ Written Statement, they were cross-examined about a previous representation recorded in a document.[9]
[8] Evidence Act, s.45(1)(a).
[9] Evidence Act, s.45(1)(b).
The applicant also submitted that:
a)the two documents ought to be admitted in their entirety, even though most of the content of both documents was not cross-examined on, and the s.38(1)(a) applications which gave rise to the cross-examination were only granted in respect of limited parts of the documents;
b)the Court may make use of those parts of the documents which were not cross-examined on, and place such weight as the Court considers necessary on those other parts, even though there was no indication as to what the relevance or importance of those other parts of the documents might be for the case as a whole;
c)the two documents were admissible by reason of s.45(3) of the Evidence Act; and
d)the discretionary factors were those in ss.135 and 192 of the Evidence Act.
First and second respondents’ argument
The first and second respondents argued that:
a)leave to cross-examine the applicant’s own witnesses was only granted on a limited basis, and there was never a question of an entire document or documents going into evidence or being cross-examined on;
b)the two documents take the matter no further than the oral evidence adduced in respect of them under cross-examination, and the fact that the Court can see in writing what it heard confirmed orally does not add or diminish to the weight of the evidence; and
c)mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.[10]
[10] Evidence Act, s.45(5).
The third respondent submitted that there was no basis for the documents generally to go into evidence, beyond those parts which had been put to the witnesses, which included those parts with respect to which leave had been granted to the applicant to cross-examine its own witness (which are set out above).
Consideration
If the cross-examinations of Mr Royle based on the ABCC Hearing Transcript, and of Mr Lammas based on the Written Statement, are analysed, it becomes apparent that there are a series of questions based on the two documents to which the responses are, almost without exception, positive or affirmative.
In those circumstances the question has to be asked: “What use or purpose will the two documents serve if admitted into evidence?” At least on their face, the answer to this question is “none”, because:
a)the oral answers are consistent with the written text of the two documents;
b)there was nothing identified in the balance of the two documents as being relevant or important to any matter to be considered by the Court; and
c)even though there was cross-examination of Mr Royle by Counsel for the third respondent on a prior inconsistent statement, namely whether he remembered if Union meetings took place after toolbox meetings, it was cross-examination:
i)within a very limited area; and
ii)in relation to which the evidence adduced orally, both from Mr Royle and other witnesses, is sufficient for the Court to make a judgment without the need for the document to be admitted into evidence.
It is therefore unnecessary for the evidence to go in in written form, it having already been adduced orally, in circumstances where the additional written evidence (that is, beyond that adduced orally in cross-examination) in the two documents is not identified as having any particular relevance or importance, and adds nothing to the evidentiary basis on which the Court might make its decision.[11] Given that no relevance or importance was established in the large parts of the two documents that were not cross-examined on, but which it is now sought to have admitted, the Court also considers that were it to then have regard to those matters, that might be unfair to a party if adverse conclusions were to be drawn from that consideration.[12] Furthermore, the Evidence Act contemplates that mere cross-examination on a document does not necessarily require that document to be tendered or admitted into evidence.[13] For those reasons, the application for the two documents to be admitted into evidence will be dismissed.
[11] Evidence Act, s.192(2)(c).
[12] Evidence Act, ss.135(a) and 192(2)(b).
[13] Evidence Act, s.45(5).
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 16 March 2010
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