Radisich v CFMEU and Ors (No.3) - [2010] FMCA 178

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…

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 178
Decision Date: 16 March 2010

CaseChat Overview and Summary

Radisich v CFMEU and Ors (No.3) was an application made by the applicant to admit certain documents into evidence in a proceeding involving a dispute between Radisich and the Construction, Forestry, Maritime, Mining and Energy Union and others. The case was heard in the Federal Court of Australia. The primary focus of the application was to admit two specific documents into evidence: (a) MFI 1, which is an examination under section 52 of the Building and Construction Industry Improvement Act 2005 (Cth) of Glenn Charles Royle, and (b) MFI 2, which is a statement of Karl Raymond Lammas dated 2 December 2008, given to an investigator of the Office of the Australian Building and Construction Commissioner.

The court was required to decide whether the documents in question were admissible in evidence under the relevant laws and procedures. The legal issues involved assessing the relevance and admissibility of the documents, considering the statutory framework governing their creation and content, and determining whether any objections to their admission were valid. Specifically, the court needed to consider whether the documents were properly obtained, whether they were hearsay, and whether they met any other criteria for admissibility.

The court, after reviewing the submissions and arguments presented by the parties, found that the application to admit the documents into evidence should be dismissed. The court's reasoning was based on a detailed analysis of the relevant statutory provisions, the nature of the documents, and the objections raised against their admissibility. The court concluded that the documents were either not relevant to the issues in the case, or that their potential prejudicial effect outweighed any probative value they might have had. Consequently, the court dismissed the applicant’s application for the admission of the documents into evidence.

Orders

Orders of the court

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.

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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