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

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v CFMEU & ORS

[2010] FMCA 150

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”.

Building and Construction Industry Improvement Act 2005 (Cth), ss.36, 37, 38, 52(1)(e), 57
Evidence Act 1995 (Cth), ss.38(1)(a), (6)(a) and (b), 135, 192(2)(a), (b), (c), (d) and (e)
Workplace Relations Act 1996 (Cth), ss.420, 494(1)

Mirvac Constructions (WA) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2005-2008

Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
Bonan v Hadgkiss (2006) 160 FCR 10; [2006] FCA 1334
Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418
Hadgkiss v CFMEU (2006) 152 FCR 560; [2006] FCA 941
Klewer v Walton [2003] NSWCA 308
Lewis v Nortex Pty Ltd (In Liq) [2002] NSWSC 237
R v Glasby (2000) 115 A Crim R 465; [2000] NSWCCA 83
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Le [2001] NSWSC 174
R v Lozano (unreported, New South Wales Court of Criminal Appeal, 10 June 1997)
R v Parker [2003] NSWCCA 12
R v Souleyman (1996) 40 NSWLR 712
R v Taylor [2003] NSWCCA 194
R v Velevski (No 2) (1997) 93 A Crim R 420
Radisich v Molina & Ors [2009] FMCA 1121

JD Heydon, Cross on Evidence (7^th Australian Edn), (Chatswood: Lexis Nexis Butterworths, 2004)

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 dates:

2 & 3 March 2010

Date of Last Submission:

3 March 2010

Delivered at:

Perth

Delivered on:

3 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

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.

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…

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 150
Decision Date: 3 March 2010

CaseChat Overview and Summary

The case before the court involved the applicant, Radisich, seeking leave to cross-examine witnesses under section 38 of the Evidence Act 1995 (Cth). The primary focus of the dispute was the interpretation of the term "unfavourable" as it pertains to the evidence given by the witnesses, specifically Mr. Royle, in the context of penalty proceedings. The court's role was to determine whether the evidence provided by the witnesses was indeed unfavourable, neutral, or inconsistent with the case the applicant was presenting. Additionally, the court had to consider the discretionary factors outlined in sections 38(6) and 192(2) of the Evidence Act 1995 (Cth) in granting or denying the application for cross-examination.

The legal issues at hand revolved around the interpretation of the term "unfavourable" and the application of the discretionary powers provided by the Evidence Act. The applicant argued that the evidence provided by Mr. Royle was unfavourable and warranted cross-examination. The court had to carefully examine the nature of the evidence and determine whether it indeed met the criteria for being considered unfavourable. Furthermore, the court had to balance the discretionary considerations to ensure a fair and just outcome in the proceedings.

The court concluded that the evidence provided by Mr. Royle did indeed contain elements that were unfavourable to the applicant's case. This conclusion was based on a detailed analysis of the specific passages in the Australian Building and Construction Commission transcript. The court found that these passages contained information that was not only unfavourable but also inconsistent with the applicant's assertions. Additionally, the discretionary considerations were weighed, and the court determined that allowing the cross-examination was in the interests of justice.

The final orders of the court granted the applicant leave to cross-examine Mr. Royle under section 38 of the Evidence Act. The scope of the cross-examination was limited to specific passages in the transcript that the court had identified as containing unfavourable evidence. This decision was made in the interests of ensuring a fair trial and allowing the applicant to address the inconsistencies in the evidence provided by the witness.

Orders

Orders of the court

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.

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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