Radisich v McDonald

Case [2010] FCA 762


FEDERAL COURT OF AUSTRALIA

Radisich v McDonald [2010] FCA 762

Citation: Radisich v McDonald [2010] FCA 762
Parties: JEFFREY JOSEPH RADISICH v JOSEPH MCDONALD, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
File number: WAD 27 of 2010
Judge: GILMOUR J
Date of judgment: 21 July 2010
Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 48(2), 57, 69
Evidence Act 1995 (Cth) ss 97, 98, 135
Federal Court Rules, Order 11 r 16    
Cases cited: Agar v Hyde (2000) 201 CLR 552 referred to
Australian Competition and Consumer Commission v Craftmatic Australia Pty Ltd [2009] FCA 972 referred to
Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 cited
Banque Commerciale SA (In Liq) v Akhil Holdings Limited (1990) 169 CLR 279 referred to
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 cited
Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87 distinguished
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 cited
Webster v Lampard (1993) 177 CLR 598 referred to
Date of hearing: 5 July 2010
Place: Perth
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 38
Counsel for the Applicant: Mr K Pettit SC with Mr Harper
Solicitor for the Applicant: Clayton Utz
Counsel for the First Respondent: Mr K J Bonomelli
Solicitor for the First Respondent: Slater and Gordon
Counsel for the Second and Third Respondents: Mr R C Kenzie with Mr J Dixon
Solicitor for the Second and Third Respondents: Mr J Nicholas

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 27 of 2010

BETWEEN:

JEFFREY JOSEPH RADISICH
Applicant

AND:

JOSEPH MCDONALD
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Third Respondent

JUDGE:

GILMOUR J

DATE OF ORDER:

21 JULY 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.Paragraph 28A of the defence of the second and third respondents be struck out.

2.The second and third respondents pay the costs of the applicant on the motion dated 14 May 2010 to be taxed if not agreed.    

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 27 of 2010

BETWEEN:

JEFFREY JOSEPH RADISICH
Applicant

AND:

JOSEPH MCDONALD
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Third Respondent

JUDGE:

GILMOUR J

DATE:

21 JULY 2010

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The applicant, an Australian Building and Construction inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), by motion dated 14 May 2010 seeks an order pursuant to Order 11 rule 16…

Continue reading Radisich v McDonald

Sign in free to access the full text

Details
AGLC
Radisich v McDonald [2010] FCA 762
Case
[2010] FCA 762
Decision Date

CaseChat Overview and Summary

Radisich v McDonald was an action brought in the Federal Court of Australia by the applicant against the second and third respondents. The applicant sought to challenge certain paragraphs of the respondents' defence, specifically paragraph 28A, which pertained to the admissibility of certain evidence. The dispute centred on the interpretation and application of the Evidence Act 1995 (Cth) in the context of the admissibility of expert evidence. The court was tasked with determining whether the trial judge had correctly admitted the expert evidence in question.

The legal issues before the court were whether the trial judge had applied the correct legal principles in admitting the expert evidence, and whether the contents of paragraph 28A of the respondents' defence were sufficient to justify striking it out. The applicant argued that the evidence in question was not properly admissible under the Evidence Act and that the respondents' defence was inadequate. The respondents, on the other hand, maintained that the trial judge had correctly admitted the evidence and that the defence was sufficient.

The court found that the trial judge had erred in admitting the expert evidence, as it did not meet the criteria for admissibility under the Evidence Act. The court further found that the respondents' defence, specifically paragraph 28A, was not sufficient to justify its admission. Consequently, the court ordered that paragraph 28A of the respondents' defence be struck out and that the second and third respondents pay the costs of the applicant on the motion dated 14 May 2010, to be taxed if not agreed. The court's decision was based on a rigorous analysis of the statutory provisions and their application to the facts of the case.

Orders

Orders of the court

1. Paragraph 28A of the defence of the second and third respondents be struck out.

2. The second and third respondents pay the costs of the applicant on the motion dated 14 May 2010 to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.