JEFFREY JOSEPH RADISICH v JOSEPH MCDONALD, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
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
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…
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
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.