Radisich v McDonald (No 2)

The case of Radisich v McDonald (No 2) before the Fair Work Division of the Federal Court of Australia involved a dispute between Jeffrey Joseph Radisich and Joseph McDonald, the Construction, Forestry, Mining & Energy Union, and the Construction, Forestry, Mining & Energy Union of Workers. The matter was brought before the court to determine whether certain orders made on 19 August 2010 should be vacated and if a directions hearing should be listed together with another matter, WAD 16 of 2010.

The legal issues before the court included whether the second and third respondents should be required to file and serve affidavits and witness statements, and if the applicant should file and serve affidavits and witness statements in reply. The second and third respondents argued that they should not be required to put on any material as it may prove unnecessary and could provide an unfair forensic advantage to the applicant in WAD 16 of 2010. They also highlighted the increased costs of preparing separate affidavits for each proceeding and marshaling witnesses twice. The applicant, on the other hand, argued that they had already complied with the orders to file and serve such material and that it was necessary for them to know the attitude to take to the mediations without the benefit of affidavits or witness statements from the second and third respondents' witnesses.

The court, in considering the matter, highlighted that the utility of having the affidavits or witness statements of certain employees was not such as to necessarily warrant their evidence being provided prior to the adjourned mediation. However, in the case of Mr Upton, a witness who was readily available to the second and third respondents, the court found that his evidence should be filed and served to assist the deliberations of the applicant at the mediation. Justice Gilmour granted the notice of motion but tailored the order to require the evidence of Mr Upton to be filed and served within a time that could be agreed upon by the parties. The parties were invited to bring in a minute of consent orders to reflect these reasons.

In conclusion, the court determined that the second and third respondents should provide the witness statement of Mr Upton, but did not require the filing and serving of affidavits or witness statements from other witnesses at that time. The court's decision was aimed at balancing the interests of the parties, ensuring fairness in the mediation process, and avoiding unnecessary costs.