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Radisich v Molina & Ors

Radisich v Molina & Ors

Case [2009] FMCA 1121 4 November 2009

Admissibility of Evidence

Civil Penalty

Evidence Law

Industrial Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

RADISICH v MOLINA & ORS

[2009] FMCA 1121

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 neutral or inconsistent – discretionary considerations under ss.38(6) and 192(2) of the Evidence Act 1995 (Cth).

INDUSTRIAL LAW – Civil penalty proceedings.

WORDS AND PHRASES – “unfavourable”.

Building and Construction Industry Improvement Act 2005 (Cth) s.59(5)(c)
Evidence Act 1995 (Cth), ss.38(1)(a), (b) & (c), 38(6), 135, 192(2)
Workplace Relations Act 1996 (Cth), ss.167, 789(1)(a), 790(1)(a)(i)

Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418
Glasby (2000) 115 A Crim R465; [2000] NSWCCA 83
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 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
Velevski (No 2) (1997) 93 A Crim R 420

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

Applicant:

JEFFREY JOSEPH RADISICH

First Respondent:

WALTER VINICIO MOLINA

Second Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Third Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File Number:

PEG 125 of 2009

Judgment of:

Lucev FM

Hearing date:

4 November 2009

Date of Last Submission:

4 November 2009

Delivered at:

Perth

Delivered on:

4 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr R L Hooker

Solicitors for the Applicant:

Lavan Legal

Counsel for the First Respondent:

Mr G MacLean

Solicitors for the First Respondent:

Gavin MacLean

Counsel for the Second and Third Respondents:

Mr J Nicholas

Solicitors for the Second and Third Respondents:

Construction Forestry Mining and Energy Union

ORDERS

Leave is granted to the applicant to cross-examine Bradley Stephen Douthie pursuant to s.38 of the Evidence Act1995 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 125 of 2009

JEFFREY JOSEPH RADISICH

Applicant

And

WALTER VINICIO MOLINA

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Third Respondent

REASONS FOR JUDGMENT

(Ex tempore revised from the Transcript)

The application

After lunch yesterday, which was the first day of this hearing, the applicant called its fourth and final witness, Bradley Stephen Douthie. Mr Douthie had been giving oral evidence-in-chief for about

20 minutes when the applicant made an application to cross-examine him. That application was made under s.38 of the Evidence Act 1995 (Cth)[1] and the Court had the benefit of submissions on the application yesterday afternoon and this morning, from the applicant and each of the respondents.

Section 38 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.

Continue reading Radisich v Molina & Ors

Details

AGLC: Radisich v Molina & Ors [2009] FMCA 1121
Case: [2009] FMCA 1121
Decision Date: 4 November 2009

CaseChat Overview and Summary

In the case of Radisich v Molina & Ors, the applicant, Radisich, sought leave to cross-examine one of their own witnesses, Bradley Stephen Douthie, under section 38 of the Evidence Act 1995 (Cth). The proceedings were civil penalty proceedings, and the Federal Court was tasked with determining whether the applicant could cross-examine their own witness and, if so, under what circumstances.

The primary legal issue before the court was the interpretation of the term "unfavourable" in section 38 of the Evidence Act 1995 (Cth) and the discretionary considerations outlined in sections 38(6) and 192(2) of the Act. The court had to decide whether the evidence provided by the witness was unfavourable to the party calling the witness, and if so, whether it was neutral or inconsistent, and what factors should be considered in exercising the discretion to allow cross-examination.

The court found that the evidence provided by Douthie was indeed unfavourable to the applicant, as it was inconsistent with the applicant's case. The court further determined that the evidence was not neutral but rather inconsistent. The discretionary considerations outlined in sections 38(6) and 192(2) of the Act were also taken into account, including the importance of the evidence, the availability of alternative means to obtain the evidence, and the potential prejudice to the opposing party. The court concluded that these factors supported granting the application for cross-examination.

The Federal Court granted the applicant leave to cross-examine Bradley Stephen Douthie pursuant to section 38 of the Evidence Act 1995 (Cth). The court's decision was based on the finding that the evidence provided by Douthie was unfavourable and inconsistent with the applicant's case, and that the discretionary considerations supported allowing the cross-examination.

Orders

Orders of the court

Leave is granted to the applicant to cross-examine Bradley Stephen Douthie pursuant to s.38 of the Evidence Act 1995 (Cth).

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.

Citations

AGLC Citation

Radisich v Molina & Ors [2009] FMCA 1121

Most Recent Citation

R v SH, MV and KC [2011] ACTSC 198

Cases citing this decision · 6 of 6 shown

R v Salcedo; R v Stretton
[2018] ACTSC 96 Para 14

…v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen & Ors [2004] NSWSC 1298 (at [49])and Lee v The Queen […
Radisich v Molina and Ors (No.3)
[2012] FMCA 419 Para 1

…olina & Ors [2009] FMCA 1121. [30] Citing Molina (No. 2) at para.44 per Lucev FM. [31] Citing Molina (No. 2) at paras.96-97 per Lucev FM.…
R v SH, MV and KC
[2011] ACTSC 198 Para 12

…v White (2003) 140 A Crim R 63 (at 72; [56]); R v Fowler [2000] NSWCCA 142 (at [12]); R v Taylor [2003] NSWCCA 194 (at [14]); Radisich v Molina & Ors [2009] FMCA 1121 (at [34]); DPP v McRae (at [24]); R v Anyang (Ruling No 1) [2011] VSC 31 (at [10]) ; R v Ronen & Ors [2004] NSWSC 1298 (at [49]) and Lee v The Queen…
Radisich v Molina & Ors (No.2)
[2011] FMCA 66 Para 13

…nd that, and that’s it, yeah. [45] [42] “ Evidence Act ”. See Radisich v Molina & Ors [2009] FMCA 1121. [43] “ROI”. [44] Exhibit A3. Also admitted into evidence was a short statement signed on 3 April 2008 by Mr Douthie that the ROI was true to the best of his knowledge and belief: Exhibit A4. [45] ROI, paras.49-54…
Radisich v CFMEU and Ors (No.2)
[2010] FMCA 156 Para 1

…ground to this case is also set out in the oral Reasons for Judgment delivered yesterday and those are adopted here.[4] [1] “ Evidence Act ”. [2] [2009] FMCA 1121 especially at paras.13-34 and 36 per Lucev FM (“ Molina ”). [3] Radisich v Construction, Forestry, Mining and Energy Union & Ors [2010] FMCA 150 at paras…
Radisich v Construction, Forestry, Mining and Energy Union & Ors
[2010] FMCA 150 Para 1

…ned by a party calling the witness. [28] The underlying purpose is to be considered when determining the outcome of this application. [29] [25] [2009] FMCA 1121 (“ Molina ”). [26] R v Parker [2003] NSWCCA 12 at para.83, per Ipp J (“ Parker ”). [28] R v Lozano (unreported, New South Wales Court of Criminal Appeal, 1…

View all 6 citing cases →

Cases cited in this decision · 13 of 13 shown

Hadgkiss v Construction, Forestry, Mining and Energy Union
[2006] FCA 941

…l Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Glasby (2000) 115 A Crim R465; [2000] NSWCCA 83 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 Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v Le [2001] N…
James v Nolmont Pty Ltd (subject to a Deed of Company Arrangement) ACN 010 874 834
[2006] FCA 491 Para 8

…do not think that “unfavourable” should be construed as suggested by Smart J as simply “not favourable”. [30] [29] (2006) 152 FCR 560; [2006] FCA 491 (“ Hadgkiss ”). [30] Hadgkiss FCR at 562 per Graham J, FCA at para.9 per Graham J.…
R v Taylor
[2003] NSWCCA 194 Para 2

…uth Wales Court of Criminal Appeal had accepted the correctness of the Souleyman analysis in a number of cases, which were then set out.[21] [20] [2003] NSWCCA 194 (“ Taylor ”). [21] Taylor at para.74 per Bell J.…
Klewer v Walton
[2003] NSWCA 308 Para 9

…ract from the case of the party calling the witness. I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in Klewer v Walton [2003] NSWCA 308 at [20] and [30], where his Honour expressed the view that evidence which was simply “neutral” did not come within the word “unfavourable”, as used i…
R v Parkes
[2003] NSWCCA 12 Para 1

…denied evidence as to any relevant issue and not to be denied the opportunity for that evidence to be appropriately tested. [9] [8] R v Parker [2003] NSWCCA 12 at para.83, per Ipp J (“ Parker ”). [9] R v Le [2001] NSWSC 174 at para.15 per McClelland J (“ Le ”).…
Lewis v Nortex Pty Ltd (In liq)
[2002] NSWSC 237 Para 4

…m as if cross-examining him at least if he denied making or failed to concede the statement deposed to by Mr Lamb in his affidavit. [26] [22] [2002] NSWSC 237 (“ Nortex ”). [23] Nortex at para.3 per Hamilton J. [24] Nortex at para.8 per Hamilton J. [25] Nortex at para.8 per Hamilton J. [26] Nortex at para.8 per Ham…
Adam v The Queen
[2001] HCA 57 Para 6

…e evidence,” is to give evidence “unfavourable” to that party. [17] [17] (2001) 207 CLR 96 at 106 per Gleeson CJ, McHugh, Kirby and Hayne JJ; [2001] HCA 57 at para.27 per Gleeson CJ, McHugh, Kirby and Hayne JJ (“ Adam ”).…
R v Le
[2001] NSWSC 174 Para 1

…pportunity for that evidence to be appropriately tested. [9] [8] R v Parker [2003] NSWCCA 12 at para.83, per Ipp J (“ Parker ”). [9] R v Le [2001] NSWSC 174 at para.15 per McClelland J (“ Le ”).…
R v Glasby
[2000] NSWCCA 83

…m v The Queen (2001) 207 CLR 96; [2001] HCA 57 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 Glasby (2000) 115 A Crim R465; [2000] NSWCCA 83 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 Kneebone (1…
R v Kneebone
[1999] NSWCCA 279

…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 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 (19…
Colonial Mutual Life Assurance Society Ltd v Donnelly
[1998] FCA 364 Para 2

…n Edn), (Chatswood: Lexis Nexis Butterworths, 2004), para.17-405 (“Cross on Evidence”); Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 at 430 per Wilcox, O’Connor and Sackville JJ (“ Colonial Mutual Life Assurance ”).…
Greenough v Eccles
(1859) 2 CB(NS) 786 Para 5

…he application of the section still to be resolved. Interestingly, as a mater of history, the notion of unfavourability was considered by Willes J in Greenough v Eccles (1859)5 CB NS 786 at 805 141 ER 315 at 323 in the context of the then newly enacted s 22 of the Common Law Procedure Act 1854 (UK), the ancestor of s 53. Th…
Greenough v Eccles
141 ER 315 Para 5

…solved. Interestingly, as a mater of history, the notion of unfavourability was considered by Willes J in Greenough v Eccles (1859)5 CB NS 786 at 805 141 ER 315 at 323 in the context of the then newly enacted s 22 of the Common Law Procedure Act 1854 (UK), the ancestor of s 53. That decision became the semina…

Legislation cited in this decision · 5

Workplace Relations Act 1996 (Cth)
167, 789(1)(a), 790(1)(a)(i) 4 mentions (from Para 1)
Evidence Act 1995 (Cth)
38(1)(a) 2 mentions (from Para 1)
Building and Construction Industry Improvement Act 2005 (Cth)
59(5)(c) 1 mention (from Para 10)
Common Law Procedure Act 1854 c.125
1 mention (from Para 5)
Minister for Immigration and Citizenship v Kumar
1 mention (from Para 5)