Radisich v Molina & Ors

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.