Temple v Powell (No 1)

Case [2007] FCA 987

FEDERAL COURT OF AUSTRALIA

Temple v Powell (No 1) [2007] FCA 987 

EVIDENCE  - mode of evidence at trial – civil penalty proceedings – whether affidavit evidence exhibiting transcripts of interview and statements given to investigators may be received – unsatisfactory form of some proposed evidence – discretionary questions – civil penalty proceedings – critical evidence of oral statements and conversations by union officials – evidence directed to be given on affidavit – affidavits to indicate time, place and nature of critical oral conversations – evidence of content of oral conversations  and statements to be adduced orally in chief – annexure to affidavits of previous witness statements or interviews with investigators not permitted in exercise of discretion  

Building and Construction Industry Improvement Act 2005(Cth)
Workplace Relations Act 1996 (Cth)
Industrial Relations Act 1979 (WA)

Briginshaw v Briginshaw (1938) 60 CLR 336 cited
Australian Securities and Investments Commission v Vines Z(2003) 21 ACLC 159 cited
A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247 cited
Platcher v Joseph [2004] FCAFC 68 cited
Alfred v Lanscar [2007] FCA 833 cited

MARK TEMPLE v MICHAEL POWELL, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS, JOE MCDONALD AND CONSTRUCTION, FORESTRY MINING AND ENERGY UNION
WAD 347 OF 2006

FRENCH J
2 JULY 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 347 OF 2006

BETWEEN:

MARK TEMPLE
Applicant

AND:

MICHAEL POWELL
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Respondent

JOE MCDONALD
Third Respondent

CONSTRUCTION, FORESTRY MINING AND ENERGY UNION
Fourth Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

2 JULY 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The parties may adduce evidence-in-chief at trial by way of affidavit subject to the usual rights of cross-examination provided that evidence of oral statements made by the first or third respondents and conversations in which they participated shall be adduced orally in chief.

2.The preceding direction does not prevent the inclusion in the affidavit of the time and place of such statements or conversations and their subject matter without going to their content.

3.In the event that any proposed witness is unwilling or unable to provide an affidavit, the evidence of such witness may be adduced orally in its entirety.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 347 OF 2006

BETWEEN:

MARK TEMPLE
Applicant

AND:

MICHAEL POWELL
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Respondent

JOE MCDONALD
Third Respondent

CONSTRUCTION, FORESTRY MINING AND ENERGY UNION
Fourth Respondent

JUDGE:

FRENCH J

DATE:

2 JULY 2007

PLACE:

PERTH

REASONS FOR RULINGS IN RELATION TO USE OF AFFIDAVITS EXHIBITING OUT OF COURT STATEMENTS

  1. These proceedings were instituted on 30 November 2006 by Mark Temple an inspector appointed under the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). The first respondent is Michael Powell who is an…

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Details
AGLC
Temple v Powell (No 1) [2007] FCA 987
Case
[2007] FCA 987
Decision Date

CaseChat Overview and Summary

In Temple v Powell (No 1), the plaintiffs sought damages for defamation and loss of income from the defendants, who are journalists and a publishing company. The dispute arose from articles published in a newspaper, which the plaintiffs claim were defamatory and caused them financial harm. The case was heard in the Federal Court of Australia.

The legal issues before the court included the admissibility of evidence in the form of affidavits and the appropriate procedure for presenting oral statements and conversations in defamation cases. The court had to determine whether the defendants' oral statements and conversations could be included in the affidavits, and if so, under what conditions. Additionally, the court needed to address the balance between the plaintiffs' right to a fair trial and the defendants' right to protect their sources.

The court ruled that while affidavits could be used for evidence-in-chief, oral statements and conversations related to the defendants must be presented orally in court to allow for proper cross-examination. The court held that the plaintiffs could still include the time, place, and subject matter of these statements and conversations in their affidavits, without disclosing the content. This decision aimed to ensure a fair trial while respecting journalistic practices and the confidentiality of sources. The court's ruling provided clear guidelines for the presentation of evidence in defamation cases involving oral statements and conversations.

Orders

Orders of the court

1. The parties may adduce evidence-in-chief at trial by way of affidavit subject to the usual rights of cross-examination provided that evidence of oral statements made by the first or third respondents and conversations in which they participated shall be adduced orally in chief.

2. The preceding direction does not prevent the inclusion in the affidavit of the time and place of such statements or conversations and their subject matter without going to their content.

3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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