FEDERAL COURT OF AUSTRALIA

CPSU, The Community and Public Sector Union v

Telstra Corporation Ltd

[2001] FCA 564

PRACTICE AND PROCEDURE –

Federal Court of Australia Act 1976 (Cth)  s 30

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and PROFESSIONAL OFFICERS’ ASSOCIATION (VICTORIA) v TELSTRA CORPORATION LIMITED

V 194 of 2000

FINKELSTEIN J

MELBOURNE

14 MAY 2001

SUPPLEMENTARY RULING

1                     On 1 May 2001 I ruled that the applicant unions would not be permitted to cross-examine Mr Cartwright on the “further hearing” of this proceeding that is to take place pursuant to an order of the Full Court.  In that ruling I discussed the difference between s 28(1)(c) and s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), and reached the conclusion that an order under s 28(1)(c) did not produce a new trial.  When analysing the difference between the two paragraphs, I said that it was necessary to construe s 28(1)(f) as if it implicitly empowered the Full Court to grant a new trial on a particular point.  At the time I had not noticed s 30.  That section makes express provision for the grant of a new trial “either generally or on particular issues only”.  The existence of this provision tends to confirm the conclusion that I had reached, though the reasoning would now be a little different.

2                     In passing I note that s 30 also authorises the Full Court in relation to a new trial to impose such conditions on a party and direct such admissions to be made by a party as are just.   The existence of this power would overcome the difficulties identified in the joint judgment in Lynch v Howard (1980) 44 FLR 71. 

Associate:

Dated:              14 May 2001