FEDERAL COURT OF AUSTRALIA

Radisich v McDonald (No 2) [2010] FCA 1152

REASONS FOR JUDGMENT

1                                             By notice of motion dated 8 October 2010, the second and third respondents seek orders that orders 7 and 8 of the orders made on 19 August 2010 be vacated and that a directions hearing in this matter be listed together with WAD 16 of 2010.  Order 7 requires the respondents to file and serve any affidavits and serve any witness statements by 4.00 pm on 22 October 2010.  Order 8 requires the applicant to file and serve any affidavits and serve any witness statements in reply by 4.00 pm on 5 November 2010.

2                                             The notice of motion is supported by an affidavit of Justin Michael Nicholas, a solicitor of the second and third respondents sworn on 8 October 2010.  I have had the benefit of lengthy written submissions from the second and third respondents.  The applicant's position is essentially set out in a letter dated 6 October 2010 written by Mr Saul Harben of Clayton Utz, solicitors for the applicant.

3                                             This matter, together with the matter WAD 16 of 2010, which involves a separate applicant, are the subject of a number of parallel orders.  One is that these matters be heard together and that evidence in one be evidence in the other.  Each of the proceedings is also the subject of a mediation order.  An initial joint mediation hearing of the two matters has already occurred.  The joint mediation has been adjourned to a date later this month and it is anticipated that, at the latest, the outcome of the mediation of each matter will be known by the end of November this year. 

4                                             The concern of the respondents is that they do not want to be put to the expense, which may prove unnecessary, of putting on affidavit evidence and witness statements in this matter, where no order has been made in WAD 16 of 2010 for the applicant in that matter to put on any material whatsoever.  They say that the provision of affidavit evidence and witness statements would provide the applicant in WAD 16 of 2010 with an unfair forensic advantage and would also increase the costs to the respondents in having to prepare separate affidavits for each proceeding and marshal such witnesses twice.  For its part, the applicant in this matter complains, perhaps with some justification, that it has complied with the orders made in relation to it to file and serve such affidavits and witness statements upon which it relies and yet now the respondents, at least the second and third respondents, wish to be excused from putting on their material.  None of this concerns the first respondent, Mr Joseph McDonald, because he has taken a penalty privilege position in the proceedings. 

5                                             I indicated to the parties that whatever occurs in relation to the mediation, and in the event that the matters are to proceed to trial, that it is unlikely that the trials of these matters would occur until the second half of next year.  Whilst accepting the force of that, counsel for the applicant, nonetheless, submits that, at least for the purposes of the mediations, the applicant is at a forensic disadvantage in knowing what attitude to take to the mediations without the benefit of affidavits or witness statements from those witnesses which the second and third respondents propose to call, should that be necessary.  One of those witnesses is a Mr Upton, who is apparently an officer of at least one of the second or third respondent unions. 

6                                             Mr Upton is said, in particulars to the defence of the second and third respondents, to have been present at the relevant meeting or meetings pleaded by the applicant in its statement of claim, and is therefore a relevant witness to the positive case asserted by the second and third respondents that they sought actively to discourage the alleged unlawful strike action.  The other witnesses who might be called by the second and third respondents are members of the workforce, as I understand it, of the applicant in WAD 16 of 2010.  Some of these are located in the North‑West, but also the Eastern States.  It seems to me that the utility of having the affidavits or witness statements of those employees is, if not marginal, then not such as to necessarily warrant their evidence being provided prior to the adjourned mediation. 

7                                             However, the position is different in the case of Mr Upton.  He is a witness who is readily available to the second and third respondents and given that the applicant has put on its material, the second and third respondents should put on the witness statement of Mr Upton so as to assist the deliberations of the applicant in this matter at the mediation.  Accordingly, for these reasons, I am minded to grant the notice of motion, but any order that I make will be tailored to require the evidence of Mr Upton to be filed and served within a time that can be, I trust, agreed between the parties.

8                                             I will invite the parties to bring in a minute of consent orders to reflect these reasons. 

Associate:

Dated:         26 October 2010