Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210

Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 2) [2021] FCA 1210

The proposed evidence of Mr Roach's normal practice was evidence about his conduct or tendency and was sought to show that he was likely to have acted in a particular way on 20 April 2020, so s 97 of the Evidence Act 1995 (Cth) was engaged. No tendency notice had been given, and the proposed evidence did not have significant probative value because Mr Roach was to give evidence of what actually occurred on the relevant day and evidence of usual practice on other occasions was not likely to be significant or important. In any event, the Court would not dispense with notice under s 100 because the applicant had not been given adequate notice and was likely to suffer prejudice.

Jurisdiction
Australia
Judgment Date
04 October 2021
Procedural Posture
Evidence Ruling in Federal Court Fair Work Division Proceeding / Ruling on Applicant's Objection to Proposed Evidence During Hearing
Outcome
Objection upheld.
Legal Topics
['tendency Evidence' 'evidence of System or Practice' 'significant Probative Value' 'notice Requirement for Tendency Evidence' 'dispensing With Notice']
['evidence' 'employment and Industrial Relations'] ['tendency Evidence' 'evidence of System or Practice' 'significant Probative Value' 'notice Requirement for Tendency Evidence' 'dispensing With Notice']

Case Brief

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Procedural Posture

Evidence Ruling in Federal Court Fair Work Division Proceeding / Ruling on Applicant's Objection to Proposed Evidence During Hearing

Legal Issues

  1. 1 ["Whether proposed evidence of Mr Roach's practices in relation to new workers was tendency evidence engaging s 97 of the Evidence Act 1995 (Cth)." 'Whether the proposed evidence was instead evidence of a system or practice relevant independently of tendency reasoning.' 'Whether the proposed evidence would have significant probative value under s 97(1)(b).' 'Whether the Court should dispense with the notice requirement under s 100 of the Evidence Act 1995 (Cth).']

Ratio Decidendi

The proposed evidence of Mr Roach's normal practice was evidence about his conduct or tendency and was sought to show that he was likely to have acted in a particular way on 20 April 2020, so s 97 of the Evidence Act 1995 (Cth) was engaged. No tendency notice had been given, and the proposed evidence did not have significant probative value because Mr Roach was to give evidence of what actually occurred on the relevant day and evidence of usual practice on other occasions was not likely to be significant or important. In any event, the Court would not dispense with notice under s 100 because the applicant had not been given adequate notice and was likely to suffer prejudice.

Court Disposition

Objection upheld.

Orders

  • ["The applicant's objection to the proposed evidence was upheld."]