Radisich v McDonald [2010] FCA 762

Radisich v McDonald [2010] FCA 762

Paragraph 28A was struck out because, even accepting the correctness of its particulars, the later January 2010 industrial action was logically separate and distinct from the pleaded factual contest about whether Mr McDonald and, through him, the Unions were involved in the alleged December Strike. The paragraph raised a false issue, did not disclose reasonable grounds for a defence to the substantive allegations, would prejudice the applicant by requiring contest of that false issue, and would cause unwarranted delay and increased costs.

Jurisdiction
Australia
Judgment Date
21 July 2010
Procedural Posture
Application Alleging Unlawful Industrial Action in Contravention of the Building and Construction Industry Improvement Act 2005 (cth) / Interlocutory Motion by the Applicant Under Order 11 Rule 16 of the Federal Court Rules to Strike Out Paragraph 28 a of the Second and Third Respondents' Defence
Outcome
Applicant's motion granted; paragraph 28A of the defence of the second and third respondents struck out, with costs.
Legal Topics
['unlawful Industrial Action' 'strike Out of Pleadings' 'reasonable Cause of Defence' 'prejudice, Embarrassment or Delay' 'relevance of Pleaded Facts' 'building and Construction Industry Improvement Act 2005 (cth)']
['industrial Law' 'civil Penalty Proceedings' 'civil Procedure' 'evidence'] ['unlawful Industrial Action' 'strike Out of Pleadings' 'reasonable Cause of Defence' 'prejudice, Embarrassment or Delay' 'relevance of Pleaded Facts' 'building and Construction Industry Improvement Act 2005 (cth)']

Case Brief

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Procedural Posture

Application Alleging Unlawful Industrial Action in Contravention of the Building and Construction Industry Improvement Act 2005 (cth) / Interlocutory Motion by the Applicant Under Order 11 Rule 16 of the Federal Court Rules to Strike Out Paragraph 28 a of the Second and Third Respondents' Defence

Legal Issues

  1. 1 ['Whether paragraph 28A of the defence of the second and third respondents should be struck out under Order 11 rule 16 of the Federal Court Rules on the ground that it had a tendency to cause prejudice, embarrassment or delay in the proceeding.' "Whether paragraph 28A disclosed a reasonable cause of defence to the applicant's allegations concerning the December Strike." 'Whether pleaded events concerning later strike action in January 2010 were logically, rationally or probatively relevant to whether the respondents were involved in the alleged contravention concerning strike action on 1 and 2 December 2009.']

Ratio Decidendi

Paragraph 28A was struck out because, even accepting the correctness of its particulars, the later January 2010 industrial action was logically separate and distinct from the pleaded factual contest about whether Mr McDonald and, through him, the Unions were involved in the alleged December Strike. The paragraph raised a false issue, did not disclose reasonable grounds for a defence to the substantive allegations, would prejudice the applicant by requiring contest of that false issue, and would cause unwarranted delay and increased costs.

Court Disposition

Applicant's motion granted; paragraph 28A of the defence of the second and third respondents struck out, with costs.

Orders

  • ['Paragraph 28A of the defence of the second and third respondents be struck out.' 'The second and third respondents pay the costs of the applicant on the motion dated 14 May 2010 to be taxed if not agreed.']