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

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

Because the related proceedings were subject to parallel orders and joint mediation, trial was unlikely until the second half of the following year, and requiring all proposed employee evidence before the adjourned mediation had limited utility and could impose unnecessary expense. However, Mr Upton was readily available, was said to have been present at relevant meetings, and his evidence was relevant to the second and third respondents' positive case that they discouraged the alleged unlawful strike action; fairness to the applicant required his witness statement to be filed and served before mediation.

Jurisdiction
Australia
Judgment Date
14 October 2010
Procedural Posture
Fair Work Division Proceeding / Notice of Motion by the Second and Third Respondents to Vacate Timetable Orders and List a Directions Hearing Together With WAD 16 of 2010
Outcome
The Court indicated it was minded to grant the notice of motion in a tailored form requiring Mr Upton's evidence to be filed and served, and invited the parties to bring in a minute of consent orders.
Legal Topics
['case Management Directions' 'affidavit Evidence' 'witness Statements' 'mediation' 'penalty Privilege' 'alleged Unlawful Strike Action']
['fair Work' 'civil Procedure'] ['case Management Directions' 'affidavit Evidence' 'witness Statements' 'mediation' 'penalty Privilege' 'alleged Unlawful Strike Action']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Fair Work Division Proceeding / Notice of Motion by the Second and Third Respondents to Vacate Timetable Orders and List a Directions Hearing Together With WAD 16 of 2010

Legal Issues

  1. 1 ['Whether orders 7 and 8 made on 19 August 2010 requiring affidavit evidence and witness statements should be vacated.' 'Whether the matter should be managed together with WAD 16 of 2010, including in light of parallel orders and joint mediation.' 'Whether the second and third respondents should provide witness evidence before the adjourned mediation, particularly from Mr Upton.']

Ratio Decidendi

Because the related proceedings were subject to parallel orders and joint mediation, trial was unlikely until the second half of the following year, and requiring all proposed employee evidence before the adjourned mediation had limited utility and could impose unnecessary expense. However, Mr Upton was readily available, was said to have been present at relevant meetings, and his evidence was relevant to the second and third respondents' positive case that they discouraged the alleged unlawful strike action; fairness to the applicant required his witness statement to be filed and served before mediation.

Court Disposition

The Court indicated it was minded to grant the notice of motion in a tailored form requiring Mr Upton's evidence to be filed and served, and invited the parties to bring in a minute of consent orders.

Orders

  • ['The parties were invited to bring in a minute of consent orders reflecting the reasons.' 'Any order granting the notice of motion would be tailored to require the evidence of Mr Upton to be filed and served within a time to be agreed between the parties.']