Construction, Forestry, Mining and Energy Union v Radisich [2010] FCA 1004

Construction, Forestry, Mining and Energy Union v Radisich [2010] FCA 1004

Leave to appeal was refused because there was no sufficient doubt about the correctness of the primary judge’s order striking out paragraph 28A of the defence. The matters pleaded in para 28A, relating to subsequent events, were not logically or rationally relevant to the causation question as it pertained to the alleged contravention in November/December, and therefore did not amount to a proper defence. The applicant’s right to call evidence as to the workers’ resolve in November/December was preserved; only reliance on subsequent events, as pleaded, was found irrelevant.

Jurisdiction
Australia
Judgment Date
10 September 2010
Procedural Posture
Application for Leave to Appeal / Interlocutory Application – Appeal From Decision Striking Out a Paragraph of Defence
Outcome
Leave to appeal refused
Legal Topics
['interlocutory Appeals' 'striking Out Pleadings' 'industrial Action' 'causation in Procuring Contraventions']
['practice and Procedure' 'industrial Law'] ['interlocutory Appeals' 'striking Out Pleadings' 'industrial Action' 'causation in Procuring Contraventions']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Interlocutory Application – Appeal From Decision Striking Out a Paragraph of Defence

Legal Issues

  1. 1 ['Whether the primary judge erred in striking out paragraph 28A of the defence' 'Whether leave should be granted to appeal the interlocutory decision' 'Whether subsequent industrial action is relevant to causation in the alleged contravention']

Ratio Decidendi

Leave to appeal was refused because there was no sufficient doubt about the correctness of the primary judge’s order striking out paragraph 28A of the defence. The matters pleaded in para 28A, relating to subsequent events, were not logically or rationally relevant to the causation question as it pertained to the alleged contravention in November/December, and therefore did not amount to a proper defence. The applicant’s right to call evidence as to the workers’ resolve in November/December was preserved; only reliance on subsequent events, as pleaded, was found irrelevant.

Court Disposition

Leave to appeal refused

Orders

  • ['Leave to appeal is refused.' "The applicants do pay the respondent's costs of the application."]