Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941

FEDERAL COURT OF AUSTRALIA

Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941 EVIDENCE – application to question a witness called on subpoena ad test as though cross-examining him under s 38(1)(a), 38(1)(b) and/or 38(1)(c) of the Evidence Act – meaning of 'unfavourable' in s 38(1)(a) – permitted scope of questioning as though cross-examining under s 38(1)(c) where there has been a prior inconsistent statement made by the witness. Held: in the exercise of the Court's discretion leave should be granted under s 38(1)(c) on the facts of the case. Evidence Act 1995 (Cth) ss 38(1), 38(3), 192(2) Workplace Relations Act 1996 (Cth) ss 170NC, 298S and 298SC R v Le (2002) 54 NSWLR 474 cited R v Souleyman (1996) 40 NSWLR 712 not followed R v Lozano, unreported, NSWCCA, 10 June 1997 R v Glasby (2000) 115 A Crim R 465 R v Taylor [2003] NSWCCA 194 Klewer v Walton [2003] NSWCA 308 cited Adam v The Queen (2001) 207 CLR 96 referred to HADGKISS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS NSD 1259 OF 2005 GRAHAM J 24 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1259 OF 2005

BETWEEN: NIGEL CLIVE HADGKISS

Applicant

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

Second Respondent

EDMOND CASPER

Third Respondent

MICHAEL LANE

Fourth Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 24 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to the applicant to question Glenn David Suter as though the applicant were cross-examining him in accordance with s 38(1)(c) of the Evidence Act 1995 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA