FEDERAL COURT OF AUSTRALIA Director of the Fair Work Building Industry Inspectorate v O'Connor (No 2) [2016] FCA 1050 File number: SAD 253 of 2014 Judge: BESANKO J Date of judgment: 26 August 2016 Cases cited: Director of the Fair Work Building Industry Inspectorate v O'Connor [2016] FCA 856 Date of hearing: 26 August 2016 Date of publication of reasons: 30 August 2016 Registry: South Australia Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 7 Counsel for the Applicant: Mr I Neil SC with Mr M Kelleher Solicitor for the Applicant: Clayton Utz Counsel for the Respondents: Mr M Abbott QC with Mr M Ats Solicitor for the Respondents: Lieschke & Weatherill Lawyers ORDERS SAD 253 of 2014 BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE Applicant AND: JIM O'CONNOR First Respondent JACK MERKX Second Respondent CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Third Respondent JUDGE: BESANKO J DATE OF ORDER: 26 August 2016 THE COURT ORDERS THAT: 1. Order 2 made on 29 July 2016 be revoked. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 This is an interlocutory application by the applicant in which he seeks the revocation of an order which I made on 29 July 2016. The order which I made on 29 July 2016 was in the following terms: The applicant file and serve an affidavit of evidence-in-chief of Mr N Bleasdale within six weeks. 2 That order itself followed an interlocutory application by the applicant which is described in my reasons for judgment on that application: Director of the Fair Work Building Industry Inspectorate v O'Connor [2016] FCA 856. The difficulties associated with Mr Bleasdale's evidence in another proceeding are described in those reasons (at [11]). 3 The applicant's interlocutory application is supported by an affidavit of Mr James Derek Mathers sworn on 15 August 2016. Mr Mathers is a Fair Work Building Industry Inspector with the Fair Work Building Industry Inspectorate. In his affidavit, Mr Mathers deposes to the attempts he has made to contact Mr Bleasdale and to obtain his cooperation in the preparation of an affidavit. I will not set out all of the details of those matters. It is sufficient to say that Mr Bleasdale has indicated to Mr Mathers that he is not prepared to provide a further affidavit. 4 Mr Neil SC for the applicant candidly told me that without Mr Bleasdale's evidence, the applicant's case cannot succeed. In essence, the position is this. Mr Bleasdale is not prepared to provide an affidavit and the applicant cannot comply with the order. In those circumstances the applicant seeks the revocation of the order and it wishes to subpoena Mr Bleasdale and examine him orally at the trial. 5 In my opinion, it is not in the interests of justice for the applicant's case to be defeated by Mr Bleasdale's unwillingness to prepare and swear an affidavit. There is an important public interest in proceedings such as the present not being thwarted by the fact that a third party unrelated to the applicant is not prepared to co-operate. 6 The respondents opposed the application and referred to the matters I identified in paragraph 18 of my earlier reasons. The previous application was not put on the basis of Mr Bleasdale's unwillingness to provide an affidavit. That is a material difference. The matters I identified in paragraph 18 mean that I may (and I emphasise may) need to fashion a procedure at trial to ensure that the rights of both parties are appropriately protected in circumstances where Mr Bleasdale is not prepared to provide an affidavit. 7 It was for these reasons that I revoked the order I made on 29 July 2016. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 30 August 2016