Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153

Federal Court of Australia

Australian Building and Construction Commissioner v Roach (The Melbourne Quarter Case) (Ruling No 1) [2021] FCA 1153 File number(s): VID 23 of 2021

Judgment of: WHEELAHAN J

Date of judgment: 23 September 2021

Catchwords: EVIDENCE – application for leave to cross-examine a witness under s 38(1) of the Evidence Act 1995 (Cth) – proper construction of "evidence given by a witness that is unfavourable to a party" – whether the court should follow the decision of the Victorian Court of Appeal in DPP v Garrett or an earlier first instance decision of the Federal Court of Australia – whether the construction of s 38(1)(a) in DPP v Garrett was obiter – held that the construction adopted in DPP v Garrett was ratio decidendi and that the court should follow the Victorian Court of Appeal – consideration of whether s 38(1)(a) is engaged – consideration of discretionary matters – leave given.

Legislation: Fair Work Act 2009 (Cth) ss 348, 349 Evidence Act 1995 (Cth) ss 38, 192 Evidence Act 2008 (Vic) s 192A

Cases cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Australian Workers' Union v Registered Organisations Commissioner (No 6) [2019] FCA 194 Colonial Mutual Life Assurance Society Ltd v Donnelly (1998) 82 FCR 418 DPP v Garrett [2016] VSCA 31; 257 A Crim R 509 Hadgkiss v Construction, Forestry, Mining and Energy Union [2006] FCA 941; 152 FCR 560 Klewer v Walton [2003] NSWCA 308 Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 R v Abbas [2019] VSC 855 R v Souleyman (1996) 40 NSWLR 712 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; 160 ALR 588