Australian Competition and Consumer Commission v FFE Building Services Ltd

In the case of Australian Competition and Consumer Commission v FFE Building Services Ltd, the court was called upon to decide whether it should direct the pre-trial service of witness statements by natural persons. This matter was considered by the Court of Appeal, specifically Phillips JA, who reviewed the decision made by the primary judge. The appellants, FFE Building Services Ltd, contested the requirement to provide pre-trial witness statements, arguing that it violated their right to remain silent and that the order was not justified by any specific evidence of prejudice.

The legal issue at hand was whether the Court should direct the pre-trial service of witness statements by natural persons in a proceeding where the plaintiff seeks to establish guilt of offences and recover penalties by way of punishment. The Court of Appeal needed to determine whether the order for pre-trial disclosure of witness statements was justified and whether it infringed upon the appellants' rights. The Court also needed to consider the difference between compelling production of documents and information versus regulating the manner in which information may be provided if a party chooses to do so.

Phillips JA concluded that the primary judge's reasons for ordering the pre-trial service of witness statements were sufficient. The Court held that the order did not compel the appellants to provide evidence but rather regulated the timing of the disclosure of evidence if they chose to provide it. The Court distinguished this from orders for discovery or interrogatories, which compel the production of documents and information. The Court further held that the order was justified in this case as the pleadings had closed, further and better particulars had been provided, and the plaintiff's witness statements had already been delivered to all defendants. The Court of Appeal was not persuaded that there was any material error in the primary judge's decision and upheld the order for pre-trial service of witness statements.

The Court of Appeal upheld the primary judge's decision and dismissed the appeal by FFE Building Services Ltd. The appellants were required to file and serve witness statements if they chose to give or adduce evidence, but only in respect of evidence that they chose to lead. The order was concerned with the timing of the disclosure of that evidence rather than its provision. The Court found that the order was justified and did not infringe upon the appellants' rights, as it did not compel them to provide evidence but merely regulated the manner in which they could do so if they chose to provide it.