Best and Best (No 2)

The applicant sought leave to issue subpoenas to judicial officers of the Family Court of Australia, as well as the respondent's lawyer, her barrister, and a Justice of the Peace. The underlying dispute concerned the father's time with the children, and the applicant wished to question the original trial judge regarding the contents and accuracy of their Reasons for Judgment.

The court was required to determine whether leave should be granted to issue these subpoenas. Specifically, it considered whether a litigant could question a judge about their reasons for judgment in the same way they might question an expert witness, and what evidence a judge could properly give. The court also examined the application of sections 16 and 129 of the *Evidence Act 1995* (Cth), the doctrine of *res judicata*, issue estoppel, and the principles established in *Rice v Asplund*. Furthermore, the court considered the obligations of a lawyer in relation to their client's evidence and the duties of a Justice of the Peace when administering oaths or affirmations.

Aldridge J reasoned that a judge could not be questioned concerning the contents and accuracy of their Reasons for Judgment. This prohibition stems from common law limitations on the evidence a judge can give, section 129 of the *Evidence Act 1995* (Cth), and the principles of issue estoppel and *Rice v Asplund*. Regarding the subpoenas to the respondent's legal representatives and the Justice of the Peace, the court found no obligation on a lawyer to act as a judge of their client's evidence, nor an obligation on a Justice of the Peace to verify the truthfulness of an affidavit beyond administering the oath or affirmation.

Consequently, the application for leave to issue subpoenas to Justice Ryan, Justice Fowler, Linda Margaret Wright, Ms F, and Suzanne Christie was refused.