Martin v Tasmania Development Resources

[1999] FCA 71

FEDERAL COURT OF AUSTRALIA

Martin v Tasmania Development Resources [1999] FCA 71

STEVEN DAVID MARTIN v TASMANIA DEVELOPMENT RESOURCES & ANOR
NO. TG 24 of 1998

HEEREY J
5 FEBRUARY 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	TG 24 of 1998

Martin v Tasmania Development Resources [1999] FCA 71

BETWEEN:

STEVEN DAVID MARTIN
Applicant

AND:

TASMANIA DEVELOPMENT & RESOURCES
First Respondent

JEFFREY NORMAN KELLY
Second Respondent

JUDGE:	HEEREY J
DATE:	5 FEBRUARY 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I have already indicated that I do not propose to make an order that certain persons identified by counsel for the applicant as potential witnesses attend before the applicant’s solicitors for the purposes of interviews and the making of statements.  Such an order would be quite unprecedented in litigation in this country.  It is accepted that persons are not compelled to confer with the solicitors to parties in litigation.  If they do not wish to do so the solicitors may of course subpoena such persons, and the fact that the solicitor does not have the advantage of a previous conference is just one of the hazards of litigation.

2. Counsel then sought an order under O 24.  I am satisfied that no such order should be made.  In the circumstances of this case an order under O 24 would have the same practical effect as the applicant’s counsel has already sought and which I have refused for the reasons given.  Plainly O 24 is designed for circumstances where it is not practical or convenient for a witness to attend court and give evidence in the ordinary way.  The making of an order such as is sought would have the practical effect of introducing an American-style oral deposition.  This would be a fundamental change to the way litigation is conducted in this Court and indeed, all courts in Australia that I am aware of, and if such a change is to be made it should be made by statute.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             5 February 1999

Counsel for the Applicant:	Mr W Ayliffe
Solicitor for the Applicant:	Ayliffe & Ayliffe
Counsel for the Respondent:	Mr P Turner
Solicitor for the Respondent:	Director of Public Prosecutions
Date of Hearing:	5 February 1999
Date of Judgment:	5 February 1999