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
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.
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
Details
AGLC
Martin v Tasmania Development Resources [1999] FCA 71
Case
[1999] FCA 71
Decision Date
CaseChat Overview and Summary
Steven David Martin, the applicant, brought an action against Tasmania Development Resources and Jeffrey Norman Kelly, the respondents, in the Federal Court of Australia. The nature of the dispute involved the applicant seeking an order that certain individuals, identified as potential witnesses, should attend for interviews and the making of statements before the applicant's solicitors. Additionally, the applicant sought an order under O 24 of the Federal Court Rules, which would compel the potential witnesses to provide their statements in a manner similar to an American-style oral deposition.
The primary legal issue before the court was whether it had the authority to compel witnesses to provide statements to the applicant's solicitors outside of the normal court process. The court also needed to determine whether the sought order under O 24 was appropriate and if it would introduce a fundamental change to the way litigation is conducted in Australia, potentially requiring statutory amendment.
Justice Heerey found that compelling witnesses to confer with the applicant's solicitors was unprecedented in Australian litigation, as individuals are not obliged to do so. The court rejected the applicant's request for an order compelling such interviews. Regarding the order under O 24, the court held that it would have the same practical effect as the initial request and would introduce an American-style oral deposition process, which is not the norm in Australian courts. Consequently, Justice Heerey refused to make such an order, stating that any significant change to the litigation process should be enacted by statute rather than through judicial order.
No further orders were made by the court. The decision stood as the applicant's requests were not granted, and the court maintained the traditional approach to witness statements in litigation.