Federal Court Revokes Order on Third-Party Evidence

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

Director of the [NAME] v [NAME] (No 2) [2016] FCA 1050 File number: SAD 253 of 2014

Judge: BESANKO J

Date of judgment: 26 August 2016

Cases cited: Director of the [NAME] v [NAME] [2016] FCA 856

Date of hearing: 26 August 2016

Date of publication of reasons: 30 August 2016

Registry: South Australia

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: No Catchwords

Number of paragraphs: 7

Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the Respondents: [redacted]

Solicitor for the Respondents: [redacted]

BETWEEN: DIRECTOR OF THE [NAME] Applicant

AND: [NAME] First Respondent

[NAME] Respondent

[NAME] Respondent

JUDGE: BESANKO J DATE OF ORDER: 26 August 2016

THE COURT ORDERS THAT:

1. Order 2 made on 29 July 2016 be revoked. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J: 1 This is an interlocutory application by the applicant in which he seeks the revocation of an order which I made on 29 July 2016. The order which I made on 29 July 2016 was in the following terms: The applicant file and serve an affidavit of evidence-in-chief of Mr [NAME] within six weeks. 2 That order itself followed an interlocutory application by the applicant which is described in my reasons for judgment on that application: Director of the [NAME] v [NAME] [2016] FCA 856. The difficulties associated with Mr [NAME] evidence in another proceeding are described in those reasons (at [11]). 3 The applicant's interlocutory application is supported by an affidavit of Mr [NAME] sworn on 15 August 2016. Mr [NAME] is a [NAME] with the [NAME]. In his affidavit, Mr [NAME] deposes to the attempts he has made to contact Mr [NAME] and to obtain his cooperation in the preparation of an affidavit. I will not set out all of the details of those matters. It is sufficient to say that Mr [NAME] has indicated to Mr [NAME] that he is not prepared to provide a further affidavit. 4 Mr [APPELLANT] for the applicant candidly told me that without Mr [APPELLANT] evidence, the applicant's case cannot succeed. In essence, the position is this. Mr [APPELLANT] is not prepared to provide an affidavit and the applicant cannot comply with the order. In those circumstances the applicant seeks the revocation of the order and it wishes to subpoena Mr [NAME] and examine him orally at the trial. 5 In my opinion, it is not in the interests of justice for the applicant's case to be defeated by [NAME]'s unwillingness to prepare and swear an affidavit. There is an important public interest in proceedings such as the present not being thwarted by the fact that a third party unrelated to the applicant is not prepared to co-operate. 6 The respondents opposed the application and referred to the matters I identified in paragraph 18 of my earlier reasons. The previous application was not put on the basis of Mr [NAME] unwillingness to provide an affidavit. That is a material difference. The matters I identified in paragraph 18 mean that I may (and I emphasise may) need to fashion a procedure at trial to ensure that the rights of both parties are appropriately protected in circumstances where Mr [NAME] is not prepared to provide an affidavit. 7 It was for these reasons that I revoked the order I made on 29 July 2016. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 30 August 2016