Our civil system for determining disputes contemplates that each party to the proceeding will marshall the evidence that the party intends to lead to either establish the action or cause, or to defend the allegations. To better secure an open adversary system there are certain fundamental principles to which we adhere when dealing with witnesses of fact. These are:
- there is no property in a witness of fact;1
- either side to a proceeding can approach a person thought to be able to give relevant evidence as to the matters in dispute, and it is for that person to determine the extent to which he/she will cooperate in providing information prior to the hearing;2
- there is no obligation on a person possessing information relevant to litigation to disclose it otherwise than in accordance with a direction of the court;3
- no potential witness is obliged to give a statement prior to trial to the solicitor for any party to the litigation;4
- if no statement is given, the only course open to the parties to the litigation is to have that person called to the witness box, pursuant to a subpoena if necessary;5
- a potential witness may, of course, provide a statement to each side in the litigation - there is no obligation on the witness to do so, it is a matter of free choice;6
- a potential witness may inform the solicitor for the other party to the proceeding what has been told to the other solicitor; and7
- the mere fact that a potential witness has given a statement to one side does not mean that they are prevented from telling either the world at large or the other side what information he/she has provided.8
These principles arise ‘because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth’.9
We are not obliged to disclose to an opponent the existence of a witness who could assist the opponent’s case as against our own client.10 But we cannot ‘prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings’.11 We will not breach rule 23.1 Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) simply by telling a prospective witness or a witness that they need not agree to confer or to be interviewed, or by advising about relevant obligations of confidentiality.12
As noted in Deacon v Australian Capital Territory,13 a solicitor ‘whilst not permitted to obstruct or hinder or dissuade a witness from coming forward or cooperating with enquiries, would not be acting unlawfully merely by advising the witness that he or she is not obliged to come forward or respond to enquiries’14 unless the prospective witness or witness is required by statute or court order to do so.
A person who has information that may be of relevance to a proceeding is not obliged to confer with us. If the prospective witness or witness chooses not to assist then we should respect that decision.
In re Disciplinary Action against Dvorak,15 an attorney was held to have unlawfully obstructed another party’s access to evidence by attempting to dissuade a witness from providing particular information to the court. The attorney was also found to have used tactics that went beyond legitimate advocacy by writing to the witness’ employer primarily for the purpose of embarrassing the witness.16
1 Harmony Shipping Co. S.A. v Saudi Europe Line Ltd [1979] 1 WLR 1380, 1384 (Lord Denning MR) (‘Harmony’).
2 Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7, 12 (Williams J) (‘Cooke’).
3 Ibid.
5 Ibid.
6 Ibid.
7 Ibid, 12-13.
8 Ibid, 13.
10 New South Wales Bar Association v Thomas (No 2) (1989) 18 NSWLR 193, 205 (Kirby J): ‘Thus the failure or refusal to call an available relevant witness, done for tactical reasons, may be entirely proper’.
11 Australian Solicitors Conduct Rules 2012 (Qld) r 23.1.
12 Ibid r 23.2.
13 (2001) 147 ACTR 1.
15 611 N.W.2d 147 (N.D. 2000).
16 Australian Solicitors Conduct Rules 2012 (Qld) r 34.1.3.