Federal Court of Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY No. G 93 of 1985
GENERAL DIVISION
BETWEEN : MAFUBI PTY. LIMITED Applicant AND: WESTFIELD LIMITED Respondent
29 JULY 1985
REASONS FOR JUDGMENT
LOCKHART J.
This case was specially fixed for hearing to commence today by consent of the parties. When the matter was called on for hearing
this morning counsel for the applicant moved ona notice of motion
filed on 25 July 1985 seeking, so far as presently relevant, orders
that:
1. The applicant have leave to join as respondent to the proceedings Foto [Island (NSW) Pty. Limited and Ephrain Landes;
2. The applicant have leave to amend the statement of claim and application;
3. The date for h®aring these proceedings on 29 July 1985 he
vacated; and
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2. 4, The evidence of any witness proposed to be called on behalf of the applicant at the hearing who is unwilling to give
evidence by affidavit may be given orally in court.
It is common ground that, if the application to amend the statement of claim and the application is acceded to, the hearing
could not, for all practical purposes, proceed today.
The order that is sought in relation to the calling of witnesses who may be unwilling to give evidence by affidavit is, perhaps, unnecessary. It arises from the form of the orders made by consent by this Court on 30 May 1985 which were in quite usual form. The intent of those orders, as I read them, is that the evidence of the witnesses on both sides in this case should be primarily by affidavit, subject, of course, to cross-examination. It was clearly not the intent of that order to exclude the right of a party to call a witness to give viva voce evidence in chief because plainly there are circumstances when witnesses will not volunteer affidavits and they cannot, of course, be forced to swear them. In these situations, the only course that can be taken for all practical purposes is to have the witnesses give their evidence in chief from the witness box. But even if the order sought is not strictly necessary it is not opposed. In these circumstances I think the most appropriate course for me is
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