Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 Citation: Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622
Parties: COMCARE v JOHN HOLLAND RAIL PTY LTD (ABN 61 009 252 653) and JOHN HOLLAND PTY LTD (ABN 11 004 282 268)
File number: VID 660 of 2008
Judge: BROMBERG J
Date of judgment: 3 June 2011
Catchwords: PRACTICE AND PROCEDURE – whether leave to call a witness should be granted – witness sought to be called is counsel in the proceeding – application made mid-trial – Court's power to control the calling of witness evidence – relevance of case management principles and s 37M of the Federal Court of Australia Act 1976 – whether a legitimate forensic purpose exists for the calling of the evidence – test of apparent relevance – need for applicant to demonstrate an identifiable basis to support a reasonable likelihood that evidence is available that might assist the resolution of a fact in issue – balancing process applicable where legitimate forensic purpose exists – whether strength of forensic purpose and its importance to the issues to be determined is outweighed by prejudice, delay and disruption to trial – application dismissed
Legislation: Evidence Act 1995 (Cth) ss 55, 102, 106(2)(c) Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules O 15 r 2(3), O 27A Occupational Health and Safety Act 1991 (Cth) s 16
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Andrews v Australia and New Zealand Banking Group Ltd [2011] FCA 388 Attorney-General of Botswana v Aussie Diamond Productions Pty Ltd (No 2) [2009] WASC 301 Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181 Clifford v Vegas Enterprises Pty Ltd (No 4) [2010] FCA 326 Comcare v John Holland Rail Pty Ltd [2009] FCA 660 Comcare v John Holland Rail Pty Ltd [2010] FCA 981 Comcare v John Holland Rail Pty Ltd (No 2) [2010] FCA 1516 Comcare v John Holland Rail & Anor (No 3) [2011] FCA 164 Comcare v John Holland Rail Pty Ltd (No 4) [2011] FCA 253 Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504 Dorajay Pty Ltd v Aristocrat Leisure Limited [2005] FCA 588 Fried v National Australia Bank Ltd (2000) 175 ALR 194 Jack Brabham Engines Ltd v Beare [2010] FCA 35 John Holland Pty Ltd v Comcare [2009] FCAFC 127 John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 Liristis v Gadelrabb [2009] NSWSC 441 McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 Morley v Australian Securities and Investments Commission (2010) 274 ALR 205 Payne v Parker (1976) 1 NSWLR 191 Re Vandervell's Trusts (No.2) [1974] Ch 269 Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31 Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870 Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 Seven Network Limited v News Limited (No 11) [2006] FCA 174 Standen v Feehan [2007] FCA 1761 Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122
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