Federal Court of Australia

Scott v Equatorial Launch Australia Pty Ltd (Application to Set Aside Subpoena) [2025] FCA 109

ORDERS

THE COURT ORDERS THAT:

1.    The subpoena to give evidence addressed to the witness returnable on 17 February 2025 is set aside.

2.    Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWLING J:

1    This is an application brought by a witness to set aside a subpoena to give evidence issued at the request of the applicant. The hearing in which the witness is to give evidence commenced on 17 February 2025 and they are presently scheduled to give evidence on 21 February 2025. The witness says the subpoena should be set aside because they are unable to give evidence as the result of their mental health. I have chosen not to name the witness because the judgment contains detail about their mental health.

2    The hearing concerns claims made by the applicant, Ms Scott, for monies owed under a “Commitment Amount Contract” or contract of employment, arising from Ms Scott’s employment as Chief Executive Officer of the respondent, Equatorial Launch Australia Pty Ltd (ELA). Those contracts are said to have been negotiated or varied by agreement between Ms Scott and the witness.

3    Ms Scott has filed two outlines of the evidence she anticipates will be given by the witness. The first is dated 18 July 2024 and the second 3 December 2024. The witness was also the recipient of two subpoenas to produce documents. Those were issued on 30 June 2023 and 16 August 2024. The witness responded to the first subpoena in part on 26 July 2023 and 30 August 2023. The witness responded to the second subpoena in tranches on 29 August 2024, 24 September 2024, 30 September 2024, and 8 October 2024.

4    The witness filed their interlocutory application to set aside the subpoena on 12 February 2025. That application is supported by three affidavits of their solicitor, Ms Zena Sultan, attaching two reports from Consultant Psychiatrist, Dr Rodney Blanch and one report from Psychologist Ms Ahu Kocak. Those reports are considered below.

5    The interlocutory application was first heard on 13 February 2025. It was adjourned until 20 February 2024, in circumstances where the witness’ counsel explained further evidence would be obtained. It was necessary to hear the application urgently because the witness was scheduled to give evidence on 21 February 2025. After hearing the application on 20 February 2025, I made orders setting aside the subpoena to give evidence addressed to the witness. I said that I would provide my reasons as soon as possible. These are my reasons for that order.

PRINCIPLES

6    In Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266 Besanko J considered the test for setting aside a subpoena where a witness is unwilling and unable to give evidence because of their mental health. His Honour concluded that legal coherence means that the test of non-availability within the Evidence Act 1995 (Cth) should be applied to an application to set aside a subpoena to give evidence. His Honour explained “it would be an odd result if the tests were different and there was a class of persons who could not be subpoenaed, but who were not ‘not available’ for the purposes of the hearsay provisions in the Evidence Act 1995 (Cth)”: see Roberts-Smith at [72].

7    The Evidence Act provides exceptions to hearsay evidence where a witness is not available to give evidence at ss 63 and 65. Clause 4(1)(c) of the Dictionary to the Evidence Act relevantly provides:

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

...

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability ...

8    Adopting that approach to the setting aside of a subpoena means that I need to be satisfied, on the balance of probabilities, that the witness is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

9    In Roberts-Smith, Besanko J explained the test, as to non-availability applied by Refshauge J R v Nona [2015] ACTSC 175; (2015) 254 A Crim R 301:

[70] The judge in Nona formulated the test which he went on to apply as follows (at [144]):

In my view, the provision does permit the evidence to be given as proposed where the witness's mental condition is such that he or she will suffer significant mental adverse consequences from giving the evidence. This is clear from the ALRC Report, especially at [8.37].

[71] His Honour expressed his conclusions in the case before him in terms of the potential witnesses being mentally incapable of giving the evidence without an unacceptable risk of serious mental harm (see at [174], [187] and [194]).

10    Refshauge J’s reference to the ‘ALRC report’ is a reference to the Uniform Evidence Law Report (ALRC, NSWLRC, VLRC; Sydney, 2005), addressing the words, and changes around the words, “mentally and physically unable”. Besanko J’s references to Nona at [174], [187] and [194] are to those conclusions reached by Refshauge J in respect of the three witnesses said to be unable to give evidence before him. In respect of those witnesses he concluded each was:

On the balance of probabilities, mentally incapable of giving evidence without an unacceptable risk of serious mental harm and that this meets the test in the statute.

11    Refshauge J added (at [175]):

Neither the Crown nor the accused suggested any reasonable method of overcoming this incapability. The accused was not required to do so. I have given careful consideration to the cause of the harm and am satisfied that there is no “reasonable practicable” means of overcoming the inability.

12    In Roberts-Smith, Besanko J also referred, with approval, to Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122. In that case Garling J considered the availability of a witness in a civil trial. Garling J emphasised the importance of focusing on whether there is an inability to give “the evidence” and the need to consider the circumstances of the case: Alzawy at [32]-[34].

13    Counsel for the witness submitted that Besanko J’s reference in Roberts-Smith to Alzawy might suggest a focus on the immediate ability to give the evidence without a consideration of the “significant mental adverse consequences from giving the evidence” as explained by Refshauge J in Nona. Counsel for Ms Scott and ELA both submitted that the test to be applied was the test in Nona and that Justice Besanko should be taken to have endorsed that test in Roberts-Smith.

14    I accept that the proper test is that set out in Nona. I read Roberts-Smith as endorsing that test. It would be an unpalatable result if the Court was to consider the immediate mental ability to give evidence without any assessment of the adverse mental consequences from the giving of that evidence.

15    I have approached a consideration of the evidence in accordance with those principles. Accordingly, the test requires satisfaction, on the balance of probabilities, that the witness is mentally incapable of giving evidence without an unacceptable risk of serious mental harm, and it is not reasonably practicable to overcome that incapability. The witness and Ms Scott submit the test is satisfied. ELA submits that it is not.

The evidence

The first affidavit of Ms Sultan and Report of Dr Blanch dated 7 February 2025

16    The first affidavit of Ms Sultan dated 11 February 2025 states that the witness was an inpatient at a Private Mental Health Hospital from 10 January 2025 until 7 February 2025. It states that the witness was experiencing severe ongoing mental health issues. The affidavit annexed a report of Dr Blanch dated 7 February 2025, the witness’ treating psychiatrist.

17    Dr Blanch stated that:

(a)    The witness is currently suffering from “Depression with Anxious distress (DSM 5 Criteria) and Panic Disorder (DSM 5 Criteria)”;

(b)    The witness’ medical conditions would “impair [their] ability to engage as a physical witness in court”;

(c)    The witness “appearing in court would likely induce a panic attack and in that state [they] would not be able to provide evidence nor manage [their] emotional state”;

(d)    The witness “would require medical review given the possibility of stress inducing a myocardial infarction”; and

(e)    The witness’ “mental health would be seriously impacted and [their] depressive symptoms would be exacerbated by being compelled to give evidence whilst physically being in court.”

The second affidavit of Ms Sultan dated 12 February 2025

18    The second affidavit of Ms Sultan dated 12 February 2025 provided an update that the witness was to be readmitted to the Private Mental Health Hospital on 17 February 2025.

The second report of Dr Blanch dated 18 February 2025

19    The third affidavit of Ms Sultan dated 19 February 2025 annexed a further report of Dr Blanch and a report of Psychologist Ms Ahu Kocak. In Dr Blanch’s further report he states:

(a)    The witness was readmitted to the Private Mental Health Hospital for a relapse of their depression with anxious distress and panic disorder;

(b)    “The witness’ condition continues to be quite severe and disabling and [they] has been unable to manage in the period [they were] not in hospital”;

(c)    He expected the witness to remain admitted until mid-March;

(d)    He does not “believe that [the witness] can effectively participate in court proceedings either in person or remotely” and the witness “would likely suffer panic attacks if required to do so” and that the witness would be unable to “respond to any questions or directions being made in court” or communicate during these panic attacks and these panic attacks require several days to recover from;

(e)    The witness’ panic attacks “are associated with experiences of central crushing chest pain, breathlessness and depersonalization. [They] has had required past cardiac artery stenting and any episode of chest pain requires medical review to exclude any potential infarct”; and

(f)    he does not believe the witness’ position will improve to participate in court proceedings for the duration of the scheduled hearing.

The report of Ms Ahu Kocak dated 18 February 2025

20    Ms Kocak prepared a report based on her eight consultations totalling 8 hours with the witness between 27 August 2024 and 25 November 2024. Ms Kocak was asked the following questions:

(a)    The witness’ mental health diagnoses and prescribed treatments.

(b)    Whether, in her opinion, the mental health conditions or treatment the witness has may impact their ability to understand and answer questions posed to them – including any physiological responses, and if possible, the degree of impact of these.

(c)    Whether, in her opinion, if the witness is required to give evidence, there is a risk of exacerbation of their mental health conditions, the likelihood of any such risk, and the potential consequences to the witness’ mental and physical health should those risks eventuate.

(d)    Her recommendations, if any, to minimise any risk to the witness arising from their mental health conditions should they give evidence.

21    Ms Kocak explained the witness’ diagnoses were: (1) adjustment Disorder with mixed anxiety and depressed mood; (2) alcohol use disorder, severe; and (3) a “pending” diagnosis of Bipolar I disorder, current or most recent episode manic, unspecified.

22    Ms Kocak reported that the witness’ diagnoses can pose “significant challenges” to their ability to understand and respond to questions accurately. Further, their diagnoses may cause them to suffer physiological symptoms which may also impair their ability to answer questions.

23    Ms Kocak reported that “the act of giving evidence has and may continue to act as a significant stressor.” Ms Kocak states giving evidence can “heighten the witness’ symptoms and increase levels of anxiety and emotional distress” and may lead to a relapse into alcohol use disorder. It could also lead to hypomanic episodes. Ms Kocak concluded that “likelihood of exacerbation of the witness’ mental health conditions is high”.

24    Ms Kocak was asked to provide recommendations, if any, to minimise any risk to the witness arising from their mental health conditions should they give evidence. Ms Kocak stated the optimal outcome would be for the witness not to give evidence, but that if the witness is required to give evidence the following arrangements should be put in place:

(i)    Ensure medications are optimised;

(ii)    Provide access to a therapist or counsellor before and after evidence;

(iii)    Allow the witness to testify in a less formal setting such as by video link;

(iv)    Allow frequent breaks;

(v)    Allow a support person to accompany them during the evidence;

(vi)    Ensure that alcohol consumption is addressed before giving evidence; and

(vii)    Provide follow-up support after the evidence.

consideration

The applicable test

25    As expressed above, I am required to assess, on the balance of probabilities, whether the witness is mentally incapable of giving evidence without an unacceptable risk of serious mental harm, and whether there is any reasonable method of overcoming that incapability.

Reconciling Ms Kocak and Dr Blanch’s report

26    The witness’ counsel submitted that if there was any inconsistency between Dr Blanch’s report and Ms Kocak’s report, that Dr Blanch’s report should be preferred. That inconsistency was said to potentially arise because Ms Kocak set out accommodations that could be made if the witness was required to give evidence.

27    Counsel for Ms Scott contended, and I accept, that the reports are not inconsistent. The effect of the evidence of Dr Blanch and Ms Kocak is that the witness is incapable of giving evidence without an unacceptable risk of serious mental harm. Ms Kocak’s statement about accommodations does not suggest that the witness is relevantly capable of giving evidence with those accommodations, rather it provides for accommodations should the witness be required to give evidence. In the context of her other conclusions that is not a conclusion that the witness is capable of giving evidence.

Effect of the medical evidence

28    I am satisfied on the medical evidence that the witness is mentally incapable of giving evidence without an unacceptable risk of serious mental harm. I am satisfied that that mental incapability and risk of serious mental harm is ongoing. Dr Blanch expects the witness to be in hospital until mid-March. I am satisfied that a reason for the incapability includes involvement in these legal proceedings. In those circumstances the incapability will remain, whilst the obligation to give evidence remains.

29    I am satisfied that there is no reasonable method of overcoming the witness’ incapability. Dr Blanch and Ms Kocak do not identify any accommodation that would overcome the witness’ incapability. Dr Blanch expressly rules out the possibility that “remote” participation by the witness would overcome their incapability. For the reasons explained above Ms Kocak’s accommodations are not accommodations said to overcome the incapability.

Press release

30    ELA relied upon a press release issued by the witness on 18 December 2024 as undermining the witness’ submission that they are unable to give evidence. The press release includes a statement by the witness that any litigation by ELA, or its Chair, will be strenuously defended. I am not persuaded that press release sufficiently undermines the medical evidence relied on by the witness. It does not change my conclusion that the witness is mentally incapable of giving evidence without an unacceptable risk of serious mental harm.

Proposal to adjourn interlocutory application

31    ELA emphasised the significance of the evidence of the witness. In that context it raised the proposal that the interlocutory application to set aside the subpoena be adjourned to a later time to reassess the mental capability of the witness. ELA proposed that the hearing proceed without the witness, with Ms Scott provisionally closing her case, and ELA completing its case. It says the interlocutory application could then be resumed sometime after mid-March (the period Dr Blanch expects the witness will be in hospital).

32    Dr Blanch and Ms Kocak attribute the witness’ incapability to matters including the witness’ participation in legal proceedings. I am satisfied that the witness’ mental incapability is sufficiently connected to these legal proceedings, or giving evidence in them, that there would be no utility in that course. I am also satisfied that such an approach would not be consistent with the Court’s overarching obligation to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: see s 37M of Federal Court of Australia Act 1976 (Cth).

Disposition

33    In all of those circumstances the subpoena to give evidence addressed to the witness returnable on 17 February 2025 is set aside. Whilst the witness’ interlocutory application sought costs, no submissions were made about costs from any party. I will reserve costs.

Associate:

Dated:    21 February 2025