Preserve the witness’s original evidence while finding out why their involvement has changed.
Corporate Recovery Partners
01 / 06
The site supervisor stops returning calls
A former supervisor saw the customer approve additional work. As a hearing approaches, they say they want nothing to do with the dispute. The business owner is tempted to send a prepared statement for signature. That could obscure what the witness actually remembers and create further difficulty for the case.
Ask calmly whether the issue is availability, stress, uncertainty about events or concern about the process. Record the answer without arguing with it.
Do not pressure the person to adopt your version of events. A reluctant witness and a witness who no longer recalls something present different evidence problems.
Keep original messages, site records and any earlier account the witness gave. Note when it was created and whether it records personal observation or information from somebody else.
Do not rewrite old notes or combine several people’s recollections into a single account. Give your lawyer the unedited material, including details that do not support your preferred position.
Ask your lawyer what evidence is required, whether other records can establish the point and what formal options exist in the relevant proceeding.
Compelling attendance, obtaining a statement and establishing that evidence is admissible are different matters. Avoid promising that a court can simply force a witness to confirm what you want them to say.
Ask how the missing evidence changes the merits, likely expense and settlement position. Business.gov.au advises businesses to weigh the cost and practical consequences of going to court.
A weaker evidentiary position may justify a different strategy. That decision should follow a review of the remaining proof rather than an angry exchange with the witness.
