[The summary below is that included as part of the judgment]

On the fourth day of an evidential hearing, the claimants made an application for a witness order to compel the attendance of a witness who had previously indicated to them that he would not give evidence. When the application was made, the claimants had an unsigned draft statement from the proposed witness. They did not, however, produce the draft to the Tribunal with their application. Instead, they gave a list of headings of topics about which they said the witness would speak. These headings provided no information as to the expected content of the witness’s evidence.

The Tribunal refused the application and gave oral reasons. The hearing then continued to its conclusion. The claims were dismissed. An appeal against that decision was not timeously brought. The Registrar refused to extend the time limit, and an appeal against that decision was refused. In the meantime, the Tribunal gave written reasons for refusing the witness order application. There was a substantial delay in issuing those reasons. When the claimants received the reasons, they brought a timeous appeal against the refusal to make a witness order. They submitted that the Tribunal had erred by (i) failing to make a qualitative assessment of the relevance of the proposed evidence of the witness; (ii) failing fully to take into account the circumstances of the application, including that that the witness was reluctant to sign a statement until a witness order was made; and (iii) reaching a perverse decision.

Held: (1) The Tribunal could not be criticised for failing to assess the significance of the witness’s evidence when it had no basis for making any meaningful assessment of what that evidence might be. (2) Nothing in the Tribunal’s reasons suggested that, in exercising its discretion, it took into account an irrelevant factor or left out of account a relevant and material one. (3) The decision to refuse the witness order was not perverse. The appeal was refused.