23. Opposition access to witnesses

1. A solicitor must not take any step to prevent or discourage a prospective witness or a witness from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.
2. A solicitor does not breach Rule 23.1 simply by;
   1. telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed, or 
   2. advising the prospective witness or the witness about relevant obligations of confidentiality.

Commentary

23.1 Witnesses open to both parties

A solicitor cannot prevent a prospective witness from being interviewed by the opponent, though they can advise on the witness’s right to refuse the interview, and on any relevant obligations of confidentiality.

There is no property in a witness, whether expert or lay: Harmony Shipping Co SA v Davis [1979] 3 All ER 177, 180 (Lord Denning MR). If there were, one party may be able to 'buy up all possible experts' in a certain area: Harmony Shipping at 184.

A prospective witness has no obligation to give evidence. If no statement is provided, the witness can be subpoenaed: Commonwealth Bank of Australia v Cooke [2000] 1 Qd R 7, 12.