Brumby v Mt Arthur Coal Pty Ltd; Ready Workforce (A Division of Chandler MacLeod) Pty Ltd v Mt Arthur Coal Pty Ltd (No. 2)

[2024] NSWSC 1633

Supreme Court

New South Wales

Medium Neutral Citation:

Brumby v Mt Arthur Coal Pty Ltd; Ready Workforce (A Division of Chandler MacLeod) Pty Ltd v Mt Arthur Coal Pty Ltd (No. 2) [2024] NSWSC 1633

Hearing dates:

10 December 2024

Date of orders:

10 December 2024

Decision date:

20 December 2024

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

The defendant’s application to tender seven historical affidavits is refused.

Catchwords:

CIVIL PROCEDURE – forensic decisions – lost documents – non-compliance with subpoena to defendant filed in 2021 – pursued repeatedly to produce contemporaneous statements and investigation reports – not a new issue – ss 56 to 60 Civil Procedure Act not empty incantations – compliance with Practice Note SC CL 1 not optional – defendant too late to re-engineer its case – trial by ambush not permitted

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

2021/00038170
Nathan John Brumby (Plaintiff)
Mt Arthur Coal Pty Ltd (Defendant)

2020/00149934 (Workers Compensation recovery proceedings)
Ready Workforce (A Division of Chandler MacLeod) Pty Ltd (Plaintiff)
Mt Arthur Coal Pty Ltd (Defendant)

Representation:

2021/00038170

Counsel:
B Dooley SC with P O’Rourke (Plaintiff)
P.M. Morris SC with A Schonell (Defendant)

Solicitors:
Whitelaw McDonald Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

2020/00149934 (Workers Compensation recovery proceedings)

Counsel:
D Ronzani (Plaintiff)
P.M. Morris SC with A Schonell (Defendant)

Solicitors:
Hall & Wilcox (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s):

2021/00038170; 2020/00149934

Publication restriction:

Nil

JUDGMENT

1. An issue has arisen on day six of this work injury damages trial about the admission into evidence of historical affidavits that were deployed earlier in the proceedings to address the defendant’s failure to produce documents in response to subpoenas issued by the plaintiff in March (and May) 2021 and September 2022.

2. Senior counsel for the defendant, Mr Morris, argued that an “unexpected” issue has arisen during the trial about the adequacy of the defendant’s response to the subpoenas, and the unavailability of certain contemporaneous investigation documents. He argued that a particular inference may be drawn by the Court negative to the defendant, and so the defendant ought to be allowed to address that by the tender of seven historical affidavits that deal with the history of the defendant’s searches and failures to find responsive documents.

3. Mr Dooley SC for the plaintiff opposed the application as it has been made too late, and the issue is not new or unexpected. On the contrary, it has been an issue since shortly after proceedings commenced.

4. For the reasons that follow, I refused the leave sought by the defendant.

Facts and procedural outline

5. The plaintiff, Nathan Brumby, alleges that he was injured in an accident at the Mt Arthur Coal Mine on 2 May 2018.

6. Proceedings were commenced in the Gosford District Court on 10 February 2021.

7. On 30 March 2021, Mr Brumby’s solicitor filed a subpoena for production requiring Mt Arthur to produce, amongst other things, any reports of injury, witness statements, or investigative or other reports regarding Mr Brumby’s injury on 2 May 2018.

8. It was common ground that the terms of the subpoena were the subject of negotiation between the parties, but the plaintiff maintained the position that the defendant must produce, (amongst other things), the statement of the plaintiff, the statement of the shovel driver, statements of any witnesses and any reports of the accident by the plaintiff and the shovel driver.

9. After a series of incomplete searches and inadequate affidavits filed by the defendant during 2021 and 2022, (mainly by its solicitor, Ms Chan), the plaintiff filed a notice of motion in December 2022, returnable in early 2023, insisting upon compliance with the subpoena (r 33.6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”)) or failing that, seeking an order that an affidavit authored by a proper officer of the defendant be filed and served explaining the position with the documents (s 61 Civil Procedure Act 2005 (NSW)).

10. Rule 33.6 provides for compliance with subpoenas generally:

33.6   Compliance with subpoena

…

(3)  Despite rule 33.5(1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.

(4)  The addressee must comply with a subpoena to produce—

(a)  by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding as permitted by the court, or

(b)  by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.

(5)  In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.

…

11. Section 61 of the Civil Procedure Act provides:

61   Directions as to practice and procedure generally

(1)  The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2)  In particular, the court may, by order, do any one or more of the following—

(a)  it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b)  it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c)  it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3)  If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following—

(a)  it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b)  it may strike out or limit any claim made by a plaintiff,

(c)  it may strike out any defence filed by a defendant, and give judgment accordingly,

(d)  it may strike out or amend any document filed by the party, either in whole or in part,

(e)  it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f)  it may direct the party to pay the whole or part of the costs of another party,

(g)  it may make such other order or give such other direction as it considers appropriate.

(4)  Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

12. In support of the notice of motion, an affidavit of the plaintiff’s solicitor, John McDonald, sworn 23 December 2022 was read. That affidavit clearly explained the importance of the material being sought, and the reasons why the plaintiff was pursuing the issue:

“19. No document comprising statements by the Plaintiff, statements by witnesses, other statements, investigative or other reports, accident report books, notes, memoranda, correspondence, and all other documents in relation to the injury sustained by the Plaintiff on 2 May 2018 have been produced by the Defendant. The documents described are likely to be substantially relevant particularly to ascertaining more precisely the circumstances of the pleaded incident (bearing in mind the factual uncertainty presently existing).

…

23. I have caused examination of the material produced to the Registry and am informed that the following documents, which could reasonably be expected to be present therein in accordance with paragraph (a) to the schedule of the subpoena, have not been produced.

List of Documents

a.   Statement of witness’.

b.   Reports of accident by Plaintiff.

c.   Report of accident by shovel driver.

d.   Statements of shovel driver.”

13. Mr McDonald’s affidavit also sets out the inadequacy of Ms Chan’s second-hand accounts of searches allegedly made, contained in her affidavits of 5 and 17 October 2022 and 1 November 2022:

“28. On 10 October 2022 I appeared on behalf of the Plaintiff at a mention of this matter before the Registrar of the District Court in Gosford. Appearing for the Defendant was Ms Chan. Appearing for the Plaintiff in the recovery proceedings was Ms Cotchett. In light of what had gone before relevant to the non-production of documents, I submitted to the Court:

a.    That an Affidavit based upon information and belief was not sufficient and that an appropriate officer of Mt Arthur Coal Pty Ltd depose as to the unavailability of the material that the Defendant asserts, they no longer have and the circumstances giving rise to same.

b.    That the Affidavit be put on by such a person as Ross Carlson, Engineering Manager, being the officer who is recorded to as having reported the accident to the mining Regulator.”

14. Mr McDonald also deposed to and annexed correspondence pursuing the defendant’s ongoing failure to comply with the September 2022 subpoena and the inadequacy of its responses: (pars 23-34 of JMCD-1).

15. Mr McDonald concluded:

“49. As at the date of swearing this affidavit I have not received documents in accordance with paragraph (1) of the schedule to this subpoena.

50. No data recording documents have been produced by the Defendant for either the dump truck or the shovel as requested in paragraph 1 of the schedule of the subpoena returnable 5 September 2022. A copy of that subpoena is at pages 19 to 24 of JMCD-1.

51. The Plaintiff understands that the data recording, if fitted to the plant, record real time movement of various structures and parts on the plant which is then sent to some storage facility. The information contained within such data recording may assist the Plaintiff to determine which way the truck moved at the time of the accident or the movement of the shovel at the time of the accident. Such documents are relevant to how the accident the subject of the present proceedings occurred and should be produced.”

16. A consent order made on 14 March 2023, (signed on behalf of both parties), required the solicitor for the defendant to file and serve an affidavit of “an appropriate employee or officer of the defendant as to the searches undertaken to locate statements of the plaintiff, relevant shovel operator and witnesses by 27 March 2023”.

17. An affidavit of Carolyn Smith sworn 24 March 2023 appears to have been filed in compliance with that order. Ms Smith described herself as “administration support for the engineering department” at Mt Arthur Coal, and that her role included “searches for documents and records held by Mt Arthur Coal in its records in response to a subpoena for production in legal proceedings”. Ms Smith’s affidavit was in effect a summary of the searches done up to September 2022. It concluded that “if there was a statement of the plaintiff, shovel operator or witnesses, they can no longer be located”.

18. Despite all of this, on 9 May 2024, Mr Hay solicitor, the partner at HWL Ebsworth with conduct of the proceedings for Mt Arthur at that time, deposed to locating on the solicitor’s file a “record of interview” document, allegedly signed by shovel operator, Mr Gilchrist, on 12 November 2020. In his affidavit, Mr Hay stated that he “[does] not have an explanation” as to why the document was not produced in response to the 2021 subpoena, and acknowledged that the record of interview was responsive to the 2021 subpoena and should have been produced.

19. This history discloses that significant issue was taken by the plaintiff about the absence of contemporaneous accounts expected to be in existence and in the defendant’s possession that were never produced.

The plaintiff’s submissions opposing leave

20. Mr Dooley submitted that attempting to now rely on seven old affidavits, not served as evidence to be led or relied upon at the trial, was too late. He emphasised the requirements of Practice Note SC CL 1, which make clear the purpose of case management and the necessity for compliance with the Court’s orders regarding service of evidence:

“The Registrar’s Directions List

…

26. The purpose of a Directions Hearing is to ensure the just, quick and cheap disposition of proceedings in accordance with the overriding purpose set out in section 56 of the CPA. Each party is obliged to notify the Court and the other parties if they are aware of any substantial default that cannot be cured by the making of consent variations to directions or timetable.

27. The tasks at a Directions Hearing include, but are not limited to:

…

(d) directing that a party serve or all parties serve or file and serve witness statements – the purpose of such a direction being to facilitate clarification of issues and realistic negotiations for settlement.

…

(f) making consent orders for the completion at the earliest possible time of interlocutory steps such as discovery, interrogatories, views, medical examinations and expert reports; …

Claims in tort, contract and debt

39. At the first Directions Hearing a plaintiff is to provide to each party an evidentiary statement. If it is intended to raise other issues not covered by the evidentiary statement an amended evidentiary statement is to be served on each party as soon as practicable after the need to amend the evidentiary statement arises.

40. Each defendant is to serve on the plaintiff within 28 days of receipt of the evidentiary statement a statement of issues in dispute. The statement of issues in dispute is to set out concisely those facts which the defendant intents to establish in respect of each issue in dispute by the evidence that is to be led. …

Evidentiary Orders prior to Allocation of a hearing date

42. The Judge or Registrar will order:

(a) the plaintiff to serve any further witness statements or affidavits to be relied on at the hearing including any statements additional to those served under paragraph 40;

(b) the defendant to serve any witness statements or affidavits to be relied upon at the hearing;

(c) the plaintiff to serve any witness statements or affidavits in reply; and

(d) the parties to serve copies of any documents to be relied upon.

43. A witness may only give oral evidence at trial with leave.”

21. Mr Dooley argued that for the defendant to now try to deploy these old affidavits in the trial amounts to trial by ambush. Forensic decisions were made by the plaintiff’s legal team based on the lay statements served by the defendant, which were limited to 2024 statements by two factual witnesses: the shovel operator, Mr Gilchrist, and the acting supervisor or acting OCE (“Open Cut Examiner”), Mr Miller.

22. Mr Dooley submitted that any evidence upon which the defendant wished to rely was required to be served in accordance with the timetable laid down by the Court, which ordered service be completed many months before the trial began. The plaintiff is entitled to proceed with preparation and presentation of his case on the understanding that all relevant evidence has been identified and served as evidence in the trial. Mr Dooley stated, and I accept, that forensic decisions were made not to further pursue the defendant’s asserted position about the non-availability of certain documents.

23. It would be unfair, and contrary to the Court’s orders, the overriding purpose rule, the Practice Note and the Civil Procedure Act, to now allow the defendant to introduce this old, un-served evidence.

Decision

24. Mr Dooley’s submissions are correct and I accept them in full. The fact that there was an absence of contemporaneous investigation documents in response to the March 2021 and September 2022 subpoenas was the subject of attention at a number of directions hearings. Such was the concern about the issue, that the plaintiff filed a notice of motion on 23 December 2022 insisting upon production or an affidavit of explanation from the defendant, given the inadequacies of the solicitors’ explanations to that date.

25. This step indicated a high degree of interest, focus and concern about the absence of this expected evidentiary material.

26. It is true that the Court may be invited to draw an inference that in the absence of contemporaneous accounts by Mt Arthur employees and/or its documents showing what its alleged investigations revealed, the Court can conclude any such material would not assist Mt Arthur’s case. This is an inference available at law. The availability of legal submissions or inferences the Court may be invited to draw does not need to be spelt out by the plaintiff for the assistance of the defendant.

27. It is the defendant’s responsibility to consider the evidence it needs to lead and to deal with such matters before the trial begins, as required by the UCPR, the Court’s practice notes and the Court’s orders. The defendant’s evident failure to do so adequately does not provide a basis for permitting late service and reliance on evidentiary material on day 6 of the trial, and so the application was refused.

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Decision last updated: 20 December 2024