Caller v State of New South Wales (No 1)

[2025] NSWDC 379

District Court

New South Wales

Medium Neutral Citation:

Caller v State of New South Wales (No 1) [2025] NSWDC 379

Hearing dates:

Directions 5 September 2025; Written submissions considered in chambers 22 September 2025

Date of orders:

23 September 2025

Decision date:

23 September 2025

Jurisdiction:

Civil

Before:

Newlinds SC DCJ

Decision:

(1) Grant leave to the Defendant to rely on the evidence of Dr Milder dated 1 July 2025 and the evidence of Tegan Gardner, Jessica Welsh, and Rebecca Jackson, notwithstanding the provisions of s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

(2)   The evidence of the lay witnesses is admitted, subject to hearing submissions as to its relevance and, if relevant, what weight ought be afforded to any aspect of that evidence.

(3)   To the extent necessary, grant leave to the Plaintiff to rely on his evidence concerning more than one seizure and the Report of Dr Reddell dated 27 July 2025.

Catchwords:

EVIDENCE ­­­­— Admissibility — Section 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW) — Proper construction — Material not reasonably available

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) Part 31 r 28

Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 318

Cases Cited:

Kubovic v HMS Management [2015] NSWCA 315

Ljubicic v Heat and Control Pty Limited [2023] NSWSC 982

Ortlipp v Employers Mutual NSW Ltd as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157

Skinner v State of New South Wales [2021] NSWDC 36

Category:

Procedural rulings

Parties:

Lee Kevin Caller (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Morris SC / M Hammond (Plaintiff)
D Stanton / N Hogan (Defendant)

Solicitors:
Bourke Legal (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2023/323841

Publication restriction:

Nil

reasons; in chambers; on admissibility of evidence

Overview

1. These proceedings were commenced by the Plaintiff on 12 October 2023. He claims damages for a work injury suffered whilst he was a serving police officer with the New South Wales Police Force between 2001 and 2019.

2. The Plaintiff claims that, because of psychiatric injuries suffered as a result of repeated exposure to traumatic events during his service, he is no longer fit to work as a general duties police officer and his capacity to earn income by any means is substantially diminished.

3. The substantive hearing of the matter was heard by me between 31 March and 10 April 2025, during which time, all of the available evidence was taken and, subject to one matter, final submissions heard.

4. The matter was then stood over to allow a fact that emerged during the cross-examination of the Plaintiff to be investigated by both parties.

5. The fact was that the Plaintiff had suffered more than one “seizure” since ceasing his role as a police officer. This was contrary to the history he had provided to various medical practitioners and was not contained in the Statement of Claim or in any material provided to the Defendant prior to the proceedings being commenced.

6. Originally, the Plaintiff's case, which was supported by medical evidence, included that, on one occasion after he ceased work as a police officer, he suffered a seizure, had been taken to hospital, and examined by a neurologist. The upshot of that examination was that there was no medical diagnosis for the seizure. It may well have been induced by heavy use of alcohol and lack of sleep over a particular weekend.

7. What emerged during the Plaintiff's evidence was that he had in fact had more than one seizure. He also gave evidence that because of his history of seizures, he no longer has a New South Wales drivers licence.

8. This prompted what was effectively a joint Application by counsel for an adjournment to obtain a further medical report from his treating neurologist which I granted. Following that adjournment, there has been obtained and, whilst it has yet to be tendered, I have seen a Report of Dr Reddell dated 27 July 2025. The Plaintiff seeks to rely on the evidence contained in that Report.

9. The parties then agreed that the Plaintiff would be examined by Dr Milder on the joint instruction of the Plaintiff and the Defendant, which has occurred and Dr Milder has provided a medico-legal Report dated 1 July 2025.

10. The Defendant has also obtained statements of evidence from three people, Rebecca Jackson, Jessica Welsh, and Tegan Gardner. These statements have been served on the Defendant and provided to me on this application. The Defendant wishes to rely on the Report of Dr Milder and the three people I have mentioned. The effect of the lay evidence is that, with the restrictions placed on him because of the history of seizures, including not being able to do night duty and not having a drivers licence, the Plaintiff’s career as a police officer would have come to a conclusion for these reasons alone. This is clearly potentially significant for both the past and future economic loss components of the claim.

11. With the cooperation of the parties, it has been agreed that the question of the admissibility of, what might be described as, the new material from the Defendant, that is Dr Milder's Report and the three lay witnesses, will be dealt with in writing without the need for a further oral hearing. The Plaintiff has provided a schedule of objections, which I will mark for identification as “MFI-16”. The Defendant has read, without objections, an affidavit of Luke Sanders sworn 8 September 2025, which contains copies of the documents sought to be relied upon by the Defendant and a chronology of recent events.

12. The parties have provided written submissions as to their competing positions on the admissibility of that material and have agreed that I should rule on that admissibility in chambers and then the parties will have a short opportunity to make submissions as to what I ought make of that evidence after they know whether I have ruled it admissible or not. I understand that whatever my ruling on admissibility, the Plaintiff does not want to cross examine any of the witnesses. At the end of that process, I will then reserve my judgment and deliver it, hopefully promptly thereafter.

13. The Plaintiff’s written submissions on admissibility are marked “MFI-17” and the Defendant’s as “MFI-18”. This is my ruling as to the admissibility of the material.

The Plaintiff’s overarching objections

14. The Plaintiff has two overarching objections. The first is that the evidence contained in both Dr Milder's report and the three statements of evidence was not served with the prefiling defence material prior to the compulsory mediation as required by s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Management Act”), and secondly, that the material, insofar as it is expert material, was not served as required by part 31 r 28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

15. I will deal with those overarching objections first.

16. Dealing first with the s 318 point. It seems to me that the starting point is that the failure of the Defendant to serve this material earlier can in no sensible way be said to be, in any way, the fault of the Defendant or its legal advisers. Nor can it be said that this evidence was “reasonably available” to the Defendant at an earlier time. It was available, but the Defendant was not on notice of its existence, let alone its significance, so I do not think it can sensibly be said to have been reasonably available.

17. If fault is to be attributed to anyone, it has to be attributed to the Plaintiff. It is quite clear that he had not disclosed the other episode (episodes) of seizures to his own lawyers, let alone the Defendant's lawyers. That is not to say that I think the Plaintiff deliberately held the evidence back. To the contrary, I consider it was an honest mistake as he did not appreciate its potential significance.

18. The evidence of the extra seizure or seizures adduced by the Plaintiff and the supplementary medical Report sought to be tendered by the Plaintiff was not disclosed by the Plaintiff in his prefiling statement and therefore is itself not admissible because of the provisions of s 318 of the Workplace Injury Management Act unless leave is granted under subs 318(1)(d), having regard to the provisions of subs 318(2). No such leave has been sought by the Plaintiff. The Defendant has not objected to that evidence and has proceeded upon the premise that evidence will be received by the Court.

19. Forensically, it may well be that the Defendant considers that it assists its case for this material to be before the Court. For that reason, the s 318 point has not been taken by the Defendant. Nonetheless, it is still necessary for that material to get before me for me to consider the question of leave under subs 318(1)(d) for the Defendant to have something to respond to.

20. The Plaintiff takes the s 318 point concerning the Defendant’s responsive evidence, and quite rightly points out that the material now sought to be relied upon by the Defendant is a Report and other evidence that was not disclosed in the prefiling defence material prior to the compulsory mediation.

21. The Defendant accepts that position and applies for leave under subs 318(1)(d).

22. There are a number of cases that have dealt with the proper construction and application of these provisions. I have been taken to and considered Ortlipp v Employers Mutual NSW Ltd as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157 (“Ortlipp”) per Taylor SC DCJ; Skinner v State of New South Wales [2021] NSWDC 36 (“Skinner”) per Abadee DCJ; Ljubicic v Heat and Control Pty Limited [2023] NSWSC 982 per Cavanagh J; and Kubovic v HMS Management [2015] NSWCA 315 (“Kubovic”).

23. There are a series of steps to work through. The first is to identify what is the “material concerned," the second is to ask and answer the question, “was that “material" “reasonably available" at the relevant time?.” The final questions to answer are “whether the material is relevant to the outcome of the proceedings?” and “if it is in the interests of justice to admit it, notwithstanding its earlier failure to be disclosed?”: See in particular Kubovic at [104] per McColl JA and agreed with by Ward JA and Adamson J.

24. In my judgement, the relevant material is caught by s 318.

25. It was not disclosed by the party now seeking to tender it at the time prescribed by s 318. It is therefore not admissible unless leave is granted to rely on it.

26. Dealing then with the first of the two mandatory matters identified in subs 318(2), was the material previously “reasonably available?” I am comfortably satisfied that the material concerned was not reasonably available to the Defendant when the prefiling statement or defence was served. This is because the Plaintiff had not disclosed his history of multiple seizures. The evidence having now been adduced, albeit inadvertently and unexpectedly by the Plaintiff and with the foreshadowed tender of the extra medical evidence by the Plaintiff, the Defendant is now aware of the issue. That issue opens up a different defence to that previously being run by the Defendant. Strictly speaking, the evidence was available to the Defendant at the relevant time, but it was not, in my opinion, reasonably available, as that phrase ought be understood in s 318, because the Defendant did not know about anything other than one seizure. I think this construction of “reasonably available” is consistent with what both Taylor SC DCJ said in Ortlipp and Abadee DCJ said at [27] in Skinner.

27. Turning then to the second mandatory consideration and on the assumption that the Plaintiff is entitled to rely on his own evidence about seizures and the supplementary Report of Dr Reddell, I am satisfied that it would occasion a substantial injustice to the Defendant to refuse leave, and finally, that it is in the interests of justice to grant to the Defendant leave to rely on the evidence of Dr Milder, Ms Tegan Gardner, Ms Jessica Welsh, and Ms Rebecca Jackson subject to that evidence being otherwise admissible.

28. Before leaving the question of s 318, I should deal with the Application for Leave by the Plaintiff which has not been made. No doubt this is because the Defendant does not object leave and so it is perhaps not necessary. Nonetheless, I will deal with it. I have determined that, even though the information concerning the extra seizures was known to the Plaintiff himself, it was not reasonably available to him or his lawyers at the time the prefiling documents were served, because he did not subjectively appreciate its apparent relevance to the matters, the subject of his Claim.

29. I consider it would cause injustice, both to the Plaintiff and the Defendant, for that evidence to be excluded from the Plaintiff's case and, to the extent necessary, I grant leave retrospectively to the Plaintiff to rely on that evidence.

30. I then turn to the Plaintiff’s objection based on part 31 r 28 of the UCPR. For all the reasons I have given, I consider it appropriate to relieve the Defendant from the requirements of that rule.

Specific objections

31. The Plaintiff then has a number of specific objections to the various statements of lay witnesses that have been filed by the Defendant.

32. They mostly turn on submissions such as the basis of opinion is not adequately disclosed, in the sense of spelt out, and/or the factual bases of opinions have not been properly identified or proved.

33. I think it appropriate in the circumstances to admit all that material, subject to being satisfied as to its weight and/or relevance, and to make a final determination about those questions when I hear and/or see the parties’ submissions as to how they each contend the evidence ought be used.

Orders

34. For those reasons, I make the following orders:

1. Grant leave to the Defendant to rely on the evidence of Dr Milder dated 1 July 2025 and the evidence of Tegan Gardner, Jessica Welsh, and Rebecca Jackson, notwithstanding the provisions of s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

2. The evidence of the lay witnesses is admitted, subject to hearing submissions as to its relevance and, if relevant, what weight ought be afforded to any aspect of that evidence.

3. To the extent necessary, grant leave to the Plaintiff to rely on his evidence concerning more than one seizure and the Report of Dr Reddell dated 27 July 2025.

4. I admit into evidence the following documents with the following Exhibit titles.

1. Report of Dr Reddell dated 27 July 2025 tendered as Exhibit AS.

2. Report of Dr Milder dated 1 July 2025 tendered as Exhibit AT.

3. Statement of Tegan Gardner tendered as Exhibit AU.

4. Statement of Jessica Welsh tendered as Exhibit AV.

5. Statement of Rebecca Jackson tendered as Exhibit AW.

**********

Decision last updated: 23 September 2025