Finniss v State of New South Wales (No. 2)

[2023] NSWDC 121

District Court

New South Wales

Medium Neutral Citation:	Finniss v State of New South Wales (No. 2) [2023] NSWDC 121
Hearing dates:	15-17 February 2023
Date of orders:	17 February 2023
Decision date:	17 February 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	The tender of both sets of documents is rejected. I will have them marked MFI 4.
Catchwords:	CIVIL – EVIDENCE – TENDER OF DOCUMENTS – REJECTION OF TENDER – Documents produced by rehabilitation providers.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – Craig Charles Finniss Defendant – State of New South Wales
Representation:	Counsel: Plaintiff - Mr Chrysostomou Defendant – Mr O’Dowd Solicitors: Plaintiff – Court Legal Defendant – Kennedy’s Law
File Number(s):	2021/00172686
Publication restriction:	Nil.

Judgment

1. The Plaintiff seeks to tender a series of documents. As far as I can ascertain, the last of the documents was made by a person different to the person who made the first set of documents.

2. The first set of documents bear date 13 January 2020, 31 January 2020, and 14 February 2020. The author of each of those documents appears to be Ms Madison Mulcahy, who gives as her qualifications a Bachelor of Exercise Physiotherapy and styles herself as a “rehabilitation consultant”. Each of the documents is on the stationery of a firm or company, which identifies itself as "Strategic Industry Solutions".

3. The first document bearing date 13 January 2020 is headed "Private and Confidential" and immediately prior thereto has the heading "Initial Assessment Report". It contains, inter alia, a "Medical History". It also purports to list the physical limitations of the "worker", whom I understand to be a reference to the Plaintiff.

4. The second document bearing date 13 January 2021 is headed "Initial Recover at Work Plan". The third document dated 31 January 2020 is headed "Recover at Work Plan Number 1" and the document of 14 February 2020 is headed "Recover at Work Plan Number 2".

5. These would appear to be documents generated by Ms Mulcahy for the Plaintiff’s employer, Facilities First Australia Pty Ltd, and probably ordered by its workers compensation insurer, which appears to be, from the documents themselves, Employers Mutual NSW Limited. The documents might be categorised as being expert reports made by the provider of rehabilitation, but there is no suggestion the documents have ever been served by the Plaintiff upon the Defendant.

6. The final document dated 20 September 2020 appears to have been made by Mr Mitchell O'Brien, who has a Master’s degree in exercise physiology and also styles himself as a "rehabilitation consultant", and is, again, on the stationery of "Strategic Industry Solutions", is headed "Initial Assessment Report", and is also marked "Private and Confidential", and bears date 21 September 2021, and appears to be another attempt by the Plaintiff's former employer or by the Plaintiff's employer, Facilities First Australia Pty Ltd, and its workers compensation insurer to have the Plaintiff return to work.

7. Much like the Initial Assessment Report of 13 January 2020, the document commences with a "Medical History" and then lists the physical limitations of the Plaintiff and then has a "Review of Treatment" and then has a section "Return to Work Planning". The final section of this report is "Next Rehabilitation Action/Timeframe". The document is generated by Ms Mulcahy. The document generated by Mr O'Brien might be categorised as an expert report by an expert providing for rehabilitation and there is no suggestion that the document has been served in accordance with the rules of the Court.

8. Accordingly, the tender of both sets of documents is rejected. I will have them marked MFI 4.

Decision last updated: 27 April 2023