Hayward v A & T Goldman Pty Ltd (Ruling)

[2023] VSC 719

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

CIRCUIT LIST

S ECI 2021 01719

GREGORY ALLAN HAYWARD	Plaintiff
v
A & T GOLDMAN PTY LTD (ACN 100 946 316)	Defendant

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JUDGE:	Forbes J
WHERE HELD:	Wodonga
DATE OF HEARING:	1 December 2023
DATE OF RULING:	4 December 2023
CASE MAY BE CITED AS:	Hayward v A & T Goldman Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VSC 719

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EVIDENCE – Admissibility of medical report obtained via subpoena – Application to tender as a business record of workers’ compensation insurer – Hearsay exception not applicable to documents obtained in connection with an Australian proceeding – Where document is a medical report within r 33 of the Supreme Court (Civil Procedure) Rules 2015 – Non-compliance with r 33 – Document not able to be tendered – Evidence Act 2008 s 69 – Supreme Court (Civil Procedure) Rules 2015 r 33.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F Spencer SC with K Karadimas	Harris Lieberman Solicitors
For the Defendant	P Jens KC with V Katotas	Solicitor for TAC

HER HONOUR:

1. On Day 8 of the jury trial brought by the plaintiff claiming damages for an injury to his neck suffered on 20 March 2018, the defendant foreshadowed an application to tender a medical report of a prior treating psychiatrist dated 20 December 2013. The report had been obtained as a result of a subpoena directed to a South Australian workers’ compensation insurer in relation to a prior workplace injury suffered by the plaintiff who injured his knee in 2007 with consequent psychiatric injury.

1. Aspects of the 2013 report, in particular the plaintiff’s use of medication as at December 2013, were matters put to him in cross-examination based upon information contained in that report. Questions based upon that report were also asked of other witnesses.

1. The matter was argued on the morning of Day 9 of the trial. It was not proposed to call the doctor in question. The defendant submitted that the report nevertheless could be tendered on the basis that it concerned hearsay representations of both the doctor and the plaintiff and was admissible pursuant to the business records exception, relying on s 69 of the Evidence Act 2008 (Vic) (Evidence Act).

1. The plaintiff opposed the application.

1. The defendant submitted that the report contained in the workers’ compensation insurer file was a business record, notwithstanding it was authored by a third party. The document on its face was addressed to lawyers acting on behalf of the plaintiff and referred to a dispute before the South Australian workers’ compensation tribunal. The defendant properly conceded that in those circumstances the document was caught by s 69(3)(a) of the Evidence Act, being ‘a document prepared or obtained … in connection with an Australian proceeding’, and therefore, even if it was a business record, it was not admissible under the exception in s 69(2).

1. Accordingly, the defendant amended its application and sought to rely on a letter written by the doctor on 13 February 2015. That letter was a response to a request from the workers compensation insurer and answered the question of what medications were currently prescribed and their relationship to the South Australian workers’ compensation claim.

1. The defendant submitted that this document was not caught by s 69(3) of the Evidence Act.

1. The plaintiff did not accept that the document was a business record to which s 69(1) applied. He submitted that s 69(1)(a) requires the document to form part of the records of a business and accepted that this requirement was met. He disputed that s 69(1)(b) was satisfied on the basis that the representation recorded in the document was not made ‘in the course of, or for the purposes of, the business’. The request to which the doctor was responding is not in evidence, so the purpose for which the information is requested is unclear. It may well be for the ongoing management of the workers’ compensation claim in 2015. However, on the evidence thus far in the present case, the workers’ compensation dispute was finally resolved in early 2015 and the response may well have been for the purpose of assessing an appropriate settlement.

1. Ultimately it is not necessary to determine whether or not the representations in the document were made in the course of or for the purpose of the workers’ compensation claim. This is because, as was said in Lithgow City Council v Jackson (‘Lithgow’):[1]

But s 69 does not render business records as such admissible. It concerns representations in a document which is or forms part of a business record within the meaning of s 69(1). The representations are admissible if s 69(2) is satisfied.[2]

[1](2011) 244 CLR 352.

[2]Ibid 361.

1. Assuming s 69(2) is satisfied, the Court went on to say:

One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies.[3]

[3]Ibid 363.

1. In Lithgow, the issue was whether the hearsay representation in a business record was admissible as a lay opinion under s 78 of the Evidence Act. The Court concluded it was not.

1. Here, the doctor’s report is clearly an expert opinion under s 79 of the Evidence Act, the doctor being a psychiatrist and asked to identify current medications and provide an opinion on their relationship with the then compensable injury. There was no issue that the document would be admissible under s 79.

1. The plaintiff submitted that in order to rely on such a report admissible under s 79, the defendant had to comply with r 33.08 of the Supreme Court (Civil Procedure) Rules 2015 (the Rules) regarding medical and hospital reports and serve a copy in accordance with that section. The document in question is clearly a statement in writing on medical matters concerning the plaintiff, whether or not any opinion is expressed, and is therefore caught by r 33. The fact that it came into the possession of a party as a result of a subpoena issued under r 42A of the Rules does not remove the need to comply with r 33. There had been no compliance with r 33.08 by the defendant.

1. The defendant cannot adduce the evidence (other than by cross-examination, or with consent of the plaintiff) without leave of the Court under r 33.12. The plaintiff referred me to Baker v Norcross Pty Ltd (Ruling No 1) (‘Baker’),[4] in which Kaye J (as his Honour then was) gave leave under r 33.12 to lead evidence from the treating neurosurgeon on causation that was not contained in the reports previously exchanged. His Honour said:

In a case such as this, where the defendant has quite properly not argued that the calling of that evidence would adversely affect its ability to handle the evidence, or would have adversely affected the manner in which it has already conducted the case, quite clearly the balance of prejudice would weigh heavily against the plaintiff, in terms of the conduct of the case itself, were I to shut the plaintiff out from calling evidence which is otherwise admissible and relevant in the proceeding.[5]

[4][2010] VSC 55.

[5]Ibid [10].

1. This situation is significantly different. First, the defendant has not served any reports from the doctor in question. It is not a situation of expanding on an opinion otherwise regularly exchanged between the parties. Second, in Baker it was proposed to call the doctor and lead the evidence, giving an opportunity for cross-examination on the expressed opinion. Third, the issue was critical to the case of the party wishing to call the evidence and to refuse leave weighed heavily against the party wishing to rely on it.

1. The application to tender in this case is made in circumstances where the doctor is not available for cross-examination and there has not been an opportunity to ascertain from his notes matters of history that bear upon the facts or opinions expressed.

1. The application to tender a hearsay statement of a doctor as a business record of a workers’ compensation insurer, in circumstances where non-compliance with r 33 of the Rules would not otherwise permit the admission of the evidence, is refused.