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:

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.

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.

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).

The plaintiff opposed the application.

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).

Accordingly, the defendant amended its application and sought to rely on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 719
Decision Date: 4 December 2023

CaseChat Overview and Summary

The case involved a dispute between the applicant, Hayward, and the respondent, A & T Goldman Pty Ltd. The central issue was the admissibility of a medical report obtained via a subpoena issued by the respondent. The report was intended to be tendered as a business record of the workers’ compensation insurer. The court was tasked with determining whether the hearsay exception could apply to documents obtained in connection with an Australian proceeding, particularly when the document in question was a medical report within the scope of rule 33 of the Supreme Court (Civil Procedure) Rules 2015.

The court examined whether the report complied with rule 33, which pertains to the admissibility of business records. Rule 33 requires that the document be produced and served within the prescribed period, and that any objections to the document's admissibility must be made within 14 days of the document being served. The court found that the respondent had failed to comply with these procedural requirements, leading to the conclusion that the document could not be tendered. Additionally, the court referenced the Evidence Act 2008, specifically section 69, which deals with the exceptions to the hearsay rule, and concluded that the circumstances did not permit the medical report to be admitted as evidence.

Ultimately, the court ruled that the medical report could not be tendered as evidence due to the respondent's non-compliance with the procedural rules set out in rule 33 of the Supreme Court (Civil Procedure) Rules 2015. The court's decision hinged on the strict adherence to the procedural requirements for tendering such documents, and the respondent's failure to meet these obligations precluded the admissibility of the medical report. The court did not permit the report to be used as evidence in the proceedings.

Orders