Isailovic v Spotless Facility Services Pty Ltd
[2019] VSC 185
•21 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 04985
| GORAN ISAILOVIC | Plaintiff |
| v | |
| SPOTLESS FACILITY SERVICES PTY LTD | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18, 19, 20 and 21 March 2019 |
DATE OF RULING: | 21 March 2019 |
CASE MAY BE CITED AS: | Isailovic v Spotless Facility Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2019] VSC 185 |
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PRACTICE AND PROCEDURE – Application for discharge of jury, adjournment of trial, and for trial to proceed as a cause – Plaintiff’s personnel file produced on morning of fourth day of trial – Plaintiff prejudiced by failure of defendant to comply with its discovery obligations – Jury discharged – Trial to resume before judge alone.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC and Mr G Pierorazio | Arnold Thomas and Becker Pty Ltd |
| For the Defendant | Mr D McWilliams and Mr M K Clarke | Wisewould Mahony |
HIS HONOUR:
The history of the current proceeding is as follows. First, it was listed for hearing in April 2018, but was adjourned as a result of no judge being available to hear the case, given the estimated hearing time. It was then listed for hearing in approximately November 2018, but, again, the proceeding was adjourned, this time because of unavailability of the plaintiff’s counsel.
The matter was then listed for hearing with priority on 18 March 2019. A jury was empanelled on 18 March 2019. The plaintiff has given evidence-in-chief. His cross-examination commenced late on the second day of hearing and has continued throughout the third day.
At the commencement of today’s hearing, day four, counsel for the plaintiff made an application for discharge of the jury and for the trial to proceed as a cause. The basis of this application is that, immediately prior to the scheduled commencement of today’s hearing, counsel was provided with what I am told is an approximately 170-page personnel file of the plaintiff.
Yesterday afternoon after court had concluded, counsel had been provided with an 80-page personnel file. A call for production of the personnel file had been made during the course of the third day of the trial by Ms Forbes QC. Mr McWilliams informed the court that the 170-page personnel file had been located at The Alfred Hospital, where Mr Isailovic was employed by the defendant between June 2011 and late September 2013.
The full personnel file was discoverable and the defendant’s failure to discover that file, prima facie, constitutes a serious breach of its discovery obligations. Further, that failure is inexplicable in light of the fact that the matter was first listed for trial in April 2018. In those circumstances, it would have been expected that all preparation work necessary for the conduct of the trial should have been completed 12 months ago.
In support of the application for discharge of the jury and for the trial to proceed by way of a cause, Ms Forbes submits that the plaintiff will be prejudiced if any other course is followed. In the first instance, Ms Forbes points to a resume document which was the subject of lengthy cross-examination by Mr McWilliams.
It was put to the plaintiff during the course of cross-examination that he had prepared this document for the purposes of his employment application with Spotless. It was put to him that there are inconsistencies between the contents of this document and evidence which he had given during the course of his evidence-in-chief.
The relevant document was not discovered. It was provided to the plaintiff’s legal representatives when Mr McWilliams commenced his cross-examination. Plainly, the document should have been discovered and Ms Forbes and the plaintiff’s legal representatives should have been afforded an opportunity to obtain instructions regarding its contents prior to the trial commencing. The plaintiff has been prejudiced as a result of the failure for this to have occurred.
The documents provided this morning also included the defendant’s notes, which appear to have been taken by staff in the HR department during the plaintiff’s employment interview, which took place on 16 June 2011. I was informed that the notes record the plaintiff’s English language skills as being ‘below expectations’.
The plaintiff’s competence in English has thus far been a significant issue in the course of this proceeding, particularly his cross-examination. I am satisfied that the plaintiff has been prejudiced by reason of the failure to discover this document. I am also satisfied that considerations of fairness warrant the plaintiff being afforded an opportunity to confer with his legal representatives regarding all of the additional documents which have been provided this morning.
I am not satisfied that to date the defendant has provided full discovery. One of the documents provided in the additional discovery this morning forms part of a three-page document headed ‘Safety at Spotless Tool’. There is a sub-heading, ‘Month Three, Safety Training’. Thereunder, under the heading ‘Job Safety Skills’, there are a number of subheadings are, including ‘Spotting and Reporting Hazards’, ‘Safe Manual Handling’, and ‘Preventing Slips, Trips and Falls’.
On the face of the document, it would appear that in June 2011 there was a system in place at Spotless whereby all new employees would, within the first three months of commencing employment, be subject to specific safety training in respect of the matters to which I have referred.
Although it appears that no such training was undertaken in the case of the plaintiff, any documents in the possession of the defendant relating to the training should have been provided, which would include training which was, in fact, provided to other employees at that time. Such documents are plainly relevant and should be discovered.
There is also an issue as to the discovery of contemporaneous documents which were available at the time of the plaintiff’s induction in June 2011. To date, during the course of cross-examination, reference has been made to a document entitled ‘First Impressions’, as well as a document ‘Safety at Spotless’. There has also been reference to a Safe Manual Handling module.
I have been informed from the Bar table that, although enquiries have been made of the defendant, it has not been possible to locate contemporaneous versions of these documents. I am not satisfied to date that all steps which are available have been taken by the defendant, which is a substantial corporation, to identify and retrieve such documents.
I shall direct that the defendant is to file an affidavit deposing to what steps have been taken to retrieve the documents which were available at the time of Mr Isailovic’s induction in June 2011. This affidavit will need to address what attempts have been made by the defendant to deploy retrieval software for the purposes of retrieving the relevant documents.
I propose to adjourn the trial until 1 April 2019. An adjournment of that duration will serve two purposes. Firstly, it will provide the plaintiff with an opportunity to provide instructions to his legal representatives regarding the additional documents which have been discovered to date.
Further, it will provide the defendant with an opportunity to complete all attempts to meet its discovery obligations and to provide any such further documents to the plaintiff who, in turn, will then have an opportunity to consider that.
The adjournment of the proceeding from today’s date until 1 April 2019 is, of itself, a proper foundation for the discharge of the jury. I am not satisfied that the jury would be able to effectively discharge its functions after a resumption after in excess of a week. However, in addition to that consideration, I place weight on the fact that, to date, the plaintiff’s case, as conducted and presented before this jury, has been prejudicially impacted by the defendant’s failure to meet its discovery obligations.
I shall make an order discharging the jury. The trial shall proceed, commencing before me on 1 April 2019 as a cause. I am mindful of, and give significant weight to, the defendant’s prima facie right to have a trial before a jury. However, in the particular circumstances of the present case, in particular the circumstances in which an adjournment has come about, I consider it appropriate that the trial should proceed as a cause. Consideration of costs, efficiency, and the final determination of the proceeding, although not determinative, weigh heavily in favour of this course.
If the trial was to recommence as a jury trial before a newly empanelled jury, there is a real risk, having regard to the likely duration of that trial, that it would not be relisted for hearing until the first quarter of 2020. On the other hand, if the trial proceeds as a cause, it is likely to be heard and determined by 30 June 2019.
Further, if it be the case that it is necessary for the plaintiff to be recalled to give further evidence-in-chief in respect of additional discovered documents, that is a matter which will be able to be readily accommodated before me, sitting as a Judge alone.
I have taken into account Mr McWilliam’s submission that credit is a central issue in the defendant’s defence as a factor weighing in favour of the trial proceeding before a jury. However, I do not accept the fact that the defendant has put the plaintiff’s credit in issue is determinative. The adjournment of the trial, and the discharge of the jury, is a direct consequence of the defendant’s failure to meet its discovery obligations.
In these circumstances, weighing the competing considerations as between plaintiff and defendant, including the defendant’s prima facie right to have a trial before the jury, it would be unfair to visit upon the plaintiff the significant delays in the hearing and determination of his claim which will occur if the trial does not proceed as a cause.
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