Jefferson v Uniting Church in Australia Property Trust (Q.) and Pousette v Uniting Church in Australia Property Trust (Q.)
[2013] FCCA 1294
•8 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFERSON v UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) and POUSETTE v UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) | [2013] FCCA 1294 |
| Catchwords: PRACTICE & PROCEDURE – Objections to evidence. |
| Legislation: Fair Work Act 2009 (Cth), ss.342, 341 |
| Applicant: | LORRAINE JEFFERSON |
| Respondent: | UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) T/A THE SUNSHINE COAST PRIVATE HOSPITAL |
| File Number: | BRG 2 of 2013 |
| Applicant: | LESLEY POUSETTE |
| Respondent: | UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) T/A THE SUNSHINE COAST PRIVATE HOSPITAL |
| File Number: | BRG 1136 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 5 August 2013 |
| Date of Last Submission: | 5 August 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 8 August 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr Courtney |
| Solicitors for the Applicants: | Butler McDermott Lawyers |
| Counsel for the Respondents: | Mr Murdoch |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS made in BRG 2 of 2013
The Court rules upon the respondent’s objections to the applicant’s evidence as set out in the attached schedule.
Order 6 of the orders made 11 February 2013 be varied to the respondent file and serve affidavits containing the evidence in chief of each witness it proposes to call at the hearing of the matter by 4.00pm on 26 August 2013.
Order 7 of the orders made 11 February 2013 be varied to the applicant file and serve any affidavits in reply by 4.00pm on 9 September 2013.
The application be adjourned to 21 October 2013 at 9.30 a.m. for mention/directions in the Federal Circuit Court of Australia sitting at Brisbane.
ORDERS made in BRG 1136 of 2012
The Court rules upon the respondent’s objections to the applicant’s evidence as set out in the attached schedule.
Order 6 of the orders made 11 February 2013 be varied to the respondent file and serve affidavits containing the evidence in chief of each witness it proposes to call at the hearing of the matter by 4.00pm on 26 August 2013.
Order 7 of the orders made 11 February 2013 be varied to the applicant file and serve any affidavits in reply by 4.00pm on 9 September 2013.
The application be adjourned to 21 October 2013 at 9.30 a.m. for mention/directions in the Federal Circuit Court of Australia sitting at Brisbane.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 2 of 2013
| LORRAINE JEFFERSON |
Applicant
And
| UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) T/A THE SUNSHINE COAST PRIVATE HOSPITAL |
Respondent
BRG 1136 of 2013
| LESLEY POUSETTE |
Applicant
And
| UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) T/A THE SUNSHINE COAST PRIVATE HOSPITAL |
Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
In these two applications, the applicant in each proceeding alleges that the respondent – which is the same in each case – took adverse action against them as that term is defined in s.342 of the Fair Work Act 2009 because they had exercised, or they proposed to exercise, a workplace right as that term is defined in s.341 of the Fair Work Act. In each of the proceedings, the central issues for determination are whether the applicant in each case had exercised or proposed to exercise a workplace right for the purposes of the Fair Work Act, and if so, whether because they had exercised or proposed to exercise those rights, adverse action was taken against them by the respondent.
In her amended statement of claim filed on 25 February, 2013 Ms Pousette alleges that:
a)From 2009 onwards, she made complaints to employees of the respondent in relation to two doctors who worked at the respondent’s hospital. The complaints were about their medical practices, competence of practice and their clinical manner.
b)She made complaints to external bodies, including the Royal Australian and New Zealand College of Psychiatrists, the Australian Health Practitioners Registration Authority, the Health Quality and Complaints Commission, Mr Peter Wellington, Member of Parliament, and a CIB detective, in relation to the same two medical practitioners.
c)She had other workplace rights arising out of a raft of Queensland legislation, including the Workplace Health and Safety Act 1995, and the Health Practitioner Regulation National Law Act 2009.
d)The respondent instituted an investigation, disciplinary process and ultimately terminated her employment for reasons including that she had made the complaints, and/or because she had the other workplace rights referred to in the previous paragraph.
In her statement of claim filed on 25 February, 2013 Ms Jefferson alleges that from around 2006 onwards she made complaints to employees or consultants of the respondent in relation to the same two doctors about which Ms Pousette complained. Again, her complaints were about their medical practice, their competence and their clinical manner. She too alleges that she had the same workplace rights and responsibilities arising out of the legislation to which I have earlier and briefly referred. She alleges that the respondent instituted an investigation, disciplinary process and ultimately terminated her employment for reasons including that she had made the complaints, and/or because she had the workplace rights and responsibilities that she sought to exercise.
The respondent’s position, as revealed in the amended defences that were both filed on 11 March, 2013 is that it dismissed Ms Pousette and Ms Jefferson for the reasons that were set out in termination letters that were given to each of the applicants, and for no other reason. In the case of Ms Pousette, the reasons for her termination were that she frequently and continuously engaged in negative behaviours and/or contributed to a negative workplace culture and that she engaged in “bullying behaviour.”
In respect of Ms Jefferson, the reasons given for her termination were that she frequently and continuously engaged in negative behaviours and contributed to a negative workplace culture. She engaged in “bullying behaviour.” She behaved “unprofessionally,” and she failed to encourage a “learning environment.”
The respondent points out in its pleading that the investigation that led to the suspension, discipline and termination of each of the applicants was as a result of an independent review commissioned by the respondent. It expressly disavows that it took the actions said by each of the applicants to be adverse action for the purposes of the Act against them because they exercised or proposed to exercise any workplace rights identified by the applicants in their amended statements of claim.
These applications have proceeded to the point where each of the parties has been directed to file affidavits of evidence in chief of each witness upon which that particular party intends to rely at the hearing of these proceedings.
The applicant in each case has filed a number of affidavits, one by the applicant and then one by a number of witnesses upon which that applicant intends to rely. There is, save for the evidence of each of the applicants, complete overlap in the witnesses to be relied upon by the applicants in each application.
By applications in a case filed on 5 July, 2013 in each proceeding, the respondent seeks orders striking out all or certain parts of the affidavits of each of the witnesses relied upon by each applicant. The precise orders sought by the respondent in each case are set out in the applications in a case, and the orders are sought by reference to a schedule attached to each of the applications in a case. The schedules set out in detail each particular affidavit which is sought to be attacked – and each affidavit filed by both applicants in the proceedings are sought to be attacked in one way or another – and the basis upon which the respondent objects to the particular evidence identified in the schedule.
The objections taken by the respondent to the applicants’ evidence fall generally into a number of categories. The first is that the material in the affidavits is irrelevant. Secondly, the material is scandalous or argumentative for the purposes of the Federal Circuit Court Rules 2001, and in particular rule 15.29, sub-rule (1). Thirdly, it is said that some of the evidence is unqualified opinion, or that some of the evidence is hearsay.
To the extent that the evidence is hearsay, counsel for each of the applicants conceded that the hearsay evidence was not admissible, but sought to press the evidence on the basis that it was not being led as to the truth of what was said, but rather simply that it was said. That is to say, no hearsay purpose was advanced in respect of what would otherwise be hearsay evidence. On the basis of that concession, counsel for the respondent indicated that the objections were not pressed where those objections were solely related to the hearsay nature of the evidence.
I have determined to address each of the objections by reference to the schedules attached to the applications in a case. I have done that by reproducing the schedules and adding a fourth column to each of the schedules headed Ruling. In the Ruling column appears the words either “disallowed” in respect of evidence which I have ruled inadmissible for the reasons given in the schedule, and “allowed” for evidence which can remain and ultimately be admitted at the trial. Those schedules will be forwarded to each of the solicitors for the parties when I am able to leave the court room this afternoon.
But what will become apparent from a perusal of those schedules is this: most of the objections have been upheld. Much of the evidence relied upon by the applicants in each of their affidavits is inadmissible because it does not go to a matter which is in issue between the parties. What is in issue between the parties is ultimately – and by reference to the pleadings – more particularly the reasons for the termination and the other adverse action specified by the applicants in their amended statements of claim.
The amended statements of claim confine the allegations by the applicants. For example, the amended statement of claim for Ms Pousette, filed on 25 February 2013, begins by some general allegations about the applicant and the respondent, and then some allegations about various people – a dramatis personae, if you will. Then there is an allegation about the applicant’s duties and responsibilities, and then in paragraphs 14 and 15, there are allegations under the heading “Complaints and Inquiries Made by The Applicant.”
Paragraph 14 is an allegation of a very general and broad nature:
From or around early 2010, the applicant made complaints to employees of the respondent in relation to two medical practitioners, surrounding their medication practices, competence of practice and clinical manner.
It is difficult to know what to make of that paragraph. It is difficult because of its form, and it, of course, begs for particulars. Paragraph 15 seeks to provide an explanation as to why the applicant made the complaints. Thereafter, in paragraph 16 through to about paragraph 41, appear a number of allegations about complaints made by the applicant. The way I read the amended statement of claim is that what appears in paragraphs 16 through to paragraph 41 are really particulars of the general allegation set out in paragraph 14 of the amended statement of claim. My approach to that may be wrong, but it seems to me that that really is the only way to give paragraph 14 any work to do.
If that is the appropriate interpretation of the amended statement of claim, then it seems that the allegations about the complaints that the applicant says she made – that is, complaints to the respondent in the exercise of a workplace right or a responsibility cast upon the applicant in her employment role – are limited to the particular occasions of complaint specified in paragraphs 16 through to 41.
After paragraph 41 appears a group of a paragraphs under the heading “Whistleblower Group.” It is difficult to know what to make of those paragraphs and what work they have to do in this case. Similarly, under the heading “Media Publications” appear two paragraphs. Again, it is difficult to know – and it was not elaborated upon in argument – what work those paragraphs have to do in the context of this case, given the legal framework against which it needs to be decided.
Paragraph 57 sets out the workplace rights in respect of the exercise of which it is alleged the respondent took adverse action against the applicant. Those allegations are then the subject, it seems, of some elaboration. Later in the pleading, it is said that a disciplinary process was commenced – see paragraphs 82, 83, 84, 85 and 86. The conduct which is the subject of the plea in paragraphs 82 through to 86 is said to be conduct which is adverse action for the purposes of the Fair Work Act. Then there appears another allegation in paragraph 88, but it is difficult to know what that has to do with anything. Thereafter there are some conclusory allegations set out in paragraphs 89 and 90.
No issue was taken with the pleading, but it is necessary for the purposes of the objections to evidence to point out that the pleading is a difficult one. It is hard to follow, tends to plead allegations which are not in a strict sense single allegations of fact confined to a single paragraph, and it is argumentative. It makes a dissection of what is relevant and what is irrelevant difficult.
The same observations apply to Ms Jefferson’s statement of claim.
Nonetheless, as I have indicated, my view is that most of the applicant’s evidence the subject of the objections set out in the schedules to the applications in a case are well-taken. That is because what is in issue, when one looks at the amended statements of claim and the respondent’s response to them, is not whether the subject matter of the complaints made by each of the applicants to the respondent was true, but rather whether those complaints formed the basis for the adverse action taken by the respondent against the applicants. It really is neither here nor there whether the complaints had substance to them. There does not seem to be any real issue taken by the respondents with the fact that the applicants complained to the respondents, or officers of the respondents, about the relevant doctors.
What is in issue is the response to those complaints, in the sense that the applicants allege the response was to take adverse action against them for the purposes of the Fair Work Act, whereas the respondent says that it did not.
For those reasons, it seems to me that much of the evidence of the applicants and their witnesses that goes towards demonstrating that the two doctors the subject of the applicants’ complaints were incompetent, were dangerous, engaged in practices that were not authorised and that were not soundly based in current medical practice, that were experimental, and that were otherwise a danger to their patients and others around them is irrelevant. To permit that evidence to remain in the case will in my view unnecessarily lengthen the proceedings, and will cause unnecessary delay and expense.
There are a number of other affidavits relied upon by each of the applicants. The affidavit of Caroline Anne Stevens is, as a whole, inadmissible in my opinion. Her evidence is of no probative value because it does not go to a fact which is in issue on the pleadings between the parties. Similarly, the affidavit of Ms Craig and the affidavit of Professor Embleton. That those people may have had their own views about the applicants and their professionalism; their own views about the doctors who were the subject of the relevant complaints, and their professionalism; and their own views about the way in which the respondents handled those complaints is, having regard to the issues in dispute on the pleadings, entirely irrelevant. I should also say that Dr McIntyre’s affidavit falls into that same category.
There is an affidavit by Therese Mary Beal. Objection is not taken to the whole of that affidavit, but all of the objections taken to it are upheld. Similarly, in respect of the affidavit of Dr Herbert, objection is not taken to the whole of that affidavit, but those objections that are taken are upheld.
For all of those reasons, the rulings on the objections to evidence taken by the respondent to the applicants’ affidavits will be as per the schedules which I now publish.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 August 2013
Associate:
Date: 9 September 2013
ATTACHMENT A
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BRISBANE REGISTRY
File Number: BRG1136/2012
LESLEY ANN POUSETTE
ApplicantUNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.)
T/A THE SUNSHINE COAST PRIVATE HOSPITAL
Respondent
RULINGS ON THE OBJECTIONS TO MATERIAL CONTAINED IN THE APPLICANT’S AFFIDAVITS
1. The Court rules upon the Respondent’s objections to the Applicant’s evidence as set out in the schedule that follows.
Schedule
Affidavit of Lesley Pousette sworn 13/05/2013
| Paragraph(s) | Component | Objection | Ruling |
| 38-39 | Whole paragraphs | Irrelevant, Opinion (unqualified) | Inadmissible |
| 40 | 'I always got along well with all the registered nurses and clinical nurses that I worked with...I felt that I was professional in all circumstances.' | Irrelevant, Opinion (unqualified) | Inadmissible |
| 41-44 | Whole paragraphs | Irrelevant | Inadmissible |
| 45-46 | Whole paragraphs | Opinion (Unqualified) | Inadmissible |
| 48-52 | Whole paragraphs | Irrelevant | 50 – 52 inadmissible, balance admissible |
| 48 | 'Sometime in or around 2008 to 2009 an outpatient patient, Ms Leanne Dallas, told me she had a sexual relationship with Dr Radovic and that she met him whilst an inpatient in the Unit.' | Hearsay | See above |
| 50 | '...when I was later speaking with Jacqueline Huppert, Investigator, Australian Health Practitioners Regulation Agency ('AHPRA'), as referred to in paragraph 353 of my Statement, she informed me that the Hospital had not reported the matter to AHPRA.' | Hearsay | See above |
| 51 | Whole paragraph | Opinion (unqualified) | See above |
| 52 | Whole paragraph | Opinion (Unqualified) | See above |
| 53-59 | Whole paragraphs | Irrelevant | 53 – 55, 57-58 inadmissible, balance admissible, save for 59, as to which see below |
| 55-57 | Whole paragraphs | Hearsay | See above |
| 58 | Whole paragraph | Irrelevant | See above |
| 59 | 'It was my opinion based on the time I saw Dr Radovic spending with patients that he was billing patients for much longer than the time in which he saw them.' 'I was also approached by patients who complained to me that Dr Radovic only saw them for five to ten minutes.' | Inadmissible Opinion Hearsay | Admissible Inadmissible |
| 61 | Whole paragraph | Irrelevant, Hearsay | Inadmissible |
| 65-72 | Whole paragraphs | Irrelevant | Inadmissible, save in relation to 65 and 69, as to which see below |
| 65 | 'Mr Trent Young was admitted profoundly depressed.' 'This patient was prescribed large doses of benzodiazepines and anti-depressants that were not effective.' | Inadmissible Opinion Opinion (Unqualified) | Highlighted text admissible, balance inadmissible |
| 66 | Whole paragraph | Hearsay | Inadmissible |
| 67 | Whole paragraph | Hearsay | Inadmissible |
| 68-69 | Whole paragraphs | Irrelevant, Opinion (Unqualified) | 69 admissible, balance inadmissible |
| 70 | Whole paragraph | Hearsay | Inadmissible |
| 71-72 | Whole paragraphs | Irrelevant | Inadmissible |
| 74-76 | Whole paragraphs | Irrelevant | Inadmissible |
| 75 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 79 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 80-87 | Whole paragraphs | Irrelevant | Inadmissible |
| 83 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 85 | Whole paragraph | Hearsay | Inadmissible |
| 87 | Whole paragraph | Hearsay | Inadmissible |
| 89-94 | Whole paragraphs | Irrelevant | Inadmissible |
| 89 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 91 | Whole paragraph | Hearsay | Inadmissible |
| 92 | 'The patient constantly worried about her alcohol issues...' | Inadmissible Opinion | Inadmissible |
| 94 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 96 | 'She approached me to tell me she felt Dr Radovic's treatment of Ms Nambo was not assisting her recovery.' | Hearsay | Inadmissible |
| 96-101 | Whole paragraphs | Irrelevant | Inadmissible |
| 97 | Whole paragraph | Hearsay | See above |
| 98 | Whole paragraph | Hearsay | See above |
| 99 | 'Lorraine said she would ring Dr Fraser as she had previously worked with him on ward 2a....Lorraine said she would call Dr Fraser and arrange for Ms Nambo to see him as an outpatient.' | Hearsay | See above |
| 102-108 | Whole paragraphs | Irrelevant | Inadmissible |
| 106 | 'I was being asked to act illegally.' | Inadmissible Opinion | See above |
| 109-120 | Whole paragraphs | Irrelevant | Inadmissible |
| 117 | 'Dr Radovic did not seem to understand his comments constituted a violation of patient/clinician boundaries.' | Inadmissible Opinion | See above |
| 121 | 'Dr Radovic seemed to have limited knowledge of basic drug treatments.' | Irrelevant, Opinion (Unqualified), Scandalous | Inadmissible |
| 122 | Whole paragraph | Irrelevant, Opinion (Unqualified), Scandalous | Inadmissible |
| 123 | Whole paragraph | Irrelevant | Inadmissible |
| 124 | Whole paragraph | Irrelevant | Inadmissible |
| 125 | Whole paragraph | Irrelevant, Opinion (Unqualified) | Inadmissible |
| 126 | Whole paragraph | Irrelevant, Opinion (Unqualified) | Inadmissible |
| 127 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 128-129 | Whole paragraphs | Opinion (Unqualified) | Inadmissible |
| 132 | 'Ms Grey agreed with my concerns' | Irrelevant | Inadmissible |
| 134-139 | Whole paragraphs | Irrelevant | Inadmissible |
| 135 | 'Dr Bird said she had Attention Deficit Hyperactive Disorder ('ADHD') and should be on Dexamphetamine.' | Hearsay | See above |
| 136 | 'Dr Bird told me I should undertake a test to establish if she (sic) had ADHD' | Hearsay | See above |
| 138 | Whole paragraph | Hearsay | See above |
| 141-155 | Whole paragraphs | Irrelevant | Inadmissible |
| 141 | Whole paragraph | Opinion (Unqualified), Scandalous | See above |
| 143 | Whole paragraph | Opinion (Unqualified) | See above |
| 145 | Whole paragraph | Hearsay | See above |
| 153 | '...Dr Bird also directed the staff to undertake an Adult Development Eye Movement Test ('ADEM') on patients on this drug treatment to determine if the drug treatment improved patients' clarity of thought.' | Hearsay | See above |
| 154 | Whole paragraph | Opinion (Unqualified) | See above |
| 155 | Whole paragraph | Hearsay | See above |
| 156-162 | Whole paragraphs | Irrelevant | Inadmissible |
| 158 | Whole paragraph | Hearsay | See above |
| 162 | Whole paragraph | Opinion (Unqualified) | See above |
| 169 | Whole paragraph | Irrelevant | Inadmissible |
| 177 | 'In my view this was grossly inappropriate...Tasmanian laws' | Opinion (Unqualified) | Inadmissible |
| 179 | 'Ms Delany in response said words to the effect, "It must be okay if Dr Bird prescribed it". | Irrelevant | Inadmissible |
| 180-184 | Whole paragraphs | Irrelevant | Inadmissible |
| 186 | '...each of these doctors told me they shared my concerns about Dr Bird.' | Irrelevant, Hearsay | Inadmissible |
| 187 | Whole paragraph | Irrelevant | Inadmissible |
| 188-200 | Whole paragraphs | Irrelevant | Inadmissible |
| 193 | Whole paragraph | Hearsay | See above |
| 196 | Whole paragraph | Hearsay | See above |
| 199 | 'Dr Fraser gave it to me and he said it was in relation to concerns raised by staff about Dexamphetamine.' | Hearsay | See above |
| 202 | 'Dr Fraser informed me that he too was concerned about Dr Bird's clinical conduct and that he would be reporting the matter to the Hospital Management.' | Hearsay | Inadmissible |
| 204 | Whole paragraph | Hearsay | Inadmissible |
| 205-210 | Whole paragraphs | Irrelevant | Inadmissible |
| 210 | Whole paragraph | Hearsay | Inadmissible |
| 222 | 'and the other nurses' | Hearsay | Inadmissible |
| 223 | Whole paragraph | Irrelevant | Inadmissible |
| 226 | 'Dr Radovic didn't seem to understand the serious nature of the concerns'. | Inadmissible opinion | Inadmissible |
| 249 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 250 | 'Dr Fraser re-assured me that it was not illegal for him to have recorded a conversation as he did and said he would send me the copy of the relevant legislation'. | Irrelevant, Hearsay | Inadmissible |
| 251 | Whole paragraphs | Irrelevant | Inadmissible |
| 265-283 | Whole paragraphs | Irrelevant | Inadmissible |
| 265-266 | Whole paragraphs | Hearsay | See above |
| 280 | 'I started to get worried that I was being targeted for making complaints'. | Inadmissible opinion | See above |
| 288-290 | Whole paragraphs | Irrelevant | See above |
| 291-295 | Whole paragraphs | Irrelevant | Inadmissible |
| 292-294 | Whole paragraphs | Irrelevant, Opinion (Unqualified) | See above |
| 299-300 | Whole paragraph | Irrelevant | Inadmissible |
| 303-309 | Whole paragraphs | Irrelevant | Inadmissible |
| 306 | Whole paragraph | Hearsay | See above |
| 310-318 | Whole paragraphs | Irrelevant | Inadmissible |
| 324-325 | Whole paragraphs | Irrelevant | Inadmissible |
| 333-341 | Whole paragraphs | Irrelevant | |
| 348 | 'Given that I spoke up about my concerns about Dr Bird and other doctors, I believe that the Hospital thought that I was the anonymous person that made the complaint'. | Inadmissible opinion. | Inadmissible |
| 349 | Whole paragraph | Irrelevant, hearsay | Inadmissible |
| 353 | 'Ms Huppert told me she had been given my name by Ms Carolyn Stevens, who had also made a notification to AHPRA' | Irrelevant, hearsay | Inadmissible |
| 368-387 | Whole paragraphs | Irrelevant | Inadmissible |
| 371 | Whole paragraph | Hearsay | See above |
| 373 | 'Dr Bird became concerned that Dr Martin had not signed the consent forms'. | Inadmissible opinion | See above |
| 376 | 'Dr Bird became visibly distressed and anxious'. | Inadmissible opinion | See above |
| 378, 381 | Whole paragraphs | Hearsay | See above |
| 379 | Whole paragraphs | Irrelevant | See above |
| 384 | Whole paragraph | Hearsay | See above |
| 386 | Whole paragraph except last sentence. | Inadmissible opinion | See above |
| 390 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 395 | Whole paragraph | Irrelevant | Inadmissible |
| 396 | Whole paragraph | Irrelevant, hearsay | Inadmissible |
| 401-410 | Whole paragraphs | Irrelevant | Inadmissible |
| 408 | 'Ms Wigan said to me that she was very concerned about what she had witnessed. She said "it's illegal"'. | Hearsay | See above |
| 410 | Whole paragraph | Inadmissible opinion | See above |
| 411-427 | Whole paragraphs | Irrelevant | Inadmissible |
| 417 | Whole paragraph | Inadmissible opinion | See above |
| 420 | Whole paragraph | Hearsay | See above |
| 421 | Whole paragraph | Inadmissible opinion | See above |
| 422 | 'You should not have told Dr Martin about Dr Bird taking the dexamphetamine into his office'. | Hearsay | See above |
| 425 | Whole paragraph | Hearsay, scandalous | See above |
| 427 | Whole paragraph | Inadmissible opinion | See above |
| 438-439 | Whole paragraphs | Irrelevant | See above |
| 474 | 'Ms Priaulz told me that the management were concerned regarding my "mental health". | Hearsay | |
| 478 | 'I felt my job may be in jeopardy'. | Inadmissible opinion | Inadmissible |
| 485 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 486 | 'He held the same concerns and I did but said he was fearful of reporting them. Dr Montgomery told me that because Dr Fraser had made a report he did not think he had to'. | Irrelevant, hearsay | Inadmissible |
| 487-496 | Whole paragraphs | Irrelevant | Inadmissible |
| 497 | Whole paragraph | Irrelevant | Inadmissible |
| 498 | Whole paragraph | Irrelevant | Inadmissible |
| 499-507 | Whole paragraphs | Irrelevant | Inadmissible |
| 521 | Whole paragraph | Irrelevant | Inadmissible |
| 526 | Whole paragraph | Irrelevant | Inadmissible |
| 531-534 | Whole paragraphs | Irrelevant | Inadmissible |
| 535 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 537 | Whole paragraphs | Irrelevant | Inadmissible |
| 541-542 | Whole paragraphs | Irrelevant | Inadmissible |
| 558 | Whole paragraph | Irrelevant | Inadmissible |
| 567 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 591 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 601 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 608 | 'I was always courteous and polite when talking to Ms Coyle and treated her with respect'. | Inadmissible opinion | Inadmissible |
| 610 | 'In fact, it was Ms Coyle's behaviour that was inappropriate'. | Inadmissible opinion | Inadmissible |
| 617 | Whole paragraph | Hearsay | Inadmissible |
| 628 | Whole paragraph | Hearsay | Inadmissible |
| 631 | Whole paragraph | Inadmissible opinion | Inadmissible |
| 633 | Whole paragraph | Hearsay |
Affidavit of Carolyn Anne Stevens 23/5/13
| Paragraph(s) | Component | Objection | Ruling |
| Whole Affidavit | Whole Affidavit | Irrelevant | Inadmissible |
| 5 | Whole paragraph | Inadmissible Opinion | See above |
| 8-11 | Whole paragraphs | Inadmissible Opinion | See above |
| 13 | Whole paragraph | Inadmissible Opinion | See above |
| 16 | Whole paragraph | Opinion (Unqualified) | See above |
| 19 | ' collectively with other staff' | Hearsay | See above |
| 23 | Whole paragraph | Inadmissible Opinion | See above |
| 24 | Whole paragraph | Irrelevant | See above |
| 25 | Whole paragraph | Hearsay | See above |
| 27 | Whole paragraph | Opinion (Unqualified), Slanderous, Argumentative | See above |
| 28 | Whole paragraph | Opinion (Unqualified), Slanderous, Argumentative | See above |
| 30 | Whole paragraph | Slanderous | See above |
| 31 | Whole paragraph | Opinion (Unqualified) | See above |
| 32 | Whole paragraph | Inadmissible Opinion | See above |
| 33 | Whole paragraph | Opinion (Unqualified), Slanderous | See above |
| 37-38 | Whole paragraphs | Inadmissible Opinion | See above |
Affidavit of Annelies Craig sworn 23/5/13
| Paragraph(s) | Component | Objection | Ruling |
| Whole Affidavit | Whole Affidavit | Irrelevant | Inadmissible |
| 6-14 | Whole paragraphs | Irrelevant | See above |
| 8 | 'On one occasion in or about 2009, a patient rang Dr Bird to complain.' | Hearsay | See above |
| 9-10 | Whole paragraphs | Hearsay | See above |
| 11 | Whole paragraph | Opinion (Unqualified), Scandalous, Argumentative | See above |
| 15 | Whole paragraph 'Staff were aghast that he was taking Dexamphetamine.' | Opinion (Unqualified), Argumentative Hearsay | See above |
| 16 | Whole paragraph | Opinion (Unqualified) | See above |
| 18 | Whole paragraph | Opinion (Unqualified), Scandalous | See above |
| 19 | Whole paragraph | Opinion (Unqualified) | See above |
| 20 | Whole paragraph '...has repeatedly acknowledged to Dr Radovic that he is over sedated.' | Hearsay | See above |
| 21 | Whole paragraph | Opinion (Unqualified), Scandalous, Argumentative | See above |
| 22 | Whole paragraph | Opinion (Unqualified), Scandalous, Argumentative | See above |
| 26 | Whole paragraph | Hearsay | See above |
| 27 | Whole paragraph | Opinion (Unqualified) | See above |
| 29 | Whole paragraph | Hearsay | See above |
| 31-32 | Whole paragraphs | Hearsay | See above |
| 33 | Whole paragraph | Inadmissible Opinion | See above |
| 34 | Whole paragraph | See above | |
| 36 | Whole paragraph | Hearsay | See above |
| 37-39 | Whole paragraphs | Inadmissible Opinion | See above |
| 40 | Whole paragraph | Hearsay | See above |
| 43 | Whole paragraph | Inadmissible Opinion | See above |
| 44 | 'I believe the bullying allegations against them to be completely false.' | Inadmissible Opinion | See above |
| 45 | Whole paragraph | Opinion (Unqualified) | See above |
Affidavit of Professor Gary Embelton sworn 24/5/13
| Paragraph(s) | Component | Objection | Ruling |
| Whole affidavit | Whole affidavit | Irrelevant | Inadmissible |
| 13 | Whole paragraph | Hearsay | See above |
| 18-19 | Whole paragraphs | Inadmissible Opinion | See above |
| 20-22 | Whole paragraph | Hearsay | See above |
| 33 | 'Dr Bird had diagnosed Mark with ADHD and prescribed dexamphetamine for Mark however... I did not agree with Dr Bird's diagnosis of ADHD.' | Irrelevant Opinion (Unqualified), Argumentative | See above |
| 38 | Whole paragraph | Opinion (Unqualified), Argumentative | See above |
| 39 | Whole paragraph | Opinion (Unqualified) | See above |
| 40 | Whole paragraph | Opinion (Unqualified) | See above |
| 41 | Whole paragraph | Opinion (Unqualified), Argumentative | See above |
| 44 | Whole paragraph | Irrelevant, Opinion (Unqualified) | See above |
| 47 | Whole paragraph | Irrelevant, Inadmissible, Opinion | See above |
| 49 | 'In or about 2010, Dr Radovic committed a boundary violation by having a coffee with a patient I was treating. I considered this to be very inappropriate given the patient's clinical condition.' | Inadmissible Opinion | See above |
| 51-52 | Whole paragraphs | Opinion (Unqualified), Argumentative | See above |
| 53 | Whole paragraph | Hearsay | See above |
| 54 | Whole paragraph | Hearsay | See above |
| 55 | Whole paragraph | Hearsay | See above |
| 60 | Whole paragraph | Opinion (Unqualified) | See above |
| 68 | '...the Hospital was often slack with this.' | Inadmissible Opinion, Argumentative | See above |
| 71 | '...my disgust with the administration of the Hospital.' | Inadmissible Opinion, Slanderous | See above |
| 74 | '...I had heard that she was there to sort out staff issues...' | Hearsay | See above |
Affidavit of Dr Andrew Kenneth McIntyre sworn 24/5/13
| Paragraph(s) | Component | Objection | Ruling |
| Whole Affidavit | Whole Affidavit | Irrelevant | Inadmissible |
| 10 | Whole paragraph | Argumentative | See above |
| 12 | Whole paragraph | Hearsay | See above |
| 13 | 'This was clearly untrue.' | Inadmissible Opinion | See above |
| 14 | Whole paragraph | Inadmissible Opinion, Scandalous, Argumentative | See above |
| 15 | Whole paragraph | Inadmissible Opinion, Scandalous, Argumentative | See above |
| 18 | Whole paragraph | Inadmissible Opinion, Scandalous, Argumentative | See above |
| 19 | Whole paragraph | Inadmissible Opinion, Hearsay | See above |
| 20 | Annexure AM-1 | Inadmissible Opinion, Hearsay, Scandalous, Argumentative | See above |
| 21 | Whole paragraph | Inadmissible Opinion, Scandalous, Argumentative | See above |
| 24 | Whole paragraph | Inadmissible Opinion, Scandalous, Argumentative | See above |
| 25 | Whole paragraph | Opinion (Unqualified), Scandalous, Argumentative | See above |
| 26 | Whole paragraph | Hearsay, Inadmissible Opinion | See above |
| 27 | Whole paragraph | Opinion (Unqualified), Scandalous, Argumentative | See above |
| 29 | Whole paragraph | Irrelevant, Opinion (Unqualified), Scandalous, Argumentative | See above |
| 30 | Whole paragraph | Irrelevant, Inadmissible Opinion | See above |
| 31 | Whole paragraph | Opinion (Unqualified), Argumentative | See above |
| 32 | Whole paragraph | Irrelevant, Inadmissible Opinion, Scandalous, Argumentative | See above |
Affidavit of Therese Mary Beale 7/6/2013
| Paragraph(s) | Component | Objection | Ruling |
| 6 | Whole paragraph 'and she did not make the decision to complaint to management lightly' | Irrelevant | Inadmissible |
| 7 | 'Lesley had been concerned about Dr Radovic's clinical competence for a long time'. | Inadmissible opinion | Inadmissible |
| 8 | Whole paragraph 'He was unresponsive to most nurses...when questions were presented to him'. | Irrelevant, | Inadmissible |
| 10 | 'Terence did not appear to take our concerns seriously'. | Inadmissible opinion | Inadmissible |
| 11-14 | Whole paragraphs | Irrelevant | Inadmissible |
| 15-19 | Whole paragraphs | Irrelevant | Inadmissible |
| 18 | 'Lorraine always did her job competently'. | Inadmissible opinion | Inadmissible |
| 21 | Whole paragraph | Inadmissible opinion | Inadmissible |
Affidavit of Dr Peter Herbert 7/6/2013
| Paragraph(s) | Component | Objection | Ruling |
| 8 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 9 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 10 | Whole paragraph | Irrelevant, Inadmissible opinion, Hearsay | Inadmissible |
| 11 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 12 | Whole paragraph 'I was told by the nurses that the patient had been intravenously taking large amounts of inappropriate narcotics and benzodiazepines which he was being prescribed by Dr Radovic'. | Irrelevant, Opinion, Scandalous Hearsay Hearsay Hearsay | Inadmissible |
| 13 | Whole paragraph | Irrelevant, Opinion (Unqualified) | Inadmissible |
| 14 | Whole paragraph | Irrelevant | Inadmissible |
| 15 | Whole paragraph | Irrelevant, Opinion (Unqualified) | Inadmissible |
| 16 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 17 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 18 | Whole paragraph 'I often saw nurses telling Dr Radovic what he should be doing and what she should not be doing such as how to write in the patient chart'. | Irrelevant, Opinion (Unqualified) Hearsay | Inadmissible irrelevant |
| 20-30 | Whole paragraphs | Irrelevant | Inadmissible |
| 24-34 | Whole paragraphs | Irrelevant | Inadmissible |
| 39 | Whole paragraph | Irrelevant | Inadmissible |
| 40 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 41 | Whole paragraph | Irrelevant | Inadmissible |
| 42 | Whole paragraph | Irrelevant, Inadmissible opinion, Opinion (Unqualified) | Inadmissible |
| 43 | Whole paragraph | Irrelevant, Inadmissible opinion | Inadmissible |
| 44 | Whole paragraph 'To the contrary, every comment I ever heard...standards'. | Irrelevant, Inadmissible opinion Hearsay | Inadmissible |
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BRISBANE REGISTRY
File Number: BRG2/2013
LORRAINE FRANCES JEFFERSON
Applicant
UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.)
T/A THE SUNSHINE COAST PRIVATE HOSPITAL
Respondent
RULINGS ON THE OBJECTIONS TO MATERIAL CONTAINED IN THE APPLICANT’S AFFIDAVITS
1. The Court rules upon the Respondent’s objections to the Applicant’s evidence as set out in the schedule that follows.
Schedule
Affidavit of Lorraine Frances Jefferson sworn 13/05/2013
| Paragraph | Component | Objection | Ruling |
| 17 | Whole paragraph | Irrelevant | Inadmissible |
| 18 | 'Dr Radovic did not know how to write prescriptions.' 'Ms Grey as the Unit Manager at the time assisted Dr Radovic extensively.' 'Ms Grey discussed this openly.' | Opinion (Unqualified) Hearsay | Inadmissible |
| 19 | Providing him with 'Mentoring about how to work on the ward' | Hearsay, Irrelevant | Inadmissible |
| 20 | 'A lot of the nursing staff...supported Dr Radovic to help him understand what was required to perform his duties.' | Hearsay | Inadmissible |
| 22-31 | Whole paragraphs | Irrelevant | Inadmissible |
| 22 | Whole paragraph | Opinion (Unqualified) | See above |
| 24 | Whole paragraph 'Ms Nambo told...other staff Dr Radovic had never discussed the Department of Child Safety Services with the patient nor with any of the staff.' 'To my knowledge, Dr Radovic knew nothing about DOCS even though, as a psychiatrist, it was his duty to ensure the baby's safety.' | Hearsay Opinion (Unqualified) | See above |
| 25 | Whole paragraph | Hearsay, Opinion (Unqualified) | See above |
| 26 | 'In my view Dr Radovic should have also referred the patient to a physician because she had hypoglycaemia' | Opinion (Unqualified) | See above |
| 31 | 'Dr Radovic did not seem to understand the tests that were being ordered.' | Opinion (Unqualified) | See above |
| 32-49 | Whole paragraphs | Irrelevant | Inadmissible |
| 34 | 'No other psychiatrist had any issues transcribing medicines of any kind.' | Inadmissible Opinion | See above |
| 36 | 'Dr Radovic often under prescribed the detoxification regime for patients in my care.' | Opinion (Unqualified) | See above |
| 37 | Whole Paragraph | Opinion (Unqualified) | See above |
| 38 | Whole paragraph | Opinion (Unqualified) | See above |
| 40 | Whole paragraph | Opinion (Unqualified) | See above |
| 42 | 'He never prescribed adequately' | Opinion (Unqualified) | See above |
| 43 | Whole paragraph | Inadmissible Opinion | See above |
| 44 | Whole paragraph | Inadmissible Opinion | See above |
| 45-47 | Whole paragraph | Opinion (Unqualified) | See above |
| 48 | 'In my opinion this patient had no reason to be prescribed this drug given her circumstances.' | Opinion (Unqualified) | See above |
| 50-54 | Whole paragraphs | Irrelevant | Inadmissible |
| 52 | 'In my opinion, Dr Radovic was lacking in knowledge of medicine' | Opinion (Unqualified), Scandalous | See above |
| 54 | Whole paragraph | Hearsay | See above |
| 55-59 | Whole paragraphs | Irrelevant | Inadmissible |
| 55 | Whole paragraph | Hearsay | See above |
| 57 | Whole paragraph | Inadmissible Opinion | See above |
| 59 | Whole paragraph | Hearsay | See above |
| 61 | Whole paragraph | Hearsay | Inadmissible |
| 62-65 | Whole paragraphs | Irrelevant | Inadmissible |
| 64 | Whole paragraph | Hearsay | See above |
| 65 | Whole paragraph | Inadmissible Opinion, Argumentative | See above |
| 68 | Whole paragraph | Irrelevant | Inadmissible |
| 70 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 71 | Whole paragraph | Irrelevant | Inadmissible |
| 72 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 73-108 | Whole paragraph | Irrelevant | Inadmissible, save for 108 |
| 73 | Whole paragraph | Opinion (Unqualified), Scandalous, Hearsay | See above |
| 74 | Whole paragraph | Opinion (Unqualified) | See above |
| 75 | Whole paragraph | Scandalous, Opinion (Unqualified) | See above |
| 79 | Whole paragraph | Opinion (Unqualified), Argumentative | See above |
| 81 | Whole paragraph | Opinion (Unqualified) | See above |
| 91-93 | Whole paragraphs | Opinion (Unqualified) | See above |
| 94 | Whole paragraph | Opinion (Unqualified) | See above |
| 99 | Whole paragraph | Hearsay | See above |
| 100-102 | Whole paragraphs | Opinion (Unqualified) | See above |
| 107 | Whole paragraph | Inadmissible Opinion | See above |
| 109 | Whole paragraph | Hearsay | Inadmissible - irrelevant |
| 111-112 | Whole paragraph | Irrelevant | Inadmissible |
| 113 | Whole paragraph | Opinion (Unqualified) | Inadmissible |
| 121 | Whole paragraph | Irrelevant, Hearsay, Opinion (Unqualified), Scandalous | Inadmissible |
| 122 | Whole paragraph | Inadmissible Opinion, Argumentative | Inadmissible |
| 126-131 | Whole paragraphs | Irrelevant | Inadmissible |
| 133 | Whole paragraph | Hearsay | Inadmissible |
| 143-147 | Whole paragraphs | Irrelevant | Inadmissible |
| 143 | Whole paragraph | Inadmissible Opinion | See above |
| 151 | Whole paragraph | Inadmissible Opinion | Admissible |
| 153-154 | Whole paragraphs | Irrelevant | Inadmissible |
| 155 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 156 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 159 | Whole paragraph | Inadmissible Opinion, Irrelevant | Inadmissible |
| 160-162 | Whole paragraphs | Irrelevant | Inadmissible |
| 166 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 167 | Whole paragraph | Irrelevant | Inadmissible |
| 171 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 173 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 175 | Whole paragraph | Irrelevant, Inadmissible Opinion | Inadmissible |
| 176-178 | Whole paragraphs Paragraph 178 | Irrelevant, Inadmissible Opinion Hearsay | Inadmissible |
| 179-198 | Whole paragraphs Paragraphs 182, 197 | Irrelevant | Inadmissible |
| 182 | Whole paragraph | Inadmissible Opinion | See above |
| 197 | Whole paragraph | Inadmissible Opinion | See above |
| 199-204 | Whole paragraphs | Irrelevant | Inadmissible |
| 202 | Whole paragraph | Inadmissible Opinion, Opinion (Unqualified), Scandalous, Argumentative | See above |
| 203 | Whole paragraph | Inadmissible Opinion, Opinion (Unqualified), Scandalous, Argumentative | See above |
| 205-220 | Whole paragraphs (205-220) | Irrelevant | Inadmissible |
| 211 | Whole paragraph | Hearsay | See above |
| 214 | Whole paragraph | Inadmissible Opinion | See above |
| 224-225 | Whole paragraphs | Irrelevant | Inadmissible |
| 226-232 | Whole paragraphs | Irrelevant | Inadmissible |
| 242-245 | Whole paragraphs | Irrelevant | Inadmissible |
| 257 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 258-261 | Whole paragraphs | Irrelevant | Inadmissible |
| 269-270 | Whole paragraphs | Irrelevant | Inadmissible |
| 271-274 | Whole paragraphs | Irrelevant | Inadmissible |
| 271 | Whole paragraph | Hearsay | |
| 278-288 | Whole paragraphs | Irrelevant | Inadmissible |
| 279 | Whole paragraph | Hearsay | See above |
| 280 | ‘Thereafter Ms Oort contacted me again and said that Mr Bowman had approached her at work, come into her personal space and said, ‘Karma is a great word, isn’t it Jules.’ ‘Ms Oort told me she believed that Mr Bowman was referring to the suspension of me and Ms Pousette.’ | Hearsay Inadmissible Opinion, Hearsay | See above |
| 299 | Whole paragraph | Irrelevant | Inadmissible |
| 301 | Whole paragraph | Irrelevant | Admissible |
| 300-345 | Whole paragraphs | Irrelevant | See below |
| 302 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 309 | Whole paragraph | Argumentative | Inadmissible |
| 318 | ‘It is not possible Ms Troy-Perry was present in the medication room at the same time as me’ | Inadmissible Opinion | Inadmissible |
| 320 | ‘Her behaviour regarding the allocation was disrespectful and unprofessional.’ | Opinion (Unqualified) | Inadmissible |
| 322 | Whole paragraph | Irrelevant, Inadmissible Opinion | Inadmissible |
| 325 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 326 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 329-330 | Whole paragraphs | Inadmissible Opinion | Inadmissible |
| 337 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 348 | Whole paragraph | Inadmissible Opinion | Inadmissible |
| 350 | Whole paragraph | Irrelevant | Inadmissible |
Affidavit of Professor Gary Embelton sworn 24/5/13
Rulings as per BRG1136 of 2012
Affidavit of Dr Andrew Kenneth McIntyre sworn 24/5/13
Rulings as per BRG1136 of 2012
Affidavit of Annelies Craig sworn 23/5/13
Rulings as per BRG1136 of 2012
Affidavit of Carolyn Anne Stevens 23/5/13
Rulings as per BRG1136 of 2012
Affidavit of Therese Mary Beale 7/6/2013
Rulings as per BRG1136 of 2012
Affidavit of Dr Peter Herbert 7/6/2013
Rulings as per BRG1136 of 2012
Key Legal Topics
Areas of Law
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Employment Law
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Equity & Trusts
Legal Concepts
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Fiduciary Duty
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Breach
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Remedies
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Constructive Trust
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