Loveridge v State of Queensland (Department of Health, Queensland Ambulance Service)
[2021] QIRC 349
•15 October 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Loveridge v State of Queensland (Department of Health, Queensland Ambulance Service) 2021 QIRC 349 |
PARTIES: | Loveridge, Jonathan (Applicant) v State of Queensland (Department of Health, Queensland Ambulance Service) |
CASE NO: | TD/2020/116 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 15 October 2021 |
MEMBER: HEARD AT: | Hartigan, IC On the papers |
| ORDER: | 1. The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – application in existing proceedings for witness to give evidence by video link – where the witness has a medical condition and is employed as a carer - where witness is a witness of credit – where Applicant may potentially be disadvantaged if witness does not appear in-person – where Commission has discretion to grant leave - where leave is not granted for the witness to appear by video link |
LEGISLATION: CASES: | Industrial Relations Act 2016 (Qld), |
Reasons for Decision
Introduction
The substantive application in this matter is an application for reinstatement filed by the Applicant, Mr Jonathan Loveridge ("Mr Loveridge"), in the Industrial Registry on 9 December 2020, in respect of the termination of his employment with the Respondent. The matter is currently listed for seven days of hearing commencing on Tuesday, 19 October 2021.
The Respondent applies for three of its proposed witnesses to be excused from appearing in person to give evidence at the hearing and that, instead, they each be permitted to give their evidence by telephone or video link.
By an application filed on 10 September 2021, the Respondent sought substituted service of an attendance notice on Ms Lee-Anne Wood, an intended witness in the proceedings, for the Commission to excuse Ms Wood from giving her evidence in person and permitting Ms Wood to give her evidence by telephone. An affidavit in support of that application was filed.
On 29 September 2021, the Respondent filed correspondence in the Industrial Registry seeking the Commission’s consideration for two further witnesses, Mr Jack Bainbrigge ("Mr Bainbrigge") and Ms Dudzai Chisango ("Ms Chisango"), to give evidence by telephone or video link.
The matter was listed for mention before me on 6 October 2021.
At the mention, the Respondent made an oral application in terms of the correspondence filed in the Industrial Registry on 29 September 2021.
At the outset, the Applicant indicated that he did not object to Ms Chisango being excused from appearing in person and being permitted to give her evidence by video link. After hearing from the parties, I issued orders in the following terms:
1. Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) the witness Ms Dudzai Chisango be permitted to give evidence by video link and be excused from attending the hearing of the matter in person.
Ms Wood currently resides and works in Coffs Habour, New South Wales. That location is a declared hotspot in accordance with Border Restrictions Direction (No 46). The Applicant submitted that he did not object to Ms Wood’s appearance in person being excused, given the current border restrictions, but requested that such evidence be given by video link as Ms Wood is a witness of credit.
The Respondent accepted that Ms Wood is a witness of credit but submitted that
Ms Wood be permitted to give her evidence by telephone. The submission made by the Respondent was to the effect that it had had difficulties contacting Ms Wood and, as a result, it was unknown whether arrangements could be made for Ms Wood to give her evidence by video link.Practice Direction 8 of 2021 – Taking Evidence by Telephone or Video Link ("Practice Direction 8") provides, inter alia, that:
'General
1. Evidence by telephone will only be taken from expert witnesses and on formal and uncontroversial matters. Telephone evidence will not be taken where credibility is in issue.
2. Evidence by telephone or video link may be given on that the discretion of the Member.
3. …'
After hearing from the parties, and having regard to the material before me, including the terms of paragraph 1 and 2 of Practice Direction 8, the position of both parties that
Ms Wood is a witness of credit and, further, that there was no evidence put before me that Ms Wood would not be able to give evidence by video link, I issued the following orders:1. Pursuant to r 33 of the Industrial Relations (Tribunals) Rules 2011 (Qld), that Ms Lee-Anne Wood is in possession of the attendance notice to give evidence delivered to her by email on 20 August 2021, and that Ms Lee-Anne Wood's possession of the attendance notice on that day is deemed effective service on Ms Lee-Anne Wood of the attendance notice on 20 August 2021.
2. Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) the witness Ms Lee-Anne Wood be permitted to give evidence by video link and be excused from attending the hearing of the matter in person.
Accordingly, the remaining matter for me to determine is whether Mr Bainbrigge ought be excused from appearing at the hearing in person and, instead, be permitted to give his evidence at the hearing by video link. The Applicant objects to the application with respect to Mr Bainbrigge.
Relevant legislative provisions and Direction
The Respondent relies on ss 447(2)(b) and 451 of the Industrial Relations Act 2016 (Qld) ("the IR Act") in support of its application.
Section 447(2)(b) of the IR Act provides for the Commissions' functions as follows:
447 Commission's functions
…
(2) The commission must perform its function in a way that –
…
(b) avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under this Act.
Section 451 of the IR Act provides for the general powers of the Commission as follows:
451 General powers
(1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
(2)Without limiting subsection (1) – the commission in the proceeding may:
(a)give directions about the hearing of a matter; or
(b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
(c)make an order it considers appropriate.
Additionally, Practice Direction 8 confirms, that a decision by a Member of the Commission to approve the taking of evidence, by telephone or by video link, is an exercise of discretion.
Practice Direction 8 is set out in the following terms:
The purpose of this Practice Directions is to:
· to ensure that all parties are aware of the approach to the taking of evidence by telephone and/or video link in the ordinary case;
· to streamline the taking of evidence by these means;
· to avoid delay and disruption; and
· to maintain the decorum of the proceeding.
…
General
1 Evidence by telephone will only be taken from expert witnesses and on formal and uncontroversial matters. Telephone evidence will not be taken where credibility is in issue.
2 Evidence by telephone or video link may be given only at the discretion of the Member.
The parties have each referred to several authorities in the Federal jurisdiction considering the application of s 47A(1) of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"). Section 47A(1) of the FCA Act provides that the court may, for the purpose of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.
Those authorities have considered the process involved in exercising the discretion conferred by s 47A(1) of the FCA Act, which was referred to by Stewart J in Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd[1] ("Auken") as follows:
28. 'I respectfully agree with and adopt what was said by Flick J in Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd, namely that in deciding whether or not to allow AVL evidence:
The overriding consideration must, however, forever remain what is considered by the Court to be in the best interests in the administration of justice, including the need to ensure that justice is done as between the parties.
29. His Honour also said (at [11]) that the exercise of the discretion conferred by s 47A(1) of the Act must unquestionably be guided by the facts and circumstances of the individual case in which permission is sought to adduce evidence by way of AVL.
30. I also respectfully agree with and adopt what was said by Jackson J in Australian Securities and Investments Commission v Wilson at [36] that the process of deliberation required in order to exercise the s 47A(1) discretion properly is accurately described as a balancing exercise.'
[citations omitted].
[1][2020] FCA 1153; (2020) 147 ACSR 521.
I consider that the principles referred to in Auken are of assistance as guiding principles for the exercise of the discretion by the Commission in this matter.
Should the Commission exercise its discretion to permit Mr Bainbrigge to give evidence by video link?
Mr Loveridge was dismissed from his employment, inter alia, because the Respondent determined that Mr Loveridge struck a patient. Mr Loveridge contends that the allegation made against him is serious, and a consequence of a finding against him would be the destruction of his paramedic career.
Mr Bainbrigge is one of the several eyewitnesses to the alleged incident. It is anticipated[2] that Mr Bainbrigge's evidence will be that Mr Loveridge struck the patient. Accordingly, Mr Bainbrigge's evidence will go to the heart of the matters to be determined by the Commission. It is uncontested that Mr Bainbrigge is a witness of credit.
[2] Affidavit of Jack Anthony Bainbrigge filed in the Industrial Registry on 11 October 2021, [10].
At the mention of the matter on 6 October 2021, the Respondent relied on two unrelated grounds in support of its application with respect to Mr Bainbrigge, including:
(a) Mr Bainbrigge is employed as a live-in carer on the Gold Coast, he is, generally on call to attend to his client 24 hours a day/seven (7) days a week and it is necessary for him to remain close to his client in case of an emergency; and
(b) Mr Bainbrigge suffers from "personal health issues" which he considers would be adversely impacted if he was requested to travel from the Gold Coast to Brisbane to attend the hearing in person.
The Respondent tendered[3] a copy of a medical certificate dated 7 September 2021 authored by Dr Marek Ciarkowski ("Dr Ciarkowski") which was in the following terms:
'This medical certificate is to certify that
Mr Jack Bainbriggehas a medical condition that may deteriorate if giving evidence in person. I would appreciate if you would allow him to provide evidence via video link from 19 October 2021 to 27 October 2021 inclusive.'[3] Exhibit A.
During the mention on 6 October 2021, I raised concerns regarding the medical certificate to the extent that it identified that Mr Bainbrigge had a medical condition and expressed a view that the medical condition may deteriorate if Mr Bainbrigge was to give evidence in person, however, it did so without identifying Mr Bainbrigge's medical condition, how the medical condition presented and the basis upon which Dr Ciarkowski expressed the opinion that Mr Bainbrigge's condition may deteriorate if he gives evidence in person, as opposed to by video link.
I was concerned that the evidence relied on by the Respondent and raised in support of its submission that Mr Bainbrigge provide his evidence by video link, did no more than very broadly state that Mr Bainbrigge had a medical condition, without providing fulsome details to permit a proper assessment of the factual basis for the application.
Consequently, on 6 October 2021, I issued directions that the Respondent file and serve further material and submissions with respect to its application and that the Applicant be provided an opportunity to respond to such material.
On 11 October 2021, the Applicant and Respondent each filed written submissions in the Industrial Registry. The Respondent also filed an affidavit of Mr Bainbrigge which had attached to it a further medical certificate of Dr Ciarkowski.
The medical certificate, dated 7 October 2021, is in the following terms:
'This is to certify that
Mr Jack Bainbrigge
has a long history of PTSD and a chronic anxiety disorder which requires medication.
Jack is severely anxious in regards to the possibility of face to face examination in a court witness box. He is concerned that his anxiety will deteriorate by giving court room evidence in person.
I agree that his condition may worsen due to stress, Jack is quite fearful even talking about this ordeal in any situation, let alone a court of law.
He also has a chronic fatigue syndrome from previous dengue fever, and he finds travelling exacerbates his fatigue.
I believe video link evidence is appropriate for this court appearance from the 19th October.'Relevantly, the medical certificate identifies that Mr Bainbrigge has a long history of PTSD and a chronic anxiety disorder. Dr Ciarkowski records information that
Mr Bainbrigge has expressed to him, namely, that he is anxious about giving his evidence. Dr Ciarkowski then expresses a view that Mr Bainbrigge's condition "may worsen due to the stress" and that Mr Bainbrigge is "quite fearful even talking about this ordeal in any situation, let alone a court of law." Dr Ciarkowski's opinion is general in terms and, whilst stating that Mr Bainbrigge's condition may deteriorate due to stress, it does not say that such a situation may differ between Mr Bainbrigge giving evidence in person or by video link. Indeed, Dr Ciarkowski records that Mr Bainbrigge is "quite fearful" talking about the "ordeal" in any situation. Having stated this, Dr Ciarkowski does not state why such a fear would be lessened by the evidence being given by video link.The affidavit of Mr Bainbrigge, in summary, addresses the following matters:
(a) Mr Bainbrigge was diagnosed with post-traumatic stress disorder ("PTSD") approximately one (1) year ago and that he suffers from lethargy and anxiety for which he is being treated;
(b) Mr Bainbrigge has experienced anxiety just speaking over the phone to the Respondent's representatives about his evidence or, on occasion, felt the need to conclude the conversation early due to his feelings of being overwhelmed and anxious;
(c) on occasion, he has taken medication to cope with the discussions with the Respondent's representatives;
(d) the thought of giving evidence in person causes Mr Bainbrigge severe anxiety as he is concerned that being in a room he is not comfortable in, feeling like he is being interrogated and knowing Mr Loveridge is present will send him into a spiral of anxiety; and
(e) whilst Mr Bainbrigge accepts that he may still be impacted by giving evidence by video, he considers that it will have a significantly less detrimental impact on his health.
Mr Bainbrigge's affidavit does not address the ground relating to his work commitments.
The Respondent argues[4] that the balance in this matter lies in favour of permitting
Mr Bainbrigge to give his evidence by video link for the following reasons:[4] Written submissions of the Respondent filed in the Industrial Registry on 11 October 2021.
(a)
'The Commission has available the appropriate technology and facilities to enable
Mr Bainbrigge to give evidence by videolink;
(b) Both the Applicant and the Commission will be able to see Mr Bainbrigge giving his evidence through the use of videolink;
(c) It will be open to the Commission to assess the credibility of Mr Bainbrigge’s evidence having regard to the evidence he gives via videolink;
(d) To the extent that there is any forensic or practical disadvantage by Mr Bainbrigge giving his evidence by video link rather than in person, that disadvantage is faced by the parties equally because Mr Bainbrigge's evidence in chief, and any re-examination, will also be given in the same mode;
(e) The Applicant has not suggested that the cross-examination would be practically impeded by the need to be able to put documents before Mr Bainbrigge, but to the extent that is a concern, the Respondent submits it is a practical consideration which is relevant to both parties and which is not insurmountable. It is a practicality which can be resolved between the parties in advance of the hearing;
(f) Any prejudice to the Applicant is unlikely to outweigh the potential detrimental impact giving evidence in person may have on Mr Bainbrigge. In particular, there is a real risk, supported by the medical evidence, that Mr Bainbrigge's evidence, and Mr Bainbrigge himself, will be adversely affected if required to attend the hearing in person.'
The Applicant argues that it would not be appropriate, or fair to him, to permit
Mr Bainbrigge to give his evidence by video link given the nature of the dispute and the criticality of Mr Bainbrigge's evidence. The Applicant submits that he ought not be denied the opportunity to have Mr Bainbrigge attend and have his evidence taken and tested in person.
The Applicant objects to the application and raises the following issues, as summarised, for consideration:
(a) the allegation against Mr Loveridge is serious and the consequence of a finding against Mr Loveridge is the destruction of his paramedic career;
(b) while the standard of proof in this proceeding is on the balance of probabilities, the probative value of such evidence will inform the strength of the evidence required to obtain that standard;
(c) Mr Bainbrigge is one of only several eyewitnesses and it is anticipated that the Respondent's evidence will be that Mr Loveridge struck the patient, therefore the credibility and reliability of his evidence is critical to the outcome of the matter;
(d) in order for the Applicant to have a fair opportunity to disturb the status quo, the Applicant needs an unimpeded opportunity to cross-examine
Mr Bainbrigge;(e) the Applicant intends to put documents to Mr Bainbrigge and to avoid the loss of any forensic advantage, the Applicant ought not be required to provide them ahead of time; and
(f) the Respondent has not made a persuasive case that the Commission should depart from the orthodox position so that Mr Bainbrigge be permitted to appear by video.
Consideration
The Respondent submits that the weight of the recent authorities, particularly in the Federal jurisdiction, recognises that cross-examination, even of a witness of credit, can be just as effective by video link.
In support of its submissions, the Respondent referred to the decision of Stewart J in Auken. In that decision, after referring to the decision of Buchan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)[5] ("Campaign Master"), Stewart J observed:
'[48] In my view, and experience, whilst there is certainly something to be said for all of the benefits identified by his Honour, times have significantly moved on in the last 10 years. The technology has got better, and judges and counsel have become far more accustomed to cross-examination by AVL. Particularly in the last four or so months when almost all of the work of this and other courts has necessarily been done remotely because of restrictions associated with the pandemic, the learning curve has been steep and the experience intense.
[49] My experience of having now conducted several remote (but no less real) hearings with rigorous cross-examination, including as to credit and on allegations of fraud, on the Microsoft Teams platform is similar to that of Perram J as expressed in Capic v Ford Motor Company of Australia Limited (Adjournment)[2020] FCA 486 at [19]- [20], viz. the judge stares at the witness from about one metre away such that their perception of the witness’s facial expressions is much greater than it is in court. To that I can add that cross-examining counsel has that similar benefit. My experience has been that well-prepared cross-examination can be as, or just about as, effective in a virtual setting. My impression has been that counsel, even those who were initially sceptical, have shared that experience.
[50] See also Australian Securities and Investments Commission v GetSwift Limited[2020] FCA 504 at [33] per Lee J, Tetley v Goldmate Group Pty Ltd[2020] FCA 913 at [16] per Bromwich J, Porter v Mulcahy & Co Accounting Services Pty Ltd (Ruling)[2020] VSC 430 at [26] per Delany J and Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242 at [19] per McDonald J. I acknowledge that there are different views on this question, the experience of some judges being less positive, e.g. Rooney v AGL Energy Ltd (No 2) [2020] FCA 2 at [17]- [19] per Snaden J. See also other cases where AVL leave has been refused: Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614 at [22] per Besanko J and Wilson at [29] and [37]-[39] per Jackson J.
[51] I accept that there can be a tendency amongst some participants to regard the occasion of a remotely conducted trial, or part of it, with less solemnity and formality than it deserves, and that that is undesirable and undermining of effective cross-examination. However, my experience is that a judge is able to quickly remind the relevant participants of the solemnity and formality of the occasion and to re-establish the appropriate atmosphere.'
[5][2009] FCA 1306; (2009) 181 FCR 152.
The most recent decisions in the Federal jurisdiction have largely been decided in the context of the current SARS-CoV-2 (coronavirus) pandemic. In those matters, the court has been required to, for instance, determine applications for counsel, litigants and witnesses to appear by video link in circumstances, where, because of public health orders restricting international or interstate travel, trials could only proceed without personal attendances (at least for some of the parties) for an indefinite period. That is not the case here with respect to the application as it relates to Mr Bainbrigge.[6]
[6] Ms Woods is affected by current interstate travel restrictions but there was no objection to her appearing by video link.
A distinction between authorities such as Campaign Master and the more recent authorities dealing with the restrictions imposed by the coronavirus pandemic was considered by Jackson J in Australian Securities and Investments Commission v Wilson[7] at [20] as follows:
'20. It must also be acknowledged that Campaign Master and some of the other authorities on which the parties relied were not decided in the exceptional circumstances that face the courts at present. Considerations which may have influenced an application for video evidence based on inconvenience to the witness take on a different complexion when in person evidence becomes a matter of practical impossibility for an indefinite time. The parties have referred to more recent decisions of this court which concern requests for adjournments that have been prompted by the current pandemic: in particular Capic v Ford Motor Company of Australia Limited (Adjournment); Australian Securities and Investments Commission (ASIC) v GetSwift Limited; and Roberts-Smith v Fairfax Media Publications Pty Limited (No 4). In both Capic and Getswift, the court refused requests for adjournment; in Roberts-Smith the trial was vacated.'
[citations omitted].[7] [2020] FCA 873; 146 ACSR 149.
The application made with respect to Mr Bainbrigge's appearance is not one made out of practical necessity to ensure the trial may proceed because of public health restrictions imposed by the coronavirus pandemic. Rather, it is made because of matters personal to Mr Bainbrigge and accordingly authorities dealing with such circumstances, including Campaign Master, remain relevant to my consideration.
Given the nature of the matter, the seriousness of the allegations and that it is said that Mr Bainbrigge is one of several eyewitnesses to the alleged incident, I consider him to be a critical witness in the proceedings.
The Applicant contends that the cross-examination of Mr Bainbrigge may be inhibited if he is permitted to give evidence by video link rather than in person. Relevantly, the Applicant submits that he intends to put documents to Mr Bainbrigge and would lose any forensic advantage if he was required to provide them ahead of time.
In addition, I consider the Applicant would also lose the forensic advantage of having the evidence of a critical witness conducted in the same or similar environment to other critical witnesses, including the Applicant himself.
Whilst I accept the use of video evidence may be practically necessary in some circumstances, I consider, to adopt the language of Snaden J in Rooney v AGL Energy Ltd (No 2),[8] the use of such technology is a necessary "Plan B" but its use cannot fully replicate the court room environment.
[8] [2020] FCA 942, [17] – [19].
The matters referred to above[9] are matters that weigh in favour of Mr Bainbrigge giving his evidence in person. I consider that the traditional forensic benefits of a witness appearing in person should not be dismissed lightly. I consider it incumbent upon the Respondent, given that the use of video evidence with respect to Mr Bainbrigge is opposed, to make out the case for video evidence.[10]
[9] At [41] – [44] of these Reasons for Decision.
[10] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306, [78]; (2009) 181 FCR 152.
In this regard, the Respondent relies on the affidavit of Mr Bainbrigge which includes the medical certificate of 7 October 2021. I have summarised the information contained within those documents above.
I am troubled that there is no medical basis proffered as to why Mr Bainbrigge's medical condition may potentially deteriorate if he were to give his evidence in person as opposed to giving his evidence by video link.
Whilst Dr Ciarkowski states that to give evidence in person may cause Mr Bainbrigge's medical condition to deteriorate, no information from the Doctor is provided to explain why. In the circumstances, it is difficult to determine the nature and extent of any potential (and plausible) risk in the material.
This is compounded by the comments made by both Mr Bainbrigge and Dr Ciarkowski with respect to how any discussion regarding the matter increases Mr Bainbrigge's stress and anxiety. Mr Bainbrigge states that just speaking over the phone about the matter to the Respondent's representatives induces feelings of anxiety or being overwhelmed. Accordingly, it appears that discussing the matter by telephone still induces feelings of stress and anxiety for Mr Bainbrigge.
Mr Bainbrigge states that he is concerned that being in a room in which he is not comfortable, feeling like he is being interrogated and knowing that Mr Loveridge is present in the room, may send him into a spiral of anxiety.
With respect to these matters, it is not unusual for any witness who is unfamiliar with the legal system to, when entering a courtroom, feel varying levels of discomfort arising out of being in an unfamiliar environment.
Further, I do not consider Mr Bainbrigge's location when giving evidence to be a determinative factor as to whether it is likely that he will experience feelings of being interrogated. If he were to experience such feelings, presumably whilst being cross-examined, I consider it just as likely for such feelings to occur whilst giving evidence by video link.
Finally, Mr Bainbrigge raises a concern regarding Mr Loveridge's presence in court whilst he gives his evidence. Seemingly, in order to address this concern, Mr Loveridge has, through his legal representatives, volunteered to absent himself from the courtroom whilst Mr Bainbrigge gives his evidence. I consider such an offer to be, whilst not strictly required, appropriate given Mr Bainbrigge's concern. I also consider that such an offer would go some way toward ameliorating some of the anxiety Mr Bainbrigge has expressed about being a witness in this proceeding.
Mr Bainbrigge's affidavit and the submissions in support of the application are silent with respect to Mr Bainbrigge's workplace responsibilities. It is not unusual for persons appearing before this Commission to be frontline workers and to have workplace responsibilities. There is no evidence before this Commission that persuades me, that Mr Bainbrigge's workplace responsibilities form an impediment to him giving his evidence in person.
Similarly, Mr Bainbrigge raises a concern that he may experience lethargy following giving his evidence. Again, this information does not appear to impede Mr Bainbrigge's ability to give evidence in person. Presumably, Mr Bainbrigge, with the assistance of the Respondents' representatives, will make arrangements to manage any such fatigue, should it arise following Mr Bainbrigge giving his evidence in person.
After considering the matters put before the Commission on this application, I have determined that, on balance, Mr Bainbrigge is required to appear at the hearing in person to give his evidence.
Order
For the foregoing reasons, I make the following order:
1. The application is dismissed.
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