McKellar v Lavalle

[2025] NSWSC 1000

Supreme Court

New South Wales

Medium Neutral Citation:

McKellar v Lavalle [2025] NSWSC 1000

Hearing dates:

2 September 2025

Date of orders:

2 September 2025

Decision date:

02 September 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

See [74]

Catchwords:

CIVIL PROCEDURE – tuna and swordfish fishing – argument about the most suitable bait whilst fishing offshore – melee subsequently erupts at Ulladulla Harbour – plaintiff allegedly sustains physical and psychological injuries during and after the fracas – where the plaintiff seeks leave to rely upon the second further amended statement of claim – where the plaintiff seeks orders to rely upon and admit into evidence various evidentiary statements and other material – whether certain expert medical evidence was “reasonably available” to the plaintiff when the pre-filing statement was provided – whether the plaintiff would be “substantially prejudiced” were orders not made – leave granted

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workers Compensation Act 1987 (NSW)

Workers Compensation Commissions Rules 2011 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982

Paper Coaters Pty Limited v Jessop [2009] NSWCA 1

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Category:

Procedural rulings

Parties:

Craig McKellar (plaintiff)
Paul Lavalle (first defendant)
Daniel Lavalle (second defendant)
Dominico Rocco Lavalle (third defendant)
Workers Compensation Nominal Insurer – icare (fourth defendant)

Representation:

Counsel:
B Dooley SC / E Anderson (plaintiff)
I Todd (fourth defendant)

Solicitors:
Acer Law (plaintiff)
AC Lawyers (first defendant)
Kennedy & Cooke (second and third defendants)
Turks (fourth defendant)

File Number(s):

2019/00285505

Publication restriction:

N/A

EX TEMPORE JUDGMENT

Introduction

1. These proceedings arise out of a fight between employees on or near a fishing vessel, the ‘Tunamoon’ (‘the vessel’), whilst docked at Ulladulla Harbour on 14 September 2016.

2. The matter is listed for hearing on 1 December 2025. The current application essentially concerns what material can be used by the plaintiff in those proceedings, given the statutory constraints within Chapter 7, Part 6 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’).

The plaintiff’s notice of motion

3. By notice of motion filed on 25 July 2025, Craig McKellar (‘the plaintiff’) seeks four proposed orders, namely:

1. an order pursuant to s 64 of the Civil Procedure Act 2005 (NSW) and/or r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) granting the plaintiff leave to rely upon a second further amended statement of claim;

2. an order pursuant to s 192A of the Evidence Act 1995 (NSW) allowing the plaintiff to rely upon various evidentiary statements and other material;

3. an order pursuant to s 318(2) of the WIM Act granting the plaintiff leave to admit into evidence various evidentiary statements and other material at the impending hearing; and

4. an order that the Workers Compensation Nominal Insurer (icare; ‘the fourth defendant’) pay the costs of this motion.

4. For convenience, the above proposed orders will be referred to as proposed orders (1) through (4). The making of some such orders is now no longer pressed and, for some, is only partly opposed by the defendants (although there are four named defendants, only the fourth defendant took an active role in opposing the orders sought by the plaintiff).

5. Proposed order (1) is no longer pressed.

6. Proposed orders (2) and (3) are partly opposed. The substantive issue raised by the partial opposition to the making of those orders arises out of what is argued to be the plaintiff’s non-compliance with the requirement for him to serve psychiatric evidence at the time of serving his pre-filing statement, contrary to s 315(1) of the WIM Act. The fourth defendant also opposes a grant of leave under s 318(2) of the WIM Act. It argues that the psychiatric evidence was “reasonably available” and, it would seem, that there would not be substantial prejudice to the plaintiff’s case if that leave were refused. As it happens, s 192A of the Evidence Act was not relied upon, only s 318(2) of the WIM Act.

7. The parties, at least initially, filed hefty affidavits that included annexures that spanned some four volumes of material. Given the narrowing of the dispute in the way that I have described, a revised court book containing appreciably less material was threatened, but did not eventuate. The evidence includes affidavits from the solicitor for the plaintiff (Andrew Tudhope, affirmed 25 July 2025 and 29 August 2025) and an affidavit from the solicitor for the fourth defendant (Dominic Maait, sworn 28 August 2025). Neither deponent was cross-examined.

8. Before describing and considering the proposed orders and arguments in greater depth, it is helpful to begin with a short summary of the facts giving rise to this matter, as derived from the plaintiff’s evidentiary statement dated 26 May 2022 and the pleadings filed.

Background facts: a short summary

9. The plaintiff was a deckhand employed by Fortuna Fisheries (‘Fortuna’), which operated the vessel from Ulladulla Harbour. Daniel Lavalle (‘the second defendant’) was one co-owner of Fortuna. The other co-owner was Joe Basile.

10. The plaintiff would travel to sea aboard the vessel for multiple days, in pursuit of various species including tuna and swordfish. He was paid commission depending on the “nature and quantity” of the fish he helped catch.

An argument about bait

11. On around 11 September 2016, the plaintiff headed to sea on a fishing expedition. Four other crew members were aboard: the second defendant, Nigel Rothcott, Dominic Lavelle (Jnr) and Allan Duncan. Unusually, Mr Basile was not aboard.

12. On about 13 September 2016, the plaintiff had an argument with Mr Lavelle (Jnr) and the second defendant about the type of bait to use to lure a greater catch. The plaintiff believed that a combination of live bait and squid would prove most alluring to the desired species. Mr Lavelle (Jnr) did not think live bait was necessary, nor did Paul Lavalle (‘the first defendant’), who was still ashore.

13. Words were exchanged about the bait selection. The plaintiff got the bait out of the freezer and began to thaw it. The bait was eventually returned to the freezer, and the decision was made to return to Ulladulla Harbour. The plaintiff presumed that the premature return was due to the argument. The vessel docked at about 8:00am on 14 September 2016.

The melee on the wharf

14. The first defendant, Dominico Lavalle (Snr) (‘the third defendant’), and two others were waiting on the wharf as the boat docked. The plaintiff began performing cleaning duties and unloading fish, as usual.

15. At about 10:00am, the plaintiff wanted to disembark the vessel onto the wharf. The first, second and third defendants, and Charlie Lavelle, “surrounded” the plaintiff such that he could not access and exit the wharf.

16. As the plaintiff climbed onto the wharf, a melee ensued. The first defendant is said to have swung punches at the plaintiff, before then impacting his lower back and causing him to fall to the ground. The punches continued. The third defendant is then said to have encouraged the first defendant to “kick [the plaintiff] in the head”.

17. Eventually, the plaintiff stood up. The first, second and third defendants are said to have set upon him once again and struck him to the head, causing him to once more fall to the ground. Those men – in addition to Charlie Lavelle and Mr Lavelle (Jnr) – left the wharf. The plaintiff returned to the vessel.

The alleged injuries

18. Following the melee, the plaintiff says that he has suffered various physical and psychological injuries, including to his brain, vagus nerve, neck and back and anxiety. In particular, he contends that those brain and nerve injuries have now caused vertigo, such that he regularly collapses and has subsequently injured his foot and knee.

19. In sum, he contends that: his life more generally has deteriorated; he has lost his independence; he is “unable to return to work, or enjoy a social and recreational life”; he is “so unmotivated and depressed”; and that he rarely leaves home. He seeks damages as a result.

The additional material relied upon   

20. On 6 June 2025, the plaintiff served further evidence in the proceedings.

21. By and large, the fourth defendant does not object to the bulk of the material served by the plaintiff at that time. Rather, its objection is confined to “any evidence alleging an entitlement to work injury damages for a psychiatric injury”. By its terms, the objection raised by the fourth defendant involves the contention that this material was not, contrary to the terms of s 315(1) of the WIM Act, set out or served with the pre-filing statement – with the consequence that the plaintiff is “not entitled to have” the material “admitted in the proceedings”: s 318(1)(d) of the WIM Act.

22. The material that is said to constitute evidence of that kind was identified as:

1. reports from Dr Alan Doris, consultant psychiatrist, dated 18 December 2023 and 17 April 2025;

2. an affidavit of the plaintiff sworn 5 June 2025 (but only those paragraphs that refer to “psychiatric injury”); and

3. an affidavit of Regina Goodwin affirmed 5 June 2025 (but only those paragraphs that refer to “psychiatric injury”).

The pre-filing material

23. The plaintiff served a pre-filing statement on 21 February 2022.

24. The defendant served a pre-filing defence on 21 March 2022.

25. As is apparent from the date of the material referred to in [22], above, it is clear that it was not served with the pre-filing statement.

26. Before addressing the respective arguments about whether the material can be relied upon by the plaintiff at the forthcoming hearing, it is helpful to set out the statutory scheme and, thereafter, to outline aspects of the plaintiff’s claim with some focus upon the evolution of his case based upon psychiatric injury.

The statutory regime: work injury damages

27. The proceeding against the defendants is a claim for modified damages under Part 5 of the Workers Compensation Act 1987 (NSW). In this respect, Chapter 7, Part 6 of the WIM Act (“Court proceedings for work injury damages”) prescribes various procedures in connection with the “disclosure” of material.

28. Relevantly, that Part requires the provision of pre-filing documents by the parties: a pre-filing statement by a plaintiff (s 315(1) of the WIM Act) and a pre-filing defence by a defendant (s 316(1) of the WIM Act). Those sections, and the Workers Compensation Commissions Rules 2011 (NSW), prescribe what must be contained in these documents. Neither party drew attention to any of those rules, nor suggested that they were relevant in any way. They may, therefore, be put to one side.

29. Section 315(1) of the WIM Act provides:

“(1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Commission rules may require”.

30. Parties are limited, in Court proceedings, to the claim and “material” disclosed in their respective statement or defence: s 318(1)(d) of the WIM Act. This prohibition is subject to a court granting leave to rely on the material: ss 318(1)(d) and 318(2) of the WIM Act. Section 318 relevantly provides:

“(1) For the purposes of court proceedings on a claim for work injury damages—

(a)  the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and

(b) …

(c) …

(d)  a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court.

(2)  The court is not to grant leave under this section unless satisfied that—

(a)  the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and

(b)  the failure to grant leave would substantially prejudice the party’s case.

(3)  The regulations may provide for exceptions to this section”.

31. Four matters should presently be noted. First, the purpose of the pre-trial provisions in the WIM Act is to promote disclosure and, thereby, encourage the early disclosure of issues and the early resolution of work injury damages disputes without court proceedings: Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 at [11], [16] and [49]; Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 at [11] (‘Wilkinson’). Secondly, s 318(2) of the WIM Act sets out minimum, but mandatory, pre-conditions to the exercise of a discretion that is, thereafter, at large having regard to its purposes and objects and the circumstances of the case. Thirdly, as I have earlier noted, it is apparent that the evidence referred to in [22], above, was not served with the plaintiff's pre-filing statement. Fourthly, neither party drew attention to any regulations of the kind referred to in s 318(3) of the WIM Act.

The arguments: discussion and consideration

32. The plaintiff’s basic argument was that the material over which the fourth defendant objects was not reasonably available to him at the time of service of the pre-filing statement and, furthermore, that the failure to grant the leave sought would substantially prejudice his case. In relation to the affidavits, he also argues that the substance of them has been disclosed, so that no issue arises about requiring leave in any event.

33. The fourth defendant, as earlier noted, argued to the contrary, submitting that the material – the reports and affidavits – was reasonably available to the plaintiff when he served his pre-filing statement and, additionally, that no substantial prejudice would result from a refusal of the application for leave.

34. On the plaintiff’s application to secure leave under s 318(2) of the WIM Act to rely on the reports and evidence, two issues arise: first, the identification of “the material concerned” for the purposes of s 318(2)(a) of the WIM Act; and, secondly, whether such “material” was “not reasonably available” to the plaintiff at the time the pre-filing statement was served, on 21 February 2022.

35. As to “the material concerned”, for the purposes of an application under s 318(2)(a) brought by a plaintiff, this is a reference to the “report or other evidence” that was not disclosed in the pre-filing statement. Here, that extended to the reports from Dr Doris and, at least on the fourth defendant’s argument, those parts of the affidavits from the plaintiff and Ms Goodwin that were said to address the “entitlement to work injury damages for a psychiatric injury”. The parties accepted as much, and the argument proceeded accordingly.

36. In relation to the phrase “not reasonably available”, in my view, having regard to the purpose and policy earlier referred to and the objectives in s 3 of the WIM Act, it should be understood as involving an assessment of whether evidence was actually available to a party and, if not, whether it could have been available with reasonable diligence. Inevitably, whether the material “was not reasonably available” at the time of serving the pre-filing statement will be case – and fact – specific. That approach, which was accepted by the parties, is consistent with the one taken in Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982 at [65].

37. The plaintiff submits that there is a straightforward explanation for why the material was not served with the pre-filing statement and, thus, why the material “was not reasonably available” at that time – namely, the psychological sequelae was understood to have a neurological, rather than psychiatric/psychological, explanation, and the plaintiff’s case – reasonably – proceeded upon the expert evidence to that effect. However, once it was determined by a medical assessor, Dr Mellick, that the psychological sequelae did not have an organic neurological cause but a psychiatric/psychological one, the plaintiff very promptly sought to confirm that to be so through qualifying an appropriate expert to comment upon it – Dr Doris, consultant psychiatrist.

38. I now expand a little upon the above.

39. Initially, the plaintiff sought to argue that the various symptoms experienced by him following the assault were a consequence of a brain injury; that is, relevantly here, the emotional and behavioural symptoms – in addition to physical ones, such as the vestibular disturbance and the presence of migraines – were attributable to that injury. In this broad respect, the plaintiff relied upon reports from Dr Dudley O’Sullivan, consultant neurologist, dated 19 August 2019 and 13 January 2020.

40. Dr O’Sullivan’s reports can be summarised, so far as they are relevant to the application, briefly, and as follows:

1. First, following examination, he diagnosed the plaintiff as suffering a “closed head injury resulting in him developing a post-concussive type syndrome”, which had persisted. Whilst Dr O’Sullivan considered that this was “most unusual”, he nevertheless expressed the opinion that there was “no doubt that his present symptoms do relate to that injury”, albeit that he acknowledged that there were “psychological factors contributing to his ongoing symptoms”.

2. Secondly, he noted that the plaintiff had been diagnosed with a vestibular migraine, albeit that he observed that vestibular function tests were normal.

3. Thirdly, in relation to the plaintiff’s account of “persistent headaches, impaired memory and concentration as well as difficulties with balance and at times falls”, Dr O’Sullivan considered that they “must relate in some way to the closed head injury that he sustained”.

4. Fourthly, Dr O’Sullivan considered that the plaintiff’s injuries had not stabilised and, therefore, that it was “premature” to assess whole person impairment (‘WPI’).

41. In his supplementary report dated 13 January 2020, he assessed the plaintiff as having a 10% WPI due to “his vestibular dysfunction related to his vestibular migraine”. Further, he rated the plaintiff’s WPI of his “central and peripheral nervous system” using the “Criteria for Rating Impairment due to Emotional or Behavioural Disorders” as 10%, resulting in the combined impairment of 19% WPI.

42. There was a “medical dispute” about this (see s 319 of the WIM Act) and, in consequence, the assessable impairment resulting from injury to the applicant’s “nervous system” was referred to a medical assessor, Dr Ross Mellick, neurologist, under s 321 of the WIM Act.

43. The relevant parts of Dr Mellick’s medical assessment certificate, dated 11 October 2023, may be summarised as follows:

1. First, based upon his clinical assessment of the plaintiff, Dr Mellick, whilst accepting that the plaintiff suffered “a significant head injury, and more likely than not concussion”, concluded there is no objective support for a diagnosis of permanent brain injury having occurred during the fight.

2. Secondly, he considered that, given those findings, there was no “assessable impairment arising because of a brain injury occasioned by the assault”.

3. Thirdly, he disagreed with Dr O’Sullivan’s contrary opinion to the extent it suggested that the plaintiff suffered from a brain injury, as well as other neurological disorders, including that the plaintiff had vestibular migraines.

4. Fourthly, he noted that there was a “clear history of psychologically based problems” and, in this respect, identified that, in connection with the diagnosis of vestibular migraine that had been made by Dr O’Sullivan, the diagnosis was equally consistent with “chronic tension headache, which, in turn, is consonant with the significant psychologically based symptoms suffered” by the plaintiff.

44. Accordingly, in relation to the “nervous system”, Dr Mellick assessed the plaintiff as having 0% WPI. The combined certificate issued (which dealt with physical injuries suffered in the assault) assessed the plaintiff as having a 16% WPI.

45. The plaintiff qualified a consultant psychiatrist, Dr Alan Doris, who provided a report dated 18 December 2023. This is the report objected to by the fourth defendant. Dr Doris’s updated report, dated 17 April 2025, is also objected to by the fourth defendant.

46. I will briefly summarise these reports, so far as they are relevant to the issues in this application.

47. In his report dated 18 December 2023, Dr Doris diagnosed the plaintiff as suffering from “complex chronic health problems principally manifested by abnormal loss of neurological function” and that he was most likely “suffering from a conversion disorder (functional neurological symptoms disorder) with mixed symptoms, persistent, with psychological stressor…the psychological stressor was the assault of September 2016”. He assessed the plaintiff as having a 24% WPI due to that condition.

48. In his report dated 17 April 2025, Dr Doris confirmed his earlier diagnosis and his opinion that it was attributable to “the assault of September 2016”.

49. The plaintiff also drew attention to the fact that, more recently, the dispute relating to the nature and extent, and degree of permanent impairment, of the plaintiff’s psychological and/or psychiatric condition was also referred to medical assessor Dr Clayton Smith, under s 321 of the WIM Act.

50. The relevant parts of Dr Smith’s medical assessment certificate, dated 12 August 2025, may be summarised as follows:

1. First, based upon his clinical assessment of the plaintiff, Dr Smith concluded that the plaintiff “developed symptoms consistent with [PTSD] after he was assaulted in the workplace…”, that he had “continued to have symptoms consistent with [PTSD] that have not remitted since the injury”; and that he met the diagnostic criteria for that disorder under DSM-5.

2. Secondly, that the plaintiff met the diagnostic criteria for a “conversion disorder (functional neurological symptoms disorder)”, essentially described as alterations of motor or sensory function with clinical findings providing evidence of incompatibility between the symptoms and recognised neurological or medical conditions “causing clinically significant stress, distress and impairment in social, occupational and other important areas of functioning with mixed symptoms, persistent episode with a psychological stressor, namely the workplace assault”.

3. Thirdly, that the PTSD and conversion disorder were “primary psychological injuries” and that he assessed the plaintiff as having a 22% WPI.

4. Fourthly, that the plaintiff “presented as a consistent historian”, with “no apparent exaggeration, hyperbole or malingering” and a consistent presentation “with the medical evidence provided by his treating clinicians”.

51. For completeness, it should be noted that Dr Smith had, as the material briefed to him, both reports from Dr Doris.

52. I return now to the central submission advanced by the plaintiff that sought to explain the circumstances leading to him securing psychiatric opinion.

53. The plaintiff’s solicitor explained that, principally based upon the report from Dr O’Sullivan to which reference has been made, it was his “belief and understanding that the plaintiff had suffered a traumatic brain injury as a result of the subject incident” but that, following receipt of the medical assessment certificate from Dr Mellick, considered that the plaintiff's injury, and thus diagnosis, was psychologically – and not neurologically – based.

54. That evidence is entirely consistent with the summary and chronology of the medical evidence set out above. I accept that explanation for why Dr Doris was qualified – an explanation, it should be observed, that was not challenged by cross-examination.

55. The fourth defendant submits that, notwithstanding the solicitor’s explanation for why he took the steps to qualify Dr Doris – and why he did not do so before that time (and, thus, before serving the pre-filing statement) – the plaintiff had “posited a position prior to that date that he suffered psychiatric symptoms well prior to this point in time”. The short argument was, given there were suggestions of psychological harm evident from references in the compensation material generally – and in the particulars provided – the Court should be unpersuaded that the “material…was not reasonably available” to the plaintiff.

56. In my view, that submission is only partly correct and involves a degree of oversimplification of what was, I consider, a less than straightforward position. I will explain this, principally by reference to the opinion from Dr O’Sullivan.

57. His opinion was that the plaintiff’s complaints of “persistent headaches, impaired memory and concentration as well as difficulties with balance and at times falls…must relate in some way to the closed head injury that he sustained”, albeit that he recognised that psychological factors were contributing to his ongoing symptoms. Further, he rated the plaintiff’s WPI of his “central and peripheral nervous system” using the “Criteria for Rating Impairment due to Emotional or Behavioural Disorders”, resulting in the combined impairment of 19% WPI. In short, although recognising that there was a contribution by “psychological factors”, Dr O’Sullivan assessed the plaintiff’s impairment as being principally neurologically based.

58. The medical assessment certificate issued by Dr Mellick, which bound the parties (subject to any appeal), determined otherwise. In doing so, it disagreed expressly with the various diagnoses made by Dr O’Sullivan, as I have earlier noted. It was in that context that the plaintiff qualified a psychiatrist, Dr Doris.

59. Thus, although it is correct to say, as the fourth defendant did, that the plaintiff claimed he had “psychiatric symptoms”, they had, at least principally, a neurological origin on the case advanced by him. Dr Mellick did not, however, accept that the plaintiff’s symptoms arose out of a “brain injury occasioned by the assault”.

60. The premise of the fourth defendant’s argument, although not stated, should be identified: it is that, notwithstanding a report from a highly experienced neurologist attributing psychological symptoms to a closed head injury, reasonable diligence nevertheless required the plaintiff to go behind this report and look for other possible causes, including by retaining experts to assist in this process, to exclude the possibility that that opinion may not be accepted by a medical assessor appointed under s 321 of the WIM Act. I am unable to accept that reasonable diligence required, in this case, anything more than what in fact occurred. To require otherwise would have considerable ramifications – for plaintiffs and defendants. In my view, the reports from Dr Doris were “not reasonably available” at the time of serving the pre-filing statement.

61. The position is not different because the plaintiff’s treating general practitioner indicated on various certificates of incapacity that the plaintiff had “PTSD”.

62. First, the mere fact that there are such references in the considerable amount of material that has been generated by this claim is itself unremarkable. It does not mean, in my view, that all that material – indeed every reference to a symptom or disability – had to be actioned in some way, and the argument did not extend to explaining precisely why that should follow. What is, in effect, required is reasonable diligence – not zealous vigilance. What was required occurred here, as I have found.

63. Secondly, the forensic significance of these references is by no means clear. The plaintiff’s case, through Dr Doris, was that he had a conversion disorder and not PTSD. To the extent that diagnosis was raised, it was by Dr Smith, the medical assessor appointed under s 321 of the WIM Act.

64. Thirdly, and in any event, the medical certificates identified by the fourth defendant each diagnosed the plaintiff as having an “Acquired Brain Injury”, in addition to having “PTSD” and “lumbar back pain”. In short, the certificates were not suggesting – at least not clearly suggesting – that the plaintiff did not have a neurological basis for his symptoms.

65. The fourth defendant also argued that, to the extent the affidavit from the plaintiff and Ms Goodwin refers “to the psychiatric injury”, leave should be refused – raising the same objection that was raised in connection with the expert evidence.

66. The submissions did not identify the specific paragraphs to which objection was taken, but nothing turns upon this.

67. In relation to these affidavits (being “other evidence” within s 318(1)(d)), it should be remembered that, to comply with the requirement to serve a pre-filing statement setting out “the evidence”, a plaintiff is not required to provide a “verbatim transcript of the evidence which will be given a trial, but rather a disclosure of the nature and substance of the evidence to be given”: Wilkinson at [219].

68. The assumption within the fourth defendant’s submissions is that the “nature and substance” of aspects of the plaintiff’s affidavit were not disclosed within the considerable body of material that formed part of the pre-filing statement. Although there will inevitably be, in a given case, questions of fact and degree, the emphasis must be upon whether, as a matter of substance, the evidence has been disclosed. Once that limitation is acknowledged, it is difficult to accept that this has not occurred in the present case: in my view, it has – as I will briefly explain.

69. The plaintiff’s evidentiary statement dated 16 January 2023 was served prior to the application for mediation, and the fourth defendant accepts that this statement has been properly served. Within that statement, from par 57-67, the plaintiff set out the various impairments, restrictions and disabilities that he alleges have resulted from the assault. That evidence has been copied and included in his affidavit affirmed 5 June 2025, from par 83-94 and at par 102.

70. The affidavit, not unexpectedly, given it updates the position to the present time, provides some additional detail. However, I am unable to accept that, before that time, there had not been disclosure of the nature and substance of the evidence to be given, having regard to what was contained in the plaintiff’s evidentiary statement dated 16 January 2023.

71. The same may be said about Ms Goodwin’s affidavit. Her evidence is directed towards corroborating the plaintiff’s account. Once it is accepted, as I consider it must be, that the nature and substance of evidence to be corroborated was regularly served, it follows that that evidence (whose function is corroborative) ought be characterised in the same way.

72. The next question is whether the failure to grant leave would substantially prejudice the plaintiff’s case. In my view, there is no question that substantial prejudice would occur if leave were not granted. To the extent that the fourth defendant sought to raise the fact that there had not been a “mediation” addressing the case from a psychiatric perspective, I do not consider that to be of any moment: first, because the inquiry here is directed to whether the plaintiff would be substantially prejudiced by the failure to grant leave; and, secondly, even if that were not so, that could be easily and simply remedied by an order that one take place forthwith. To the extent that the fourth defendant raised “concerns” about the availability of their expert psychiatrist qualified to give evidence, that is not a matter upon which I am prepared to act absent some evidence about the nature of those concerns.

73. Putting to one side the fourth defendant’s “mediation” argument which, to be clear, I have not accepted, no other discretionary matters were raised – nor are there any that, in my view, militate against the making of the orders sought by the plaintiff.

Orders

74. For the above reasons, I make the following orders:

1. Grant the plaintiff leave, pursuant to s 318(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), to rely upon:

1. the reports from Dr Alan Doris, dated 18 December 2023 and 17 April 2025;

2. the affidavit of the plaintiff, sworn 5 June 2025; and

3. the affidavit of Regina Goodwin, affirmed 5 June 2025.

2. Order the costs of, and incidental to, the plaintiff’s notice of motion filed 25 July 2025 be the plaintiff’s costs in the cause.

3. List the matter for further status review before Chen J on 19 September 2025.

4. Order that the parties engage in a mediation by 30 September 2025, with such mediation to be conducted in accordance with Part 4 of the CPA and rr 20.1-20.7 of the Uniform Civil Procedure Rules 2005 (NSW).

5. Grant leave to the plaintiff to file and serve a second further amended statement of claim, by 8 September 2025, 4pm.

6. Order the defendants to file and serve a defence to any second further amended statement of claim filed in accordance with order 5, above, by 18 September 2025, 4pm.

7. Order the fourth defendant to advise all other parties in writing of these orders by 4 September 2025, 4pm.

8. Order that the exhibits (the court book) be returned to the plaintiff.

Decision last updated: 02 September 2025