Seyer v Gatwood Management Pty Ltd (No 4)

[2023] FedCFamC2G 630

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Seyer v Gatwood Management Pty Ltd (No 4) [2023] FedCFamC2G 630   

File number(s):	SYG 515 of 2022
Judgment of:	JUDGE D HUMPHREYS
Date of judgment:	17 April 2023
Catchwords:	INDUSTRIAL LAW – Fair Work – orders sought to rely upon a medical report from a Psychiatrist – the application is refused.
Legislation:	Evidence Act1995 (NSW) s 135
Division:	Division 2 General Federal Law
Number of paragraphs:	14
Date of last submission/s:	17 April 2023
Date of hearing:	17 April 2023
Place:	Parramatta
Counsel for the Applicant:	Ms Doust
Solicitor for the Applicant:	AEN Legal
Counsel for the Respondents:	Mr Watts.
Solicitor for the Respondents	Piper Alderman

ORDERS

SYG 515 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

KARL SEYER

Applicant

AND:

GATWOOD MANAGEMENT PTY LTD ABN 59 147 501 835

First Respondent

RABI MALASS

Second Respondent

order made by:	JUDGE D HUMPHREYS
DATE OF ORDER:	17 APRIL 2023

THE COURT ORDERS THAT:

1.The application to tender the reports, is refused.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(As revised from the transcript)

JUDGE D HUMPHREYS

1. The Court has before it, an application for an adjournment of a hearing that is listed to commence on Wednesday 19 April 2023, in the matter of Karl Seyer and Gatwood Management Pty Ltd. Gatwood Management Pty Ltd is the first respondent and Mr Rabi Malass as the second respondent.  The history of this matter has been most unsatisfactory and there has been considerable pre-trial issues, including an application for summary judgment which was not granted, but was adjourned, but there were certain conditions placed on that, noting that the summary judgment was heard only a few weeks ago. 

2. The Court was provided with an application in a case late on Friday.  That application in the case seeks a vacation of the hearing dates on the basis that the applicant is so unwell that, first, he is unable to provide proper instructions and, second, that he is so unwell he is unable to give evidence and that it would be not in his interests that he do give evidence.  Initially, the applicant in the Application in the Case, sought to rely upon a medical report from a Psychiatrist, a Dr Ian Sherman.

3. That has not been proceeded with and that report is being placed to one side and forms no part of my judgment and consideration of the matter here today.  Secondly, reliance is placed on two reports that have been prepared by Mr Sam Albassit, a Psychologist, the first date of 13 April 2023 and the second from December 2022, which related to another proceeding before the local Court, but they are both sought to be relied upon. 

4. Objection has been taken under s 135 of the Evidence Act1995 (NSW) on the basis that the Court may refuse to admit evidence if it’s probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. Whilst this is not a jury trial, it is still a situation where the Court needs to consider what the evidentiary value of the report is and what might flow from it.

5. Ms Doust, on behalf of the respondent in the Application in the Case, has indicated to the Court, first of all, that when the solicitors for her client were made aware that the report was sought to be relied upon, they asked for the treating notes to be provided from Mr Albassit.

6. That has not occurred.  So Ms Doust is faced in a situation whereby, in terms of the assertions that are put forward, she has no evidentiary base upon which to cross-examine.  It is to the Court’s thinking, noting that the report of December last year makes reference to a treating plan, and it says that he would recommend that Mr Malass see a Dr Augustus Pusic, who would be able to assist in the treatment of the application.  There is no report here from a Dr Pusic.  Even more telling in my point of view, there is no report from the treating GP, whoever that is.  How it is that the treating doctor has not been contacted and the report provided from him is beyond the Court and the Court simply takes that into account, as to whether or not it should indeed accede to the request or the objection that has been made by Counsel for the applicant in the main matter, Mr Seyer, that the report not be received.

7. Now, with the greatest of respect to Mr Albassit, he is a Psychologist.  Generally, the Court requires reports from treating medical practitioners in order for the Court to be satisfied that a medical condition exists such that a person be excused from giving evidence or that we should accept the fact that a certain medical condition exists and, in saying that, the Court does not in any way suggest that Mr Albassit is not a person who is well able to provide treatment in relation to psychological conditions.  If the Court allows the reports in, Counsel for the respondent says in the Application in the Case says:

   “Well, look.  How can I fairly cross-examine?  I have got no basis for what is said there.” 

8. What is contained within the report is merely background which Ms Doust says she cannot check, she cannot cross-examine on, and she has also taken the Court to to page 135 of the Court Book in the substantive proceedings.  This is an email sent from Mr Malass to Mr Seyer on Sunday, 26 September 2021, and shortly after, there was the alleged sacking of the applicant and he said:

   “This is going to be a big deal for me, what you said to me and how you’ve sent messages and I’ll make sure everyone understands, the next time someone decides to do something like this to me, it will cost them a lot of time and money to move away from all of this.”

9. It has been put to the Court that that is an indication that Mr Malass was going to engage in filibustering and obfuscation in trying to delay the proceedings and take every legal point that he could.  When the Court looks at the totality of the proceedings, indeed, there is significant evidence that that is precisely what has taken place, bearing in mind that documents are not filed, bearing in mind, in accordance with Court timetables, solicitors have left and not been replaced.  Mr Murphy, in the proceedings, came into it at very late notice and, indeed, it has been foreshadowed to me that Mr Murphy is going to seek to be excused from the proceedings.  That seems to me to be a fairly big indicator that precisely what was outlined in that email has indeed taken place.  The Court has got to be fair to both parties.

10. In the Court’s view, in relation to trying to be fair, the Court needs to consider what would happen if the evidence was allowed in, how it would be capable of being dealt with, what weight could be placed on it and how it might influence the Court’s capacity to grant what is the substantive application, that the matter be adjourned. 

11. In terms of the amount of weight that can be place on the report, in the Court’s view, it would be somewhat limited because, Mr Albassit is not a medical practitioner and, in terms of the way that the Court deals with such matters, it is evidence from a medical practitioner and, in particular, a Psychiatrist that the Court would take the most weight of and give consideration to and, it is starkly clear and somewhat puzzling that evidence has not been given and provided from the person who I would have thought would be the first person you would go to, that being the applicant’s treating general practitioner.  There is nothing from there.

12. There is no explanation that is given as to why that was not sought and, second of all, if he suffers from these conditions, which he says he does, why he does not have a treating psychiatrist, noting that the Psychiatric report that was sought to be relied upon only took place in circumstances where there was one meeting between the applicant in the proceedings and the Psychiatrist.

13. It was an expert report. The Court is simply noting that, by way of what it calls the overall circumstances in the matter.  Given the overall history of the matter, given the consequences to the applicant, were the Court to allow the evidence in, the incapacity of the applicant to properly examine and test that material, given the fact that it is not even by way of Affidavit – it has simply been provided by way of a report – in my view, it would be unfair and prejudicial to Mr Seyer if the Court was to allow that report in, noting of course that the Court can only give it limited weight unless it is a report from a Psychologist and not from a treating psychiatrist or a treating General Practitioner.

14. The application to tender the reports is refused.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       17 April 2023