Smith v SBP Employment Solutions Pty Ltd

[2019] FCCA 3104

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMITH v SBP EMPLOYMENT SOLUTIONS PTY LTD & ORS [2019] FCCA 3104

Catchwords:

INDUSTRIAL LAW – Application to file affidavit during the course of trial – prejudice to respondents considered – application refused.

Applicant: NICHOLAS SMITH

First Respondent: SBP EMPLOYMENT SOLUTIONS PTY LTD

Second Respondent: SBP AUSTRALIA PTY LTD

Third Respondent: MAX BURNS

Fourth Respondents: TONY AISTHORPE

Fifth Respondent: DAN MAHONY

Sixth Respondent: NEVILLE HOMBSCH

Seventh Respondent: PETER CHADWICK

Eighth Respondent: RICHARD PIE

File Number: BRG 330 of 2018

Judgment of: Judge Egan

Hearing date: 28 October 2019

Date of Last Submission: 28 October 2019

Delivered at: Brisbane

Delivered on: 28 October 2019

REPRESENTATION

Counsel for the Applicant: Dr. R. Haddrick

Solicitors for the Applicant: FCB Lawyers

Counsel for the Respondent: Mr. M. Alexander

Solicitors for the Respondent: Carter Newell

ORDERS

1. The applicant’s application to adduce further evidence is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 330 of 2018

NICHOLAS SMITH

Applicant

And

SBP EMPLOYMENT SOLUTIONS PTY LTD

First Respondent

SBP AUSTRALIA PTY LTD

Second Respondent

MAX BURNS
Third Respondent

TONY AISTHORPE
Fourth Respondent

DAN MAHONY
Fifth Respondent

NEVILLE HOMBSCH
Sixth Respondent

PETER CHADWICK
Seventh Respondent

RICHARD PIE
Eighth Respondent

REASONS FOR JUDGMENT

1. During the course of submissions made by counsel on behalf of the applicant, reference was made by him to paragraph 115 of the applicant’s submissions filed on 30 September 2019.  Those submissions related to whether two reports of Dr Prabal Kar, dated 12 April 2018 and 15 February 2018, had been provided to Dr Chau prior to the preparation of her report, the date of examination for which was 3 September 2018.  Those submissions are as follows:

   “115. Dr Chau’s report contains an annexure entitled “Index of Documents – N Smith Medical Records” which identifies 62 items of documentation that Dr Chau was provided with in her brief from the Applicant’s solicitors. It is uncontentious that item 40 in that Index of Documents refers to a “Fax to Dr C Nurcombe” and the date of that facsimile is 4 May 2018. It is also uncontentious that item 40 was a facsimile to Dr Nurcombe from Paul Mitchell (at WorkCover), dated 4 May 2018, enclosing a copy of the supplementary psychiatric report of Dr Prabal Kar, dated 12 April 2018, and the Independent Psychiatric Examination and Report of Dr Prabal Kar, dated 15 February 2018.217 As Dr Chau says on page 2 of her report: “The documentation which has been reviewed for the purposes of providing this report is as follows …7. Brief Material as provided by FCB Workplace Law as per the attached Index to Brief”. And that Index to brief refers at item 40 to the “Fax to Dr C Nurcombe”, dated 4 May 2018.”

2. The submissions advanced on behalf of the applicant were that, rather than the Court giving no weight to the report of Dr Chau because certain documentation had not been provided to her for the purpose of the preparation of her report, the report, rather, should be given such weight as was appropriate, on the basis that she had received all relevant material, including the two reports prepared by Dr Kar.

3. The trial in this matter commenced on 29 July 2019 and ran for four days.  The matter was adjourned until today for the giving of oral submissions to filed written outline of arguments which had been prepared on behalf of the applicant and the respondents.

4. It is very late in the day for the applicant to now make an application to file an affidavit, sworn by the lawyer for the applicant, deposing to the two reports of Dr Kar having been provided to Dr Chau before she prepared her report.

5. It is curious that Dr Chau, in her report, under the heading ‘Collateral History from Documentation’, referred to the opinions and notes of over 10 medical practices/practitioners but did not refer to the reports of Dr Kar.

6. Counsel for the respondent, on day 3 of the trial, cross-examined Dr Chau.  Believing that the reports of Dr Kar – constituting, as they did, part of the material obtained through subpoena from WorkCover Queensland – had not been provided to Dr Chau, counsel was content to cross-examine Dr Chau in a general way to the effect that if someone in Dr Chau’s position had not been provided with all relevant material, then any report prepared by her in those circumstances ought to be given little weight.  That course was obviously undertaken because of the belief by counsel for the respondents that the report of Dr Kar, in which less than flattering comments were made about the applicant, had not been provided to Dr Chau.

7. Dr Haddrick, on behalf of the applicant, submitted that the respondents would suffer no prejudice if the affidavit of his instructing lawyer was able to be received by the Court.  In circumstances where counsel for the respondents has submitted that such course, if allowed, would necessarily result in the respondents suffering procedural unfairness, and in circumstances where the Court considers that it would, in any event, be of limited utility for the applicant to recall Dr Chau for the purpose of having her cross-examined by counsel for the respondents, the application to file the affidavit as proposed by counsel for the applicant is refused.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 28 November 2019