Turner v Victorian Arts Centre Trust
[2009] VSCA 224
•2 October 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3848 of 2008
| ADRIENNE TURNER | Appellant |
| v | |
| VICTORIAN ARTS CENTRE TRUST | Respondent |
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| JUDGES | ASHLEY, MANDIE JJA and BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 September 2009 |
| DATE OF JUDGMENT | 2 October 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 224 |
| JUDGMENT APPEALED FROM | Turner v Victorian Arts Centre Trust (Orders after trial by judge and jury, County Court of Victoria, Judge O’Neill, 22 August 2008) |
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ACCIDENT COMPENSATION – Negligence – Jury trial – Evidence – Collateral evidence rule – Evidence not collateral – Application to discharge jury – Matter corrected by direction from trial judge – Expert evidence – Not a matter requiring expertise – Evidence excluded – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
For the Appellant | Mr A G Uren QC with Mr A D B Ingram | Clark Toop and Taylor |
| For the Respondent | Mr J Ruskin QC with Mr S A O’Meara | Thomson Playford Cutlers Lawyers |
ASHLEY JA
MANDIE JA
BEACH AJA:
Introduction
This case concerns alleged exposures to psychosocial stressors and workplace bullying. Ms Adrienne Turner (‘the appellant’) was employed by the Victorian Arts Centre Trust (‘the respondent’) between August 1985 and 25 January 2001. The appellant alleges that during the latter part of her employment as a ticketing officer - specifically, between 20 October 1999 and 25 January 2001 - she was exposed to psychosocial stressors, and more particularly workplace bullying behaviour on the part of the ticketing services manager of the respondent, Mr Dominic Holden.[1] She claims that, as a result of such exposure, she sustained psychiatric injuries.[2]
[1]See paragraph two of the agreed summary of proceedings, facts and issues. However, we note that whilst the main thrust of the appellant’s case concerned the activities of Mr Holden, the pleadings and evidence encompassed other actions in respect of which the appellant made complaint. So, for example, some conduct of Ms Jenny Lacey (whose position was box office co-ordinator) was also in issue.
[2]The injuries claimed included ‘major depression and anxiety’, ‘aggravation and exacerbation of hypertension’, ‘panic disorder with agoraphobia’ and ‘post traumatic stress disorder’. ‘Obesity’ was also claimed as an injury.
The appellant commenced proceedings against the respondent in the County Court claiming damages in respect of her injuries. The claim was put in negligence and in breach of contract. On 22 August 2008, after a two and a half week trial, the jury returned a verdict for the respondent. Judgment was entered for the respondent in accordance with the verdict of the jury.
The appellant now appeals to this Court. She seeks to have the judgment entered against her set aside and the proceeding remitted to the County Court for retrial.
The appellant’s complaints can be summarised as follows:
(a) The judge permitted a breach of the collateral evidence rule in relation to evidence given by a former fellow employee of the appellant, Ms Ann O’Hanlon.[3]
[3]Grounds 1-5.
(b) The judge failed to discharge the jury after what is said to have been ‘the introduction of irrelevant and prejudicial material’ during the cross-examination of the appellant.[4]
(c) The judge refused to admit the evidence of Mr Jim Bailey, an expert in human resources.[5]
[4]Ground 7. We add that Ground 6 was abandoned before the hearing of the appeal commenced.
[5]Ground 8.
Each of the three issues in respect of which the appellant makes complaint was the subject of a ruling (‘the collateral evidence ruling’, ‘the discharge ruling’ and ‘the expert evidence ruling’) during the course of the trial. In essence, the appellant contends that each ruling was wrong. Before dealing with each ruling, it is necessary to describe the appellant’s case in greater detail – specifically by reference to the appellant’s pleadings, the way in which the case was opened on her behalf and some of the evidence that was led at trial.
The appellant’s amended statement of claim
The trial was conducted upon an amended statement of claim. The core allegations of fact which it made were as follows:
5.Throughout the course of the [appellant’s] employment with the [respondent] on and from 20 October, 1999 and in particular throughout the year 2000, the [appellant] worked in an environment which involved exposure to psycho-social stressors, the result of which caused the Plaintiff [appellant] to suffer injury.
6.At all relevant times the [appellant] was employed as a Senior Account Manager/Event Manager in the ticketing department at the premises.
7.At all relevant times the [appellant] was a subordinate to Dominic Holden and Jenny Lacey.
8. The [appellant] was, on occasion throughout 2000:
(a)wrongly accused of misconduct by Dominic Holden;
(b)falsely accused of demonstrating violence towards Dominic Holden by Dominic Holden;
(c)wrongly accused of taking unauthorised rest breaks by Dominic Holden;
(d)unduly criticised by Dominic Holden and Jenny Lacey with respect to minor discrepancies in the balancing of the books;
(e)reported to Human Resources Department for behaviour alleged to be misconduct by Dominic Holden;
(f)sent threatening and intimidating emails by Dominic Holden;
(g)subjected to unilaterally decided changes in workplace policies, for example rostered meal breaks when such change was:
(i) unwarranted;
(ii) unworkable;
(h)compelled to seek at all times and without exception permission from Managers before leaving the work area after July 2000;
(i) wrongfully accused of disciplinary breaches;
(j) witness the distress of work colleagues;
(k)witness the resignation of work colleagues caused by the behaviour of Dominic Holden towards those people;
(l)witnessing distress caused to colleagues by the actions of Dominic Holden;
(m)subjected to direction and criticism in a manner which was unwarranted and unprofessional, and in a manner that was intended to cause the [appellant] distress –
As a result of which, the [appellant] suffered injury …[6]
[6]Whilst the words ‘compelled to’ (or perhaps, ‘required to’ or ‘permitted to’ – or some combination of these) appears to have been omitted from the start of paragraphs 8(j) and (k) (and whilst there appears to be a corresponding anomaly with paragraph 8(l)), the meaning of these sub-paragraphs is tolerably clear.
In paragraph 11 of her amended statement of claim, the appellant provided particulars of the negligence she alleged was a cause of her injuries. The particulars were as follows:
(a)Failure to provide and maintain a safe system of work;
(b)Failure to provide and maintain, so far as it was practicable, a work environment that was safe and without risk to:
(i) the [appellant’s] health;
(ii) the [appellant’s] colleagues’ health;
(c)Failing to make arrangements for ensuring, so far as it was practicable, the safety of the [appellant] and her colleagues, when they were performing the duties required of them;
(d)Failure to provide adequate information, instruction, training and supervision of:
(i)the [appellant] insofar as the rights with respect to bullying and victimisation in the workplace were concerned;
(ii)to Dominic Holden and Jenny Lacey, with respect to their role as the [appellant’s] superiors and the manner in which they should direct or counsel the [appellant] if it was believed her work activities required rectification;
(e)Failure by the Human Resources Department and Management including the CEO, Tim Jacobs, to investigate adequately or at all the [appellant’s] complaints in relation to Dominic Holden and the low morale in the workplace caused by Dominic Holden;
(f)Failure by management to introduce or implement any appropriate regimes of investigating and managing the disharmony complained of by the [appellant];
(g)Conveying complaints made by the [appellant] about Dominic Holden to Dominic Holden and then allowing Dominic Holden to confront the [appellant] regarding her complaints;
(h)Failing to implement guidelines with respect to workplace bullying and victimisation;
(i)Failing to acknowledge workplace agreements;
(j)Failing to ensure that the workplace practices, as administered by superiors including Dominic Holden did not constitute bullying, harassment or victimisation;
(k)Failing to heed previous instances of bullying behaviour towards other employees by Dominic Holden;
(l)Failing to alter its procedures for dealing with bullying in the workplace following previous instances of bullying behaviour towards other employees by Dominic Holden;
(m)Failing to adopt strict routines for counselling, supervising and managing the behaviour of Dominic Holden towards other employees following previous instances of bullying behaviour towards other employees.
The appellant’s claim in contract appears to have mirrored her claim in negligence. Whilst breaches of contractual terms were alleged, such terms were not identified with precision in the amended statement of claim. Instead, it would appear that the appellant relied upon the particulars of negligence as particulars of a term requiring the respondent to provide a safe system of work, a safe place of work and appropriate supervision.
The opening
In the course of his opening, Senior Counsel for the appellant[7] gave what he described as an overview of what happened to the appellant and the circumstances ‘leading up to her breakdown on 25 January 2001, from which she has not recovered’. Counsel encapsulated the claim as follows:
This is a claim brought by my client … in respect of damages for psychiatric injury that she sustained as a result of bullying in the workplace when she was employed by the Victorian Arts Centre Trust, particularly during the year 2000 and in the beginning of 2001.
[7]Who did not appear on this appeal.
The existence and relevance of Ms O’Hanlon was opened in the following terms:
The plaintiff witnessed in that same period of time, that last six months she worked there in the second part of 2000, a fellow employee, Ann O’Hanlon, being reduced to tears time and time again by Mr Holden and what Mr Holden did to Ann O’Hanlon was to abuse her, to shout at her, sometimes block her exit from her room.
…
In the end, what happened was that Ann O’Hanlon resigned in December 2000 and she gave what they call an exit interview to the equal opportunities coordinator, a woman called Donna Cousley. She told her, ‘I cannot work with Dominic Holden. He is abusive and I cannot work with him, so I’m resigning.’
…
29 December …, that is where (sic, when) the exit interview that you’ll hear evidence in relation to in which Ann O’Hanlon says that she has been subjected to verbal abuse and intimidation by Dominic Holden and it got to the stage that Ann O’Hanlon did not want to work with Dominic anymore and she was resigning because she couldn’t work with Dominic Holden anymore and that’s after more than five years service – that’s Ann O’Hanlon.
…
It may be in the course of this case you’ll say that – certainly you’ll be hearing from the defendant – ‘there are two sides to every story.’ The plaintiff may not be a perfect human being and she may have made mistakes in the course of her work. She’ll say she did her best. What we say overrides the argument about who is right and who is wrong in all of this is that there was clearly a risk of danger to her by way of being bullied and when that risk was brought to the attention of the defendant, as it was foreshadowed, perhaps as early as May 2000 … but certainly put in stark relief in December 2000 when the plaintiff put in her complaint about bullying and Ann O’Hanlon resigned, being unable to, she said, withstand the verbal abuse and intimidation of Dominic Holden, at that point, a competent organisation would have had someone come in and intervene and say, ‘What is the problem between these two people? Let’s stop it. Whatever is going on between them, whoever is right or wrong, let’s stop it because someone is claiming that they’re being bullied. There is an allegation that there is a real problem with this manager. Let’s just take this woman out of his area and control and put her somewhere else. Let’s protect her,’ and that’s what didn’t happen.
The reference to a December 2000 complaint by the appellant was a reference to a letter dated 21 December 2000 from the appellant to the Equal Opportunity Manager, in the following terms:
I love the Arts Centre – I love working at the Arts Centre, and it is with a heavy heart and in distress that I lodge an official complaint against Dominic Holden – manager ticketing services for ‘Bullying in the Workplace’.
Yours sincerely
Adrienne Turner
I was sorry to hear of the sudden resignation of Ann O’Hanlon.
Counsel for the appellant next referred to Ms O’Hanlon as follows:
She [the appellant] also recalls she was seeing Ann O’Hanlon, the other woman, frequently in tears, looking very unwell and looking as if she, Ann O’Hanlon, was not coping and just seeing Ann O’Hanlon in the state that Ann O’Hanlon was in further upset the plaintiff because Ann O’Hanlon worked very close with Dominic Holden. She had the next door office to him.
Counsel’s final reference to Ms O’Hanlon in the opening was to read the appellant’s letter of complaint and then to say:
It’s the same Ann O’Hanlon on 29 December 2000 who gives this exit interview to Donna Coustley saying, ‘I cannot work here because of the verbal abuse and intimidation I get from Dominic Holden.’ …
Then after Christmas we see an email that the plaintiff sent seemingly to Mary Ellen and also to Phil Dwyer, who were both higher up the chain, both superior to Dominic Holden. The plaintiff sends this in confidence. … ‘It is so sad down here, both in box office and front of house. Ann O’Hanlon has been in tears a lot lately. It has been upsetting for all who see how distressed she has been. She resigned due [to the] hostile atmosphere. We won’t be having a farewell gathering as this will be too painful for her. Would you mind, on your return to work, when you have time, to check out this morale lowering situation. Maybe Ann could have a job here in another department. An inquiry into what has happened may stop it ever happening again. Ann has no job to go to, has a home loan and isn’t that well. Managers higher know what has happened to her and one of them is very upset. It doesn’t make us look very good. Adrienne Turner‘ Ann O’Hanlon had been there for more than five years before she resigned because she couldn’t work with Dominic Holden anymore. But the plaintiff is still subjected to Dominic Holden. He is her superior. No-one has intervened.
The appellant’s evidence
The appellant gave evidence in accordance with the way in which her case was opened. During the course of her evidence-in-chief, she was asked (and gave evidence) about Ms O’Hanlon on a number of occasions. When asked about matters relating to a meeting on 22 December 2000, the appellant said:
I was tired of being targeted. I mean, how much longer was he [Mr Holden] going to do this and at that same time at this stage Ann O’Hanlon must have resigned, so the personnel department would have known that there were three women being bullied. At that date, she had resigned.
On 29 December 2000, the appellant sent the email to her superiors to which counsel referred in the passage cited at [13].
The evidence of Ms O’Hanlon
The appellant called Ms O’Hanlon and elicited from her that she had been employed for five years and three months prior to 29 December 2000 by the respondent. She was asked why she left her employment and she said ‘Because I was being bullied by Dominic [Holden].’ Ms O’Hanlon was then asked about the form the bullying took and she described verbal abuse, exclusions from meetings, shouting, blocking the doorway of her office and other matters. Senior Counsel for the appellant then led evidence of the exit interview conducted on 29 December and then tendered the form relating to that interview. In the exit interview form, one of the primary factors affecting Ms O’Hanlon’s decision to leave the respondent was recorded as:
The verbal abuse and intimidation by Dominic towards Ann reached a level whereby Ann sought the assistance of [two other employees] and asked advice in relation to ‘bullying’.
…
All in all Ann does not want to work with Dominic anymore.
During the course of the trial, the trial judge ruled on the relevance of Ms O’Hanlon’s evidence as follows:
Firstly, if there was bullying or harassment to other employees in the workplace it is relevant as going to the defendant’s knowledge of it and whether, with such knowledge, reasonable steps were taken to prevent it occurring in the workplace, particularly to the plaintiff. Secondly, if other employees were bullied, the plaintiff’s psychiatric condition may have been exacerbated by witnessing it occurring to others. This second aspect sounds largely in damages.
During the course of Ms O’Hanlon’s cross-examination, it was put to her that she did not resign because of any bullying – but rather because she put in a claim for a large number of hours of overtime and this claim was shown to be false when the hours were checked against car-parking records. It was put to Ms O’Hanlon that she had a meeting with Mr Holden shortly prior to her resignation. At that meeting, counsel suggested, Mr Holden put to her that she was claiming of the order of 200 hours of overtime, but that car-park records demonstrated that she had in fact worked about 100 hours less than she was required to work. Ms O’Hanlon gave evidence that she was unable to remember the suggested meeting or any such claim. Ultimately, counsel put to her that she had resigned when she was confronted with a false claim. Ms O’Hanlon denied that proposition.
In argument before us, Senior Counsel for the respondent,[8] submitted that what had been put to Ms O’Hanlon in cross-examination was that she had claimed 200 hours of overtime when she was entitled to claim only 100 hours. It is plain, however, that what in fact was put to Ms O’Hanlon was that, far from being owed in respect of 200 hours, she in fact owed her employer 100 hours (that is, a 300 hour discrepancy). Further, even if it could be said there was any ambiguity in the cross-examination, the matter was put beyond any doubt in the submissions of Senior Counsel for the respondent below, when he said to the trial judge, in the context of seeking to call evidence on the point:
I put to her that he confronted her with a printout of her logging in and logging out at the car-park and I put to her that she went to work by car and that she used her pass to get in and out and that when she was shown the hours that she worked as opposed to the hours that she claimed, far from being owed 200 hours, she owed 100 hours …
and
[S]he resigned for other reasons. Not because of bullying. She was caught with her hand in the till, we say.
[8]Who did not appear at trial.
The collateral evidence complaint
The respondent went into evidence, and called Mr Holden. During the course of his evidence, Senior Counsel for the respondent foreshadowed that he proposed to adduce evidence that Ms O’Hanlon was not bullied, and that the exit form that the appellant tendered in evidence was disingenuous. Specifically, counsel foreshadowed calling evidence that the reason for Ms O’Hanlon’s resignation was not bullying – but rather that she was caught making a false claim for overtime. Counsel told his Honour that evidence would be called:
[f]rom Mr Holden about the car-park, that she put in a claim for 200 hours of overtime. He asked her to provide documentary evidence for it. He checked the hours she said she worked against the hours she was there and it turned out that she was 100 hours short in her work.
Again, it is abundantly clear that what was being suggested in relation to the ‘hundred hours short’ was that this was a deficiency in the hours Ms O’Hanlon was required to work, rather than in respect of her claim for overtime. So much is clear by counsel’s use of the words ‘in her work’.
Counsel for the appellant contended before the trial judge (and contended before us) that the question whether Ms O’Hanlon resigned her employment because she was confronted with a false overtime claim was a collateral issue. The appellant then relied (and relied before us) on the collateral evidence rule. This is a rule to the effect that answers given by a witness to questions put to him or her in cross-examination concerning collateral facts must be treated as final. They cannot be contradicted by other evidence unless they fall into one of the recognised exceptions. In this case, the exception that was potentially applicable was bias.
At trial, counsel for the respondent submitted that the issue was not collateral. But if it was, then the bias exception applied.
The trial judge acceded to the respondent’s submission concerning the application of the bias exception. In the result, his Honour permitted evidence to be led from Mr Holden concerning Ms O’Hanlon’s claim for overtime. Grounds 1 to 5 of the notice of appeal concern the trial judge’s ruling permitting the foreshadowed evidence to be led from Mr Holden, notwithstanding his Honour’s conclusion that the proposed evidence went to a collateral issue. The respondent sought before us to defend the trial judge’s ruling and (by notice of contention) to support the ultimate conclusion of the ruling by showing that the evidence, in any event, did not address a collateral issue.
Following the trial judge’s ruling, Mr Holden gave evidence concerning the overtime claim and of his conclusion, based upon certain calculations which he had made, that the car-park records did not support Ms O’Hanlon’s claimed hours of attendance. Further, he gave evidence of a meeting at which these matters were discussed and that ‘a short time after [Ms O’Hanlon] offered her resignation’. Additionally, Mr Holden gave evidence that when Ms O’Hanlon submitted her resignation, she did not make any complaint to him (or anyone else to his knowledge) that she had been bullied.
We will return to Mr Holden’s evidence later. More needs to be said about it, because it did not accord with what had been put in cross-examination of Ms O’Hanlon or with the evidence which counsel foreshadowed he would adduce from Mr Holden concerning what had ‘transpired’ between Ms O’Hanlon and Mr Holden. It is sufficient at this stage to say that the correctness of his Honour’s ruling in relation to this matter falls to be determined on the evidence that had been given and the submissions that had been made up to the point in time where his Honour made the ruling.
The appellant seeks to characterise the issue whether Ms O’Hanlon resigned because she had been confronted with a false claim for overtime as an issue merely going to her credit, and thus a collateral issue. The respondent contends that the issue was not collateral because it was a fundamental plank of the appellant’s case that Ms O’Hanlon had been bullied to the point of resignation and that this fact was known to the respondent.
In recent years, there has been debate as to whether the collateral evidence rule should be regarded as a rule of convenience (a rule for the management of cases) on the one hand, or a fixed rule or principle on the other hand. In Nicholls v The Queen,[9] McHugh J expressed the view that the rule should now be regarded as a rule for the management of cases, rather than a fixed rule or principle.[10] However, as was noted by Gleeson CJ, the other six members of the Court in Nicholls declined the ‘invitation’ to ‘redefine the collateral evidence rule, characterising it, not as a rule of law, but as a guide to discretionary case management’.[11] Even if, in light of Nicholls, it could be said that the debate is still open, in our view no attempt need be made to resolve it in this case.
[9](2005) 219 CLR 196.
[10]Ibid 221-222 [53]
[11]Ibid 206 [2].
As was said by Gummow and Callinan JJ in Nicholls,[12] the dividing line between collateral evidence and directly probative evidence is often a very difficult one to draw. In the present case, it is correct, on one view, to say that the cross-examination of Ms O’Hanlon concerning her allegedly false overtime claim and concerning the reason for her resignation went to her credit, and were therefore matters which the cross-examiner could not seek to contradict by other evidence (in this case the evidence of Mr Holden). However, in our view, the issue was much more than an issue going only to Ms O’Hanlon’s credit.
[12]Nicholls v The Queen (2005) 219 CLR 196, 261[168].
The appellant’s case was pleaded, opened and run on the basis that the respondent knew or ought to have known that Mr Holden had bullied another employee to the point where that bullying caused that employee (Ms O’Hanlon) to resign. In paragraph 8(k) of her amended statement of claim, the plaintiff pleaded ‘witness[ing] the resignation of work colleagues caused by the behaviour of Dominic Holden towards those people’. From the opening, it was made clear that the relevant work colleague was Ms O’Hanlon. In the course of the appellant’s case, the appellant gave evidence that Ms O’Hanlon resigned due to the hostile atmosphere. The appellant then led evidence from Ms O’Hanlon that she resigned because she was bullied by Mr Holden. The evidence of the appellant and Ms O’Hanlon was thus to the effect that the respondent knew Ms O’Hanlon resigned because of bullying by no later than the time of the exit interview (29 December 2000). Further, the appellant tendered the exit interview form - presumably as going in proof that Ms O’Hanlon had in fact been bullied to the point where she resigned, and in proof that the respondent was so informed. In the circumstances, the appellant made the question whether Ms O’Hanlon resigned because she was bullied, and whether this fact was known to the respondent, facts in issue or facts relevant to facts in issue. The appellant having sought to prove the existence and truth of these matters, it was open to the respondent to adduce evidence to the contrary.
Evidence concerning the reason why Ms O’Hanlon resigned was also relevant on an interrelated basis. An issue in the case was the seriousness of the bullying alleged by the appellant. Ms O’Hanlon’s evidence that she resigned because of bullying by Mr Holden impacted on that issue – showing the bullying to be of a more serious nature, rather than a less serious nature. This was particularly so having regard to the admission into evidence of the appellant’s email of 29 December 2000 containing the statement ‘Ann [Ms O’Hanlon] has no job to go to, has a home loan and isn’t all that well’.
Whilst it might be said that the respondent’s purposes could have been served by merely calling evidence that Ms O’Hanlon did not resign because of any bullying, such an approach would in our view be artificial. Absent some admission by Ms O’Hanlon, the respondent could only call evidence from which it could invite the jury to infer that Ms O’Hanlon did not resign because of bullying. In this case, in order to contest the appellant’s case that the respondent knew Ms O’Hanlon had been bullied to a point where it caused her to resign, the best the respondent could do was to lead evidence of other matters (in this case the alleged fraudulent overtime claim) from which it would be open to the jury to infer that the evidence given by Ms O’Hanlon (and the exit interview form) was false. If the jury formed the view that Ms O’Hanlon’s evidence was false and that the exit interview did not represent the true position, an important plank of the appellant’s case was removed – namely, the contention that the respondent had knowledge of actual bullying that was serious enough to have caused another employee (Ms O’Hanlon) to resign, and yet took no steps to remedy matters before the appellant ultimately broke down on 25 January 2001.
It follows from what we have said that Mr Holden’s evidence, as foreshadowed to the trial judge, did not address a collateral issue. His Honour correctly permitted the respondent to attempt to lead the foreshadowed evidence, even though his ruling, reliant upon the bias exception to the collateral evidence rule, was in our opinion incorrect. Our conclusion that the ruling was correct in the result makes it unnecessary for us to consider the bias exception.
More needs to be said, however, about what occurred after his Honour’s ruling. The evidence which Mr Holden actually gave fell considerably short of what had been put to Ms O’Hanlon in cross-examination and what was foreshadowed to the trial judge in the course of the application to lead the relevant evidence from Mr Holden. In evidence-in-chief, Mr Holden was asked and answered the following questions:
Close to Christmas in 2000, was there an issue with Ann O’Hanlon in relation to her overtime?---Yes, a few weeks before that.
…
Did you have a meeting with her in relation to her claim for overtime?---Yes.
When was that?---I can’t remember the exact date, but it would have been late or early November of that year.
Do you remember specifically how much overtime she was claiming?---From memory, it was approximately 115 hours over the course of the year.
Did you work out the hours she’d actually been present at work based on the entry and exits of the car-park?---Yes. Yes, that was part of the basis, yes.
Did you also allow her time off for lunch?---Yes, I did.
Did you come to a conclusion about … the number of hours she had actually worked?---Yes, I did, yes.
Was there a difference between what she had claimed and what you had identified?---Substantial.
Did you have a meeting at which that was discussed with her?---Yes.
Did you show her anything at that meeting?--- … [T]he Arts Centre, or I gave her copies. One, of her diary, and two, of the records of her car-park pass plus the rationale I had used for comparing the two and the outcome of that comparison.
Did you have any animosity towards her at that time?---Not animosity, no.
Were you angry with her or hostile to her?---No.
What was the reaction of that? What was Ann O’Hanlon’s reaction to that?---To that meeting?
Yes?---She had very little reaction. The meeting pretty much ended after the presentation of the information and I think a short time after she offered her resignation.
…
When she left, were you surprised?---When she resigned, yes. Yes, I was surprised.
When she gave her resignation, did she make any complaint to you or anyone, to your knowledge, that she’d been bullied?---No, not at all.
…
What do you say to the allegations she makes [in the exit interview]?---I don’t believe them to be true.
The comparison between what was put to the appellant in cross-examination and what was foreshadowed to his Honour on the one hand, and the evidence actually adduced from Mr Holden, is stark. The picture painted in cross-examination and to his Honour was one of a fraudulent claim for overtime: a woman with her hand in the till falsely claiming 200 hours overtime when in fact, far from being owed any overtime, she owed her employer 100 hours work. Having been confronted with her fraud by Mr Holden, Ms O’Hanlon was said to have become very upset, went white in the face and resigned shortly thereafter.
However, Mr Holden’s actual evidence was that a claim for overtime of 115 hours was made and that there was a substantial difference between what Ms O’Hanlon claimed and the hours of overtime calculated by Mr Holden. No attempt was made to quantify the so-called ‘substantial’ difference. Further, no attempt was made to lead evidence from Mr Holden that the Ms O’hanlon had in fact not worked the hours she was required to perform. What had been approximately 200 hours claimed overtime over months became 115 hours over a year. As to upset and going white in the face, Mr Holden actually said that Ms O’Hanlon had very little reaction and he was surprised when she resigned. Further, on any view of Mr Holden’s evidence, whatever meeting there was about Ms O’Hanlon’s overtime claim must have occurred in November, at least four weeks prior to her resignation.
A question arises whether, on the evidence of Mr Holden (or the evidence as a whole), it was open to the jury to infer that Ms O’Hanlon resigned for reasons unrelated to any bullying. Examining the matter now reveals a very different factual underpinning for the suggestion that Ms O’Hanlon resigned for reasons other than bullying than the basis which was suggested during her cross-examination and which was relied upon by the respondent when it sought to adduce relevant evidence from Mr Holden.
The correct answer to the question is not clear-cut, but we consider that Mr Holden’s evidence was capable of supporting an inference (should the jury have chosen to draw it) that on balance Ms O’Hanlon did resign for reasons unrelated to bullying, or in circumstances where the fact of her resignation was not probative of the seriousness of any bullying.
Whilst it has not been decisive in arriving at that conclusion, we do note that appellant’s counsel did not submit to the judge, after Mr Holden had given evidence, that the jury ought be instructed that it could not draw an inference adverse to Ms O’Hanlon. More equivocal is the fact that counsel did not apply for a discharge of the jury on the basis of the wide disparity between what had been put to Ms O’Hanlon and the evidence given by Mr Holden. Such a choice would have been forensically explicable if the disparity had been pressed in counsel’s closing address.
Finally, we note there is no ground of appeal dealing with the discrepancy between what was put and foreshadowed on the one hand, and the evidence actually given by Mr Holden on the other hand.
The trial judge’s failure to discharge the jury
The second issue in respect of which the appellant makes complaint concerns the failure of the trial judge to discharge the jury after what is said to have been ‘the introduction of irrelevant and prejudicial material’ during the cross-examination of the appellant. The appellant was cross-examined about a written complaint she made concerning Mr Holden in May 2001. The appellant was then asked the following questions and gave the following answers:
You received an acknowledgment of that complaint and telling you that the information you provided would be kept confidential?---Yes.
That he [Mr Holden] would be fully informed of all of the allegations against him?---Yes.
And he would be given a full opportunity to respond?---Yes.
A process was undertaken where that happened?---That’s correct.
In August, you were corresponding with Mr Arthur, the manager of WorkCover, if you like, about your pay?---Yes.
Then were you interviewed in relation to the complaint?---Yes, Robert Beswick interviewed me, yes.
Cross-examination continued, before counsel for the respondent came back to Mr Beswick. The transcript discloses that the appellant was asked and answered the following questions:
What was Robert Beswick’s role?—-I think he was the mediator.
Subsequently, Lois Rolfe was interviewed?---I believe so.
Felicia Sette was interviewed to, wasn’t she?---I didn’t know about that.
Then in October you got a letter from the Victorian Arts Centre saying that Mr Beswick had acted as the complaint handler in that matter and completed a thorough investigation?---Yes.
This was a letter from the Administrator of Organisation Development Services, Donna Brearley?---Yes, it was from Donna.
She told you that the result of the complaint of harassment had been found to be - - -?
At that point, Senior Counsel for the appellant objected. Whilst the transcript does not show it, the appellant’s submissions contain an assertion that the words ‘not substantiated’ were said by Senior Counsel immediately before the objection was taken. This assertion accords with the discussion that followed.
Shortly after the objection was taken, Senior Counsel for the appellant made submissions in which he said that what had been put in front of the jury was that Mr Beswick had found that the complaint of harassment was not substantiated. This was said on two occasions, and without demur by counsel for the respondent or his Honour. In the circumstances, we accept that the words ‘not substantiated’ were used at the end of the question to the appellant at the time the objection was taken.[13]
[13]Indeed, counsel for the respondent told us that there was ‘only a tiny dispute – no real dispute at all‘ about this matter – saying that an audio recording of the trial revealed what appeared to be the use of the word ’unsubst - - -‘.
Following the objection, the following exchange occurred between the trial judge and Senior Counsel for the respondent, before the jury was sent out to the jury room:
HIS HONOUR: How is this admissible ...?
RESPONDENT’S COUNSEL: It’s about her reaction to it and what she did, Your Honour. I’m happy to discuss it in the absence of the jury and it is probably appropriate to do that.
HIS HONOUR: Yes, ladies and gentlemen of the jury, I’ll ask you again to have a short break. Ms Turner, would you mind having a seat out the front.
Following this exchange, Senior Counsel for the appellant applied for a discharge of the jury. He submitted that what had occurred was ‘most prejudicial,’ and that what had occurred had ‘potentially done incalculable harm’ to the appellant’s case. After hearing argument, the trial judge ruled that the evidence sought to be elicited was irrelevant. Specifically, his Honour ruled that the outcome of Mr Beswick’s investigation was irrelevant. However, his Honour concluded that there had not been any ‘incalculable harm or prejudice’ and that the matter was one that could be rectified by an appropriate warning by his Honour to the jury.
There can be no doubt that a litigant is entitled to have his or her case fairly tried, free from intrusion of any extraneous matter calculated to influence the jury.[14] As was said by Kaye J in Smout v Smout,[15] when circumstances such as the present arise, the trial judge ought to direct his or her mind to the degree of prejudice which has been created by the extraneous matter, and then consider whether any direction given by him or her concerning the extraneous matter was capable of overcoming the mischief. If a trial judge concludes that an appropriate instruction or direction to the jury could overcome the mischief, then the judge ought to give ‘a clear, full and authoritative direction to the jury instanter’.
[14]See Croll v McRae (1930) 30 SR(NSW) 137 at 143; Chatzipantelis v Grimwade Castings Pty Ltd [1966] VR 242; Smout v Smout [1989] VR 844 and Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244, [16].
[15][1989] VR 845, 851.
Following his ruling, the trial judge immediately gave a clear, full and authoritative direction to the jury. During this direction, his Honour said:
[B]efore the break [counsel for the respondent] raised a matter you’ll recall about an investigation that was undertaken by … a Mr Robert Beswick and I was asked to rule on that. As a matter of law I tell you that that investigation and its outcome is irrelevant. There’s good reason for that. We don’t know very much about Mr Beswick. You’ll have seen, I hope, in the course of this trial the care that’s taken to ensure that the relevant facts are presented to you. Witnesses are sworn in the witness box. They are entitled to have their say and to make their complaint and state the evidence upon which their case is based and then the defendant is entitled to challenge them. That’s the process we go through here and it’s a careful process. It’s a process where people have to swear an oath to tell the truth, it’s a process where skilled barristers ply their trade by putting their client’s case and you can see how comprehensive it is.
We don’t know anything, for example, about this investigation really, who the witnesses were or matters of that sort. So for that reason it’s really irrelevant and I direct you as a matter of law to pay no heed to it at all, whether there was an investigation, what the outcome of it was, what process was involved in it or what flowed from it is really all irrelevant. Our case law is full of references to the good commonsense of juries, that they can take on board matters that he (sic, we) hear in evidence and can be directed by what a judge tells them and I’m sure you’ll do that. So I tell you that for the sake of your deliberations pay no heed whatever to that evidence.
The offending cross-examination occurred on the sixth day of the trial. The trial ran a further eight sitting days before the jury was sent out to consider its verdict.
Prior to giving the direction to which we have just referred, the trial judge invited counsel for the appellant to raise the matter again later in the event that they considered the direction to be inadequate. In the event, no further submissions were made by counsel for the appellant in relation to the matter.
Assuming that the result of Mr Beswick’s investigation was irrelevant and should not have been mentioned in front of the jury, in our view the approach taken by his Honour was correct. It was open to his Honour to form the view that the matter could be overcome by an appropriate direction given by him. His Honour gave a clear, full and authoritative direction at the conclusion of his ruling. No complaint was made by the appellant as to the content of that direction at any time thereafter. In our view, the matter was appropriately dealt with by his Honour. At the time of his Honour’s ruling, a substantial amount of time had already been invested in the hearing of the trial. Further, it was at that time clear that the trial would proceed for at least another week. In the circumstances, his Honour was entitled to conclude that in the context of the trial (including the time already taken and the time likely to be taken), that an appropriate direction was capable of addressing the matter. His Honour’s exercise of discretion in relation to this issue has not been shown to have miscarried. No House v The King[16] type error has been established. It follows that this ground of appeal must fail.
[16](1936) 55 CLR 499.
The refusal to admit the evidence of Mr Bailey
During the course of her case, the appellant sought to call evidence from an expert in human resources, Mr Jim Bailey. The evidence Mr Bailey was to give was the subject of a report[17] served in accordance with order 44 of the County Court Rules of Procedure in Civil Proceedings1999.
[17]Dated 28 July 2004.
Before Mr Bailey was called, objection was taken to the admissibility of his evidence. The objection was dealt with on the basis that Mr Bailey’s report constituted the substance of the evidence which the appellant would seek to lead from him. No application was made to adduce evidence from Mr Bailey that was outside the scope of his report.[18]
[18]Cf Rule 44.05.
The report commenced by setting out Mr Bailey’s qualifications in the area of human resources. Mr Bailey noted, amongst other things, that through his experience, training and contribution to the Australian Human Resources Institute, he was conferred a Life Fellow of that Institute in 1993. According to the report, the Institute was established in 1943 and has more than 14,000 members in Australia ‘of whom less than 40 are Life Fellows’.
After noting various documents that he had received, Mr Bailey then recounted a history which the appellant gave him during an interview on 28 July 2004. His Honour noted that much of the history obtained by Mr Bailey, upon which he relied in expressing his opinion, was inadmissible ‘as irrelevant or as hearsay and possibly on other bases’.
In his report, under the heading ‘Comment’, Mr Bailey said this:
From the information given to me it appears that Ms Turner (and a number of other staff) was subjected in her work to consistent, inappropriate, bullying behaviour and harassment by several of her direct bosses, most recently Holden. This treatment occurred over an incredibly long period of years, on frequent occasions and continued to occur, despite numerous members of VAC management being made aware of it, via both informal and formal complaints.
At various stages, a variety of HR/Personnel representatives and managers were complained to and yet the endemic bullying and harassing behaviour of a succession of managers in the Box Office/Ticketing area continued unabated. The VAC and its management took no effective action and I could only describe its responses as repeatedly negligent in the extreme, over a very long term.
Having expressed this opinion, Mr Bailey then went on to list a number of what he described as ‘good management practices’. These were:
·Properly document job offer, employment conditions and job description, upon initial employment and then with each subsequent change of employment, however initiated.
·Monitor the early experiences of an employee going into any new or changed employment situation, provide thorough induction and initial and ongoing support and the resources necessary to carry out the requirements of the role.
·Monitor performance and provide regular and constant informal performance feedback, as well as schedule and carry out formal performance feedback (at least yearly, preferably 6 monthly).
·Ensure that all employees and managers are provided with knowledge about and training in all relevant aspects of human resources policies to do with providing a workplace in which employees can work without distress and interference. In this particular case, as an absolute minimum, this refers specifically to policies, training and processes in relation to effective performance management, harassment and bullying in the workplace, disciplinary processes, and complaint and appeal mechanisms, for employees and managers at all levels.
·Whilst any employee may be expected to exercise his or her own initiative in handling job or job related workplace challenges, it should also be expected that an employer will be sensitive to difficulties experienced and/or expressed by an employee and will develop satisfactory responses to ensure the wellbeing of the employee. Similarly, a sound employer will provide appropriate support to ensure an employee is able to cope emotionally, physically and intellectually with the demands of the workplace and the job situation.
·Deal with each employee consistently and in the same manner as peer employees are being dealt with. In this case, I am particularly referring to verbal abuse and also inappropriate leverage of working conditions towards some employees in the workplace. In Ms Turner’s case, she was specifically singled out and disadvantaged by deliberate and unfair manipulation of her working hours.
·Where policies appear to have been breached, conduct investigations and take actions according to published policies, whilst always acting in accordance with the principles of procedural fairness. At a minimum, this means that outcomes should not be determined until a thorough investigation of all relevant facts has taken place. All parties to any complaint or incident must be given the opportunity to present their side of the story. This should be done in a reasonable manner, rather than in an overbearing way, where a clear presumption of guilt is pre-eminent in what is taking place.
·Conducting a debrief following any significant incident, to gather suggestions for procedural change and then set out and implement measures, designed to eliminate recurrences.
·Concerns from the employee should be responded to and if it is obvious that the employee is having difficulty but not speaking up, then management should initiate investigation and follow up action.
·Where there are difficulties between employees or an employee and supervisor, both should be counselled once the problems begin to surface. If the supervisor in the situation does not correct his or her behaviour, he or she should be reprimanded and a performance management/improvement process agreed and followed through on.
·If the situation between the individuals was considered unlikely to improve, hampering the employee’s capacity to work effectively or likely to produce ill health of a dangerous work situation, other work options and locations should have been considered and action taken.
·At all times, absolutely protect an employee’s right to privacy, with regard to information gained in a confidential setting, gathered specifically for the purposes declared in that setting.
·Provide a return to work program and then monitor the situation of a newly returned to work, injured or unwell employee, to ensure the situation is evolving satisfactorily on behalf of both employee and the company, towards the point where the individual is able to resume and perform full duties effectively.
Interspersed between identification of some of these good management practices was a reference to the definition of ‘workplace bullying’ contained in ’an extract from Part 1: Preventing Workplace Bullying of the WorkSafe Victoria Guidance Note (February 2003) – Prevention of Bullying and Violence at Work. Mr Bailey set out the definition of ‘workplace bullying’ as:
Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.
Mr Bailey then set out definitions of ‘unreasonable behaviour’, ‘behaviour’ and ‘risk to health and safety’ as they are used in the definition of ‘workplace bullying’. He also asked and answered the questions ‘What is “unreasonable” behaviour?’ and ‘What is “repeated” behaviour?’. ‘Unreasonable behaviour’ was defined to mean ‘behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten’. ‘Repeated’ was said to refer ‘to the persistent nature of the behaviour, not the specific form the behaviour takes. Behaviour is considered ‘repeated’ if an established pattern can be identified. It may involve a series of diverse incidents – for example, verbal abuse, deliberate damage to personal property and unreasonable threats of dismissal’.
Having set out the various good management practices, Mr Bailey expressed this opinion:
Clearly, even if the administrative aspects of the above practices are in place (which in this case, they were not), these in themselves are not adequate in ensuring that an employee is not exposed to: unacceptable stress, unreasonable or unsafe workplace behaviour, insufficient or inappropriate responses to problems, or workloads which are clearly untenable.
From the information made available to me, the management at Victorian Arts Centre, by virtue of its entrenched workplace behaviours, breached every one of the above list of good management practices, many of them on more than one occasion, over an extremely lengthy period.
The organisation appears to not only have provided no effective mechanisms for employees to protect themselves from bullying and demeaning harassment in the workplace, it appears to have shown no interest in doing so.
From the information made available to me, it is my clear view that Ms Turner’s employer, VAC, could have taken a significant number of actions in terms of policies, procedures and behaviour, to provide her with a healthy workplace, rather than one in which she was subjected to repeated bullying and harassment. It seems extremely clear that this organisation and its management could have prevented her from being damaged by these events and that they were negligent in not doing so.
The events outlined in this report which occurred over an extended period, appear to have directly and negatively affected Ms Turner’s psychological state, her sense of certainty about how she was regarded, her feelings of security about her workplace and consequently, her capacity to attend work at that place of employment and gain work in similar places of employment.
It should be said at the outset that Mr Bailey does not have any medical qualifications or other specialist qualifications that would permit him to express an opinion concerning the appellant’s psychological state.
The trial judge excluded the proposed evidence of Mr Bailey fundamentally because, in his view, it was either irrelevant or else was evidence that was not informed by any matter of special expertise – but rather consisted of matters of commonsense and within the knowledge and understanding of a jury.
Before expert evidence can be given in respect of a particular subject matter, the subject matter of the opinion must be such that a person without instruction or experience in the area of knowledge or human experience would be unable to form a sound judgment on the matter without the assistance of a witness possessing special knowledge or experience in the area.[19] In ruling in favour of the respondent’s application, the trial judge said:
Of the matters referred to in the conclusions and comments by Mr Bailey which are relevant and in respect of which he does not usurp the function of the jury or the court, and even accepting that he has sufficient expertise in the area, none of those remaining matters are outside the ordinary experience and knowledge of the jury. I am of the view whether or not there has been bullying, harassment or other inappropriate conduct can be determined by the jury.
Further, what is appropriate within a workplace to prevent bullying, what should be done if it does occur and how employees ought to be treated and counselled are further within the knowledge and understanding of a jury. There is nothing in the evidence given in this case in respect of which the jury needs the opinion of an expert such as Mr Bailey to enable them to understand and determine whether there has been bullying or harassment by the plaintiff’s co-employees and whether there was negligence on the part of the defendant in failing to take reasonable steps within the workplace to prevent or reduce the prospects of that occurring.
[19]Clark v Ryan (1960) 103 CLR 486, 491 (Dixon CJ); R v Bonython (1984) 38 SASR 45, 46-7 (King CJ) and Osland v R (1998) 197 CLR 316, 336 (Gaudron and Gummow JJ).
There is no doubt that a considerable part of Mr Bailey’s report was irrelevant. The appellant’s case related to bullying (exposure to psychosocial stressors) ‘on and from 20 October 1999 and in particular throughout the year 2000’.[20] No doubt the appellant’s claim was limited to this period in order to bring it within s 134AB of the Accident Compensation Act1985 (Vic). So much was conceded by Senior Counsel for the appellant in his opening to the jury. But in forming his opinion that the respondent was ‘repeatedly negligent in the extreme, over a very long term’, Mr Bailey relied upon a history of complaints going back to 1988 (if not 1985).[21] No attempt was made by counsel for the appellant to seek to have Mr Bailey’s report confined to relevant matters. Specifically, no application was made to file and serve a supplementary report from Mr Bailey confining the facts upon which he might express an opinion to those in evidence and relevant to the appellant’s case.
[20]Paragraph 5 of the appellant’s amended statement of claim.
[21]These matters are recorded at pp 3 to 13 of Mr Bailey’s report.
Whatever might be said upon the questions whether parts of Mr Bailey’s opinion usurped the function of the jury or went to an ultimate issue,[22] his opinion, expressed on facts not relevant or proved in the appellant’s case, could not have been given without the provision of a supplementary report excluding irrelevant matters or without the leave of the Court (that is, leave to call evidence of whatever Mr Bailey’s opinion might have been if the irrelevant facts upon which the opinions in his report were based were excluded).[23]
[22]Cf the situation that will pertain when s 80 of the Evidence Act2008 (Vic) comes into force.
[23]Cf r 44.05 of the County Court Rules of Procedure in Civil Proceedings 1999.
Further, a number of Mr Bailey’s ‘good management practices’ had nothing to do with the appellant’s case as pleaded and run. Specifically, the practice of properly documenting job offers, employment conditions and job descriptions upon initial employment and then with each subsequent change related to the appellant’s history given to Mr Bailey of matters in 1985 and 1988. Similarly, the practices that required the monitoring of early experiences of an employee and performance related to the appellant’s history during periods prior to the period of time the subject of this proceeding. Whilst, because the matter never got that far, no application was made to tender the report of Mr Bailey, the uncritical reception of irrelevant evidence (often in written form and prepared in advance of the trial) is, as has been said before, ‘to be strongly discouraged’.[24] The same should be said in respect of the service of expert reports containing significant amounts of irrelevant material.
[24]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165, 177-8 [35], (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
On the application to exclude Mr Bailey’s evidence, counsel for the appellant sought to rely only upon the fourth to thirteenth of Mr Bailey’s good management practices. Further, whilst it would appear that counsel maintained an entitlement to lead evidence about all those matters, in fact he advanced no submissions in relation to the fifth to eighth and thirteenth of them.
So far as the good management practices which the appellant sought to have adduced in evidence from Mr Bailey are concerned, in our view the trial judge was correct, upon the material with which he was provided, to characterise them as matters that did not require the assistance of an expert in order for the jury to be able to form a sound judgment. The jury was more than capable of judging those matters for themselves unencumbered by Mr Bailey’s assistance.[25] Whilst calling this evidence from Mr Bailey might have presented the appellant’s case more vividly and cogently before the jury, as Dixon CJ explained in Clark v Ryan,[26] this is not a sufficient basis upon which such evidence can be admitted. So far as they were articulated, then, the good management practices which the appellant sought to adduce in evidence from Mr Bailey were matters of argument that could easily have been advanced by counsel for the appellant at trial. Whether or not the arguments should have been accepted was, of course, a matter for the jury.
[25]Cf Clark v Ryan (1960) 103 CLR 486, 492 (Dixon CJ).
[26]Ibid 491.
We have referred to the management practices so far as they were articulated. We have done so because we would not wish to exclude the possibility, in another case, that some or all of the practices might be shown to be rooted in a body of organised knowledge derived from ‘training, study or experience’, the particularity of which travels beyond lay understanding of workplace dynamics. In Makita (Australia) Pty Ltd v Sprowles, Heydon JA said this:
[T]he opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.[27]
[27](2001) 52 NSWLR 705, 744 [85].
Perhaps Mr Bailey’s report conveyed the impression that his opinions were not based on specialised expert knowledge, but rather on ‘a combination of speculation, inference, personal and second-hand views’.[28] But it is unnecessary to go so far. It is enough that his report did not demonstrate a required foundation for his conclusions.
[28]To borrow from the words of Gleeson CJ in HG v The Queen (1999) 197 CLR 414, 428 [41].
It follows that the trial judge did not err in excluding Mr Bailey’s evidence.
We should finally say something about the procedure which was adopted in relation to Mr Bailey’s evidence. Whilst the trial judge correctly ruled that Mr Bailey should not be allowed to give evidence based on the report that had been served, counsel for the appellant could have sought to lead Mr Bailey’s evidence on a voir dire. Such a course would have enabled the judge to ascertain whether Mr Bailey was able to give any admissible evidence and to decide (if necessary) whether leave was needed pursuant to r 44.05 to adduce the evidence. It may be, as we said above, that on a voir dire some admissible evidence would have been identified. Further, it may be that, although the report was inadmissible, it would have given the respondent sufficient notice of the admissible evidence identified on the voir dire so as to result in a proper exercise of discretion being to permit Mr Bailey to give that evidence. But all this is hypothetical; for it is not a course which the appellant’s counsel chose to take .
Conclusion
For the reasons given above, the appeal should be dismissed.
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