Evangeline Ceniza v Secretary, Ministry of Health in respect of NSW Health Pathology South

Parties' submissions

1. The applicant provided brief submissions on the Notice of Motion, which set out the key legal principles for the re-opening of evidence, together with an affidavit sworn by Ms Justine Amin on 12 May 2021.
2. Ms Amin deposes in her affidavit at [4]-[9] to the circumstances in which the additional evidence was obtained. Ms Amin states that she received a phone call from the applicant on 6 May 2021 advising her of two advertised vacancies placed by the Respondent on the 'Seek' website for vacant Technical Officer positions in the field of Chemistry at Westmead and Nepean laboratories, listed from 30 April - 11 May 2021 (the advertisements). The affidavit further states that the applicant forwarded an email to Ms Amin confirming that the applicant had applied for the two roles, which formed part of the additional evidence the applicant seeks to tender.
3. In Annexure B to the Notice of Motion at [7], the applicant submits that: "7. In the present matter, the Commission ought to exercise its discretion to admit the new evidence for three reasons: (a) the new evidence was not available at the time of hearing; (b) the new evidence goes to a factual issue in dispute, namely, the availability, funding, and vacancy of relevant positions within the Secretary's operations for the purposes of remedy; and (c) the Respondent will not be unfairly prejudiced by the new evidence as the veracity of the material cannot reasonably be questioned because it is a public advertisement placed by the Respondent."
4. The applicant's submissions in the Notice of Motion relevantly state at [13]-[14]: "13. The Applicant could not by reasonable diligence have discovered the New Evidence at the time of hearing, as it only became available on 30 April 2021, two weeks following hearing. 14. The Applicant acted expeditiously once the New Evidence came into her hands."
5. The respondent submits in the respondent's submissions on the Notice of Motion at [4]-[5]: "4. By its nature, the new evidence can go only to the question of the Commission's assessment of available positions when considering the practicability of re-employment pursuant to s. 89(2) of the IR Act. The material post-dates termination and has no bearing on the question of the fairness of the decision made by the Respondent to dismiss the Applicant. 5. The Respondent does not dispute that the Commission has a discretionary power to re-open the evidence in a matter where it determines the interests of justice are better served by allowing, rather than rejecting such an application. The Respondent says that the interests of justice are better served in the present case by refusing to grant the leave sought by the Applicant."
6. In the respondent's submissions on the Notice of Motion, the respondent concedes that the additional evidence was not available prior to the hearing of the substantive application, and admits that it advertised the two positions. It submits that these matters are not determinative of whether the evidence should be re-opened, but instead that the circumstances in which the applicant seeks to adduce further evidence should be conclusive, stating at [10]-[13]: "10. The Applicant seeks to lead new evidence after both parties closed their cases and the hearing concluded on 16 April 2021. The Applicant had her opportunity to provide evidence in reply to the Respondent's case and did so at hearing. In making her original application for relief in respect of an alleged unfair dismissal, the standard the Applicant would be required to meet to support any order for re-employment under s. 89(2) should have been plainly apparent to her. 11. It was open to the Applicant in conducting her case to seek evidence relating to the nature of work at alternative locations to assist the Commission in conducting the necessary assessment required under s. 89(2). The Applicant did not do so. 12. It is significant that, in its closing submissions at paragraphs 35 and 66, the Respondent drew the Commission's attention to the fact that the Applicant instead sought to address the question of "available" roles at other locations (i.e. Westmead or Nepean) purely by inference, and had not provided sufficient material to demonstrate to the Commission that roles were available at those locations in the sense required by the authorities to support any order for re-employment. 13. With this shortfall having been identified by the Respondent in submissions, the Applicant now seeks to derive a tactical advantage post-hearing by leading the new evidence to "patch-up" those matters. This much appears to have been conceded in the Applicant's own Grounds and Reasons, given one of the questions the Applicant has sought to address is the "availability, funding and vacancy of relevant positions within the Respondent's operations for the purposes of remedy". Inherent in this submission is a tacit acceptance that the Respondent has identified a failure by the Applicant to lead sufficient evidence in support of her own case."
7. It was also submitted by the respondent at [14] that the additional evidence serves no forensic purpose, for two reasons summarised below: 1. While the applicant submits that the additional evidence is relevant in assessing the vacancy of a suitable position, the applicant's case relies on the premise that a position need not necessarily be 'vacant' for it to be considered 'available', and that the additional evidence is consequently irrelevant. 2. While the applicant submits that the additional evidence is relevant to funding for roles, this does not assist the Commission in determining whether any given position is in fact suitable for the applicant.
8. At [15] and [17] of the respondent's submissions it was further argued: "15. The Commission is therefore taken no further in its assessment of suitability from the material in two key regards: (a) whether the Applicant is even capable of performing the role(s) in question; and (b) even if funding is available for the roles (given they have been advertised) whether as a matter of public policy the re-employment of the Applicant in such a role can be regarded as suitable where her capacity to perform that role cannot be determined on the material on which the Applicant now seeks to rely. … 17. Taking into account the above matters, the Respondent respectfully submits that the Commission should refuse to grant leave for the filing of new evidence as sought by the Applicant. Such a course is consistent with the broader principle of ensuring finality in litigation."
9. Finally, the respondent submitted that even if the Commission determines to re-open the evidence, it should consider the forensic value of the additional evidence (discussed at [14] of the respondent's submissions) in determining the weight to be ascribed to it.

Consideration

1. I am satisfied that the Commission has the power to re-open the matter and allow the additional evidence to be tendered: see ss 162 and 163 of the IR Act.
2. The general rule with respect to the re-opening of evidence is whether or not it aligns with the interests of justice: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471. Although there is no closed list of matters that might be relevant in considering if it is in the interests of justice to re-open a matter, in situations where a hearing has concluded but judgement has been reserved and not delivered, fresh evidence will usually only be admitted when it is so material that (see for example re Australian Meat Industry Employees' Union; ex parte Ferguson (1986) 67 ALR 491, Toohey J): 1. the interests of the parties require it; 2. the evidence, if accepted, would most probably affect the result; 3. the evidence could not by reasonable diligence have been discovered before; and 4. no prejudice would ensue to the other party by reason of the introduction of the evidence.
3. I have formed the view that it is not in the interests of justice that the applicant be allowed to tender the additional evidence. I have made this decision for the following reasons.
4. Clearly the evidence that the applicant is seeking be admitted into evidence was not available at the time of the hearing.
5. The applicant argued that the additional evidence goes to a factual issue in dispute, namely, the availability, funding, and vacancy of relevant positions within the Secretary's operations for the purposes of remedy. The applicant concedes that the additional evidence is not relevant for any purpose other than remedy. However, the additional evidence is of limited probative value to the question of remedy for the following reasons: 1. The Commission is not in a position to know, without further evidence, whether the applicant is suitable for the advertised roles and what if any restrictions would be required for her to occupy them. 2. The advertised positions may not be available or vacant at the time the decision is delivered.
6. Furthermore, the applicant could have adduced evidence with respect to the availability, funding, and vacancy of positions they argue are relevant within the Secretary's operations for the purposes of remedy during the course of the proceedings. It is no answer to say that they only became aware during final submissions of the respondent's position that they had not led evidence on the issue. A party should not be allowed to re-open its case to answer submissions made by another party about a deficiency in their evidence after the proceedings have concluded. This would be contrary to the principal of finality of proceedings.
7. I also disagree with the applicant's submission that the respondent will not be unfairly prejudiced by the new evidence. Although the existence of the advertisements is not contradicted by the respondent, at the hearing of the Notice of Motion, the respondent's representative submitted that if the additional evidence was admitted, he would be required to obtain further instructions as to whether the respondent would seek to respond to it. Accordingly, there may be additional costs to both parties and the resources of the Commission in addressing the additional evidence.
8. There is a public interest in the finality of matters. The proceedings before the Commission were lengthy and involved the admission of a significant amount of evidence. If the Commission were to allow the applicant to re-open its case to admit the advertisements, it is foreseeable that there may be additional applications made in the future for evidence of a similar nature to form a part of the applicant's case. The applicant was afforded every opportunity to put forward her case in the proceedings and it is in the interests of justice that the case remain closed.
9. For these reasons, I have decided to dismiss the Notice of Motion.

Order

1. I make the following order: 1. The notice of motion is dismissed.

Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2021