Halpern v BWA Group Services Pty Limited

REASONS FOR JUDGMENT 1 In the absence of the trial judge, this matter has come on before me today on some interlocutory issues. The first concerns the proposed Further Amended Statement of Claim. The proposed amendment is not opposed, other than paragraphs 21, 22 and 71.3. The substantive allegation in paragraphs 21 and 22 is under the heading "First Respondent's Aggravating Conduct." It should be recorded that it is not asserted that the conduct alleged is itself unlawful; it is simply said to be conduct of the first respondent which was part of the sequence of events through which the applicant says she suffered her alleged injuries. I am informed that the conduct has been referred to in the applicant's affidavit and at least in one or two of the medical reports of medical witnesses she proposes to call. I categorise that alleged conduct as simply putting the respondent on notice that evidence proposed of that conduct is to have significance of some nature in the quantification of the damages. I confess that I do not understand why it is necessary to plead it because, unless it is alleged by the respondents to cause a break in the chain of causation, the damages would be assessed in the same amount in any respect because without such a pleading by the respondents of novus actus interveniens, if the alleged unlawful conduct is made out and caused loss and damage of the character alleged - so that it remains a cause of the present condition - the appellant's present condition would be reflected in the damages to be assessed. 2 However, out of an abundance of caution, and because in any event, it puts the respondent on notice of what is to be said against the respondent, I propose to allow the Further Amended Statement of Claim including paragraphs 21, 22 and 71.3. The parties are agreed upon the consequences in terms of trial preparation and expense which I will incorporate into orders to be made shortly. 3 The second issue which remains to be addressed is an order which is sought for disclosure by the first respondent of the copies of any statements, signed or unsigned, and records or notes of interviews with nine witnesses, who I assume are proposed witnesses for the respondent. 4 That material is said to have been obtained (or is assumed to have been obtained) in the course of the investigation of the applicant's complaint. By judgment dated 10 October 2012 in the matter: Halpern v BWA Group Services Pty Ltd [2012] FCA 1100, the trial judge refused an application for discovery of all documents relating to the internal investigation of the applicant's complaint. Included in his Honour's reasons at paragraph [10] is the following: In my opinion, the application insofar as it relates to this category of documents is a fishing expedition and should not be granted. It seems to me that the applicant is fishing for the names of witnesses, admissions or prior inconsistent statements. 5 I take it from the particularity of the proposed additional order, that the names of witnesses are now identified. However, I am not persuaded that I should substitute now for the order which his Honour previously declined to make, an order in the nature of the order which is sought. It is still seeking either admissions or prior inconsistent statements. Obviously, if any one of those witnesses has referred to previous records of interviews or previous notes made of what that witness might have said for the purposes of refreshing memory for the witness statement or the witness' affidavit which has presumably been filed or for the purpose of giving evidence, or has been referred to them for that purpose, any such documents may be required to be produced to the cross-examiner. 6 I am not persuaded that it is appropriate to go behind the ruling of the trial judge on the previous occasion, simply because now, witness statements have been filed and served. I do not accept that the additional order which is sought derives from the proposed amendments to the Further Amended Statement of Claim. I accordingly decline to make that order at present. 7 There are two additional orders which the applicant sought and which I indicated I would not make. 8 The first was that the applicant file and serve by a specified day, an affidavit of Dr John Walsh exhibiting such of his records as she intends to rely upon at trial. I was told that he is the general medical practitioner of the applicant. If Dr Walsh is to give evidence, obviously the parties will endeavour to exchange such material as ought to be properly exchanged to facilitate the prompt disposition of his evidence in the course of the hearing. I should not however presume to make a ruling upon the admissibility of evidence which may be contentious at the hearing. That is a matter for the trial judge. 9 The other order sought also has that character. It is that the applicant have leave to adduce at trial oral evidence from Michael Robertson on the topic of his observations on 22 September 2011. I assume he is to be a witness. I understand that his witness statement has been objected to, on the ground that it is in a form which, at least in some respects, is inadmissible. In my view, the appropriate way to address that is to file and serve a substitute affidavit which is in admissible form or alternatively, if it is a much lesser change than that, to notify the respondent of the admissible form of what he might say in respect of that part of his affidavit which has been objected to. It could not take the respondent by surprise and in those circumstances I do not see why the trial judge would not permit the use of that later affidavit as evidence-in-chief, or the use of that additional document to be adopted by him as part of his evidence-in-chief. However, that is again a matter of admissibility of evidence at the hearing and I should not presume to make a ruling on that. That is the function of the trial judge. 10 Finally, in respect of the proposed orders which are agreed to be consequential upon the allowing of the Further Amended Statement of Claim including paragraphs 21, 22 and 71.3, the respondent seeks an order that the applicant pay the respondent's costs consequent upon the amendment of the Amended Statement of Claim, and that those costs thrown away should be payable immediately. The only part of that order which is objected to on the part of the applicant is that those costs be payable immediately. 11 I do not propose to make that order. It is not a routine order, even though costs of a particular event are ordered from time to time in the course of pre-trial preparation. I do not think it would serve the interests of justice to impose that obligation upon the applicant at the present time, particularly bearing in mind the imminence of the hearing. I will simply delete the requirement that the costs be payable immediately from the end of paragraph 13 of the proposed consent orders. I note that they are called proposed consent orders, but they were prepared to cover the eventuality that I did not allow paragraph 21, 22 and 71.3 of the proposed Further Amended Statement of Claim. In other respects they are not now contentious. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.