Kennedy v Qantas Ground Services Pty Ltd

Legislation Cited: Court Procedures Act 2004 (ACT), s 5A

Cases Cited: Kennedy v Qantas Ground Services Pty Ltd [2023] ACTSC 404 Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232 Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271 Kennedy v Qantas Ground Services Pty Ltd (No 4) [2025] ACTSC 66 Parties: Ross Kennedy (Plaintiff) Qantas Ground Services Pty Ltd (First Defendant) Qantas Airways Limited (Fifth Defendant)

Representation: Counsel Self-represented (Plaintiff) D Crowe (First and Fifth Defendants)

Solicitors Self-represented (Plaintiff) Sparke Helmore (First and Fifth Defendants)

File Number: SC 253 of 2019 MOSSOP J:

Introduction

1. Yesterday, I made the following orders:

(1) The plaintiff is to serve expert evidence by 20 May 2025.

(2) The defendants are to serve expert evidence by 23 June 2025.

(3) The parties are to participate in a court annexed mediation in the first available Civil Mediation Block after 23 June 2025.

(4) The parties have liberty to apply for the matter to be relisted on three days notice by email to Mossop J’s associate.

2. As I was to immediately resume a trial, I reserved my reasons for those orders. These are my reasons for making those orders.

3. These proceedings have an extensive history. They were commenced in 2019, but were only first before the court in 2020. They have been the subject of a number of judgments:

(a) Kennedy v Qantas Ground Services Pty Ltd [2023] ACTSC 404 (grant of leave to file further amended statement of claim);

(b) Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232 (grant of leave to file third further amended statement of claim);

(c) Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271 (non-compliance with orders concerning filing amended pleading);

(d) Kennedy v Qantas Ground Services Pty Ltd (No 4) [2025] ACTSC 66 (directions following withdrawal of a solicitor).

4. The plaintiff has been represented by a number of different firms of solicitors at different times. The file records that notices of solicitor acting or notices of acting in person have been filed indicating that the plaintiff was legally represented or self-represented as follows:

(a) Stacks Southern Lawyers from 20 May 2020;

(b) Adams & Co Lawyers from 27 August 2020;

(c) Self-represented from 4 December 2020;

(d) Leeder Law from 26 March 2021;

(e) Self-represented from 27 April 2021;

(f) Prominent Lawyers from 6 June 2022;

(g) Self-represented from 3 August 2022; (h) Capital Lawyers from 5 August 2022 and again from 21 February 2024;

(i) Self-represented from 9 April 2024;

(j) Alexander Rashidi Lawyers from 28 August 2024.

5. He is presently self-represented.

6. Directions were made last December, at a time when the plaintiff was legally represented, requiring the plaintiff to serve expert evidence. No such evidence was served. The plaintiff parted company with his solicitors in circumstances referred to in Kennedy (No 4).

The proposed directions

7. On the last occasion when the matter was before me, at the request of the plaintiff I adjourned the proceedings for three weeks in order that he could address the fact that his solicitors had ceased to act for him. At that stage, the defendants had proposed some orders which I indicated I would consider on the next occasion. I gave the opportunity to the plaintiff to provide any directions that he proposed to my chambers by email. The plaintiff took that opportunity. The directions that he proposed contained 90 proposed directions. A copy of those directions will be incorporated as an appendix to these reasons.

8. The directions proposed by the defendants were focused on getting the matter into a state in which it might be able to be subject of a mediation. They were slightly reworded from those proposed at the earlier directions hearing. They involved the plaintiff having another opportunity to serve any expert evidence and the defendants an opportunity to respond to any such evidence. It then involved listing the matter for a mediation in the court annexed mediation blocks.

9. The directions proposed by the plaintiff were extensive and included most possible procedural steps that could be taken up to the point of a trial. In the short term, they involved a process of the parties agreeing on an expert witness to medically examine the plaintiff. They also involved a process of two rounds of requests and answers to particulars of the defence before the plaintiff would be permitted, notwithstanding that the time for such filing has long expired, to file a reply to the defendants’ defence. They then involved directions relating to a settlement conference, followed by a mediation.

10. The plaintiff explained that he would have great difficulty in obtaining expert evidence whilst unrepresented. He explained that he wished to, but was presently not able to, retain solicitors who themselves would bear the costs of obtaining expert evidence as an interim measure. He tendered a letter from the solicitors for the defendants which raised as a possibility that, if he was unable to obtain independent expert evidence, he might be able to obtain some evidence from his treating medical practitioners. He indicated that his proposal for a joint expert to be appointed to report on him was his suggestion in order to get around the difficulties that he faced. He submitted that the defendants should be willing to engage in such a process. He emphasised the resources available to the named defendants when compared with the resources that he had available to him.

11. Counsel for the defendants indicated that the defendants opposed such an order, having regard to their history of dealings with the plaintiff and that, ultimately, it was the plaintiff’s case to prove.

Consideration

12. This case needs to be advanced towards a resolution. It has been around for a very long time. I accept that the plaintiff has difficulty advancing his case because he is unrepresented and, for reasons not established by any evidence, he has been unable to retain the services of solicitors for long enough to permit his case to be prepared for a hearing and, in particular, expert medical evidence to be obtained.

13. The fact remains that in an adversarial system, the plaintiff is required to prove his case. The defendants are not required to prove his case for him. Nor is it appropriate to compel the defendants to agree to, or bear the costs of, a single expert in relation to the plaintiff’s medical conditions. If the plaintiff is unable to prove his case because of an inability to obtain evidence or comply with the requirements of the court to advance his case to hearing, then that will make it difficult for the plaintiff to succeed. It does not have the effect of imposing a burden on the other party to prove his case for him. Section 5A of the Court Procedures Act 2004 (ACT) does not detract from that fact as the section is enacted against a background, and upon a legislative assumption, of the adversarial system of dispute resolution.

14. The most significant step, in my view, in order to progress the matter in a manner that would make a rational compromise possible is the preparation of expert evidence. The directions proposed by both parties appear to recognise that fact. It is, in my view, appropriate to provide the plaintiff with a further opportunity to obtain such evidence. If any such evidence is served, then the defendants require an opportunity to respond to that evidence. It is then appropriate for there to be a court-facilitated mediation. That provides a relatively inexpensive but formal process for the exploration of the potential for settlement.

15. In the event that the matter does not settle as a result of the mediation, then it will be necessary to consider what other steps are required to be carried out in order to prepare the matter for hearing. Those steps may well include the grant of leave to the plaintiff to file a reply. Whether or not a reply is appropriate depends upon whether it is necessary for the plaintiff to do more than simply put in issue the contents of the defence by raising additional factual matters. I accept that it is possible that a reply may be necessary in relation to contributory negligence, failure to mitigate and the limitation defence. However, it also appeared to me to be counterproductive to make a direction requiring particulars and the filing of a reply at this stage, when that is likely to generate a further round of interlocutory disputation and would not materially affect the capacity to mediate the case if appropriate expert evidence was prepared and served. That is particularly so in light of the approach that the defendants indicated in their letter of 19 March 2025 that they would take to the question of liability for the purposes of any settlement negotiations.

16. So far as the variety of other steps contemplated in the plaintiff’s list of proposed directions are concerned, whether or to what extent any of these are appropriate can be assessed at a later stage. Having regard to the procedural history of the matter, care will need to be taken to avoid the matter being diverted from a path towards final hearing by interlocutory disputes.

17. I considered that two months was an appropriate additional period to enable the plaintiff to obtain any expert evidence. I set that period having regard to the length of time since the commencement of proceedings that has been available to the plaintiff to obtain expert medical evidence and the desirability of not giving a lengthy period in circumstances where the plaintiff himself considered his prospects of doing so to be low. The two-month period achieves a reasonable balance between giving him a further opportunity to serve material on the one hand and, on the other, not devoting a substantial period to a process which may not be availed of by the plaintiff. It appeared to me that a period of five weeks would be appropriate for the defendants to provide any medical evidence in reply. That was shorter than the six weeks sought by the defendants but was appropriate in order to leave open the possibility that the matter be the subject of a mediation in the mediation block commencing 30 June 2025.

18. Towards the end of the directions hearing, I indicated that I would not hear any further submissions from the plaintiff as to the merits of his 90-step timetable. I did that because there was only limited time available and I considered that, in the circumstances, for the reasons I have given, a short timetable inconsistent with his proposal would be appropriate and that consideration of further steps such as those proposed in his suggested timetable would appropriately occur at a stage after he had had a further opportunity to serve any expert evidence and the matter had been the subject of a mediation.

19. Mr Kennedy also appeared to seek that I disqualify myself from further dealing with his matter. I decline to disqualify myself as, in the circumstances, I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the questions that I am required to decide. I accept that I have had to firmly control the conduct of the directions hearing, including muting the plaintiff when he interrupted me whilst I was pronouncing my orders. However, that has been necessary in order to be able to make procedural directions for the proper conduct of the matter in circumstances where those directions were not consistent with those proposed by the plaintiff. Appendix – Plaintiff’s Amended Proposed Directions dated 19 March 2025

Plaintiff’s Proposed Directions (as amended 19 March 2025)

Expected No. Order Date Timeframe Defendants are to fix link to PDF file containing 1,832 within 3 weeks 1. 10 Apr pages admitted into evidence by J Mossop, by from 20 Mar Defendants are to provide Plaintiff with copy of expert within 3 weeks 2. medical report of Dr Kipling Walker dated 17 March 2017, 10 Apr from 20 Mar by Parties are to consult and agree on name of health practitioner to complete expert medical examination and within 3 weeks 3. 10 Apr report on Plaintiff, including agreement on examination from 20 Mar date, by Defendants are to, by; a. make appointment for health practitioner to complete expert medical examination and report on Plaintiff; and within 3 weeks 4. b. confirm appointment details with Plaintiff. 10 Apr from 20 Mar

Note: Defendants are to provide copy of engagement letter and background materials to Plaintiff 7 days prior to examination Plaintiff is to present himself for expert medical To be 5. examination, on advised

Defendants are to file and serve copy of expert medical To be 6. report, by advised st Plaintiff is to make 1 request for further and better within 4 weeks 7. 17 Apr particulars on Defendants’ 18 October 2024 defence, by from 20 Mar within 14 days from receiving st Defendants are to answer Plaintiff’s 1 further and better st 8. 1 May Plaintiff’s 1 particulars defence request, by further and better particulars request within 7 days of nd Plaintiff is to make 2 request for further and better Plaintiff receiving particulars on the following, by Defendants’ 9. a. Defendants’ 18 October 2024 defence; and 8 May st answer to 1 st b. Defendants’ answer to Plaintiff’s 1 further and better further and better particulars request particulars request within 14 days from receiving the nd Defendants are to answer Plaintiff’s 2 request for further nd 10. 22 May Plaintiff’s 2 and better particulars defence request, by further and better particulars request within 14 days of Plaintiff is to file and serve reply to defence, by receiving Defendants’ Note: Plaintiff’s reply to defence may include an 11. `5 Jun answer to application to the Court to resolve interlocutory dispute nd Plaintiff’s 2 between parties relating to Limitations Act 1985 (ACT) as further and better found at paragraph [47] of Defendants’ defence particulars request Parties are to have attended Settlement Conference as relisted, by

Note: As agreed by Sparke Helmore on 17 March 2025, within 8 weeks 12. Mr Ron Cameron of Ron Cameron and Associates may 19 Jun from 20 Mar attend as a McKenzie friend on behalf of Plaintiff albeit Mr Cameron is a registered solicitor; and Refer attached letter from Mr Cameron dated 19 March 2025 within 7 days Parties are to advise the Court if matter was resolved at 13. 26 Jun after Settlement Settlement Conference, by Conference is held within 7 days Parties are to file and serve Court documents with Court after offer of 14. registry necessary to give effect to settlement in the event 26 Jun settlement is that matter is resolved at Settlement Conference, by agreed If matter is not resolved at Settlement Conference, parties are to prepare and file Positions paper for, by 15. 7 Jul st a. 1 Private mediation as relisted; or st b. 1 Court-ordered mediation If matter is not resolved at Settlement Conference, parties are to have attended the following, by st a. 1 Private mediation as relisted; or st b. 1 Court-ordered mediation within 10 weeks 16. 10 Jul from 20 Mar Note: as agreed by Sparke Helmore on 17 March 2025, Mr Cameron may attend on behalf of Plaintiff st Note: Costs of 1 Court-ordered mediation are to be paid by the Defendants Parties are to advise Court if matter was resolved at a. or within 7 days st 17. b. as above, by 17 Jul after 1 Private mediation is held within 7 days Parties are to file and serve Court documents with Court after offer of 18. registry necessary to give effect to settlement in the event 17 Jul settlement is that matter is resolved at a. or b, by agreed st If matter is not resolved at 1 Private mediation, parties are to have attended the following, by within 10 weeks nd 19. a. 2 Private mediation; or 24 Jul from 20 Mar nd b. 2 Court-ordered mediation. Note: as agreed by Sparke Helmore on 17 March 2025, Mr Cameron may attend on behalf of Plaintiff nd Note: Costs of 2 Court-ordered mediation are to be paid by the Defendants Parties are to advise the Court if matter was resolved at a. within 7 days nd 20. or b. as above, by 31 Jul after 2 Private mediation is held within 7 days Parties are to file and serve Court documents with Court after offer of 21. registry necessary to give effect to settlement in event that 31 Jul settlement is matter is resolved at a. or b., by agreed To be 22. Parties are to attend Pre-discovery conference, by advised

Plaintiff is to file and serve Defendants with notice to To be 23. disclose discoverable documents pursuant to r 607(1), by advised Defendants are to file and serve the following documents pursuant to r 607(3), by a. its list of documents; To be 24. b. an affidavit verifying list; and advised c. if party is represented by a solicitor—solicitor’s certificate of advice in relation to list. Plaintiff is to give Defendants notice pursuant to r 620(1), by To be 25. advised Defendants are to produce for inspection the requested To be 26. documents, other than those documents specified in r advised 620(3), by Defendants may serve and file any third-party notices (r To be 27. 308), by advised

Plaintiff is to make an application for amendments to To be 28. 3FASOC, by advised

Defendants are to answer Plaintiff’s application for To be 29. 3FASOC amendments, by advised

To be 30. Plaintiff is to file and serve 4FASOC, by advised

Defendants are to file and serve any defence to 4FASOC To be 31. amendments, by advised

Plaintiff is to request further and better particulars on To be 32. Defendants’ defence on 4FASOC amendments, by advised Defendants are to answer Plaintiff’s request for further To be 33. and better particulars on Defendants’ defence on advised 4FASOC amendments, by Plaintiff is to file and serve Defendants with set of To be 34. interrogatories, by advised Defendants in response to Plaintiff’s set of interrogatories request, are to file and serve the following documents pursuant to r 630(6), by a. an affidavit setting out and verifying (except to the To be 35. extent that the party objects under r 631 to answering) advised the parties’ answers to the interrogatories; and b. serve a stamped copy of the affidavit on the party serving the interrogatories. Plaintiff is to file and serve on Defendants a notice to To be 36. admit facts and/or documents under r 491(1), by advised

Defendants in receipt of Plaintiff’s notice to admit facts To be 37. and/or documents, may take steps under r 491(2), by advised Plaintiff is to file and serve any document as evidence produced from Plaintiff’s ‘Application in Arbitration - by To be 38. worker’ made under r 3905 of the Rules as part-heard in advised ACT Magistrates Court over 2017 and 2018, by Plaintiff is to file and serve as evidence J McWilliam’s To be 39. points of claim including schedules, by advised

Plaintiff is to file and serve any expert medical evidence To be 40. on which he intends to rely, by advised

Plaintiff is to file and serve any expert liability evidence on To be 41. which he intends to rely, by advised

Plaintiff is to file and serve any quantum (schedule of To be 42. damages) evidence on which he intends to rely, by advised

Plaintiff is to file and serve as evidence any affidavit on To be 43. which he intends to rely, by advised

Plaintiff is to file and serve as evidence any chronology on To be 44. which he intends to rely, by advised

Plaintiff is to file and serve any other evidence on which To be 45. he intends to rely, by advised Defendants are to file and serve any objections to To be 46. Plaintiff’s ‘Application in Arbitration-by worker’ documents, advised By Defendants are to file and serve any objections to J To be 47. McWilliam’s points of claim including schedules, by advised

Defendants are to file and serve any objections to To be 48. Plaintiff’s expert medical evidence, by advised

Defendants are to file and serve any objections to To be 49. Plaintiff’s expert liability evidence, by advised

Defendants are to file and serve any objections to To be 50. Plaintiff’s quantum evidence, by advised Defendants are to file and serve any objections to To be 51. Plaintiff’s affidavit evidence, by advised

Defendants are to file and serve any objections to To be 52. Plaintiff’s chronology, by advised

Defendants are to file and serve any objections to any To be 53. other evidence filed and served by Plaintiff, by advised

Defendants are to file and serve any further expert liability To be 54. evidence, by advised

Defendants are to file and serve any quantum evidence To be 55. on which they intend to rely, by advised

Defendants are to file and serve any affidavit evidence on To be 56. which they intend to rely, by advised

Defendants are to file and serve as evidence any To be 57. chronology on which they intend to rely, by advised

Defendants are to file and serve any other evidence on To be 58. which they intend to rely, by advised Plaintiff is to file and serve any objections to Defendants’ To be 59. expert evidence including evidence filed and served on 28 advised January 2025, by Plaintiff is to file and serve any objections to Defendants’ To be 60. expert liability evidence, by advised

Plaintiff is to file and serve any objections to Defendants’ To be 61. quantum evidence, by advised

Plaintiff is to file and serve any objections to Defendants’ To be 62. affidavit evidence, by advised

Plaintiff is to file and serve any objections to Defendants’ To be 63. chronology, by advised

Plaintiff is to file and serve any objections to any other To be 64. evidence filed by Defendants, by advised

Plaintiff is to file and file and serve statement of particulars To be 65. (r 1304), by advised Parties’ medical expert witnesses are to produce for the Court’s use a document identifying, by a. matters on which they agree; To be 66. b. matters on which they disagree; and advised c. reasons for any failure to reach agreement on any medical matter. Parties’ liability witnesses are to produce for the Court’s use a document identifying, by To be 67. a. matters on which they agree; advised b. matters on which they disagree; and c. reasons for any failure to reach agreement on any liability matter.

Parties are to produce for the Court’s use a document identifying, by a. matters on which they agree on quantum; and To be 68. b. matters on which they disagree on quantum; and advised c. reasons for any failure to reach agreement on any quantum matter. Parties are to produce for the Court’s use a document identifying, by a. matters on which they agree on affidavit evidence; and To be 69. b. matters on which they disagree on affidavit evidence; advised and c. reasons for any failure to reach agreement on any affidavit matter. Parties are to produce for the Court’s use a document identifying, by a. matters on which they agree on each chronology filed; To be 70. b. matters on which they disagree on each chronology advised filed; and c. reasons for any failure to reach agreement on any matter relating to the chronologies. Plaintiff is to be file and serve a document, by a. no. of experts to give evidence in person (in ACT and elsewhere); b. no. of experts to give evidence by telephone (in ACT To be 71. and elsewhere); advised c. no. of lay-witnesses to give evidence in person (in ACT and elsewhere); and d. number of lay-witnesses to give evidence by telephone (in ACT and elsewhere). Defendants are to file and serve any objections to To be 72. Plaintiff’s document on expert and lay witnesses, by advised Defendants are to file and serve a document, by a. no. of experts to give evidence in person (in ACT and elsewhere); b. no. of experts to give evidence by telephone (in ACT To be 73. and elsewhere); advised c. no. of lay-witnesses to give evidence in person (in ACT and elsewhere); and d. number of lay-witnesses to give evidence by telephone (in ACT and elsewhere). Plaintiff is to file and serve any objections to Defendants’ To be 74. document on expert and lay-witnesses, by advised Parties are to file and serve any notice under Evidence To be 75. Act 2011 (ACT), by advised

Parties are to file and serve a joint statement of agreed To be 76. facts, by advised Parties are to file and serve a document, by a. outlining what each party considers the real issues are to be determined at the Hearing; b. outlining any further directions considered necessary for purposes of the Hearing; To be 77. c. making an evaluation of prospects of matter settling advised prior to commencement of the Hearing; d. outlining other matters that the party considers are relevant to setting of a Hearing date; and e. estimating number of days required for the Hearing. Plaintiff is to file and serve, by a. bundle of medical records; To be 78. b. bundle of past/out-of-pocket expenses; and advised c. bundle of tax invoices. To be 79. Parties are to have attended a Settlement Conference, by advised Parties are to advise the Court if matter was resolved at To be 80. the Settlement Conference, by advised

Parties are to file and serve Court documents with registry To be 81. necessary to give effect to settlement in the event the advised matter is resolved at Settlement Conference, by To be 82. Parties are to have attended Private mediation, by advised

Parties are to advise the Court if matter was resolved at To be 83. Private mediation, by advised Parties are to file and serve Court documents with registry To be 84. necessary to give effect to settlement in the event the advised matter is resolved at Private mediation, by Plaintiff is to file and serve completed Schedule 3, Listing To be 85. Hearing Questionnaire, by advised

Defendants are to file and serve completed Schedule 3, To be 86. Listing Hearing Questionnaire, by advised

To be 87. Parties are to attend a Listing Hearing to be held on advised

Matter is listed for a Listing hearing callover, at To be 88. [ ] advised Matter is referred for Court-referred mediation. I make the To be 89. usual orders with respect to Court-referred mediation and advised direct the Registry to provide a copy to the parties Parties are to advise the Court if matter was resolved at Court- To be referred mediation, by 90. advised

Parties are to file and serve Court documents with registry within 7 days necessary to give effect to settlement in the 91. To be event the matter is resolved at Court-referred mediation, advised By If matter was not resolved at Court-referred mediation, matter To be is listed for Directions, on 92. advised

Parties have liberty to apply for matter to be listed on 3 days To be notice by email to J Mossop Associate 93. advised I certify that the preceding nineteen [19] numbered paragraphs and appendix are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 1 April 2025