Mental health care plans and GP referrals
61 Ms Pallett's affidavit annexes four documents referred to as mental health care plans. The handwritten entries on the first of the plans are illegible. The date upon which the plan was prepared cannot be discerned. Its content was not otherwise explained in evidence. It has no probative value in the proceedings. It is irrelevant and, accordingly, inadmissible: s 56(2) of the Evidence Act.
62 The second mental health care plan forms an enclosure to a handwritten letter dated 17 October 2008. The letter is authored by Ms Pallett's GP and addressed to a psychologist, Penny Janis. I interpret the GP's handwriting as follows:
Dear Penny,
Thank you for your help with Miranda.
It looks like there has been much progress.
I have commenced her on Aropax 20mg/day, for her anxiety / depression / social anxiety / insomnia. I enclose copy of new mental health care plan.
Yours sincerely
63 The letter and its enclosures together form a record kept in the course of, and for the purposes of, the GP's business. It contains a representation of fact that the GP prescribed medication to Ms Pallett and that the GP created a mental health care plan relating to Ms Pallett which was provided to the psychologist. The GP may reasonably be supposed to have had personal knowledge of those facts and, accordingly, the hearsay rule does not apply to the representations. The plan also contains assertions of fact as to the feelings and difficulties experienced by Ms Pallett at the time of the preparation of the plan. Insofar as they constitute assertions of fact made by the GP, it may be fairly inferred that the assertions are based upon information directly or indirectly supplied by Ms Pallett, being a person who had personal knowledge of the asserted facts. Accordingly, the hearsay rule does not apply to the representations.
64 The asserted facts are relevant and the evidence is therefore admissible, notwithstanding that the evidence predates the events in question by a considerable period of time (being a consideration of weight).
65 Ms Pallett submits that the GP's cover letter is admissible as evidence of a medical opinion that she suffered, as at the date of the letter, from anxiety (including social anxiety), depression and insomnia. To the same effect, the medical health care plan enclosed with the letter contains a representation by the GP to the effect that the GP had, at that time, made a diagnosis of "low self-esteem / depression / social anxiety / anxiety".
66 Evidence of the GP's diagnoses is properly to be regarded as "evidence of an opinion ... to prove the existence of a fact about the existence of which the opinion was expressed". The relevant fact is the existence of the illnesses forming the subject of the diagnoses. Unless the evidence falls within an exception to the opinion rule it is inadmissible under s 76 of the Evidence Act, notwithstanding that it might otherwise fall within an exception to the hearsay rule: Mulligan at [119(b)]; Lithgow City Council v Jackson (2011) 244 CLR 352.
67 As French CJ, Kiefel, Bell, Gageler and Keane JJ said in Honeysett v The Queen (2014) 253 CLR 122 at [23], the exception in s 79(1) of the Evidence Act is subject to two conditions:
first, the witness must have 'specialised knowledge based on the person's training, study or experience' and, secondly, the opinion must be 'wholly or substantially based on that knowledge. …
68 For Ms Pallett it is argued that s 183 of the Evidence Act enables the Court to draw inferences from the documents themselves so as to satisfy itself that the requirements of s 79 are fulfilled. In Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd (2000) 120 FCR 146 the Full Court (Black CJ, Cooper and Emmett JJ) said this of the reliance of a party in that case on s 183 (at [19] - [ 20]) in connection with opinion evidence said to fall within the s 79 exception:
19 There was no explicit evidence as to any training, study or experience of any of the authors of the reports. However, Jetopay sought to have inferences drawn from the contents of the reports that the authors had specialised knowledge based on unspecified training, study or experience. Reliance was placed in that regard on s 183 of the Evidence Act which provides:
'If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:
(a) examine the document or thing; and
(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.'
20 Section 183 does not, however, dispense with proof of matters that needs to be provided before opinion evidence becomes admissible. Consistently with its terms, it merely enables the document to be examined and reasonable inferences to be drawn from such parts of it as are admissible or to which no objection has been taken. This in no way modifies the general rule that before opinion evidence is admissible, it must be demonstrated by admissible evidence on the voir dire that the requirements of s 79 have been satisfied.
69 The letter and its enclosure do not identify whether the GP's opinion was based upon her training, study or experience, nor is it possible to determine whether the opinions are "wholly or substantially based on that knowledge" within the meaning of s 79 of the Evidence Act. Moreover, it is by no means clear whether the GP has, or even purports to have, specialised knowledge based on her training, study or experience in the field of disorders of the mind of the kind pleaded by Ms Pallett. In the absence of evidence bearing on the question, I am not prepared to assume that a person holding the qualifications of a GP possesses the requisite specialised knowledge to make a diagnosis of a mental illness of the relevant kind. Ms Pallett's submission that the evidence is sufficiently analogous to the doctor's letter considered by the Full Court to be admissible in Mulligan should be rejected. In that case, the inference was fairly open that the author of the doctor's letter was qualified to express the opinions he or she did, on the basis of the specialised knowledge a court may infer is possessed by a GP. The Court is to make an assessment of admissibility on the basis of the material before it, having regard to the different facts in issue in this case.
70 In relation to s 78 of the Evidence Act, it has not been shown that the opinion of the GP was based upon what the GP personally saw, heard or otherwise perceived about a matter or event for the purposes of s 78(a), nor is it clear how evidence of the opinion is necessary to obtain an adequate account or understanding of the GP's perception of the "matter". The "matter" here in issue is Ms Pallett's state of mental health, being a largely non-demonstrable complaint. I infer from the mental health care plan that any opinion formed by the GP was based not upon the GP's personal perceptions, but on what was self-reported to the GP by Ms Pallett, being reports the GP accepted at face value. The opinion of the GP was not, in any event, relied upon by Ms Pallett as a "lay opinion" within the meaning of s 78.
71 I am not satisfied that the letter, insofar as it contains opinions, falls within the exceptions to the opinion rule in s 78 or s 79 of the Evidence Act.
72 If am wrong in so concluding, or if the evidence is admissible for opinion purposes under s 77 of the Evidence Act, I would nonetheless rule the evidence is to be limited to its non-opinion uses in the exercise of my discretion under s 136. There is, I am satisfied, a danger that the respondents would be unfairly prejudiced by the admission into evidence of the opinion. The danger arises because the respondents cannot discern with certainty the facts or knowledge upon which the GP's opinion is based. Whilst some of the facts may be inferred from the documents themselves, there is nothing to suggest that the opinion was based upon only those facts that are stated in, or able to be inferred from, the document. These issues practically and forensically inhibit the respondents in the presentation of their defence to the claim, particularly their ability to disprove the fact about which the GP's opinion is expressed. These issues are not to be regarded merely as questions of technicality or legal form: they go the fairness of the trial.
73 The third mental health care plan is dated 11 December 2009. Among other things, it records the facts that Ms Pallett had ceased the medication that had been prescribed in the previous year and that Ms Pallett had been referred to Ms Jarvis to "overcome anxiety feelings" and "to learn to promote self". The document is, like the 2008 mental health care plan, a business record. The representations of fact to which I have referred are relevant and admissible. Insofar as diagnoses expressed in the document are admissible under s 77 of the Evidence Act, I would, for the same reasons given in respect of the 2008 plan and letter, limit it to its non-opinion uses.
74 The fourth mental health care plan is dated September 2015. It is prepared by a different GP, Dr Shimeld, and forms an enclosure to a referral letter from the GP to a psychiatrist, Dr Raja Singh. It contains a representation to the effect that the GP had diagnosed Ms Pallett with anxiety and depression. The respondents submit the evidence is irrelevant because it post-dates the discriminatory conduct alleged against them by more than 14 months. I accept that submission. Ms Pallett did not adduce additional evidence, whether on a voir dire or otherwise, as to whether or how the existence of a mental illness at the later point in time might bear on the question of whether she suffered a mental illness at the earlier relevant point in time. I would not admit the document in evidence for that reason.
75 If I am wrong in that conclusion, for the same reasons given in relation to the other mental health care plans, I would, in my discretion, limit the evidence to non-opinion purposes. The representations of fact made in the document add little to the evidence already admitted and should, by reason of the date of the document, be afforded very little weight in any event.
76 A further mental health care plan was tendered independently of Ms Pallett's affidavit. It is dated 31 May 2012. Like the other plans, it is a business record containing representations of relevant facts by Ms Pallett's GP that fall within the exception to the hearsay rule. They include the fact that Ms Pallett presented to her GP and complained that she was experiencing anxiety and low self-esteem and that she was finding her role as a new mother all consuming. The objective fact that Ms Pallett was subject to a mental health care plan is also probative. Issues of weight aside, the document is relevant and therefore admissible. For the same reasons given in relation to the 2008 plan, the evidence does not fall within s 78 or s 79 of the Evidence Act. Insofar as it is relied upon as containing admissible opinion evidence under the exception in s 77 of the Evidence Act, for the same reasons given above, it is to be limited under s 136 of the Evidence Act to non-opinion uses.