Ramamoorthy v Return to Work Corporation of South Australia [2025] SAET 88

1. By claim form dated 13 August 2024 Ms Ramamoorthy seeks loss of wages and medical expenses for a claimed work injury of complex dysphagia, which she has also referred to as "difficulty swallowing". She claims the injury has arisen as a complication of COVID-19 vaccinations that she received on 11 July 2021 and 1 August 2021. Her claims for compensation have been rejected by the Corporation. The Corporation has not disputed Ms Ramamoorthy's experience of difficulty swallowing, and nor has it put in issue that her experience has followed the vaccinations received. The rejection of the claims for compensation is on the basis that the two vaccinations were not required under the contract of employment.
2. Orders were made on 13 August 2025 listing the matter for Trial on 1 December 2025, with 2 December also to be set aside. By 13 August 2025 Ms Ramamoorthy had provided her affidavit of evidence and sought leave to file a supplementary affidavit. She did not seek leave to file and serve an affidavit of evidence of any other person.
3. Without leave and without prior notice to the Corporation's solicitors, the applicant's solicitor filed the affidavit of Ms Ledson sworn on 12 August 2025.
4. The Corporation objected to Ms Ramamoorthy being able to rely upon the affidavit of Ms Ledson at Trial. It did so on the basis that leave had not been granted and, in any event, the affidavit contains hearsay and opinion evidence where Ms Ledson is not qualified as a relevant expert, and the content is also not relevant and seeks to address matters not in issue between the parties and should thereby be struck out.
5. Mr Crawford, who appeared for Ms Ramamoorthy for the hearing of oral argument, submitted that the hearsay evidence was admissible because an exception to the hearsay rule applied. That exception was contended to be to rebut any suggestion of recent invention.

1. The affidavit of Ms Ledson is comprised of 17 paragraphs. It does not have a jurat clause. Ms Ledson did not depose that the content of the affidavit is of her own knowledge or, where it is based upon belief, the basis of the belief and that she verily believes the content to be true. That is sufficient reason for it to be struck out in its current form, but there are also concerns as to its content.
2. The first five paragraphs of Ms Ledson's affidavit are matters of background and would only be admissible if the following paragraphs of substances were admissible, in order to provide context. Paragraph 6 refers to concerns Ms Ledson had during 2021 about possible adverse health impacts associated with taking the COVID-19 vaccinations that were available at the time. The content is irrelevant to a determination of the issues raised in the substantive proceeding.
3. Similarly, paragraph 7 relates to the intent of Ms Ledson in 2021 to have the Novovax vaccination if it became available, and is irrelevant.
4. Paragraph 8 of the affidavit deposes to Ms Ramamoorthy having told

Ms Ledson that Ms Ramamoorthy believed the COVID-19 vaccination would become mandatory for her. The paragraph is vague as to when that discussion took place, and is both unhelpful and irrelevant. 5. Paragraph 9 deposes to a "recollection" that Ms Ramamoorthy's actions were directly influenced by a belief that vaccination would become mandatory. The basis of the understanding and the nature of the "actions" referred to are not explained. The content is without foundation, likely to be the product of hearsay, vague, and unhelpful. 6. Paragraphs 10 to 13 identify the months of July and August 2021 as being relevant to when Ms Ramamoorthy had her two vaccinations and also refer to observations of Mr Ramamoorthy coughing constantly on 31 July 2021 and of having received a message on 7 August 2021 from

Ms Ramamoorthy that something had been stuck in her throat. The message appeared to be a reference to an SMS message, but it was not annexed to the affidavit. In any event, none of the factual matters deposed to relate to any issue in dispute between the parties. 7. Paragraphs 14 to 17 relate to Ms Ledson's inquiry as to whether

Ms Ramamoorthy's difficulties with swallowing and coughing could be related to the COVID-19 vaccinations and Ms Ramamoorthy's belief and the belief of Dr Charles Cock, that the symptoms were related to the vaccinations received. Apart from these paragraphs being inadmissible for hearsay or opinion evidence where Ms Ramamoorthy and Ms Ledson are not qualified as relevant experts, any expert opinion of Dr Cock would need to comply with the evidentiary rules and the rules of the South Australian Employment Tribunal concerning the admissibility of expert opinion evidence. 8. Whilst there are parts of the Corporation's case, as set out in its Statement of Facts, Issues and Contentions, which may give rise to a submission at Trial of an aspect of recent invention, the subject matter sought to be addressed by Ms Ledson is either not in dispute, or is vague, or irrelevant, or is opinion evidence without foundation, and thereby inadmissible. The affidavit would not assist in the determination of the issues in dispute between the parties at Trial.

1. The Corporation made application for an order that Ms Ramamoorthy not recover any of her costs of and related to the application to strike out the affidavit of Ms Ledson. The Corporation did not seek an order that

Ms Ramamoorthy pay its costs of and incidental to the application. 2. The Corporation submitted that Ms Ramamoorthy acted unreasonably in the conduct of the proceedings in persisting with a reliance upon the affidavit of Ms Ledson after she was put on notice by the Corporation's solicitors that the affidavit was inadmissible on the basis that it contained hearsay, speculation, and/or opinion evidence. 3. Ms Ramamoorthy submitted that although the affidavit was struck out in its entirety it was reasonable to resist the order sought by the Corporation and there was a utility in the hearing that took place. It was submitted that the hearing enabled clarification of the Corporation's position as to the causal relationship between the symptoms experienced by

Ms Ramamoorthy and the vaccinations that she had undertaken. It also allowed the Tribunal to address what other affidavit evidence may be appropriately led and to set a timetable for such further affidavit evidence to be filed and served leading to the Trial dates in December. 4. In accordance with s 106(1) of the Return to Work Act 2014 (the RTW Act) a party (other than the relevant compensating authority) is entitled to an award of costs against the relevant compensating authority for the party's reasonable costs of an application for directions after a referral of an application for review to hearing and determination. It is not dependent upon a successful outcome of a disputed hearing. That, however, is expressed to be subject to the content of Part 6 and that includes sub-section 106(3). That sub-section provides:

(3) If the Tribunal is of the opinion that a party -

(i) in bringing proceedings before the Tribunal; or

(ii) in view of an assessment or recommendation of a member of the Tribunal under section 43(13) of the South Australian Employment Tribunal Act 2014; or

(iii) without limiting subparagraph (ii) - in failing to discontinue or settle any proceedings before the conclusion of the hearing of a matter; or

(iv) in relation to any other aspect of the conduct of proceedings before the Tribunal; or

(b) has acted frivolously or vexatiously in bringing or in relation to the conduct of proceedings before the Tribunal,

(c) decline to make an award of costs in favour of the party and may further (if it thinks fit) make an award of costs against the party; or

(d) reduce the amount of the award of costs to which the party would otherwise have been entitled.

1. In determining whether Ms Ramamoorthy has acted unreasonably in the conduct of the proceedings, it is appropriate to have regard to the history relating to the Corporation's interlocutory application.
2. The determination letter of the Corporation's nominated claims agent Gallagher Bassett is dated 15 November 2024. It notes that the claim for compensation relates to complex dysphagia developed by

Ms Ramamoorthy because of her COVID-19 vaccination from 11 July 2021. The letter acknowledges the diagnosis of complex dysphagia associated with a myopathy, as diagnosed by Dr Charles Cock.

Gallagher Bassett acknowledges that the medical evidence shows that the dysphagia was likely due to the vaccinations. The sole basis for the rejection of the claim for compensation is that the vaccinations were administered prior to any relevant mandate having been issued, was not otherwise required under the contract of employment, and the experience of complex dysphagia associated with myopathy could not accordingly be a work injury. 3. That position was then confirmed by the Corporation in its Statement of Facts, Issues and Contentions on 6 May 2025. In that document, the Corporation went further and has asserted that Ms Ramamoothy's employer did not encourage, induce, or require her to obtain the COVID-19 vaccine. 4. Ms Ramamoorthy swore her affidavit of evidence on 30 June 2025. Whilst she generally refers to discussions with "numerous friends" about the COVID-19 vaccinations that were available, she does not name

Ms Ledson. The factual matters referred to by Ms Ledson of her interactions with Ms Ramamoorthy are not set out in Ms Ramamoorthy's affidavit of evidence. As explained earlier in these reasons, to the extent those matters are referred to by Ms Ledson, the content in her affidavit is hearsay, at times vague, at times relating to factual matters that are not in dispute between the parties, and at times seeks to adduce in evidence expert opinion without a proper basis for it. Overall, the content of the affidavit is either irrelevant or otherwise unhelpful. The Corporation does not just rely upon those matters. It submits that the conduct of

Ms Ramamoorthy became clearly unreasonable when she persisted with the hearing of oral argument when these deficiencies were put to her solicitor. I accept this submission. 5. I am satisfied that Ms Ramamoorthy acted unreasonably in the conduct of the proceedings by not withdrawing the reliance upon the affidavit of

Ms Ledson at Trial after she was informed of the application to strike out the affidavit and the reasons for that application. It was not reasonably arguable that either the form or the content of the affidavit, in the context of the issues in contest between the parties to be determined at trial, made the affidavit admissible. That the opportunity was taken by the Tribunal at the end of the hearing of oral argument for directions to be made for the orderly conduct of the trial does not alter that conclusion. 6. I accept the submission of the Corporation that the appropriate order is to decline to make an order of costs in favour of Ms Ramamoorthy in accordance with s 106(3)(c) of the RTW Act for the costs of and incidental to the Corporation's application to strike out Ms Ledson's affidavit of evidence.

1. The affidavit of Leanne Faith Ledson (Ms Ledson) sworn on 12 August 2025 is struck out in its entirety.
2. Pursuant to s 106(3)(c) of the Return to Work Act 2014 the applicant is not entitled to recover from the respondent any of her costs of and incidental to the hearing of oral argument relating to the application of the respondent to strike out the affidavit of Ms Ledson sworn on 12 August 2025.