Gallway and Australian Postal Corporation

[2015] AATA 88

[2015] AATA 88 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4233
Re	Jason GALLWAY
APPLICANT
And	Australian Postal Corporation
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Ms S Taglieri, Member
Date	18 February 2015
Place	Hobart

Leave is granted to the Applicant to re-open his case to tender the following documents:

a.   Hand written Clinical notes of Dr Main (Applicant’s GP) dated 4 June 2013, 2 August 2013 and 4 October 2013; and

b.   Copy of the report of Dr Eaton to Dr Main dated 18 May 2013.

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Ms S Taglieri, Member

CATCHWORDS

PRACTICE AND PROCEDURE – Proceedings – Application to reopen case to tender evidence – Counsel failed to tender documents – Evidence has some evidentiary value – Whether in the interests of justice – Prejudice to the Respondent can be cured – Application allowed.

REASONS FOR DECISION

Ms S Taglieri, Member

18 February 2015

1. At the close of the Respondent’s final submissions at the hearing of this application, the Applicant’s Counsel applied to re-open his client’s case. The application was made in the absence of the Applicant at his Counsel’s request. It transpired that the request was made because Counsel frankly admitted he had erred by failing to tender the documents during his case, and that it had been an oversight.

2. The application was to re-open the case to tender the following documents:

   1.Hand written Clinical notes of Dr Main (Applicant’s GP) dated 4 June 2013, 2 August 2013 and 4 October 2013; and

   2.Copy report of Dr Eaton to Dr Main dated 18 May 2013.

3. I reserved my decision and now rule on the Application.

4. The documents are likely to have some evidentiary value. They appear to contain material relevant to the question of whether the Applicant after the date of the reviewable decision continued to require medical treatment for the purposes of section 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), in respect of the compensable condition of bilateral tendonitis.  What evidentiary weight they have is not presently certain.

5. The Respondent opposed the application on grounds of prejudice, but I consider that the prejudice can be cured by allowing the Respondent time to consider the notes and determine what evidence or submissions it seeks to make in response.

6. In addition, the Respondent says that the notes were not put to any of the witnesses who gave evidence. While this is correct, the Respondent was aware that the notes of Dr Main had been summonsed and was likely to be aware that the Applicant intended to tender the notes and rely upon them. This is because:

   ·The Applicant’s Counsel attempted to tender the notes during the Applicant’s evidence in chief;

   ·The Tribunal had given leave to the Respondent to inspect the summonsed notes (and they had been sent to Dr McGill for comment); and

   ·The Applicant’s Counsel opened his client’s case on the basis that attendances on Dr Main after the date of the reviewable decision, would be claimed to be proper expenses for the purposes of section 16 of the Act.

7. Respondent’s Counsel correctly identifies that the consultations with Dr Main after the date of the Reviewable decision are not expressly identified in the contentions at paragraph 4 of the Applicant’s Statement of Facts, Issues and Contentions dated 28 February 2014. I do not consider this fatal as the contentions seek reimbursement of medical treatment expenses (at paragraph 4.2) and the Opening submissions of the Applicant’s Counsel made it plain that they were being claimed. 

8. I consider that the fundamental test applicable to deciding this application is whether the interests of justice reasonably allow the re-opening of the case for the purpose sought. There are factors balancing for and against allowing the application to re-open and I am particularly mindful that the Tribunal is not a court bound by rules of evidence or indeed many prescribed rules of practice. Although there is potential prejudice to the Respondent, it can be overcome albeit at further cost.  Any adverse costs implications to the Respondent can be fairly allowed for once the Tribunal makes its determination and the parties agitate the issue of costs.

9. I reluctantly allow the application, but do so because I consider that the interests of justice require that the documents be in evidence and given that potential prejudice or adverse costs consequences can be fairly addressed.

10. The directions of the Tribunal are:

    1.Leave is granted to the Applicant to re-open his case to tender the following documents:

    c.   Hand written Clinical notes of Dr Main (Applicant’s GP) dated 4 June 2013, 2 August 2013 and 4 October 2013; and

    d.   Copy of the report of Dr Eaton to Dr Main dated 18 May 2013.

    2.   The Respondent is to advise the Tribunal within 14 days of this Direction, whether it wishes to recall any witness who has previously given evidence or have Dr Main available for cross-examination, at the resumed hearing.

    3.   If the Respondent does not seek either of the matters identified in paragraph 2, the Tribunal’s decision will be Reserved once the Order for Production of video footage, which was subject to the directions made at the hearing on 11 February 2015, is complied with.  For convenience the directions I made were that:

    a.   The Respondent be granted an extension of time until 5pm on 25 February 2015 to file and serve video footage of the operation of the BCS machine; and

    b.   That the parties have liberty to apply until 5pm on 11 March 2015 in relation to any consequential directions or orders they seek arising from the production and receipt into evidence of the video footage.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member.

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Associate

Dated 18 February 2015

Date(s) of hearing	10-11 February 2015
Counsel for the Applicant	David Richards
Solicitors for the Applicant	Slater & Gordon Lawyers
Counsel for the Respondent	Peter Woulfe