Jennifer Ann Nash v Resource Pacific Pty Limited (No 2) [2016] NSWIC 8

Industrial Court New South Wales

Medium Neutral Citation: Jennifer Ann Nash v Resource Pacific Pty Limited (No 2) [2016] NSWIC 8 Hearing dates: 28 June 2016 Date of orders: 06 July 2016 Decision date: 06 July 2016 Before: Walton J, President Decision: Having considered the Court's power to grant leave under s 191(2) and having taken into account the matters that the Court must take into account in granting that leave under s 192(2) (and other relevant considerations) and the submissions on the question, I refuse to grant leave to the defendant to adduce the Flanagan affidavit to contradict or qualify the aforementioned agreed fact. Because the only stated function or use of the affidavit was to contradict or qualify an agreed fact, and leave was not granted to the defendant for that use, it follows that the Flanagan affidavit is not admissible in these proceedings. Catchwords: OCCUPATIONAL HEALTH AND SAFETY – prosecution under s 8(2) and s 10(2) of Occupational Health and Safety Act 2000 – expert evidence – admissibility - objection to affidavit containing expert report as evidence – report had bearing on conclave previously held between other experts – report introduced prior to hearing of concurrent evidence of those experts – impact on programme for hearing - case management – ruling on admissibility of affidavit - s 191 and s 192 of the Evidence Act 1995 – report introduced to contend or qualify agreed fact – leave required under s 191(2) to adduce affidavit – leave refused – affidavit inadmissible Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) [2016] NSWIC 6 Category: Procedural and other rulings Parties: Jennifer Ann Nash (Prosecutor) Resource Pacific Pty Limited (Defendant) Representation: Counsel: JV Agius SC with BL Clark and RJ Rankin (Prosecutor) DA Buchanan SC w ML Shume (Defendant)