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) Solicitors: Crown Solicitor's Office (Prosecutor) Seyfarth Shaw (Defendant) File Number(s): 2016/19616 (formerly IRC 135 of 2011)2016/19632 (formerly IRC 136 of 2011) Judgment 1. On 19 May 2016 directions were given by consent for, inter alia, the evidence of two experts, Mr Wiltshire and Dr Richardson, to be taken as concurrent evidence pursuant to r 31.24 of the Uniform Civil Procedure Rules 2005. Directions were made, in that respect, for the holding of a conclave of those experts on 15, 16 and 17 of June 2016. 2. The conclave was held on the dates specified in the directions and the matter was set to resume for the purpose of taking the concurrent evidence commencing on Monday 27 June 2016. 3. On the date fixed for the matter to resume, the Court received, upon their application, counsel for the respective parties in Chambers. During that attendance, the prosecutor foreshadowed (as she had done at the time of the delivery of a judgment of the Court on 24 June 2016 (Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) [2016] NSWIC 6), objections to two affidavits of experts filed after the conclave (which intersected with some matters in the conclave) and the making of submissions as to the potential effects of those objections upon the programme for hearing (and, in particular, the need for the prosecutor to make an application for an adjournment). 4. The evidence about which the prosecutor complained consisted of the report of Dr Richardson dated 22 June 2016 and filed on 24 June 26 (hereafter 'the third report of Dr Richardson') and the affidavit of Mr Flanagan filed on 24 June 2016 (hereafter 'the Flanagan affidavit'). The hearing was held over until 28 June 2016, with the parties encouraged to consider, in the light of the objections, a draft program to dispose of the balance of the proceedings with the primary objective being finality. 5. Upon the formal resumption, the prosecutor made an application that the Court should reject, in toto, the Richardson report or the Flanagan affidavit. Argument was then heard as to the receipt of those reports and the third report of Dr Richardson. 6. It might be noted, before turning to the resolution of those issues, that the defendant acquiesced in those objections being heard at that juncture in order to assist the management of the case, notwithstanding that the defendant did not seek to tender the Flanagan affidavit at that stage of the proceedings (the defendant's case having not opened). The Flanagan affidavit was accordingly marked as MFI 37 for the purposes of determining the objection made to the receipt of that evidence. 7. It should also be noted that the prosecutor's application was accompanied by an application to adjourn the hearing of concurrent evidence upon the basis that the admission of Dr Richardson's third report or the Flanagan affidavit would, if successful, require the prosecutor to gather further expert or non-expert evidence to meet that material. Those submissions were heard concurrently with the argument as to the receipt of the expert reports. 8. It is unnecessary to make other than confirmatory remarks as to Dr Richardson's third report. The Court admitted that report in full (as Exhibit 154) on 28 June 2016, with the Court's reasons for the same being given on the occasion of the delivery of a ruling. 9. After hearing argument on the admission of the Flanagan affidavit, the Court reserved its decision. This judgment constitutes the ruling of the Court in that respect as well as short reasons (the reasons provided are necessarily truncated due to the sense of urgency created by the program set by the Court upon agreement by the parties on 28 June 2016). 10. The prosecutor's objection to the receipt of the Flanagan affidavit was predicated upon s 191 and s 192 of the Evidence Act 1995 (whilst the prosecutor did raise objections as to particular aspects of the Flanagan affidavit those contentions were advanced only in support of a submission that the affidavit should be rejected outright). 11. I find that, contrary to the submissions made on behalf of the defendant, the fact that an individual load of reject released by Reject Bin 802 weighed 10 tonnes or approximately 10 tonnes is a fact that the parties agreed was not, for the purposes of these proceedings, to be disputed; that is, it is an agreed fact within the meaning of s 191(1). 12. The Flanagan affidavit was introduced by the defendant to contend that the mass of an individual load of reject released by Reject Bin 802 when activated may have ranged from 8.5 to 12.5 tonnes. The defendant primarily sought to use the evidence to establish that the drop may exceed 10 tonnes up to a ceiling of 12.5 tonnes. That contention contradicted or sought to qualify, in my view, the agreed fact. 13. Pursuant to s 191(2), leave was, therefore, required for evidence of that character to be adduced by the defendant as it contradicted or qualified an agreed fact. By an alternative submission, the defendant sought leave to adduce the Flanagan affidavit. 14. 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. 15. The balance of my reasons will be given in due course. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2016