Jackson v Pacific International Lines (Private) Limited (No 2)

1. [1]

   This is an interlocutory judgment concerning the admissibility of Mr Paul Keating’s (Mr Keating) evidence under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act).

2. [2]

   The plaintiff is Amie Jackson. She is represented by L King SC together with C J Callaway of counsel. Pacific International Lines (Private) Limited is the first defendant, it is represented by G Parker SC together with A Schonell of counsel. Patrick Stevedores Holdings Pty Ltd is the second defendant and was the plaintiff’s employer at the time of the accident (the employer). It is represented by S L Flett of counsel.

3. [3]

   I have set out the factual background in Jackson v Pacific International Lines (Private) Limited (No 1) [2025] NSWSC 922. I will not repeat them here.

4. [4]

   The plaintiff sought to tender statements from Mr Keating, a senior union official, dated 10 July 2025 and 29 August 2025 and served on the defendants on 10 July 2025 and 1 September 2025 respectively.

5. [5]

   The issue about the tender of the “Deed of Agreement – Patrick Terminals Enterprise Agreement 2016 – Port Botany Supplementary Employees” (the 2017 Deed), that was referred to in Mr Keating’s statement dated 29 August 2025, has since fallen away as it was tendered without objection and marked as Exhibit D on 19 September 2025 (the penultimate day of the hearing). The 2017 Deed provided that when an increase in permanent labour was agreed, recruitment for those positions would be done from the supplementary employees in the first instance.

6. [6]

   The employer objected to the tender of Mr Keating’s evidence based on s 318 of the WIM Act.

The law

1. [7]

   Section 318 of the WIM Act reads as follows:

The plaintiff’s submissions

1. [8]

   The plaintiff commenced employment with her employer, the second defendant, in November 2017 as a grade 2 supplementary (casual) stevedore (CB 139 at par 8). Prior to obtaining that position, the plaintiff was informed that while the position would initially be casual, there was a likelihood that the position would become permanent (CB 139 at par 6).

2. [9]

   The amended statement of claim served with the pre-filing statement (PFS) particularised the claim for economic loss as follows:

3. [10]

   The claim, as particularised in the ss 281 and 282 particulars served with the PFS included the following:

4. [11]

   Implicit in the particulars is that the plaintiff would have had the usual opportunities for progression after becoming a permanent employee and that her claim encapsulated such opportunities.

5. [12]

   For the purposes of s 318(1)(a), the claim, as particularised in the final statement of particulars filed on 3 July 2025 (CB 61) is not materially different to that particularised in the ss 281 and 282 particulars served with the PFS.

6. [13]

   The plaintiff submitted that as far as the pleadings are concerned, she is doing nothing more than adducing evidence as to the likelihood that she would have gained a permanent position with the employer with earnings uninjured comparable to those of employees who commenced employment at about the same time as the plaintiff.

7. [14]

   The index to the PFS included:

8. [15]

   At least some of the material upon which the plaintiff seeks to rely falls into the category of up-to-date financial records. Such material would not have been reasonably available at the time of filing the PFS.

9. [16]

   The plaintiff seeks the Court’s leave pursuant to s 318(1)(d) to tender Mr Keating’s statements and the material referenced therein. The evidence sought to be tendered is based on empirical facts that are within the knowledge of the employer. The defendants have a shared interest in containing the plaintiff’s claim for loss of income.

10. [17]

    In his affidavit dated 17 September 2025, Mr Trainor, the plaintiff’s solicitor, explained that when the PFS was served, he had no inkling of the existence of the 2017 Deed. He was surprised to learn, during his conversation with Mr Keating on 14 August 2025, that the 2017 Deed existed and made express provision for supplementary employees to be promoted to permanent employees as vacancies became available. Mr Trainor stated that based on his experience, he would have expected a change of this type would have been dealt with in the Enterprise Agreement.

11. [18]

    Mr Keating’s statements explain the background to the 2017 Deed, the effect of promotion to a permanent position including classification as permanent employees under the Enterprise Agreement, the applicable wage structure and the employment paths of nominated supplementary employees who commenced work with the employer at about the same time as the plaintiff.

12. [19]

    In Kubovic v HMS Management Pty Ltd [2015] NSWCA 315, McColl JA (Ward JA and Adamson J agreeing) said at [104] (‘Kubovic’):

13. [20]

    In Ljubicic v Heat and Control Pty Ltd [2023] NSWSC 982, Cavanagh J said (‘Ljubicic’):

14. [21]

    As to s 318(2)(b) of the WIM Act, failure to grant leave would substantially prejudice the plaintiff’s case in terms of establishing her probable earnings uninjured.

The employer’s submissions

1. [22]

   Counsel for the employer submitted that the plaintiff seeks to advance an argument that her employment was protected by the 2017 Deed ensuring at least, a lasher’s pay. While the employer agrees with that proposition, it does not agree that the plaintiff would have advanced beyond that of a lasher because of her antecedents. Mr Ryan Bellingham has been designated as a grade 6 team leader and safety facilitator and it took him 12 years, without any antecedent issues, to progress to grade 7 (T173).

2. [23]

   The employer briefly mentioned it would also rely on s 151I of the Workers Compensation Act 1987 (NSW) which places a cap on comparable employee’s earnings.

3. [24]

   The available evidence when read with the contents of the tax returns confirm that the plaintiff was classified as a supplementary worker at the time of injury. While it has been suggested that she would have become a permanent employee, there is no evidence of when this was likely to have occurred, other than her own evidence. Counsel for the employer submitted that any evidence contrary to that which appeared in the PFS is inadmissible against it under s 318 of the WIM Act and can only be relevant to the case presented against the first defendant.

4. [25]

   In oral submissions, counsel for the employer further submitted that a pre-filing statement is a document which is required to be done and required to be done properly (T404 [48]-[49]) and referred to Ljubicic where Cavanagh J said at [65]: “The party seeking to rely on the report must have taken reasonable steps to obtain it at the relevant time. The test is not simply whether the report could have been obtained. The test is whether there were reasonable steps which could have been taken…”. The plaintiff fails this test because there was no attempt to make any inquiries related to the plaintiff’s statement that she “would’ve become permanent” until a week before the case started (T405 [30]-[34] and T406 [20]-[27]). Although the plaintiff acknowledged the operation of s 318 of the WIM Act and claimed that they would rely on updated financial records, no attempt was made to deal with the evidence that they now seek to have admitted against the employer (T405 [50]-T406 [3]).

Resolution

1. [26]

   In so far as reasonable steps to obtain the evidence is concerned, the plaintiff’s solicitor is experienced legal practitioner in personal injury litigation. His evidence is that he had no inkling of the existence of the 2017 Deed when he filed the PFS and that he would have expected a change of this type to be dealt with in the Enterprise Agreement.

2. [27]

   The PFS particularised the plaintiff’s claim for economic loss as “a claim for future wage loss, particulars of which will be supplied”; and the particulars filed after the proceedings were commenced stated that:

3. [28]

   The wages of employees such as the plaintiff and comparable employees are matters within the knowledge of the employer.

4. [29]

   The plaintiff also stated in the PFS that:

5. [30]

   Mr Keating is a union representative who represented the workers employed by the employer. The 2017 Deed was attached to one of Mr Keating’s statements. Mr Keating gave evidence on 19 September 2025, the penultimate day of the trial, as he was working in China and video link from China was unavailable. He gave evidence as to the background to the 2017 Deed, the effect of promotion to a permanent position including classification as permanent employees under the Enterprise Agreement, the applicable wage structure and the employment path of nominated supplementary employees who commenced work with the employer at about the same time as the plaintiff. He was also cross examined on these topics. Some of the contents of his statements were rejected by my evidentiary rulings.

6. [31]

   I accept the plaintiff’s solicitor’s evidence and am satisfied that he took reasonable steps to obtain the documents relating to the plaintiff’s entitlement to wages and those of comparable employees. There is no prejudice to the employer as it already has these documents in its possession, particularly, the wage records given that it authored those documents.

7. [32]

   There is, however, prejudice to the plaintiff if the explanation as to the background and contents of the 2017 Deed are absent.

8. [33]

   In these circumstances, it is my view that the plaintiff is entitled to rely upon the statements of Mr Keating, subject to the evidentiary rulings that I made during the hearing.

Orders

1. [34]

   The Court orders that:

   1. (1)

      The second defendant’s application pursuant to s 318 of the WIM Act is dismissed.

   2. (2)

      The statements of Mr Keating dated 10 July 2025 and 29 August 2025 (subject to earlier evidentiary rulings) are admitted into evidence.