Brumby v Mt Arthur Coal Pty Ltd; Ready Workforce (A Division of Chandler MacLeod) Pty Ltd v Mt Arthur Coal Pty Ltd (No. 2)

1. [1]

   An issue has arisen on day six of this work injury damages trial about the admission into evidence of historical affidavits that were deployed earlier in the proceedings to address the defendant’s failure to produce documents in response to subpoenas issued by the plaintiff in March (and May) 2021 and September 2022.

2. [2]

   Senior counsel for the defendant, Mr Morris, argued that an “unexpected” issue has arisen during the trial about the adequacy of the defendant’s response to the subpoenas, and the unavailability of certain contemporaneous investigation documents. He argued that a particular inference may be drawn by the Court negative to the defendant, and so the defendant ought to be allowed to address that by the tender of seven historical affidavits that deal with the history of the defendant’s searches and failures to find responsive documents.

3. [3]

   Mr Dooley SC for the plaintiff opposed the application as it has been made too late, and the issue is not new or unexpected. On the contrary, it has been an issue since shortly after proceedings commenced.

4. [4]

   For the reasons that follow, I refused the leave sought by the defendant.

Facts and procedural outline

1. [5]

   The plaintiff, Nathan Brumby, alleges that he was injured in an accident at the Mt Arthur Coal Mine on 2 May 2018.

2. [6]

   Proceedings were commenced in the Gosford District Court on 10 February 2021.

3. [7]

   On 30 March 2021, Mr Brumby’s solicitor filed a subpoena for production requiring Mt Arthur to produce, amongst other things, any reports of injury, witness statements, or investigative or other reports regarding Mr Brumby’s injury on 2 May 2018.

4. [8]

   It was common ground that the terms of the subpoena were the subject of negotiation between the parties, but the plaintiff maintained the position that the defendant must produce, (amongst other things), the statement of the plaintiff, the statement of the shovel driver, statements of any witnesses and any reports of the accident by the plaintiff and the shovel driver.

5. [9]

   After a series of incomplete searches and inadequate affidavits filed by the defendant during 2021 and 2022, (mainly by its solicitor, Ms Chan), the plaintiff filed a notice of motion in December 2022, returnable in early 2023, insisting upon compliance with the subpoena (r 33.6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”)) or failing that, seeking an order that an affidavit authored by a proper officer of the defendant be filed and served explaining the position with the documents (s 61 Civil Procedure Act 2005 (NSW)).

6. [10]

   Rule 33.6 provides for compliance with subpoenas generally:

7. [11]

   Section 61 of the Civil Procedure Act provides:

8. [12]

   In support of the notice of motion, an affidavit of the plaintiff’s solicitor, John McDonald, sworn 23 December 2022 was read. That affidavit clearly explained the importance of the material being sought, and the reasons why the plaintiff was pursuing the issue:

9. [13]

   Mr McDonald’s affidavit also sets out the inadequacy of Ms Chan’s second-hand accounts of searches allegedly made, contained in her affidavits of 5 and 17 October 2022 and 1 November 2022:

10. [14]

    Mr McDonald also deposed to and annexed correspondence pursuing the defendant’s ongoing failure to comply with the September 2022 subpoena and the inadequacy of its responses: (pars 23-34 of JMCD-1).

11. [15]

    Mr McDonald concluded:

12. [16]

    A consent order made on 14 March 2023, (signed on behalf of both parties), required the solicitor for the defendant to file and serve an affidavit of “an appropriate employee or officer of the defendant as to the searches undertaken to locate statements of the plaintiff, relevant shovel operator and witnesses by 27 March 2023”.

13. [17]

    An affidavit of Carolyn Smith sworn 24 March 2023 appears to have been filed in compliance with that order. Ms Smith described herself as “administration support for the engineering department” at Mt Arthur Coal, and that her role included “searches for documents and records held by Mt Arthur Coal in its records in response to a subpoena for production in legal proceedings”. Ms Smith’s affidavit was in effect a summary of the searches done up to September 2022. It concluded that “if there was a statement of the plaintiff, shovel operator or witnesses, they can no longer be located”.

14. [18]

    Despite all of this, on 9 May 2024, Mr Hay solicitor, the partner at HWL Ebsworth with conduct of the proceedings for Mt Arthur at that time, deposed to locating on the solicitor’s file a “record of interview” document, allegedly signed by shovel operator, Mr Gilchrist, on 12 November 2020. In his affidavit, Mr Hay stated that he “[does] not have an explanation” as to why the document was not produced in response to the 2021 subpoena, and acknowledged that the record of interview was responsive to the 2021 subpoena and should have been produced.

15. [19]

    This history discloses that significant issue was taken by the plaintiff about the absence of contemporaneous accounts expected to be in existence and in the defendant’s possession that were never produced.

The plaintiff’s submissions opposing leave

1. [20]

   Mr Dooley submitted that attempting to now rely on seven old affidavits, not served as evidence to be led or relied upon at the trial, was too late. He emphasised the requirements of Practice Note SC CL 1, which make clear the purpose of case management and the necessity for compliance with the Court’s orders regarding service of evidence:

2. [21]

   Mr Dooley argued that for the defendant to now try to deploy these old affidavits in the trial amounts to trial by ambush. Forensic decisions were made by the plaintiff’s legal team based on the lay statements served by the defendant, which were limited to 2024 statements by two factual witnesses: the shovel operator, Mr Gilchrist, and the acting supervisor or acting OCE (“Open Cut Examiner”), Mr Miller.

3. [22]

   Mr Dooley submitted that any evidence upon which the defendant wished to rely was required to be served in accordance with the timetable laid down by the Court, which ordered service be completed many months before the trial began. The plaintiff is entitled to proceed with preparation and presentation of his case on the understanding that all relevant evidence has been identified and served as evidence in the trial. Mr Dooley stated, and I accept, that forensic decisions were made not to further pursue the defendant’s asserted position about the non-availability of certain documents.

4. [23]

   It would be unfair, and contrary to the Court’s orders, the overriding purpose rule, the Practice Note and the Civil Procedure Act, to now allow the defendant to introduce this old, un-served evidence.

Decision

1. [24]

   Mr Dooley’s submissions are correct and I accept them in full. The fact that there was an absence of contemporaneous investigation documents in response to the March 2021 and September 2022 subpoenas was the subject of attention at a number of directions hearings. Such was the concern about the issue, that the plaintiff filed a notice of motion on 23 December 2022 insisting upon production or an affidavit of explanation from the defendant, given the inadequacies of the solicitors’ explanations to that date.

2. [25]

   This step indicated a high degree of interest, focus and concern about the absence of this expected evidentiary material.

3. [26]

   It is true that the Court may be invited to draw an inference that in the absence of contemporaneous accounts by Mt Arthur employees and/or its documents showing what its alleged investigations revealed, the Court can conclude any such material would not assist Mt Arthur’s case. This is an inference available at law. The availability of legal submissions or inferences the Court may be invited to draw does not need to be spelt out by the plaintiff for the assistance of the defendant.

4. [27]

   It is the defendant’s responsibility to consider the evidence it needs to lead and to deal with such matters before the trial begins, as required by the UCPR, the Court’s practice notes and the Court’s orders. The defendant’s evident failure to do so adequately does not provide a basis for permitting late service and reliance on evidentiary material on day 6 of the trial, and so the application was refused.