Nicoll v Australia Meat Holdings Pty Ltd
[2000] QDC 424
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- Nicoll v Australia Meat Holdings Pty Ltd[2000] QDC 424
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Nicoll v Australia Meat Holdings Pty Ltd[2000] QDC 424
Nicoll v Australia Meat Holdings Pty Ltd[2000] QDC 424
DISTRICT COURT | No 2132 of 1998 |
CIVIL JURISDICTION
JUDGE McGILL SC
STEVEN JOHN NICOLL | Plaintiff |
and
AUSTRALIA MEAT HOLDINGS PTY LTD (ACN 003 529 480) | Defendant |
BRISBANE
DATE 11/10/2000
ORDER
HIS HONOUR: This is an application for directions and for exemption from compliance with certain obligations under rule 224 and rule 393. The plaintiff is claiming damages for personal injuries alleged to have been suffered by him because of his employment with the defendant between February 1993 and May 1995 when he was working as a slicer at a meatworks. It is alleged in the statement of claim that the plaintiff was undertaking repetitive activity and that as a result he suffered severe and permanent bilateral tendovaginitis of both arms and wrists which is alleged to have been caused by negligence, breach of duty or breach of contract on the part of the defendant. I take it that liability and quantum are both in issue.
There is apparently some issue as to the question of whether and to what extent any condition suffered by the plaintiff was caused by anything done in the course of his employment and to what extent any changes in the workplace might have prevented that condition from developing. There is also apparently going to be some issue as to the extent to which the plaintiff's complaints are genuine and whether the plaintiff is as disabled by this condition as he claims to be.
There is apparently evidence available to the defendant which may be of assistance in relation both to the question of quantum and as to the credit of the plaintiff but the usefulness of this material is likely to depend on its not being disclosed to the plaintiff prior to the opportunity to cross-examine the plaintiff. The significance of the material will depend a great deal on what the plaintiff says both in evidence-in-chief and under cross-examination prior to the material being disclosed. There is in this situation an obvious opportunity for a plaintiff who is aware of the contents of the material to tailor his evidence accordingly.
The public interest in discouraging parties from exaggerating claims or tailoring their evidence and favouring the non-disclosure of such material is set out in the judgment of Thomas J in King v. Nolan [1992] 2 QdR 498. I have also been referred to the reasons of Shepherdson J in Smyth v. Thomas Borthwick and Sons Australia Proprietary Limited in a judgment delivered on 25 November 1999 in the matter commenced by Writ 98 of 1995. It seems to me that the considerations referred to by his Honour in that judgment apply equally here. His Honour in that case made the orders that were sought on an ex parte basis and in my opinion the appropriate course is to do the same thing here.
His Honour made orders which were similar in a number of respects to the orders that I propose to make although I think it is desirable in principle to seek to disguise as much as possible in the order the nature of the material available to the defendant because it is quite possible that the plaintiff will become aware of the terms of the order prior to the trial. I think for that reason that the wording of the order should be changed slightly and in addition it is desirable to direct that rule 212(2) not apply to responses obtained from experts, particularly medical experts, who have the opportunity of considering this material prior to the trial. There are practical advances in doing this prior to the trial and if material obtained from the experts in response had to be disclosed because of the withdrawal of privilege effected by rule 212(2) then the objectives to which I have referred earlier will be frustrated.
The Court has power in rule 367 to make orders of directions about the conduct of the proceeding even though the order or directions may be inconsistent with another provision of the rules and that order or direction takes effect and prevails over the rules to the extent of the inconsistency. Whether such a direction is made depends principally on the interests of justice: see sub-rule (2). For the reasons set out in King v. Nolan to which I have referred and in Martin v. Kennedy [1992] 1 QdR 109 the interests of justice make it appropriate to make that special order in this case.
In other respects the order follows in substance the orders made by Shepherdson J and they are I think appropriate. So there will be an order in terms of the amended draft.