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  4. Peng v BAK10CUT PTY LTD (No. 4) - [2022] QIRC 352

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Peng v BAK10CUT PTY LTD (No. 4)[2022] QIRC 352

Peng v BAK10CUT PTY LTD (No. 4)[2022] QIRC 352

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Peng v BAK10CUT PTY LTD & Anor (No. 4) [2022] QIRC 352

PARTIES:

Peng, Yu-Rong

(Complainant)

v

BAK10CUT PTY LTD

(First Respondent)

&

Yuan, Wenxin

(Second Respondent)

CASE NO:

AD/2019/107

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

12 September 2022

HEARING DATE:

5 September 2022

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. Leave is granted to the Respondents to reopen their case by:
  1. (a)
    cross-examining Ms Peng about the matters described in [28] of this decision;
  1. (b)
    calling Mr Lu as a witness to give evidence about the matters described in [39] of this decision;
  1. (c)
    cross-examining Dr Ng about the matters described in [63] of this decision;
  1. (d)
    recalling Mr Yuan as a witness to give evidence about the matters described in [72] of this decision;
  1. (e)
    recalling Senior Constable McIlwain as a witness to give evidence about the matters described in [80] of this decision;
  1. (f)
    calling Dr Morris as a witness to give evidence about the matters described in [86] of this decision;
  1. (g)
    recalling Dr Calder-Potts as a witness to give evidence about the matters described in [99] of this decision; and
  1. (h)
    admitting and relying on the WorkCover documentation annexed to the Affidavit of Ms Qi's filed 1 April 2022.

CATCHWORDS:

INDUSTRIAL LAW – DISCRIMINATION – application for leave to reopen to adduce further evidence – application granted in part

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 7, s 10, s 14, s 15, s 118

CASES:

Deputy Commissioner of Taxation v Shi [2021] HCA 22

EB v CT (No 2) [2008] QSC 306

Fowler v Workers' Compensation Regulator [2019] QIRC 149

R v Tait [1963] VR 520

Reid v Brett [2005] VSC 18

Smith v New South Wales Bar Association (1992) 176 CLR 256

TKWJ v R [2002] 212 CLR 124

Tomlinson v Tomlinson [1980] 1 All ER 593

APPEARANCES:

Mr R Hii instructed by Caxton Legal for the Complainant.

Ms K Hillard and Mr M Rawlings instructed by Fisher Dore Lawyers for the Respondents.

Reasons for Decision

Relevant background

  1. [1]
    This proceeding was originally heard on 7 – 9 October 2020.
  1. [2]
    During the course of filing written closing submissions, the Respondents' lawyers ceased acting on their behalf. On 13 April 2021, the Respondents appointed new legal representation and a Form 34 – Lawyer's notice of address for service was filed accordingly.
  1. [3]
    On 22 April 2021, the Respondents filed a Form 4 – Application in existing proceedings (the Application) seeking:

The order for the reopening of the stated matter pursuant to the section 484 and section 485 of the Industrial Relations Act 2016 to:

  1. Adduce further affidavit evidence; and
  2. For the reopening of the hearing.

Alternatively, if not reopened seeks:

  1. The date for filing written submissions of 30 April 2021 be vacated; and
  2. A new date of 15 June 2021 for filing be made.
  1. [4]
    In support of the Application, the Respondents filed a Form 20 – Affidavit of Ms Jiabei Qi.[1] Ms Qi's Affidavit annexes the Respondents' original submissions, relevantly providing:
  1. What Mr Yuan seeks prior to submitting his closing written submissions evidence (sic) limited to:
  1. Adducing evidence by affidavit in support of his case and in accordance with his instructions;
  2. Adducing evidence by affidavit from Dr Calder Potts in support of his case;
  3. Lead further limited evidence in chief of Senior Constable McIlwain in support of his case; and
  4. Lead further limited cross-examination from the witnesses Mr Ng, Ms Cheung and Ms Peng of key matters relevant to his case.
  1. [5]
    The Application was initially granted via ex tempore decision on 7 May 2021.
  1. [6]
    Following an appeal to the Industrial Court, the Application was remitted to the Commission for redetermination on 21 February 2022.
  1. [7]
    Upon being remitted to the Commission for redetermination, this matter was the subject of several interlocutory applications. On 25 May 2022, I called a mention to discuss those matters.
  1. [8]
    Following the mention, the Respondents agreed to withdraw some of their interlocutory applications[2] while the Complainant agreed to allow the Application to the extent that the proceeding be reopened and the following witnesses be called to give evidence in the re-opened proceeding:
  • Mr Wenxin Yuan (the Second Respondent);
  • Senior Constable Jason McIlwain;
  • Dr Phillip Morris; and
  • Dr Kevin Robert Calder-Potts.[3]
  1. [9]
    As at the date of hearing the Application on 5 September 2022, it appeared the Respondent sought and the Complainant objected to, the calling of the following witnesses in the reopened hearing:
  • Ms Yu-Rong Peng (the Complainant);
  • Ms Ka Chee Cheung;
  • Mr Jyun-Da (Jack) Lu;
  • Ms Clare Fercher-Barrett;
  • Dr Bradley Ng;
  • Ms Hsiu-Fang Chien;
  • Ms Louise Vigar;
  • Ms Maryon Jones;
  • an unnamed SAIK examiner;
  • an unnamed police officer who made an entry on 21 June 2018; and
  • an unnamed EEEU officer who conducted an examination of the CCTV footage.
  1. [10]
    During the hearing of the Application, the Respondents clarified they are not now seeking to question Ms Vigar, Ms Jones, Ms Chien, the unnamed SAIK examiner, the unnamed police officer nor the unnamed EEEU officer during the reopened hearing. Further, the Respondents advised they would not require Ms Cheung for further cross-examination as they had cross-examined her during the hearing of the Application.

Remaining questions to be decided in this Application

  1. [11]
    The first issue for my determination is whether the Respondents should be given leave to either call or cross-examine the following witnesses during the reopened hearing:
  • Ms Yu-Rong Peng (the Complainant);
  • Mr Jyun-Da (Jack) Lu;
  • Ms Claire Fercher-Barrett; and
  • Dr Bradley Ng.
  1. [12]
    It is noted that the parties have consented to the following witnesses being called:
  • Mr Wenxin Yuan (the Second Respondent);
  • Senior Constable Jason McIlwain;
  • Dr Phillip Morris; and
  • Dr Kevin Robert Calder-Potts.[4]
  1. [13]
    The second issue for my determination is the scope of matters that those witnesses will be limited to giving evidence about during the reopened hearing.
  1. [14]
    The final matter to be determined is the tender of the WorkCover documents, annexed to Ms Qi's affidavit of 1 April 2022.

Relevant principles

  1. [15]
    Both parties referred to the decision of Merrell DP in Fowler v Workers' Compensation Regulator,[5] in which his Honour summarised (citations omitted):
  1. [40]
    The relevant authorities and principles in deciding whether to exercise discretion to grant leave to a party to reopen its case were reviewed by Applegarth J in EB v CT (No.2).
  1. [41]
    In that case his Honour stated:
  1. (a)
    first, the guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application;
  1. (b)
    secondly, in Smith v New South Wales Bar Association the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered and that as to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side;
  1. (c)
    thirdly, in Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded, but judgement has not been delivered, were said to be:
  1. (i)
    the further evidence is so material that the interests of justice require its admission;
  1. (ii)
    the further evidence, if accepted, would most probably affect the result of the case;
  1. (iii)
    the further evidence could not by reasonable diligence have been discovered earlier; and
  1. (iv)
    no prejudice would ensue to the other party by reason of the late admission of the further evidence
  1. (d)
    fourthly, the reference by the High Court in Smith v New South Wales Bar Association to prejudice to the other party, and the guiding principle of the interests of justice,  require account to be taken of the strain that litigation imposes on personal litigants;  and the prejudice caused by delay in the delivery of an expected judgement at the end of stressful litigation  cannot  always be measured in terms of money  or cured by an order for costs; and
  1. (e)
    finally, the interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
  1. [16]
    The principles particularly relevant to this Application are outlined in [41](c) of Fowler v Workers' Compensation Regulator[6] as reproduced above.
  1. [17]
    As observed by Gordon J in Deputy Commissioner of Taxation v Shi, "What the interests of justice require in a particular case is to be weighed having regard to the proceeding in which the question arises."[7]
  1. [18]
    The Complainant referred to the following comments of Gaudron J in TKWJ v R (citations omitted):

 [26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.

 [27] One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.

 [28] As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.

 [29] Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial - "fresh evidence", as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be "flagrant incompetence", an "egregious error", "extreme conduct" or "significant fault". Thus it was that the argument in the present case was premised on counsel having made a "wrong" decision.[8]

  1. [19]
    The Complainant also referred to several authorities that concern matters in which a party is seeking leave to reopen a proceeding, including in circumstances where a judgment has already been delivered. This decision is distinguishable on the basis that the Complainant has already consented to reopening the hearing and a judgment has not been delivered on the substantive matter.

The substantive proceeding

  1. [20]
    The substantive proceeding concerns the Complainant's allegation that the Second Respondent sexually harassed and discriminated against her on the ground of her sex contrary to ss 7(a), 10, 15 and 118 of the Anti-Discrimination Act 1991 (Qld) (the AD Act). The allegation arose from the period of 18 – 21 June 2018, during which the Complainant undertook a work trial with the First Respondent.
  1. [21]
    My consideration as to whether and / or what evidence may be adduced in the reopened hearing relates to its relevance to a question to be decided in the substantive matter.  Those questions are as follows.
  1. [22]
    With respect to the allegation of sexual harassment, whether or not sexual harassment occurred?
  1. [23]
    It is accepted that the Complainant has the attribute of 'being female' for the purpose of the allegation of direct discrimination. The remaining questions to be decided in that regard are:
  • Was the Complainant treated, or proposed to be treated, less favourably than another person (either a real or hypothetical comparator) without the attribute of 'being female', in circumstances that are the same or not materially different?
  • If it is decided that a 'less favourable' treatment occurred, was a substantial reason discriminatory?
  • If discrimination is found to have occurred, 'where' did it occur?
  1. Did the discrimination occur in the 'pre-work area' pursuant to s 14 of the AD Act? 
  1. Did the discrimination occur 'in work area' pursuant to s 15 of the AD Act?
  1. [24]
    Finally, if I find in favour of the Complainant under the questions above, what relief is appropriate?

Should the Respondents be given leave to cross-examine the Complainant during the reopened proceeding? If so, what is the scope of matters that the Complainant should be limited to giving evidence about?

Respondents' position

  1. [25]
    The Respondents' position can be summarised as not seeking to 'compel' Ms Peng to give evidence – but rather if she were to choose not to do so, adverse inferences would be drawn. It is argued that the Commission should have the benefit of Ms Peng's evidence about matters they contend are relevant and probative.  In fairness to Ms Peng, the Respondents say that adverse inferences will be drawn and evidence will be accepted if she does not give evidence to the contrary. 
  1. [26]
    With respect to the prejudice to Ms Peng should she be called to give further evidence, the Respondents note Ms Cheung's comments about access to mental health care in Taiwan.  Specifically, that Ms Cheung said she understood that Taiwan's hospital system could be accessed for 'acute risks' though patients were discharged quickly – and that GP visits were short in duration typically, but nonetheless available.  I appreciate that Ms Cheung's evidence in this regard forms a general opinion based on her understanding only. Whilst Ms Cheung's evidence was that Ms Peng did have suicidal ideation after the sexual contact with Mr Yuan, the Respondents noted that was not in her previous report before the Commission.
  1. [27]
    With respect to further prejudice and the strain of litigation, Ms Cheung was questioned about whether particular differences between the initial and reopened hearings would ameliorate the likely level of distress to Ms Peng, including:
  • ability to take breaks;
  • duration of her evidence (likely 1.5 hours, not 5 hours);
  • adjustment of camera so Ms Peng does not have to look at Mr Yuan; and
  • time elapsed between the sexual contact with Mr Yuan and reopened hearing.
  1. [28]
    The Respondents want to lead further limited cross-examination of Ms Peng about key matters relevant to Mr Yuan's case.  The parameters of such further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[9] 
  • prior inconsistent statements and accounts said to have been given to medical staff, victim assist, police and psychiatrists;
  • omissions in the account Ms Peng is said to have provided to Dr Ng;
  • CCTV footage;
  • her orgasm account;
  • the wet wipes and oral sex matters;
  • WorkCover claim rejection and reasons, interpretations and impact on proceedings;
  • matters set out in the Notices to Admit Facts;[10]
  • Ms Peng's refusal to be assessed by any other psychiatrist; and
  • matters contained in Mr Yuan's affidavit filed 1 April 2022.

Complainant's position

  1. [29]
    The Complainant's position is that Ms Peng no longer has a choice if the Commission orders her to give evidence.
  1. [30]
    The Complainant urged the need to weigh the prejudice to Ms Peng in terms of:
  • distress caused by reliving the events;
  • harm that she will suffer in the retelling;
  • lack of accessible and affordable mental health care in Taiwan, should Ms Peng's condition of PTSD be exacerbated;
  • Ms Peng's additional evidence would not materially affect the outcome; and
  • proceedings are still not coming to an end.
  1. [31]
    The Complainant further noted that it was a forensic decision of the Respondents' previous representatives to address the CCTV in written closing submissions, rather than lead the Commission through each and every file contained in the USB.
  1. [32]
    With respect to the scope of Ms Peng's evidence, the Complainant submits:
  • the Respondents' former representatives had already cross-examined Ms Peng about her orgasm account;
  • the Complainant has already been questioned about whether the wet wipe and oral sex had occurred in the way Mr Yuan alleges;
  • the Respondents have not indicated what relevance the WorkCover matter has to the proceeding; and
  • the Respondents' former representatives had cross-examined the Complainant about seeing personal injury lawyers and making a statutory claim to WorkCover.

 Consideration

  1. [33]
    In my view, it is in the interests of justice to grant leave to the Respondents to cross-examine Ms Peng in the reopened hearing because:
  • the parties have consented to the reopening of the hearing.  It follows then that further evidence would be adduced at it.  That may raise further questions about evidence already provided.  In fairness to Ms Peng, propositions should be properly put to her for response – rather than being placed in the invidious position of an adverse inference being drawn absent such opportunity;
  • the scope of issues the Respondents seek to put to Ms Peng are material to my consideration of the questions to be decided in the substantive matter.  Fundamentally, this case turns on whether the sexual contact between the pair was consensual or not.  Therefore, the parties' accounts of specific incidents and supporting evidence of the respective claims are directly relevant to my determination;
  • the allegations made by Ms Peng are extremely serious.  Should my decision in the substantive matter be made in her favour, the potential cost to Mr Yuan would likely be considerable, in terms of both quantum and reputation.  For that reason, further evidence that would most probably affect the result of the case should be heard.  Although I appreciate that Ms Peng may experience harm by giving further evidence, it is her case to prosecute, Ms Cheung's evidence was that "it is possible" for her to do so and there is access to GP consultations (and hospitals for "acute" presentations), as well as a suite of accommodations that may be made during the hearing to ameliorate potential impact upon her.  In light of those factors, I consider the prejudice Mr Yuan could suffer if the Respondents are not granted leave to cross-examine Ms Peng outweighs the potential prejudice to her if she were required to do so;
  • although much within the scope of evidence sought by the Respondents in the reopened hearing may well have been discoverable by reasonable diligence, that is but one criterion governing my exercise of discretionary power.  The Respondents have submitted, and I agree, that "Where the evidence is relevant, probative and material to the issues to be considered, discoverability carries less weight."[11]  Further, the Respondents contend that "Incompetence need not be established and need not be determined to warrant a reopening.  Here, there are serious and significant deficiencies in the Respondents' case as presented before the Commission in October 2020 which resulted in crucial and essential evidence not being placed before the Commission that one would expect to have seen in the proper conduct of Mr Yuan's matter.  Whether this amounts to incompetence is a matter for another forum."[12]  Although the Complainant submits that it was a deliberate, forensic decision of the Respondents' former representatives to omit particular evidence and lines of inquiry, my experience of presiding over the initial hearing has led me to conclude that, on the balance of probabilities, that was rather unlikely; and
  • while it is true that some time has elapsed between the hearing in October 2020 and the reopened hearing to be held in September 2022, the "…period of time from 7 May 2021 to 9 February 2022 cannot be sheeted home to the Respondents, as those proceedings were entirely out of the control of the Respondents."[13]  It is likely the case that the lengthy period between Ms Peng's initiation of the litigation and its finality has imposed strain on both personal litigants. Its impact is therefore neutral.
  1. [34]
    For these reasons, the scope of evidence that the Respondents seek to cross-examine Ms Peng about (as outlined in [28] above) is granted.

Should the Respondents be given leave to call Mr Lu as a witness during the reopened proceeding? If so, what is the scope of matters that Mr Lu should be limited to giving evidence about?

 Respondents' position

  1. [35]
    The Respondents' position is that the affidavit evidence of Mr Lu should be admitted at the reopened hearing because his evidence is "relevant and material", in that it goes to consideration of whether the sexual harassment allegations actually occurred. 
  1. [36]
    Mr Lu was the flat mate of Mr Yuan during the relevant period.
  1. [37]
    A statement has now been taken from Mr Lu, "who speaks of (Ms Peng's) conduct at the dinner at Mr Yuan's house consistent with Mr Yuan's account."
  1. [38]
    The Respondents contend that Mr Lu would give evidence about what he observed of Ms Peng, and her interaction with Mr Yuan, at dinner in their home.  Mr Lu says the pair seemed happy, relaxed, friendly, engaging and with positive body language.  His evidence contrasts that given by Ms Peng, as she had stated that she did not want to go to the dinner and that she felt uncomfortable.
  1. [39]
    The Respondents want to call Mr Lu as a new witness to give evidence relevant to the questions to be decided in the substantive matter.  The parameters of such further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[14] 
  • proof of his affidavit dated 31 March 2022; and
  • elaborating on the affidavit, if possible.
  1. [40]
    The Respondents also submitted, "There would be no other anticipated evidence-in-chief unless something emerged during the hearing proper that he would need to be asked about."

 Complainant's position

  1. [41]
    The Complainant's position is that Mr Lu should not be called as a witness in the reopened hearing because his is not "fresh" evidence and should not therefore be admitted.  The Complainant submitted that Mr Lu was originally to be called to give evidence in October 2020 but that the Respondents ended up deciding not to do so.
  1. [42]
    The Complainant argued the inclusion of Mr Lu's testimony would enable Mr Yuan to make a different forensic decision as to how he should have run his case at the earlier hearing, with the benefit of hindsight and more experienced legal representation.
  1. [43]
    The Complainant contends Mr Lu's evidence is "so vague and bereft of probative value" that its admission will not affect the results of the case.  In this regard, the Complainant notes it is not in dispute that Ms Peng attended upon Mr Yuan's home.  The Complainant also takes issue with the Respondents' remark that they seek to "elaborate on his affidavit if possible."

 Consideration

  1. [44]
    In my view, it is in the interests of justice to grant leave to the Respondents to call Mr Lu as a new witness in the reopened hearing because:
  • Mr Lu's evidence is material to my consideration of the questions to be decided in the substantive matter.  Fundamentally, this case turns on whether the sexual contact between the pair was consensual or not.  Therefore, the parties' accounts of specific incidents and supporting evidence of the respective claims are directly relevant to my determination;
  • the allegations made by Ms Peng are extremely serious.  Should my decision in the substantive matter be made in her favour, the potential cost to Mr Yuan would likely be considerable, in terms of both quantum and reputation.  For that reason, further evidence that would most probably affect the result of the case should be heard.  The evidence of a third-party to the dinner at Mr Yuan's home will assist my consideration of the substantive matter, given only the conflicting accounts of Ms Peng and Mr Yuan are currently before me;
  • the prejudice to Ms Peng is also mitigated by her opportunity to respond to the matters contained in Mr Lu's affidavit;
  • although granting leave to the Respondents to call Mr Lu will extend the duration of the reopened hearing, I consider the prejudice Mr Yuan could suffer if not granted leave to call Mr Lu outweighs the potential prejudice to Ms Peng of a relatively minimal extension of the hearing duration; and
  • although much within the scope of evidence sought by the Respondents in the reopened hearing may well have been discoverable by reasonable diligence, that is but one criterion governing my exercise of discretionary power.  My comments about this at paragraph [33] above remain pertinent here.
  1. [45]
    For these reasons, the scope of evidence that the Respondents seek to call Mr Lu to provide (as outlined in [39] above) is granted.
  1. [46]
    I accept that Mr Lu's affidavit dated 31 March 2022 should be admitted as evidence in the reopened hearing and that he may elaborate on matters contained in it.  However, a limit on the extent of such new evidence is appropriate here.  The Respondents' desire to leave open an ability to ask Mr Lu anything else that may emerge during the hearing proper is far too nebulous to evince in my mind it is material and would most probably affect the result. On that basis, the Respondents are not permitted to question Mr Lu about matters other than those outlined in [39]. With the caveat of any new evidence that arises that must be put to Mr Lu, in fairness to himself.

Should the Respondents be given leave to call Ms Fercher-Barrett as a witness during the reopened proceeding? If so, what is the scope of matters that Ms Fercher-Barrett should be limited to giving evidence about?

 Respondents' position

  1. [47]
    The Respondents' position is that the report of Ms Fercher-Barrett should be admitted because her evidence is relevant and material to the Commission's consideration of the reliability of Mr Yuan's account, including the manner of giving his evidence, his memory recall and his responses.
  1. [48]
    The Respondents stated that "A psychological report from Dr Clare Fercher-Barrett has been provided that explains why Mr Yuan's account at the hearing was disconnected and disjointed, and his memory issues.  Her report is also relevant to the assessment of his credit at the hearing proper." 
  1. [49]
    The Respondents asserted Ms Fercher-Barrett's evidence is admissible because it is relevant to the assessment of Mr Yuan's evidence by providing an explanation (other than fabrication) for not recalling something or a long pause before answering a question.
  1. [50]
    It was further explained that Ms Fercher-Barrett "…will give evidence about Mr Yuan's distress about legal matters, his situational anxiety and ability to try and control his mood, non-verbal skills are in the 7th percentile (93% perform better than him), moderate risk of being clinically emotionally and having behavioural problems, experiences issues with negative affect, chronic situational anxiety and low mood with respect to court matters, low to average intelligence, negative impact on cognitive functioning including memory."
  1. [51]
    The Respondents submit that Ms Fercher-Barrett's evidence would also be admissible to consider the circumstances of the tests under s 119(e) "intention" to (f) "reasonable person" of the AD Act.
  1. [52]
    The Respondents want to call Ms Fercher-Barrett as a new witness to give evidence relevant to Mr Yuan's credit and reliability to guard against improper adverse inferences being drawn.  The parameters of such further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[15] 
  • proof of her report dated 31 March 2022;
  • proving the factual basis of her opinions;
  • anything that arises from the hearing itself; and
  • that Ms Fercher-Barrett attend the hearing to observe the further evidence of Mr Yuan.

 Complainant's position

  1. [53]
    The Complainant's position is that Ms Fercher-Barrett should not be called as a witness in the reopened hearing because is it not admissible to call her as a "witness of credit".
  1. [54]
    The Complainant stated that such matters may have been relevant to deciding whether or not to reopen the hearing itself but not in circumstances where that has been resolved.  Therefore, it is no longer relevant to the issues in dispute.
  1. [55]
    With respect to Ms Fercher-Barrett's intended evidence about the circumstances of the tests under the AD Act, the Complainant submitted that the question of whether or not the sexual harassment occurred is determined on the 'reasonable person' test, not on the particular attributes or intentions of Mr Yuan himself.
  1. [56]
    The Complainant considers the engagement of Ms Fercher-Barrett to provide such a report is due to post-hearing regrets as to how Mr Yuan's evidence was presented.

 Consideration

  1. [57]
    Whilst Ms Fercher-Barrett's evidence on the ultimate credibility of a witness would not be admissible, expert evidence on the psychological and physical conditions which may lead to certain behaviour relevant to credibility is admissible.[16]
  1. [58]
    Nonetheless, in my view, it is not in the interests of justice to grant leave to the Respondents to call Ms Fercher-Barrett as a new witness in the reopened hearing because:
  • both Ms Peng and Mr Yuan gave evidence through interpreters.  That involved some delay and disjointedness in both parties' responses.  In that sense, they are on equal footing at this time;
  • prejudice to Ms Peng may well arise then should I permit the late admission of Ms Fercher-Barrett's evidence as a new witness in the reopened hearing;
  • I am not convinced that Ms Fercher-Barrett's evidence is so material as to probably affect the result of the case;
  • in determining the substantive matter, I appreciate it is the role of the Commission to assess the credit of witnesses; and
  • whilst the Complainant encouraged an inference to be drawn about Mr Yuan's reliability due to his "evasive, disruptive and argumentative" evidence in her written closing submissions, I may not share that view.  It is also true that the Respondents may make their own submissions about the presentation of Mr Yuan's evidence and demeanour at their own opportunity.
  1. [59]
    For those reasons, I refuse to grant leave to the Respondents to call Ms Fercher-Barrett as a witness at the reopened hearing.

Should the Respondents be given leave to cross-examine Dr Ng during the reopened proceeding? If so, what is the scope of matters that Dr Ng should be limited to giving evidence about?

  1. [60]
    Dr Ng was called as a witness by the Complainant in the October 2020 hearing.

 Respondents' position

  1. [61]
    The Respondents' position is that "No challenge was made, as it should have been, to Dr Ng's 4% impairment nor was it addressed about the different factual basis, or the impact of consensual v non-consensual contact.  As Dr Calder-Potts has now retired, a new report of Dr Phillip Morris has been obtained.  Mr Yuan was never asked about a report to address these issues."
  1. [62]
    The Respondents contend that relevant matters need to be put to Dr Ng as the basis for Dr Calder-Potts' opinion.  Ms Peng should have been properly cross-examined on these matters but was not.  She was asked about a number of factors (DV, suicide, father, mental illness history in the family) but not a number of other matters.
  1. [63]
    The Respondents want to cross-examine Dr Ng at the reopened hearing.  The parameters of such further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[17] 
  • Ms Peng's alternate history account that she provided to Dr Calder-Potts, as a basis for his diagnosis of her;
  • putting Dr Calder-Potts' opinions to Dr Ng;
  • cross-examination of the 4% impairment opinion;
  • putting Dr Morris' opinions and factual basis of 1 % impairment to Dr Ng; and
  • putting the best practices for history gathering per Dr Morris' report, concerning the different accounts.

 Complainant's position

  1. [64]
    The Complainant's position is that "The Respondents had their opportunity to cross-examine Dr Ng about Dr Calder-Potts' opinion, but a forensic decision was made by their former lawyers not to do so.  During the October 2020 hearings, the Respondent's former lawyer cross-examined Dr Ng about Dr Calder-Potts' report.  When Dr Ng said he had not read the report and sought to clarify when it was produced, the Respondent's former lawyer ended his questions.  It is submitted that the Respondent's former lawyers' decision not to pursue that line further may have been in aid of a forensic advantage."
  1. [65]
    The Complainant contends that the fact that Dr Morris is giving evidence does not mean that Dr Ng must be recalled, particularly when the two reports cannot be readily compared given Dr Morris has not and will not be undertaking an assessment of the Complainant. 
  1. [66]
    With respect to the Respondents' proposal to call Dr Ng in order to provide comment about what Dr Morris asserts is 'best practice in history gathering', the Complainant asserted that is not an issue in these substantive proceedings, and had not been raised by the Respondents as a matter in issue.
  1. [67]
    In summary, the Complainant objects to the Respondents being given leave to cross-examine Dr Ng about Ms Peng's provided history to Dr Calder-Potts, putting Dr Calder-Potts' opinion to him, and putting to him a report prepared by Dr Morris without assessing the Complainant and two years after Dr Ng's own examination.

 Consideration

  1. [68]
    In my view, it is in the interests of justice to grant leave to the Respondents to cross-examine Dr Ng in the reopened Hearing because:
  • Dr Ng's evidence is material to my consideration of the questions to be decided in the substantive matter, with respect to appropriate relief in the event of any finding in favour of the Complainant.  Weighing the sexual contact with Mr Yuan relative to other trauma in Ms Peng's family history is directly relevant to my determination on this point;
  • the allegations made by Ms Peng are extremely serious.  Should my decision in the substantive matter be made in her favour, the potential cost to Mr Yuan would likely be considerable, in terms of both quantum and reputation.  For that reason, further evidence that would most probably affect the result of the case should be heard; 
  • the prejudice to Ms Peng is the cost of recalling Dr Ng as a witness in the reopened hearing.  That is mitigated by the possibility that cost may well be funded, though that is not yet determined.  In circumstances where Ms Peng's claim succeeds, that outlay may be covered;
  • although granting leave to the Respondents to call Dr Ng will extend the duration of the reopened hearing, I consider the prejudice Mr Yuan could suffer if Dr Ng is not recalled outweighs the potential prejudice to Ms Peng of a relatively minimal extension of the hearing duration; and
  • the scope of some evidence sought by the Respondents in the reopened hearing could not have been discovered by reasonable diligence, as Dr Morris' report was sought and produced as a result of Dr Calder-Potts' inability to further assist at that time due to his retirement and health.  In any event, that is but one criterion governing my exercise of discretionary power.  My comments about this at [33] above remain pertinent here.
  1. [69]
    For these reasons, the scope of evidence that the Respondents seek to cross-examine Dr Ng about (as outlined in [63] above) is granted. 

What is the scope of matters that the Second Respondent should be limited to giving evidence about?

  1. [70]
    The parties agree that Mr Yuan give further evidence at the reopened hearing.

 Respondents' position

  1. [71]
    The Respondents' position is that the Affidavit evidence of Mr Yuan filed 1 April 2022 be admitted at the reopened Hearing. 
  1. [72]
    The parameters of such further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[18] 
  • proof of Mr Yuan's affidavit; and
  • showing Mr Yuan the footage he refers to in his affidavit to confirm same.
  1. [73]
    The Respondents also submitted, "There would be no other anticipated evidence in chief unless something emerged during the hearing proper that he would need to be asked about."

 Complainant's position

  1. [74]
    As Mr Yuan's further evidence at the reopened hearing was not disputed, the Complainant made no specific objections to the scope proposed by the Respondents.

 Consideration

  1. [75]
    In my view, it is in the interests of justice to grant leave to the Respondents to adduce further evidence from Mr Yuan in the reopened hearing.  That is not disputed.
  1. [76]
    The scope of evidence that the Respondents seek to adduce from Mr Yuan (as outlined in [72] above) is granted.
  1. [77]
    I accept that Mr Yuan's affidavit filed 1 April 2022 should be admitted at the reopened hearing.  It is also fair that Mr Yuan have opportunity to be shown and comment on the footage.  That is clear.
  1. [78]
    However, a limit on the extent of 'other evidence' is appropriate here.  The Respondents' desire to leave open an ability to ask Mr Yuan anything else that may emerge during the hearing proper is far too nebulous to evince in my mind it is material and would most probably affect the result at this time. On that basis, the Respondents are not permitted to question Mr Yuan about matters other than those outlined in [72]. With the caveat of any new evidence that arises that must be put to Mr Yuan, in fairness to himself.

What is the scope of matters that Senior Constable McIlwain should be limited to giving evidence about?

  1. [79]
    The parties agree that Senior Constable McIlwain give further evidence at the reopened hearing.

 Respondents' position

  1. [80]
    The parameters of further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022 and elaborated upon at the hearing of the Application:[19] 
  • the matters in the letter sent to him on 22 March 2022;
  • what Ms Peng did and did not tell him;
  • what Senior Constable McIlwain did and did not tell Ms Peng;
  • the CCTV footage provided to Ms Peng's lawyers;
  • whether and what he observed in the missing section of the CCTV footage;
  • evidence of deletion and EEU officer advice / EEU outcome;
  • the express reference to orgasm and no orgasm in the QPS statement taken from Ms Peng;
  • the account to the officer on 21 June 2018;
  • the SAIK examination outcome; and
  • the process for taking statements and the Occurrence Log entries containing inconsistent accounts.

 Complainant's position

  1. [81]
    As Senior Constable McIlwain's further evidence at the reopened hearing was not disputed, the Complainant made no specific objections to the scope proposed by the Respondents.

 Consideration

  1. [82]
    In my view, it is in the interests of justice to grant leave to the Respondents to adduce further evidence from Senior Constable McIlwain in the reopened hearing.  That is not disputed.
  1. [83]
    The scope of evidence that the Respondents seek to adduce from Senior Constable McIlwain (as outlined in [80] above) is granted.

What is the scope of matters that Dr Morris should be limited to giving evidence about?

  1. [84]
    The parties agree that Dr Morris give further evidence at the reopened hearing. However, the scope of that evidence is in dispute.

 Respondents' position

  1. [85]
    The Respondents' position is that a trial affidavit would be prepared for Dr Morris' evidence in chief per his report dated 10 April 2022.
  1. [86]
    The parameters of inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[20] 
  • proof of his affidavit;
  • establishing, as required by law, the factual basis for his opinions; and
  • have Dr Morris attend the reopened hearing to observe further evidence of Dr Ng and Dr Calder-Potts before being questioned about "anything arising from the hearing observations made and evidence of the above mentioned witnesses".
  1. [87]
    The Respondents also seek to have Dr Morris attend the reopened hearing to observe the further evidence of Ms Peng. The Respondents then seek to question Dr Morris about "anything arising from the hearing observations made and evidence of [Ms Peng]." The Respondents indicated "There would be no other anticipated evidence in chief unless something emerged during the hearing proper that he would need to be asked about."
  1. [88]
    With respect to Dr Morris observing evidence prior to giving his own at the reopened hearing, the Respondents submit that:
  • it is common practice for expert witnesses to do so;
  • the hearing is a public hearing and it was not closed on the last occasion;
  • he is entitled to be present during the reopened hearing as a matter of law;
  • the Complainant has not cited any binding principle of law in support of their objection;
  • Ms Peng seeks to obtain a benefit of refusing to be examined by Dr Morris to assert that her own expert Dr Ng be preferred because an examination was conducted by him; and
  • the Human Rights Act 2019 (Qld) has no application.

 Complainant's position

  1. [89]
    Although the Complainant consents to Dr Morris giving evidence at the reopened hearing, the Complainant does not consent to Dr Morris attending the hearing to observe the further evidence of Ms Peng, Dr Ng and Dr Calder-Potts. The Complainant submits:
  • observing the evidence of other witnesses before giving his own will risk that Dr Morris' evidence will be shaped or tainted, thus making his evidence less reliable;
  • requiring the Complainant to be examined against her own will by Dr Morris through an informal observation while sitting in the back of the Commission will be contrary to her right not to have her privacy, family, home or reputation unlawfully or arbitrarily attacked or interfered with pursuant to s 25 of the Human Rights Act 2019 (Qld); and
  • it would be highly prejudicial to the Complainant's wellbeing.

 Consideration

  1. [90]
    In my view, it is in the interests of justice to grant leave to the Respondents to call Dr Morris as a witness in the reopened hearing.  That is not disputed.
  1. [91]
    The scope of evidence that the Respondents seek to adduce from Dr Morris (as outlined in [86] above) is granted.
  1. [92]
    I accept that an affidavit of Dr Morris per his report of 10 April 2022 should be admitted at the reopened Hearing.  It is also fair that Dr Morris establish the factual basis for his opinions, including anything that relevantly stems from the evidence given by Dr Calder-Potts and Dr Ng.
  1. [93]
    However, a limit on the extent of 'other evidence' is appropriate here.  The Respondents' desire to leave open an ability to ask Dr Morris anything else that may emerge during the hearing proper is far too nebulous to evince in my mind it is material and would most probably affect the result at this time. With the caveat of any new evidence that arises that must be put to Dr Morris, in fairness to himself.
  1. [94]
    With respect to the Respondents' desire to have Dr Morris present in the courtroom during the testimony of Ms Peng, Dr Ng and Dr Calder-Potts, I note the following:
  • the Respondents seemingly expressed this desire after the Complainant consented to Dr Morris being called as a witness;
  • my usual practice is that any person who is to testify should remain outside the court until called to give evidence so as not to be able to tailor the evidence to what has gone before;
  • experts are generally permitted to remain in court where there is or may be a conflict of expert evidence;[21] and
  • In R v Tait,[22] the Supreme Court of Victoria held:

Whether a witness should be allowed in court, or ordered out of court, is a matter in the discretion of the trial judge, and that discretion should be exercised in the way in which the judge deems most conducive to the investigation of truth in the case before him. Where a judge has ordered witnesses out of court, he may rescind or amend his order in favour of a particular witness or witnesses.

Where an application is made to allow a particular witness in who would otherwise be excluded, the decision will often depend upon the balance between the assistance to be derived in the elucidation of the truth on the one hand and possible prejudice to the other side on the other hand. We are satisfied that his Honour exercised the discretion entrusted to him by taking into account all considerations relevant and only relevant considerations. For these reasons these grounds must fail.

  1. [95]
    The Complainant has essentially applied to have Dr Morris ordered out of the court for the duration of Ms Peng, Dr Ng and Dr Calder-Potts' evidence. 
  1. [96]
    I will allow Dr Morris to be present during the oral testimony of Dr Ng and Dr Calder-Potts. My reasons follow. It seems most conducive to the efficient running of this reopened hearing that the Respondents' expert witness, who is essentially giving evidence in rebuttal, should be allowed to be present to hear the evidence which he has been called to rebut. Further, Dr Morris has already been provided with the reports of both Dr Calder-Potts and Dr Ng, which is not unusual with respect to expert witnesses. Convenience and justice points in favour of allowing Dr Morris to be present in the courtroom during the oral testimony of Dr Ng and Dr Calder-Potts.
  1. [97]
    I will not allow Dr Morris to be present during Ms Peng's oral testimony. My reasons follow. The Complainant has presented cogent reasons for why Dr Morris should not be present during Ms Peng's oral testimony whilst the Respondents have not persuaded me to determine in their favour. Ms Peng did not consent to Dr Morris examining her and the scope of evidence which Dr Morris will be limited to giving evidence about is confined to his affidavit with reference to his report and establishing the factual basis for his opinions. The Respondents have not clearly indicated exactly why Dr Morris needs to be present during Ms Peng's oral testimony and why I should hear evidence about his observations. Further, the late stage at which the Respondents requested such an arrangement is prejudicial to the Complainant in my view. Finally, I am not convinced that Dr Morris' evidence about his observations of Ms Peng's oral testimony will be so material as to probably affect the result of the case.

What is the scope of matters that Dr Calder-Potts should be limited to giving evidence about?

  1. [98]
    The parties agree that Dr Calder-Potts give further evidence at the reopened hearing.

 Respondents' position

  1. [99]
    The parameters of further inquiry were set out in a letter annexed to the Affidavit of Ms Qi filed 4 July 2022:[23] 
  • prove the account of the history Ms Peng provided to him;
  • clarify the factual basis of his opinion;
  • explain why he cannot address other / impairment matters;
  • whether PSD or PTD could occur from consensual or perceived consensual contact;
  • the extent to which Ms Peng's condition arose from underlying trauma and other factors; and
  • the extent to which the alleged unsolicited, unwanted or unwelcome allegations informed his opinion.

 Complainant's position

  1. [100]
    As Dr Calder-Potts' further evidence at the reopened hearing was not disputed, the Complainant made no specific objections to the scope proposed by the Respondents.

 Consideration

  1. [101]
    In my view, it is in the interests of justice to grant leave to the Respondents to adduce further evidence from Dr Calder-Potts in the reopened hearing.  That is not disputed.
  1. [102]
    The scope of evidence that the Respondents seek to adduce from Dr Calder-Potts (as outlined in [99] above) is granted.
  1. [103]
    Peculiarly, the Respondents have provided affidavit evidence from Dr Calder-Potts which outlines retirement and health issues that precluded him from providing them with a further report. The Respondents indicated they were intending to call Dr Morris because they were unable to call Dr Calder-Potts but now appear to be seeking to compel his attendance in any event. Ultimately, that is a matter between the Respondents and Dr Calder-Potts but for the purpose of this decision, I grant leave to the Respondents to recall him as a witness if they choose.

Should the WorkCover documents annexed to the Affidavit of Ms Qi filed 1 April 2022 be admitted as evidence during the reopened proceeding?

 Respondents' position

  1. [104]
    The Respondents' position is that the WorkCover documents annexed to Ms Qi's Affidavit filed 1 April 2022 should be admitted at the reopened hearing.  The documents include rejection letters dated 16 August 2019 and 30 August 2019 from WorkCover as well as an English translation of the messages between Ms Peng and Mr Yuan.
  1. [105]
    The Respondents contend the WorkCover documents reveal a different translation of the asserted promise to work and account for the Complainant's change in her evidence at the hearing.

 Complainant's position

  1. [106]
    The Complainant objects to the Respondents questioning Ms Peng about the WorkCover claim and submits the Respondents did not outline the relevance of the documents.

 Consideration

  1. [107]
    In my view, it is in the interests of justice to grant leave to the Respondents to admit the WorkCover documents during the reopened hearing - limited to those annexed to the Affidavit of Ms Qi filed 1 April 2022.  I have already determined the scope of evidence for which Ms Peng may be questioned about during the reopened hearing and that includes with respect to the WorkCover documents. Those questions must be relevant and limited to a question to be decided in the substantive matter – any question outside this scope will be dealt with accordingly.

Conclusion

  1. [108]
    For the above reasons, I have concluded that the Respondents should be given leave to cross-examine Ms Peng and Dr Ng during the reopened hearing. I have also concluded that the Respondents should be given leave to call Mr Lu to give evidence during the reopened hearing. The Complainant has consented to the calling of the Mr Yuan, Senior Constable McIlwain, Dr Morris and Dr Calder-Potts to give evidence at the reopened hearing. I have also granted leave for the WorkCover documents annexed to the Affidavit of Ms Qi filed 1 April 2022 to be admitted as evidence.
  1. [109]
    The scope of matters that those witnesses will be limited to giving evidence about during the reopened hearing has also been determined.
  1. [110]
    I order accordingly.  

Orders:

  1. Leave is granted to the Respondents to reopen their case by:
  1. (a)
    cross-examining Ms Peng about the matters described in [28] of this decision;
  1. (b)
    calling Mr Lu as a witness to give evidence about the matters described in [39] of this decision;
  1. (c)
    cross-examining Dr Ng about the matters described in [63] of this decision;
  1. (d)
    recalling Mr Yuan as a witness to give evidence about the matters described in [72] of this decision;
  1. (e)
    recalling Senior Constable McIlwain as a witness to give evidence about the matters described in [80] of this decision;
  1. (f)
    calling Dr Morris as a witness to give evidence about the matters described in [86] of this decision;
  1. (g)
    recalling Dr Calder-Potts as a witness to give evidence about the matters described in [99] of this decision; and
  1. (h)
    admitting and relying on the WorkCover documentation annexed to the Affidavit of Ms Qi's filed 1 April 2022.

Footnotes

[1] Lawyer for the Respondents.

[2] Form 4 Applications in existing proceedings filed 21 February 2022 and 26 April 2022.

[3] Complainant's Submissions, 28 June 2022, 1 [2].

[4] Complainant's Submissions, 28 June 2022, 1 [2].

[5] [2019] QIRC 149.

[6] [2019] QIRC 149.

[7] [2021] HCA 22, [41].

[8] [2002] 212 CLR 124.

[9] [15] – [17].

[10] 25 and 28 February 2022.

[11] Respondents' outline of submissions, 1 April 2022, 2 [4].

[12] Ibid [13].

[13] Respondents' outline of submissions filed 1 April 2022, 2 [8].

[14] [34] – [35].

[15] [20] – [21].

[16] Farrell v The Queen [1998] 194 CLR 286, [29].

[17] [27] – [28]; Notice to Admit Facts dated 24 February 2022, [24] – [30].

[18] [41] – [42].

[19] [43] – [44].

[20] [45] – [47].

[21] R v Tait [1963] VR 520; Tomlinson v Tomlinson [1980] 1 All ER 593, 595.

[22] [1963] VR 520.

[23] [48] – [49], [51].

Close

Editorial Notes

  • Published Case Name:

    Peng v BAK10CUT PTY LTD & Anor (No. 4)

  • Shortened Case Name:

    Peng v BAK10CUT PTY LTD (No. 4)

  • MNC:

    [2022] QIRC 352

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    12 Sep 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Deputy Commissioner of Taxation v Shi [2021] HCA 22
2 citations
Jump To
Cite 1 - [2021] HCA 22
Cite 2 - [2021] HCA 22
EB v CT (No 2) [2008] QSC 306
1 citation
Jump To
Cite 1 - [2008] QSC 306
Farrell v The Queen (1998) 194 CLR 286
1 citation
Jump To
Cite 1 - (1998) 194 CLR 286
Fowler v Workers' Compensation Regulator [2019] QIRC 149
3 citations
Jump To
Cite 1 - [2019] QIRC 149
Cite 2 - [2019] QIRC 149
Cite 3 - [2019] QIRC 149
R v Tait [1963] VR 520
3 citations
Jump To
Cite 1 - [1963] VR 520
Cite 2 - [1963] VR 520
Cite 3 - [1963] VR 520
Reid v Brett (2005) VSC 18
1 citation
Jump To
Cite 1 - (2005) VSC 18
Smith v New South Wales Bar Association (1992) 176 CLR 256
1 citation
Jump To
Cite 1 - (1992) 176 CLR 256
TKWJ v The Queen (2002) 212 CLR 124
2 citations
Jump To
Cite 1 - (2002) 212 CLR 124
Cite 2 - (2002) 212 CLR 124
Tomlinson v Tomlinson [1980] 1 All ER 593
2 citations
Jump To
Cite 1 - [1980] 1 All ER 593
Cite 2 - [1980] 1 All ER 593

Cases Citing

Case NameFull CitationFrequency
Vaughan v State of Queensland (Department of Education) [2025] QIRC 751 citation
1

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