Tyndall v Kestrel Coal Pty Ltd (No 2)
[2021] QSC 114
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Tyndall v Kestrel Coal Pty Ltd (No 2)[2021] QSC 114
- Add to List
Tyndall v Kestrel Coal Pty Ltd (No 2)[2021] QSC 114
Tyndall v Kestrel Coal Pty Ltd (No 2)[2021] QSC 114
SUPREME COURT OF QUEENSLAND
CITATION: | Tyndall v Kestrel Coal Pty Ltd (No 2) [2021] QSC 114 |
PARTIES: | JAMIE LEE TYNDALL (plaintiff/respondent) v KESTREL COAL PTY LTD (defendant/applicant) |
FILE NO/S: | SC No 646 of 2019 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Rockhampton |
DELIVERED ON: | 25 May 2021 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 20 May 2021 |
JUDGE: | Crow J |
ORDER: |
|
CATCHWORDS: | EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASE – BY PARTY – where the parties provided written submissions at the conclusion of the trial and were invited to provide supplementary submissions at a later time – where the plaintiff, in their primary submissions, made a submission that an expert witness called by the defendant could not be properly cross-examined as material which was provided to and relied upon by the expert was not identified to the plaintiff – where the defendant did in fact provide and identify the material to the plaintiff – where, prior to provision of supplementary submissions to the court, the plaintiff was invited by the defendant to withdraw the relevant submission – where the plaintiff refused to withdraw the submission – where the defendant seeks leave to re-open their case to tender an affidavit showing that the material was in fact provided to the plaintiff – whether leave ought to be granted Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, applied Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232, cited Urban Transport Authority NSW v Nwieser (1992) 28 NSWLR 471, cited Wiggins Island Coal Expert Terminal Pty Ltd v Civil Mining and Construction Pty Ltd [2017] QCA 296, applied |
COUNSEL: | RM Treston QC, with JM Sorbello, for the plaintiff SJ Deaves for the defendant |
SOLICITORS: | Morton & Morton Solicitors for the plaintiff Hall & Wilcox for the defendant |
- [1]The trial of this matter was heard on 14, 15, 16, 22 and 23 April 2021. On Friday 23 April 2021, the plaintiff and the defendant tendered detailed written submissions which were admitted as Exhibits 47 and 49, respectively. By paragraph 124 of the plaintiff’s primary submissions, it is stated:[1]
“124. Dr Mackay’s evidence was infected by the fact that had he been provided with 760 pages of unidentified material that were no [sic] in evidence before the Court but which the doctor said were in his mind and so they were important to him. The basis for his opinions therefore were matters which have not been able to be tested by cross-examination.”
- [2]At the conclusion of the trial, the parties were invited to provide further written submissions. The defendant provided further written submissions on 6 May 2021 (Exhibit 50) and the plaintiff provided further written submissions on 12 May 2021 (Exhibit 51).
- [3]On 18 May 2021 the defendant filed an application seeking orders that, inter alia:
“1. Pursuant to the inherent jurisdiction of the Court, the Defendant is granted leave to reopen his case to tender the affidavit of Renelyn Cotillon Green dated 14 May 2020.”
- [4]
“14. …the submission that the material relied upon by Dr Mackay is unidentified and that the Plaintiff was not in a position to cross-examine the doctor on the basis of his opinion is demonstrably false based upon the correspondence passing between the Defendant’s solicitors and the Plaintiff’s solicitors…”
- [5]In Urban Transport Authority NSW v Nwieser,[3] Clarke JA with whom Mahoney and Meagher JJA agreed said:
The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.
Similar views were expressed by Sheppard J in Joyce v GIO (NSW) (Ritchie's Supreme Court Procedure, New South Wales, vol 2 [13,028]) and Jeffery J in Henning v Lynch [1974] 2 NSWLR 254. It is the fact, as Sheppard J observed in Joyce, that there are a number of decisions which support the view that the principles relating to the calling of fresh evidence on appeal are relevant when what is under consideration is an application to re-open. That view may be correct where the application to re-open is made after the delivery of judgment but I can see no justification for importing those principles into an application to re-open which is made before the hearing is concluded…”
- [6]
“The court’s guiding principle in deciding ‘whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be’…
The cases show a distinction between those where application for leave to reopen is made before and after judgment. The guiding principle to which I have referred is a broad one…”
(Citations omitted).
- [7]The application to re-open is opposed by plaintiff “for reasons of finality, efficiency and encouraging discipline to attend the conduct of litigation, exceptional circumstances must be shown to give leave to re-open a case which is closed and judgment reserved.”[6]
- [8]In Wiggins Island Coal Expert Terminal Pty Ltd v Civil Mining and Construction Pty Ltd,[7] McMurdo JA, with whom Fraser and Gotterson JJA agreed said:
“[57] The long established and proper course of a trial by a judge of a civil claim is not a mere ritual. It is a process which serves many purposes, including the provision of procedural fairness, the efficient use of the resources of the court as well as those of the parties, and the achievement of certainty and finality. I respectfully adopt what was said by the Victorian Court of Appeal (Harper and Tate JJA and Beach AJA) in Spotlight Pty Ltd v NCON Australia Ltd as follows:
‘There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.’
[58] Those comments were made in a case where, after the trial of a claim for damages for breach of contract had concluded and judgment was reserved, the trial judge sent a memorandum to the parties in which he set out certain possible findings and asked whether the plaintiff wished to apply to re-open its case on damages in anticipation of those findings being made. The plaintiff applied to re-open and over the defendant’s opposition, was allowed to do so. That order was set aside on appeal. The events in that case are in many ways similar to those of this case, except in two respects which ought to have made this application to re-open even less meritorious. The first is that the re-opening in Spotlight was prompted by a perception by the trial judge of an evidentiary gap in the plaintiff’s case. In the present case, on the findings in the May Reasons, the award for the Delay Claim was able to be assessed from the existing evidence. The second is that in this case, the application was made after the publication of the judge’s findings and conclusions, which were not simply indications of a possible outcome.
[59] CMC has now asked the judge to depart from the reasoning by which he had resolved what seemed to have been all of the arguments relevant to this claim. CMC did so without being able to suggest that the judge had made some mistake in the May Reasons, or that he had expressed findings and conclusions which could not have come from the respective arguments at the trial.
[60] In Spotlight, the Court went on to say that a further difficulty with the re-opening of that plaintiff’s case was the uncertainty about what evidence would then be adduced. That would also be a problem in the present matter, if CMC is permitted to re-open its case. CMC would be confined to further expert evidence. But the content of that evidence is unknown, as is the identity of the relevant witness or witnesses. It is not unlikely that CMC would call evidence which is inconsistent with that which was given by Mr Roberts at the trial. Thus having accepted the evidence of Mr Roberts in the May Reasons, his Honour might be asked to prefer the new evidence. Further, as I have noted, there is the likelihood that evidence from lay witnesses would be necessary.
[61] The lateness of this step by CMC could not be satisfactorily explained. Instead, the evident explanation is that the amount which would be allowed for the Delay Claim, on the case which it advanced at the trial, is simply not to its liking. The course of this litigation, if the order stands, would be uncertain in its scope, but inevitably productive of substantial delay and costs.
[62] For these reasons, in my respectful opinion, the exercise of the judge’s discretion miscarried. In all the circumstances, the justice of the case did not favour the grant of leave to re-open.”
(Citations omitted.)
- [9]Whilst it may readily be accepted that there are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened; the guiding principle remains the interests of justice in each particular case.
- [10]Many factors may be relevant in determining whether exceptional circumstances have been shown and where the interests of justice favour a re-opening of evidence. One matter is the stage at which the application to re-open is made and the reasons prompting the application to re-open. This is not a case such as in Spotlight[8] where there has been any judicial prompting of a need for further evidence. In this case, the application is made before publication of any findings or conclusions. Further, there is no uncertainty as to the evidence to be adduced in the present matter as identified as the evidence contained in Ms Green’s affidavit, which is limited to a series of correspondence.
- [11]As to the lateness of the application, the application is filed 18 May 2021, less than a month following the conclusion of the trial, and only six days after the receipt of final written submissions.
- [12]Furthermore, the defendant’s complaint with paragraph 124 was raised in correspondence by the solicitors for the defendant to the solicitors to the plaintiff on 6 May 2021. The correspondence attached to Ms Green’s affidavit, which does not attach the 760 pages of information, simply shows that the material referred to had in fact been identified and provided by the defendant to the plaintiff prior to trial.
- [13]At the time of the delivery of the defendant’s supplementary written submissions on 6 May 2021, the defendant’s solicitors drew the inaccuracy of paragraph 124 of the plaintiff’s submissions to the plaintiff’s solicitors’ attention and invited the plaintiff to withdraw paragraph 124. The plaintiff’s solicitors confirmed they would not withdraw that submission.
- [14]In written and oral submissions on the application to re-open, senior counsel for the plaintiff did not point to any prejudice suffered by the plaintiff by allowing the leave to re-open. Counsel for the defendant was able to point to the prejudice to the defendant, should leave to re-open not be given, being an unfairness to the defendant by the giving of lesser weight to Dr Mackay’s evidence because of the acceptance of the (inaccurate) submission at paragraph 124.
- [15]I accept the defendant’s submission in this regard as it is correct to conclude that all of the material had been identified by the defendant to the plaintiff. It is therefore, not open to submit that Dr Mackay could not be cross-examined on such material. That there is prejudice to the defendant is but one matter to be considered in the exercise of the discretion for or against the granting of leave to re-open. It is necessary to pay consideration to Dr Mackay’s evidence in measuring the extent of the prejudice the defendant may suffer from the acceptance of paragraph 124.[9]
- [16]Dr Mackay is a hand surgeon who examined Mr Tyndall and produced several reports. Objection was taken to the admission of Dr Mackay’s report on the bases of unnecessary repetition of experts, expertise and then to specific paragraphs of Dr Mackay’s reports. These objections brought by the plaintiff against Dr Mackay’s report were largely unsuccessful;[10] only paragraph 8 of Dr Mackay’s file note of 10 February 2021[11] was ruled inadmissible. In total three reports of Dr Mackay and a file note of Dr Mackay were tendered.[12]
- [17]It is plain, however, that Dr Mackay had provided other reports which were not in evidence and of which Dr Mackay was reminded:[13] “[n]ow doctor, they are the only reports of yours currently before the court. So when answering your questions in cross examination you ought to bear in mind the court is not aware of the contents of any other reports.”
- [18]The examination-in-chief of Dr Mackay was in the usual form required by the r 427(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Dr Mackay’s opinion contained in his report of 1 November 2016 and 3 March 2020 was very much in support of the plaintiff’s case,[14] but it was tendered by the defendant, possibly because it shows that the opinion of Dr Mackay was based on incorrect assumptions of fact.
- [19]
“14. This is indeed a complex situation and Dr Quinn has done an excellent job of excluding many potential diagnoses. The workup has been thorough and provides a good foundation for clinical opinion. There are however a number of areas of concern which make the case less than straightforward. While the presence of vibration during the course of his work is likely a significant contributing factor to the injury, there are potential other contributing or predisposing factors to be considered. Not least of which is his heavy smoking and clinical anxiety. Other potential predisposing factors to microvascular disorders such as this have not been investigated such as autoimmune disease. These are however potentially relevant in the discussion regarding causation as it stands.
15. Once again whilst it is very reasonable to say that work is a significant contributing factor, I would also say there are several other factors at play. It is and will be impossible to tell which is the main inciting factor but it may be that the vibration itself in a work activity were an aggravator of underlying pathology. With this comment however, I must stress that in the context of this clinical episode the relationship to work is established, however brief that exposure may be.”
(Emphasis added.)
- [20]Dr Mackay then went on to diagnose vibration induced white finger (hand-arm vibration) syndrome. In his report of 3 March 2020, Dr Mackay opined:[16]
“4. In my opinion the most likely scenario is the plaintiff has an underlying constitutional predisposition to Raynaud’s phenomenon, which may also be aggravated by his heavy smoking and his clinical anxiety. There is however a temporal relationship with a work activity known to aggravate this condition and in that setting, he suffered a work related aggravation of an underlying condition.”
- [21]However, in the file note of 10 February 2021[17] Dr Mackay substantially altered his opinion, saying:
“1 In his report of 1 November 2016, addressed to WorkCover Queensland, Dr Mackay’s reference in paragraph 14 to the presence of vibration during the course of his work is a reference to “the presence of vibration during the course of his work” is a reference to exposure to handheld vibrating tools and not to loaders.
(Original emphasis.)
- [22]Ms Treston QC in cross-examination put to Dr Mackay an accurate description of Mr Tyndall’s evidence as to his driving of the loader and forcefully gripping the steering wheel or knob of the steering wheel which was vibrating significantly to seek Dr Mackay’s opinion as to the degree, if any, of that work activity in contributing to the injury sustained by Mr Tyndall. Dr Mackay’s answer to the question (which was not at all an answer) was:[18]
“Well, the situation, you know, is extremely complex. I must first say that the mechanism was never mentioned to me and if it formed a large part of his work, he didn’t recall it on the day. The second is that the situation is complex, and a lot of information has developed since 2016. I have to mention that I received a further 760 pages of brief on 12 April, which goes a long way to informing me about a lot of the details, and since then I have examined it fairly carefully.”
- [23]
“The situation is not as simple as say χ = γ. I have said back in 2016, in that paragraph, that work – the work environment was a likely significant contributing factor. I have said that back then and each of the reports mentions the same thing. The difficulty is why, and the difficulty is what’s the contribution of other things which are very likely to exist.”
- [24]Senior counsel for the plaintiff then pressed the question again as follows:[21]
“But accepting the facts as I have put to you, that is his Honour will find that that is the work that he was doing in the six months prior to him sustaining the injury, you would accept that that mechanism of injury was one which was likely a significant contributing factor to the development of the condition?‑‑‑I would think it’s reasonable, and I think it’s my opinion that trauma to the left hand, more likely blunt force trauma in the left hand, caused an acute episode in 2016. Somewhere between – I’m looking at my dates – he saw his GP on – he saw he GP around the 29th of February, he was asymptomatic, he presented by 16 March. Somewhere between 29 February and 16 March, he developed an acute episode in the left hand which was likely related to his work activity.”
- [25]
“And, although you now call it blunt force trauma, the other descriptor is the descriptor that you used in your report of 1 November, which is vibration-induced white finger syndrome?”
And Dr Mackay answered:
“Well, that’s sort of a blanket diagnosis which needs a little bit of clarification. So when you’re talking vibration-induced white finger, it can – it describes what’s occurring, so it’s also called a number of other things. It’s used there as a diagnosis and it’s a reasonable diagnosis to provide even though the underlying real diagnosis is not known.”
- [26]
- [27]
Ms Treston QC: “It’s the case, though, isn’t it, that a person can get a vibration-induced injury from using, for example, vibrating equipment and even though their trigger finger might be one – might be on the operating device, the vibration injury can show up in another part of the hand, can’t it?”
Dr Mackay: “If it’s hand/arm vibration, but I, again, I – I must point out that having received the full brief only last week, my opinion now is that it is not hand/arm vibration syndrome.”
Ms Treston QC: “All right. Well, we won’t worry about the 764 pages that aren’t in evidence.”
Dr Mackay: “But it – they’re in my mind, so they’re important to me.”
(Emphasis added.)
- [28]The problems with Dr Mackay’s evidence are manifest. Firstly, accepting Dr Mackay is correct that he did not receive the so-called full brief until 10 April 2021, it is apparent that his reports and file notes were based upon incorrect facts. If based upon incorrect facts, the reports ought not to have been admitted, as the assumption identification rule was not complied with, and the proof of assumption rule was not complied with. However, although numerous objections were taken, those objections were not taken.[26]
- [29]As is made plain by Exhibit 37 of the trial, Dr Mackay’s opinions based in his reports of 1 November 2016 and 3 March 2020 (and by inference 25 May 2017) were based upon the incorrect assumption that Mr Tyndall was exposed for long periods to handheld vibrating tools. Although by his file note of 10 February 2021 Dr Mackay has altered his opinion, the assumed factual basis for the opinion is not stated. Again, the assumption identification rule and proof of assumption rule have not been complied with.
- [30]Dr Mackay himself claimed in evidence he did not receive the full brief until 12 April 2021 (though records show 10 April 2021). In terms of a full brief, that material can be identified as the 760 pages of materials identified in Exhibit RG3 to the affidavit of Ms Green.[27] That, however, can hardly be considered a full brief of evidence and the true factual basis of Mr Tyndall’s claim is not articulated in any of the 109 medical reports and associated documents. Although the full brief of material includes the court documents being the further amended statement of claim and the further amended defence, it has not been specified and can never be known as to what assumption of facts Dr Mackay has premised any of his opinions upon. For example, did Dr Mackay assume as correct the facts contained in the Further Amended Statement of Claim or those allegations made in the Further Amended Defence?
- [31]Whilst it is apparent that there are many bases upon which Dr Mackay’s opinion ought not to be accepted, the submission made in paragraph 124 of the plaintiff’s submissions ought not be one of them. The 760 pages of material was not unidentified, but in fact identified and provided by the defendant to the plaintiff prior to Dr Mackay giving his evidence.
- [32]Furthermore, the fact that a doctor says certain materials are “in his mind” is meaningless in terms of attempting to assess the doctor’s reasoning for the provision of any opinion. The entire point of the proof of assumption rule is to identify what assumptions, if any, any expert makes and the entire point of the reasoning rule is to require an expert to expose the expert’s reasoning so that it may be judged. Therefore, for any expert to say things are in his or her mind is of no value at all. To state that such matters were “important to him” is the very nature of an ipse dixit. That is, an inadmissible, unreasoned opinion.
- [33]Given, however, that the material was in fact identified prior to the cross-examination, it is incorrect to submit that the bases of Dr Mackay’s opinions were not able to be tested by cross-examination because of the lack of identification of the 760 pages of material. The submission, which was brought but would not necessarily have succeeded, is that the assumptions upon which Dr Mackay has proceeded in respect of Exhibit 31 the file note of 10 February 2021 were not identified.
- [34]In forming these views, I am conscious that the plaintiff did object to paragraph 7 of the file note of 10 February 2021, on the basis of the breach of reasoning rule. That objection was overruled on the basis that sufficient reasoning had been provided in paragraph 5 of the file note.
- [35]The view which I took at trial and which I adhere to is that paragraph 7 is sufficiently reasoned by reference to paragraph 5 so as to make paragraph 7 admissible. It is plain, however, from paragraph 3 of the file note that Dr Mackay knew nothing of the vibration suffered by the plaintiff as a result of operating the loader. Although nowhere in exhibit 37, the file note of 10 February 2021, does Dr Mackay state the factual assumptions upon which he proffers his opinion, it is important to note that senior counsel for the plaintiff twice put the correct facts to Dr Mackay and sought his opinion, upon causation and Dr Mackay response was that he thought it was reasonable, before stating “and I think it’s my opinion the trauma to the left hand, more likely blunt force trauma in the left hand, caused an acute episode in 2016…”
Conclusion
- [36]As a matter of principle leave ought not to be given to re-open a party’s case following the reservation of judgment except in exceptional circumstances. I consider that there are exceptional circumstances in the present case. The receipt of Dr Mackay’s evidence was irregular in many respects.
- [37]There are numerous problems with respect to the proper consideration of Dr Mackay’s evidence, however, I accept that it is unfair to the defendant that I ought to consider paragraph 124 of the plaintiff’s written submissions as a criticism of Dr Mackay’s evidence when the basis of the criticism, namely that the alleged non-identification of 760 pages which limited cross-examination, is not correct.
- [38]In this application, the only materials sought to be admitted are the correspondence attached to Ms Green’s affidavit which shows the materials were identified prior to Dr Mackay being cross-examined. There is no prejudice to the plaintiff in allowing the re-opening of the case because, assuming the correspondence had been tendered at the trial, all that meant is that the submission, being the criticism at paragraph 124 of the plaintiff’s written submissions could not be brought.
- [39]As Heydon J said in Dasreef Pty Ltd v Hawchar:[28] “[t]he opposing party is not to be left to find out about the expert's thinking for the first time in cross-examination”. Had the correspondence annexed to Ms Green’s affidavit being proved in evidence, it would not have overcome the difficulties for cross-examining counsel. In either scenario, that is where the material not identified or identified (as was the case), then the cross-examiner was still left to find out the expert’s reasoning and assumptions for the first time in cross-examination. This position was caused either by a failure to take objection or a forensic decision not to take objection (as Exhibits 35 to 38 support the plaintiff’s case).
- [40]Although there is manifest difficulty with Dr Mackay’s opinion and the way in which it was presented in evidence, that is a matter for final judgment and not a sound reason to reject the application to re-open the evidence.
- [41]In the circumstances I give leave to re-open the case by the tender of Ms Green’s affidavit.
Footnotes
[1] Exhibit 47.
[2] Exhibit 1 of the hearing of 20 May 2021.
[3] (1992) 28 NSWLR 471 at 478-479.
[4] [1995] 1 Qd R 12.
[5]Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12 at 15-16.
[6] Exhibit 2 of the hearing of 20 May 2021.
[7] [2017] QCA 296.
[8]Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1.
[9] Exhibit 47 of the trial.
[10] T5-21 to T5-29.
[11] Exhibit 37 of the trial.
[12] Exhibits 37-38 of the trial.
[13] T5-30, lines 25-30.
[14] Exhibit 35 of the trial; Exhibit 36 of the trial
[15] Exhibit 35 of the trial.
[16] Exhibit 36 of the trial.
[17] Exhibit 37 of the trial.
[18] T5-33, lines 29-34.
[19] Exhibit RG3 to the affidavit of Renelyn Cotillon Green filed 20 May 2021.
[20] T5-33, lines 38-42.
[21] T5-34.
[22] T5-34, line 30.
[23] T5-34, line 36.
[24] Exhibit 38; T5-37.
[25] T5-42 toT5-43.
[26] MFI E of the trial.
[27] Exhibit RG3 to the affidavit of Renelyn Cotillon Green filed 20 May 2021.
[28]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 623 [91].