FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622

THE COURT ORDERS THAT:

1.    The respondents’ notice of motion of 2 May 2011 be dismissed.

2.    The costs of the motion be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is a civil penalty proceeding brought by the applicant (“Comcare”) under the provisions of the Occupational Health and Safety Act 1991 (Cth) (“the OH&S Act”). Comcare seeks declarations of contravention of s 16(1) of the OH&S Act, together with an order that the first respondent (“John Holland Rail”) and the second respondent (“John Holland Pty Ltd”) (collectively “John Holland”) pay pecuniary penalties to the Commonwealth.

2    The provisions of s 16 of the OH&S Act relied upon by Comcare are in the following terms:

Duties of employers in relation to their employees etc.

(1)    An employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees.

Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).

(2)     Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps:

(a)     to provide and maintain a working environment (including plant and systems of work):

(i)     that is safe for the employer's employees and without risk to their health; and

    (ii) that provides adequate facilities for their welfare at work

…

(e)    to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health.

3    This proceeding has a long history of interlocutory applications including applications dealt with in the following reasons for judgment: Comcare v John Holland Rail Pty Ltd [2009] FCA 660 (Jessup J); John Holland Pty Ltd v Comcare [2009] FCAFC 127 (Sundberg, Edmonds and Tracey JJ); Comcare v John Holland Rail Pty Ltd [2010] FCA 981 (Bromberg J); Comcare v John Holland Rail Pty Ltd (No 2) [2010] FCA 1516 (Bromberg J); Comcare v John Holland Rail & Anor (No 3) [2011] FCA 164 (Bromberg J); John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 (North, Kenny and Dodds-Streeton JJ); Comcare v John Holland Rail Pty Ltd (No 4) [2011] FCA 253 (Bromberg J).

4    The proceeding was listed for a 10 day trial commencing on 15 March 2011. Mr Rozen appeared as counsel for Comcare and Mr Wyles SC with Dr McEvoy appeared for John Holland.

5    On day five of the trial, Mr Michael Meredith was called as a witness for Comcare. Mr Meredith was under cross-examination at the end of day six of the trial. On the morning of day seven of the trial, Mr Rozen advised the Court that a difficulty had arisen in relation to Mr Rozen remaining as counsel in the case. Mr Rozen indicated that he needed to seek an ethical ruling on his further involvement in the proceedings from the Ethics Committee of the Victorian Bar. Mr Wyles informed the Court that Comcare had, on that morning, provided his clients with a document made by Mr Rozen about instructions given by Mr Meredith (“Mr Rozen’s note”). Mr Wyles informed the Court that having regard to the contents of the note, he was instructed to call Mr Rozen as a witness for John Holland and had so advised Mr Rozen.

6    On being informed of these matters, I indicated my concern as to the consequences for the trial of Mr Rozen being called as a witness for John Holland. Mr Rozen informed the Court that it was his view that in accordance with the rules of the Victorian Bar, he would need to withdraw as counsel if he were called as a witness by John Holland. I stated that I would want to hear and consider carefully the question of whether counsel should, at that late stage of the trial, be permitted to withdraw. I adjourned the trial until the following morning on the basis that the parties consult and give further consideration to their position including by exploring whether by way of admissions or other means, the perceived need to call Mr Rozen as a witness could be avoided.

7    No resolution had been achieved on the morning of day eight of the trial. Mr Rozen submitted that before he should be called upon to decide the ethical question for him as to whether or not he should remain as counsel in the trial and, prior to Comcare facing the risk of losing its counsel and the considerable expense of briefing new counsel, the Court should rule on the question of whether any evidence that John Holland seeks to lead from him would be relevant evidence within the meaning of s 55 of the Evidence Act 1995 (Cth) (“the Evidence Act”). That submission was opposed by John Holland. In the course of John Holland’s submissions, I stated my preliminary view that I would want to assess whether or not the evidence that John Holland intended to lead from Mr Rozen was relevant to an issue in the proceeding and that for that purpose (and in keeping with orders previously made for an outline of anticipated evidence to be filed and served), I would require John Holland to provide an outline of the evidence that John Holland anticipated Mr Rozen would give. Mr Rozen informed the Court that in the absence of a ruling on relevance, Comcare would have to take the cautious course of briefing new counsel.

8    It was apparent by mid-morning of day eight of the trial (24 March 2011) that even if the issue as to whether Mr Rozen should be called as a witness could be resolved on that day, the trial could not be completed in the two remaining days. At that point Mr Rozen was still awaiting a ruling of the Ethics Committee of the Victorian Bar. In the circumstances, I determined that the ninth and tenth day of the trial should be vacated and alternative hearing dates commencing on 4 July 2011 be allocated. I made an order that John Holland file and serve a memorandum setting out the evidence which they proposed to lead from Mr Rozen on or before 4 April 2011 and that, should the calling of Mr Rozen as a witness remain a matter at issue, the Court would hear the parties on that issue on a date to be fixed. A number of other consequential and procedural orders were made on that day.

9    After my orders were pronounced, some submissions were made as to the nature of the application that might be brought before the Court by which the Court would effectively determine whether or not Mr Rozen should be called. I observed that orders had been made on 28 November 2008 requiring the filing and service of memorandums on before 23 December 2008 identifying the names of the witnesses proposed to be called and setting out the evidence which was proposed to be led from each such witness. I indicated that in those circumstances and in relation to any witness, prior notice of which had not been given, the leave of the Court should be sought.

10    John Holland resisted making any such application for leave to call Mr Rozen. On 4 April 2011, John Holland filed a notice of motion (not served upon Comcare) seeking pursuant to O 27A of the Federal Court Rules, leave to issue a subpoena to Mr Rozen. By letter of 8 April 2011, Comcare’s solicitors advised that the calling of Mr Rozen as a witness remained a matter at issue between the parties and in accordance with the orders I had made on 24 March 2011, Comcare sought to be heard on that issue.

11    The proceeding was listed for 29 April 2011. On that occasion Mr Robinson SC appeared for Comcare indicating that he was instructed to appear on the limited basis of dealing with the question of the evidence sought to be led by Mr Rozen. The notice of motion of 4 April 2011 filed by John Holland was listed for hearing on the basis that the Court had apprehended that the notice of motion would be dealt with on an inter partes basis as a vehicle for the agitation and determination of the question whether Mr Rozen should be called as a witness for John Holland. John Holland, however, was insistent that its application for leave to issue a subpoena to Mr Rozen should be heard and determined on an ex parte basis. A very lengthy submission in support of John Holland’s notice of motion had not been served on Comcare on the basis that John Holland apprehended that its notice of motion would be dealt with on an ex parte basis.

12    Consistently with my earlier indications, I stated my view that an anterior question to the question whether or not Mr Rozen should be compelled to appear by subpoena existed. That question was whether or not the Court should give leave to Mr Rozen to be called. I indicated that to determine that issue I needed to hear submissions from both parties including as to whether there was a legitimate forensic purpose for Mr Rozen to be called. The parties agreed that the anterior question which I had raised would be agitated by John Holland making a further application for leave to make an application for leave to issue a subpoena to Mr Rozen. Consistently with the agreed position, John Holland filed a notice of motion dated 2 May 2011 seeking an order that leave be granted to John Holland to make an application seeking leave to issue a subpoena to Mr Rozen to attend and give evidence.

13    In support of its application, John Holland relied upon three affidavits of its solicitor Christopher Hartigan. Those affidavits were made on 4 April 2011 (“the first Hartigan affidavit”) 17 May 2011 and 27 April 2011. Comcare relied on an affidavit of its solicitor Mr Mark Branagan made on 4 May 2011 (“the Branagan affidavit”).

14    In support of its application, John Holland relied upon written submissions comprising of an initial submission (“John Holland’s written submission”) and a reply to the applicant’s submissions (“John Holland’s submission in reply”). Comcare also relied on a written submission (“the applicant’s written submission”) which was accompanied by supplementary oral submissions.

15    I have considered all of the submissions made. It has not been necessary for me to determine all of the issues in contest in order to determine the application before me. In order to determine the application before me it has been necessary for me to express some provisional conclusions about some of the issues in the case.

16    For the reasons that follow, I have determined to dismiss John Holland’s motion.

legal principles

Court’s Power to Control the Evidence to be Adduced

17    The application before me is unusual and raises for consideration the proper legal approach to be taken to an application of this kind. Both parties accept that the grant of the leave sought is dependant upon the Court being satisfied that the calling of Mr Rozen is likely to serve a legitimate forensic purpose. In that respect, both parties have referred to the established principles guiding the Court’s power to grant the leave to issue a subpoena, on the basis that those principles assist in the determination of the question before me. I agree that those principles are helpful, but before turning to them I need to address a submission put by John Holland about the Court’s power to restrict the evidence sought to be adduced by a party to the proceeding.

18    John Holland submits that the proceeding is adversarial and not an inquisition. It says that the trial judge is bound by the conduct of the parties in circumstances where each is free to call that evidence which the party seeks to call without interference from the Court (subject to the rules of evidence). John Holland contends that as a matter of case management, a judge should not determine what evidence a party is to call. John Holland submits in this context that the proposition that a judge will as a matter of case management determine what evidence may be called gives rise to a real danger of the perception of prejudgment.

19    I reject each of those submissions. They suggest that a party has a right to conduct its case in the manner it sees fit to the exclusion of a court’s power to prevent the misuse of its procedures. Parties have the right to invoke the jurisdiction and powers of the court in order to seek a resolution of their dispute: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [96]. Just as there is no right given to a party to amend its pleadings at will (Aon at [96]), the capacity to call a witness or adduce other evidence may be regulated by the Court’s power to control and supervise the proceeding and the requirement upon the Court that it take into account case management considerations, including those required by s 37M of Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

20    A court’s refusal to issue a subpoena is an aspect of a court’s inherent power to supervise and control the proceedings before it, including the power to take appropriate action to avoid an injustice: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 102. In the exercise of such a power, the court acts to avoid an abuse of process manifested by the issue of a subpoena.

21    The Court’s inherent power to supervise and control the proceeding, including so as to avoid an abuse of process, is also a basis upon which the Court can determine an application such as this. Courts have an inherent power to prevent misuse of their procedures in a way which would avoid unfairness to a party to the litigation or would otherwise bring the administration of justice into disrepute: Aon at [33]. Case management considerations may have a role to play in a court determining whether leave should be given to a party to call a witness, particularly where the calling of the witness is out of step with procedural orders previously made and threatens to disrupt the trial. Attorney-General of Botswana v Aussie Diamond Productions Pty Ltd (No 2) [2009] WASC 301 (Murphy J) and Clifford v Vegas Enterprises Pty Ltd (No 4) [2010] FCA 326 (Barker J) are both instances of a court exercising its inherent power to supervise and control the proceeding before it. In both cases the court took into account case management considerations in the context of a late application to call a witness in disconformity with prior procedural orders. Both of those judgments refer to and rely upon Aon and, in Clifford, upon s 37M of the Federal Court Act.

22    What is required by s 37M is the facilitation of the “just resolution” of the dispute. The just resolution of a dispute does not require that a party be permitted to raise any arguable case at any point of the proceedings (Aon at [98]). Similarly, the just resolution of a dispute does not require a court to permit a party to call a witness at any point in the proceedings. As the judgment in Aon makes abundantly clear, the discretion to be exercised by the court in dealing with the procedural issues raised by a proceeding requires that the need for a “just resolution” be understood in light of the purposes and objectives of a provision such as s 37M of the Federal Court Act: Aon at [98].

23    Gordon J recently considered Aon and s 37M of the Federal Court Act in Andrews v Australia and New Zealand Banking Group Ltd [2011] FCA 388. In a passage that I respectfully adopt, Gordon J said:

26     Of course “case management principles should not supplant the objective of doing justice between the parties according to law”: AON at [29], [30] and [57]. However, the High Court stated that “waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants”, together with the potential for loss of public confidence in the legal system, were factors able to be taken into account in the exercise of interlocutory discretions: AON at [30] and at [57].

    …

27     The High Court in AON then went further – their Honours acknowledged that it may be necessary in an appropriate case to make a decision which may produce a sense of injustice, for the sake of doing justice to the opponent or to other litigants: AON at [94]. Such an approach is consistent with the direction in s 37M(3) of the FCA that the Rules must be interpreted and applied, and any power conferred must be exercised or carried out, in a way that best promotes the overarching purpose – the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see s 37M of the FCA and AON at [97] – [98].

28 Put another way, “courts have an inherent power to prevent misuse of their procedures in a way, which although not inconsistent with a literal applications of the Rules, would nevertheless be unfair to a party to the litigation ‘or would otherwise being the administration of justice into disrepute among right-thinking people’”: AON at [33] and the authorities cited.

24    Much may depend upon the point the litigation has reached relative to a trial, as well as the nature and importance of the step in the proceeding which a party is seeking to take: Aon at [102].

A Balancing Process

25    The nature and importance of the step involved in a party adducing additional evidence can be assessed by examining whether a legitimate forensic purpose exists for the calling of the evidence and if so, the likely importance of that evidence to the determination of the proceeding. But as Aon demonstrates, even if importance is demonstrated a balancing process is required, one which takes into account cost, delay and prejudice in the context of the point the litigation has reached when the step in question is sought to be taken.

26    Such a balancing process is also a well established feature of the criteria for the grant of leave to issue a subpoena. If a forensic purpose is established, whether a subpoena should be issued will require the Court to weigh up the likely importance of the forensic purpose found against the extent of burden or prejudice likely to be created by the issuing of the subpoena. Where case management or other considerations tend against the exercise of the Court’s discretion those matters will need to be weighed in the balance: McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 at [37] and [47] (Greenwood J) and Australian Gas Light Company v Australian Competition & Consumer Commission [2003] FCA 1101 at [8] (French J). In that balancing process the fact, that although the proceeding is a civil proceeding, the relief sought includes the imposition of pecuniary penalties should also be taken into account: McIlwain at [47].

27    In Attorney-General of Botswana Murphy J, in refusing leave to call a witness, examined the forensic purpose of proposed evidence, weighed its significance and balanced those considerations against potential prejudice, delay and the inefficiencies to the court.

Legitimate forensic purpose

28    On an application for leave to issue a subpoena (or where a subpoena is sought to be set aside) the test for the existence of a legitimate forensic purpose is that of apparent relevance: Arnotts at 103. As Stone J said in Dorajay Pty Ltd v Aristocrat Leisure Limited [2005] FCA 588 at [17], the general principles propounded by Beaumont J in Arnotts have been often applied or cited with approval. Her Honour noted the qualification expressed by Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504. The import of what Stone J concludes at [16]-[18] is that apparent relevance to an issue is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material “might permit a case to be made”.

29    The test of apparent relevance has also been applied in relation to documents sought under a notice to produce. In Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31, Perram J by reference to the approach taken by Sackville J in Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6], posed the test as whether the documents sought are “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case”: at [3]. Perram J continued at [4]:

Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty as to the material’s potential relevance that travels beyond the merely conjectural.  It is to be distinguished from the tests applicable in discovery. 

30    Perram J also noted that there are differences between the standard of apparent relevance required between discovery, subpoenas and notices to produce. His Honour observed at [9] (and I respectfully agree) that:

The discretionary differences between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery.

31    Sportsbet was followed by Cowdroy J at [15]-[17] in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emergency Transport Technology Pty Ltd [2011] FCA 181.

32    Whether a document or anticipated evidence is reasonably likely to throw light on an issue or issues in the proceeding depends principally on two things. Firstly, an assessment as to whether the anticipated evidence can reasonably be expected to be available so as to be deployed and secondly the likelihood that if available, the anticipated evidence will rationally affect the determination of a fact in issue. As Greenwood J said in McIlwain at [36] it is “necessary to establish grounds for a belief that a document or class of documents relating to a matter in question in the proceedings exists” and that such documents or class are available in the sense that they are in the possession, custody or power of the respondent to the motion. The requirement that material be relevant in the sense that it “could rationally affect (directly or indirectly), the assessment of the probability of the existence or a fact in issue” is adverted to by Greenwood J at subparagraph (j) of [35].

33    As Weinberg J said in Fried v National Australia Bank Ltd (2000) 175 ALR 194 at [30]:

It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value.

34    A subpoena is not to be used as a ‘fishing’ or ‘trawling’ exercise. It will not however be fishing “when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is ‘on the cards’ that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena”: Liristis v Gadelrabb [2009] NSWSC 441 at [5] per Brereton J.

35    Similar observations were made by Pembroke J in Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870. Pembroke J considered a number of recent judicial statements about the extent to which subpoenas directed to the credit of a witness are justifiable. Given that the stated purpose of John Holland in relation to the evidence anticipated from Mr Rozen is to impugn the credit of Mr Meredith, the judicial statements summarised by Pembroke J have significance for the approach I intend to take. His Honour identified three of the more important decisions as Fried, Liristis and Jack Brabham Engines Ltd v Beare [2010] FCA 35 (Jagot J). His Honour said at [19]:

There is, I think, a common thread in each of these decisions which I will endeavour to explain:

(a)     As a general principle, the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Fried (supra) at [24]. It is not therefore an objection, by itself, that the subpoena seeks documents relating only to credit: Liristis (supra) at [5]; R v Saleam (1989) 16 NSWLR 14 at 19 (Hunt J). On the other hand, in order to support the subpoena, it is not sufficient, by itself, merely to say that the documents relate to the credit of a witness;

(b)     In all cases, there must be some actual identifiable basis – reasonably precise and tolerably clear – that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined;

(c)     If the subpoena is legitimate, two features of its intended forensic purpose will usually demonstrate its legitimacy. First, the particular credit issue will be capable of reasonable articulation, making due allowance for the necessity for some generalisation depending on the stage that the hearing has reached. Second, the probable connection between the documents sought to be produced and that credit issue, will be apparent;

(d)     A credit issue of doubtful plausibility is unlikely to be sufficient to justify the subpoena. The same result will follow if the supposed connection between the credit issue and the documents sought, is strained, opaque or speculative;

(e)     The court will exercise particular caution when a subpoena is sought to be justified solely on the credit basis: Fried (supra) at [27]. The judge must be satisfied about the utility of the production of the documents, and the fairness to the witness, having regard to the potential for abuse and the need to control and confine cross examination within manageable limits;

(f)     A subpoena that does little more than speculatively trawl for documents that may possibly be used to impugn a witness’s credit has never been justifiable: Fried (supra) at [29].

36    To my mind, the authorities dealing with the issue of a subpoena in the context of material sought for the purpose of impugning the credit of a witness provide the closest analogy available to the circumstances raised by this application. Accordingly, I consider it incumbent upon John Holland to demonstrate a legitimate forensic purpose by explaining an identifiable basis, with reasonable precision and tolerable clarity, to support a reasonable likelihood that Mr Rozen can give evidence that might assist me in the resolution of any fact in issue to which Mr Meredith’s credit might be relevant.

37    There is another line of authority which is instructive and of assistance on the issue of whether a legitimate forensic purpose exists for a witness to be called. In Morley v Australian Securities and Investments Commission (2010) 274 ALR 205, Spigelman CJ, Beazley and Giles JJA considered whether in that case, the Australian Securities and Investments Commission (“ASIC”) had an obligation to act fairly with respect to the conduct of the proceedings and whether in the exercise of that obligation, ASIC had failed to call a number of witnesses. John Holland relies on Morley in support of its contention that Comcare should have itself called Mr Rozen as a witness. I will deal with that contention later. For the moment, it is useful to observe that in relation to whether the witnesses in question should have been called, the court posed the following questions at [759]:

    Would ASIC be expected to call him?

    Would he “probably have knowledge” on any and if so which of the issues to be determined?

In relation to the second question, the court adopted the terminology of Glass JA in Payne v Parker (1976) 1 NSWLR 191 at 202.

38    Spigelman CJ and Beazley JA in Morley observed at [769] that the conclusion that a witness would “probably have knowledge” requires “some basis for an inference that there was a significant degree of probability that the witness would have relevant knowledge”. That was said in the context of their Honours observing that the presence of a witness at a meeting meant that, like an eyewitness or bystander, the person could possibly have a recollection of the relevant events. However in their Honour’s opinion, “a possibility is not sufficient to require that [the witness] be called in the exercise of a duty of fairness on the part of the regulator”: at [769]. It is also necessary to observe that the court regarded the importance of the issues with which the potential witness was involved and the degree of involvement (whether significant or tangential) were matters of significance to the question of whether the witness should have been called: see at [766], [768] and [774]-[775].

39    Morley is helpful in shaping the approach I should take, including because the context involved the obligation of fairness and proceedings seeking findings of contravention of civil penalty provisions. Further, given that the observations in Morley are directly relevant to the question whether Comcare was obliged to call Mr Rozen because of an obligation of fairness, it is useful that I highlight, as I have, the relevant principles so as to touch upon them as I consider the facts before me.

40    Comcare contended that the existence of a legitimate forensic purpose needs also to take into account whether the evidence that is anticipated will be adduced is capable of being received as admissible evidence in the proceeding. John Holland resisted that approach on the basis that questions of admissibility did not arise until a witness was called. On that basis, John Holland contended that it would not be appropriate for the Court to now rule on the admissibility of the evidence which is anticipated will be led from Mr Rozen.

41    Whilst I agree that a ruling as to the admissibility of anticipated evidence cannot at this juncture be made, I accept Comcare’s submission that the likelihood of anticipated evidence being available as admissible evidence, is to be properly considered as part of the evaluation of whether a legitimate forensic purpose for calling that evidence is established. The likelihood of the admissibility of evidence sought to be called has an obvious bearing on whether there exists a legitimate forensic purpose in that evidence being called.

applying the legal principles to the facts

42    In applying these principles to the issues before me, the starting point is an identification of what it is John Holland says is the evidence that Mr Rozen may be anticipated to give. As I have earlier indicated, for the purpose of providing that identification, I ordered that John Holland file and serve a memorandum setting out the evidence which it proposed to lead from Mr Rozen. By a memorandum dated 4 April 2011 and headed “Respondents’ Sixth Memorandum of Evidence”, John Holland stated its intention to call Mr Rozen to give evidence at the trial and that John Holland will seek to adduce from Mr Rozen evidence “concerning statements made to him by Mr Meredith on 12 December 2008” regarding ten matters identified in the memorandum. Each of the matters identified deals with a subject matter such as “Mr Meredith’s observations as to fencing on the worksite”. The memorandum failed to set out the evidence which John Holland proposes to lead from Mr Rozen and in particular by setting out what John Holland anticipated Mr Rozen would say in relation to each of the subject matters identified. The fact that John Holland could only provide the Court with an indication of the topics in relation to which it would seek to adduce evidence from Mr Rozen was explained in the first Hartigan affidavit. Mr Hartigan deposed that Mr Rozen had declined John Holland’s invitation to provide a proof of evidence. He said that in those circumstances, it was not possible for John Holland to file and serve a memorandum setting out the evidence that John Holland proposed to lead from Mr Rozen.

43    The memorandum of 4 April 2011 together with the explanation for its deficiency strongly suggests that John Holland have little or no idea what evidence they anticipate Mr Rozen can give. Despite that, the written submission of John Holland now specifies what is said to be the evidence that John Holland now “reasonably anticipates” Mr Rozen will give. That anticipated evidence is set out at paragraphs 19 and 20 of John Holland’s written submission, which I will set out in full shortly. There are a number of matters there identified. The basis given for the anticipated evidence is not specific to each of the matters of anticipated evidence identified, but John Holland puts it globally as based on Mr Rozen’s note analysed in the context of Mr Meredith’s statement of 2 August 2007 (“the August 2007 statement”) and a memorandum of evidence for Mr Meredith filed and served by Comcare on or about 23 December 2008 (“the December 2008 memorandum”). John Holland contends and it is not disputed, that the August 2007 statement is, for this purpose, relevant because it should be inferred from Mr Rozen’s note and its reference to that statement that Mr Rozen was instructed with it at the time of the 12 December 2008 meeting. The relevance of the December 2008 memorandum is put on the basis that subsequent to the conference with Mr Meredith, Mr Rozen prepared and settled that document. Again, that contention is not disputed. I will proceed on the basis that both those inferences are correct. I should add that it is not in contest that Mr Rozen’s note was made by him at a conference attended by him (as counsel) and Mr Davson (a former Comcare investigator) with Mr Meredith on 12 December 2008.

44    The evidence which John Holland says can reasonably be anticipated Mr Rozen will give is set out at paragraphs 19 and 20 of John Holland’s written submission. I have numbered each of the matters of anticipated evidence which seem to go to a separate topic so that I can conveniently deal with each item separately.

45    Paragraphs 19 and 20 (including my numbering) are in the following terms:

19.     When Mr Rozen's 12 December notes are analysed in the context of both the 2 August 2007 statement and the 23 December 2008 outline it can responsibly be concluded that in his statements to Mr Rozen Item (1), Mr. Meredith appears to have, inter alia, made no claim that he was late for his shift. Item (2) Mr Meredith appears to have told Mr Rozen that he drove to the St Kilda Light Rail Project with Mr Brooks. Item (3) Mr Meredith further appears to have told Mr Rozen that the Pandrol Clipping machine was made available for use by he and others working in the crew, as an alternative to the clipping bars. Mr Meredith also appears to have told Mr Rozen that at the time of the incident he was attending to corrections, i.e. attending to clipping in e-clips which had not been clipped in on the first run through by other members of the crew using the Pandrol Clipping machine.

20.     Mr Meredith appears not to have told Mr Rozen that he was directed to use the Pandrol Clipping machine when doing the corrections. Rather, Mr Meredith appears to have told Mr Rozen that Mr Brooks told him (Mr Meredith) that the Pandrol Clipping machine was available for him to use in attending to the corrections if he wished to use it. Mr Meredith appears not to have told Mr Rozen that Mr Brooks (or any other person) instructed or otherwise said to Mr Meredith words to the effect that Mr Meredith was required to use the Pandrol Clipping machine when doing the corrections. Item (4) Mr Meredith appears also to have told Mr Rozen that he had read his August 2007 statement, understood it, and agreed that it was an accurate statement of what had happened – namely, that Mr Meredith leant over the Pandrol Clipping machine whilst standing between the handles of the machine, as he did that he lost his balance and grabbed or leant on the throttle with his left arm, and at that time the pad on the machine crushed his right index finger between it and the clip. [footnotes omitted].

46    John Holland submits that the anticipated evidence relates to whether Mr Meredith “is to be believed on oath”. Further, John Holland contends at paragraphs 23-24 of its written submissions that:

23.     The anticipated evidence of what Mr Meredith told Mr Rozen, if accepted, will affect the assessment of the probability of the existence of some of the central facts in issue in the trial. As noted above, central to Comcare’s case is the allegation that at least John Holland Rail directed Mr Meredith to use the Pandrol Clipping machine. Comcare alleges that Mr Meredith had been directed to use the machine by Mr Steve Talevski and Mr Stewart Brooks. However, the allegation appears incapable of being sustained given what Mr Meredith apparently said to Mr Rozen when they met in conference on 12 December 2008.

24.     Equally, the apparent statement to Mr Rozen that Mr Meredith put his finger in close proximity to the “pad” of the machine by leaning over the machine, if accepted, will affect the assessment of the probability of Mr Meredith having suffered injury as a consequence of his right index and middle fingers becoming caught beneath the pads of the machine. In circumstances where it now appears that Mr Meredith has given a number of different versions of his account of how he alleges his right index finger came to be “under” the pad, what was said to Mr Rozen in December 2008 affects the assessment of the probability that Mr Meredith was injured by or as a result of a function of the Pandrol Clipping Machine. [footnotes omitted]

47    That is the basis upon which John Holland contends that the evidence which can be reasonably anticipated Mr Rozen will give has apparent relevance and to that extent has a legitimate forensic purpose. John Holland submits that this contention necessarily dictates that, not only leave to issue a subpoena to Mr Rozen should be granted, but that it also sufficiently resolves the anterior question in favour of leave being granted to call Mr Rozen as a witness.

Item one

48    The first item of anticipated evidence is that Mr Meredith made no claim to Mr Rozen that he was late for his shift. In this respect, John Holland says it anticipates that Mr Rozen will give evidence of what he was not told by Mr Meredith. The basis for that anticipation is not given. I apprehend that the basis relied upon is that Mr Rozen’s note does not contain any record suggestive of a statement by Mr Meredith that he was late for his shift.

49    Mr Rozen’s note is constructed by a series of short cryptic comments, set out in a point form format. The note is clearly not a verbatim account of the meeting which it records and, I would infer, does not set out the entirety of what Mr Meredith said at the conference. Therefore, John Holland’s anticipation as to the evidence Mr Rozen can give relies upon its anticipation that Mr Rozen will have a recollection independent of his note of what was not said by Mr Meredith. No basis is given by John Holland as to why it may be expected Mr Rozen will have a recollection of what was not said at the meeting.

50    Conferences between barristers and witnesses are common, run of the mill events in a barrister’s practice. Some conferences may be more memorable than others but ordinarily it could not reasonably be anticipated that, independently of notes taken by the barrister or some other contemporaneous record being available, a barrister will be able to recount the contents of a conference with a witness that occurred over two and a half years ago. John Holland has not suggested any reason as to why this particular conference should be expected to have stood out in Mr Rozen’s memory. Nor has John Holland sought to explain why the timing of Mr Meredith’s arrival at the site was a matter of such likely significance in the mind of Mr Rozen that, two and a half years later, it can reasonably be anticipated that Mr Rozen will recall the fact of that topic not being raised by Mr Meredith: compare Morley at [761].

51    I am not satisfied that there are reasonable grounds for anticipating that the evidence sought to be led from Mr Rozen is evidence that is available. To put that conclusion in terms of the approach taken in Morley, John Holland’s anticipation is based on a possibility when what is required is “some basis for an inference that there [is] a significant degree of probability that Mr Rozen would have relevant knowledge”.

52    Further, even if I had been so satisfied, I am not satisfied that (assuming such evidence was admissible) the evidence which is anticipated will be led has apparent relevance to an issue or issues raised by the proceeding. John Holland’s submissions do not suggest that this anticipated evidence is relevant to a particular fact in issue other than to generally impugn Mr Meredith’s credit by demonstrating a prior inconsistent statement.

53    For the purpose of dealing with that contention, I will proceed on the basis that prior conduct may constitute a prior inconsistent statement: See the Evidence Act and the s.3 Dictionary definitions for “prior inconsistent statement”, “previous representation” and “representation”.

54    John Holland has not expressly identified what evidence given by Mr Meredith it says is inconsistent with the previous representation identified. Mr Meredith has given evidence that he was late for his shift. He first gave that evidence in chief in answer to a question as to whether he had been present at a toolbox meeting. I presume that is the evidence of lateness which John Holland says is false. The consequence of such a finding to any issue in the case is not identified in John Holland’s submission. The suggestion in the submission is that in his evidence at trial Mr Meredith made a “claim” that he was late in circumstances where no such claim had been previously made. How such a claim would assist Comcare’s case is neither spelt out by the submission nor apparent.

55    Further, John Holland has failed to explain how it is said the two representations are inconsistent. There is clearly no direct inconsistency and if there is an inconsistency it would only be inferential. To establish an inferential inconsistency between the making of a statement and the omission of a statement would require, at the very least, some basis for concluding that the omission occurred in circumstances where it can reasonably be expected a positive statement would have been made. John Holland has failed to even suggest a basis as to why it should have been expected that Mr Meredith would “claim” to Mr Rozen on 12 December 2008 that he was late for his shift. The fact that in a prior conversation a person did not raise a matter raised in his evidence does not give rise to an inconsistent prior statement in the absence of some foundation which points to inconsistency.

56    In the absence of John Holland being able to establish that Mr Meredith’s failure to claim that he was late for his shift was a prior inconsistent statement, the evidence sought and anticipated to be adduced from Mr Rozen would not be admissible: s 102 and s 106(2)(c) of the Evidence Act.

57    John Holland has failed to demonstrate a legitimate forensic purpose by explaining an identifiable basis, with reasonable precision and tolerable clarity, to support a reasonable likelihood that Mr Rozen can give the evidence anticipated and that even if he could, it might assist me in the resolution of any fact in issue to which Mr Meredith’s credit might be relevant. I am not satisfied that the leave which is sought to call Mr Rozen as a witness for this purpose would serve any legitimate forensic purpose.

Item two

58    In relation to the second matter of anticipated evidence, the respondents say that Mr Meredith appears to have told Mr Rozen that he drove to the St Kilda Light Rail Project with Mr Brooks.

59    The foundation for this anticipation was not identified by John Holland. I have not been taken to any part of Mr Rozen’s note or any other materials said to be the basis for this anticipated evidence. I have examined the note. It contains no apparent reference to Mr Meredith driving to the St Kilda Light Rail Project, let alone that he did so with Mr Brooks. To the contrary, the following notation in the note suggests that Mr Meredith told Mr Rozen that he met Mr Brooks at the site:

“ – met at a work site on Lake

Side of Railway Line

– Tram Line

Stewart Brooks with me”

Further, the December 2008 memorandum stated that Mr Meredith drove to the site and that Stewart Brooks “was also there”. The contents of that memorandum are also contrary to the evidence John Holland contends may reasonably be anticipated.

60    No specific fact in issue was identified by John Holland as being relevant to this anticipated evidence. Whether Mr Brooks was driven to the site by Mr Meredith has no apparent relevance to the two facts in issue which were identified in John Holland’s submission (non-specifically but generally) in relation to all of the anticipated evidence that John Holland says Mr Rozen can give.

61    Given the content of the note and the memorandum and what I have already said about the likelihood that Mr Rozen will have a recollection of what was said to him independently of his note, it cannot be reasonably anticipated that Mr Rozen will give the evidence that John Holland suggests he will. I am not satisfied that John Holland has demonstrated a reasonable basis for anticipating that the evidence it seeks from Mr Rozen is available. No identifiable basis to support a reasonable likelihood that Mr Rozen can give the anticipated evidence has been provided. Again, John Holland speculates about a possibility. A significant degree of probability that Mr Rozen will have relevant knowledge is not established.

62    Further, even if John Holland was able to establish a prior inconsistent statement in relation to this anticipated evidence, the benefit to its case of a finding that such a prior inconsistent statement was made is highly questionable. John Holland contends that the anticipated evidence “will relate to whether Mr Meredith is to be believed on oath”. However, two inconsistent statements do not necessarily make a liar. There are all sorts of innocent reasons why a person may make two inconsistent statements, especially where the statements are separated by over two years of time. What motive could Mr Meredith have for giving false evidence that he met Mr Brooks on the site? None has been suggested by John Holland. If the forensic purpose of this anticipated evidence is to demonstrate that Mr Meredith’s recollection is unreliable, I would regard that purpose as so marginal as to be inconsequential. I will say more shortly about the significance to the case of Mr Meredith’s recollection of how he was injured. However, even if that recollection was to be regarded as central, the fact that Mr Meredith gave a different account in his evidence to an account given two years earlier as to who he drove to work with, is likely to have no material bearing on a judgment which the Court may need to make as to the capacity of Mr Meredith to recollect how he seriously injured his right hand.

63    In the absence of a legitimate forensic purpose, I would not grant leave for Mr Rozen to be called in relation to this item of anticipated evidence.

Item three

64    The last two sentences of paragraph 19 of John Holland’s submission together with the first three sentences of paragraph 20 appear to be related and touch upon the issue of whether Mr Meredith had been directed to use the Pandrol Clipping machine by Mr Talevski and Mr Brooks as contended by Comcare.

65    I say that appears to be so because John Holland has not specifically contended that this anticipated evidence is relevant to that issue. Again, John Holland has not taken the Court to any part of Mr Rozen’s note or any other material to establish that this evidence may reasonably be anticipated. If the evidence said to be anticipated was obvious from Mr Rozen’s note, this deficiency may be forgiven. However, the substance of what is here suggested - that Mr Meredith did not tell Mr Rozen that he was directed to use the Pandrol Clipper but rather, told him that Mr Brooks said that the machine was available for him to use if he wished to - is not apparent from the note. There is no record or records in the note which contain the words suggested to have been spoken by Mr Meredith. In the absence of that being at least apparent, it was incumbent upon John Holland to identify a basis upon which it might be said that particular records in the note suggest the evidence anticipated Mr Rozen will give. That was not done. It was not done in 59 pages of written submissions and not done orally. It was certainly not done with reasonable precision and tolerable clarity.

66    I have analysed the note in order to see if I can discern any reasonable basis for John Holland’s contention that this evidence can be anticipated from Mr Rozen. The note consists of some five pages. I can find two extracts which it can be inferred touch upon the issue of whether or not Mr Meredith was directed to use the Pandrol Clipper. On the second page, the following record (“the first extract”) appears:

“I was following up

-    used the Clipper as part of corrections

-    started to use the Clipper.

-    As per s/ment”.

67    The following extract (“the second extract”) appears on page 3 of the note. It is separated by two half pages of records from the record I have just set out:

“ – Put down concrete sleepers

+ laying the tracks on top

-    up to 300m

-    Just used it

-    Pull on clips or the Machine

-    Can do manually

-    One of the Talevskis’ directed me to use the Clipper

-    Not working properly”

68    The second extract does not appear to be the basis for a suggestion that Mr Meredith did not tell Mr Rozen that he was directed to use the Clipper but rather that the use of the Clipper was optional. That extract contains a specific reference to Mr Meredith having been directed to use the Clipper.

69    The first extract also suggests that Mr Rozen was told by Mr Meredith that he was directed to use the Pandrol Clipper. I have interpreted the note in the way that John Holland has contended that it should be and in that respect I have analysed the note by reference to the August 2007 statement. I have done so because of the reference to that statement in the extract. Paragraph 7 of the August 2007 statement states that Mr Stewart Brooks told Mr Meredith to go back and use the clipping machine to attach the clipper to the rails. Further, if the note is to be analysed by reference to the December 2008 memorandum, as John Holland says it should, paragraph 10 of that memorandum states that Mr Meredith was directed to use the Clipper “as he has explained in paragraph 7 of his statement”. I can find nothing in the note which suggests that Mr Rozen was told that Mr Brooks told Mr Meredith that the Pandrol Clipping machine was available for him to use if he wished to use it. To the contrary, the first extract from the note appears to relate to what was said by Mr Brooks to Mr Meredith and suggests that Mr Meredith told Mr Rozen that Mr Brooks had directed him to use the Clipper.

70    I am not satisfied that there are reasonable grounds for anticipating that Mr Rozen will say that he was told by Mr Meredith that Mr Brooks told him that the clipping machine was available for him to use if he so wished. John Holland’s anticipation is completely unfounded and seems to be the product of an active imagination. Nor am I satisfied that Mr Rozen will say that Mr Meredith did not tell him that he was directed to use the machine by Mr Brooks. Not only is that not suggested by the note, the contrary position is. There is no basis for an inference of a significant degree of probability that Mr Rozen has the relevant knowledge contended for by John Holland. No identifiable basis to support a reasonable likelihood has been explained by John Holland.

71    Further, the Defences of each of the respondents admit that Mr Meredith was directed to use the Pandrol Clipper by Mr Brooks. I will return to that matter later. Given those admissions, on the pleadings before me, whether Mr Brooks directed Mr Meredith to use the Pandrol Clipper does not seem to be an issue in contest. On the pleadings as they currently stand, evidence as to whether or not Mr Brooks gave Mr Meredith a direction to use the Pandrol Clipper does not go to a fact in issue and is neither apparently relevant nor likely to be admissible.

72    Finally, some of the anticipated evidence which I have grouped into this item does appear to have some basis in Mr Rozen’s note, but does not appear to raise any inconsistency with the evidence given by Mr Meredith. That Mr Meredith told Mr Rozen that the clipping of e-clips was performed either by the use of the Pandrol Clipper or by the use of clipping bars is supported by the second extract. In his evidence, Mr Meredith has said that other than the clipping machine, the crew had hand bars available as a means of clipping up the e-clips. There is therefore nothing apparently inconsistent between the evidence given by Mr Meredith and the anticipated evidence that he told Mr Rozen that both the machine and the clipping bars were available for use. Similarly, the anticipated evidence that Mr Meredith told Mr Rozen that at the time of the incident he was attending to corrections is supported by the first extract. However, John Holland have not suggested how that anticipated evidence raises any inconsistency with evidence given by Mr Meredith or any prior statements made by him. The August 2007 statement states that Mr Meredith was doing some corrections and that Mr Meredith was told by Stewart Brooks to go back and use the clipping machine. Mr Meredith’s evidence to date is that he was doing corrections including at the time of the incident. In the absence of submissions from John Holland as to how this anticipated evidence is material to Mr Meredith’s credit, I am unable to discern how this anticipated evidence is said to involve any inconsistency and how it might assist me in the resolution of any fact in issue to which Mr Meredith’s credit might be relevant. Rather, I apprehend that the anticipated evidence which I have just dealt with is being relied upon by John Holland as forming part of the context for the contention that the use of the Pandrol Clipper was optional and not the subject of any direction, a matter which I have already dealt with.

73    For all those reasons, I am not satisfied that John Holland has demonstrated a legitimate forensic purpose. In the absence of a legitimate forensic purpose, I would not give leave to John Holland to call Mr Rozen in relation to this anticipated item of evidence.

Item four

74    The fourth matter John Holland relies upon is its contention that it appears that Mr Meredith told Mr Rozen that he had read his August 2007 statement, understood it, and agreed that it was an accurate statement of what had happened. John Holland’s submission then says (at paragraph 20 of its submission):

– namely, that Mr Meredith went over the Pandrol Clipping machine whilst standing between the handles of the machine, as he did that he lost his balance and grabbed or went on the throttle with his left arm, and at that time the pad on the machine crushed his right index finger between it and the clip.

75    Again, John Holland has not taken me to any particular part of Mr Rozen’s note to demonstrate the foundation for this anticipation.

76    I have referred already to the notation “as per s/ment” contained in Mr Rozen’s note and also to the December 2008 memorandum which at paragraph 10 states that Mr Meredith was directed to start using the clipper as explained in paragraph 7 of his statement. The memorandum also states at paragraph 11 that Mr Meredith was injured in the circumstances he sets out at paragraph 8 of his statement. That material provides a sufficient basis upon which I would infer that it is reasonable to anticipate that, if called, Mr Rozen will say that Mr Meredith confirmed to him that he was injured in the manner set out at paragraph 8 of the August 2007 statement.

77    Paragraph 8 of the August 2007 statement is in the following terms:

At about this time, I started using the clipping machine attaching the clips. The clips were put in place in the rail, ready to be attached by some of the others in the crew ahead of me. As I was moving along with the clipping machine, one of the clips that I was about to put in, had moved from where it needed to be for the clipper to attach it to the rail. I leaned over to put it back into position using my right hand. As I did this I lost my balance and must have grabbed or leant on the throttle with my left arm and the pad on the clipping machine crushed my index finger between it and the clip. (emphasis added)

78    The anticipated evidence described in paragraph 23 of John Holland’s submission is in different terms to paragraph 8 of the August 2007 statement. Relevantly, whilst paragraph 8 says “I leaned over”, at [20] of John Holland’s submission it is said that Mr Rozen can be anticipated to say that Mr Meredith said he “leant over the Pandrol Clipping machine whilst standing between the handles of the machine”. It is clear from John Holland’s submission in reply at [80] to [81] that the forensic purpose sought here to be achieved by John Holland is to discredit the evidence of Mr Meredith given at trial that he moved to the side of the Pandrol Clipper and leaned down to set up an e-clip with his right hand immediately prior to the injury. This evidence is characterised in John Holland’s submission as “new evidence”, inconsistent with the August 2007 statement that “I leaned over” and thus inconsistent with what John Holland says it anticipates Mr Rozen will say.

79    Paragraph 80 of John Holland’s submission in reply is in the following terms:

Comcare seeks to rewrite its own case. The 2 August 2007 statement can only be sensibly understood as stating that Mr Meredith “leaned over”, standing between the handlebars. If Mr Bendeich and Mr Meredith intended to say something different they might have said “I leaned around”, or “I stepped to the right and leaned down”. But they did not. In December 2008 Mr Meredith told Mr Rozen that he had leaned over the machine. Now Mr Rozen has led evidence from Mr Meredith that “You have moved around the outside of the right-hand handlebar, the one with the control on it?...That’s correct. And leant down to try and replace the clip?..Yes”.

80    Mr Meredith has confirmed in his evidence the August 2007 statement to be his statement signed by him. He has also given evidence that he had read that statement prior to giving his evidence at trial and in particular at a conference held with Mr Rozen and Mr Rozen’s instructor on 9 February 2010. It is common ground that the August 2007 statement was taken by a Comcare investigator Mr Bendeich, who is also a witness to be called by Comcare.

81    Comcare says that there is no issue that, if the content of the August 2007 statement is held to be inconsistent with the evidence given by Mr Meredith at trial, then John Holland will have established that a prior inconsistent statement was made by Mr Meredith. Comcare contends however, that any such prior inconsistent statement would be a prior inconsistent statement made to Mr Bendeich and that there is no legitimate forensic purpose in calling Mr Rozen to prove the making of the asserted prior inconsistent statement.

82    I agree that there is no legitimate forensic purpose to be served by calling Mr Rozen for the purpose of giving the evidence that John Holland says it anticipates.

83    John Holland has a solid evidentiary basis for establishing that when Mr Meredith made his August 2007 statement he used the words “I leaned over”. Mr Meredith has acknowledged that he said that in his statement and has not sought to deny it in his oral evidence. Evidence from Mr Rozen, assuming that it might be admissible, that the contents of the statement made in August 2007 were confirmed to him adds little to the evidentiary foundation which John Holland seeks to establish. John Holland’s position is not materially improved by establishing a further confirmation of a prior inconsistent statement, if all John Holland is trying to achieve is to prove that Mr Meredith confirmed to Mr Rozen in December 2008 his prior statement that “I leaned over”. That evidence would not materially assist me in resolving any fact in issue.

84    However, John Holland’s purpose is not so confined. Its purpose is driven by the said anticipation that Mr Rozen will say that Mr Meredith told him that he “leant over the Pandrol Clipper machine whilst standing between the handles of the machine”. If at his conference with Mr Rozen, Mr Meredith had said words to that effect that would have constituted an expansion by Mr Meredith upon the terms of his August 2007 statement and arguably a substantial change. In their submission John Holland relies on the words in the note “as per s/ment” as both an acknowledgment of the accuracy of the statement and as suggesting an expansion upon it. However “as per s/ment” does not suggest an expansion and nor does paragraph 11 of the December 2008 memorandum which relevantly says:

“He was injured in the circumstances he set out in paragraph 8 of the statement”

85    The foundation for John Holland’s anticipation that Mr Rozen can give this evidence is really no higher than the fact that Mr Meredith met with counsel for Comcare and would likely have told counsel how the injury occurred and that in doing so, it is possible he may have said he leaned over the machine while standing between the handles of the machine. That possibility is not a proper foundation for a reasonable anticipation of a prior inconsistent statement. The content of the note makes the position more difficult for John Holland because it strongly suggests that Mr Meredith did not run through the incident with Mr Rozen but simply acknowledged the accuracy of an extant description of the incident, which does not include the specific evidence that John Holland says can be reasonably anticipated.

86    Further, it is most unlikely that Mr Rozen will have any independent recollection beyond the contents of the note. That would be particularly so of anything said to him which was not recognised by him at the time to be of significance for the issues in the proceeding. The matters recognised by Mr Rozen to be of significance would likely have been recorded in the note.

87    John Holland has failed to demonstrate a legitimate forensic purpose. An identifiable basis, with reasonable precision and tolerable clarity has not been given which would support a reasonably likelihood that Mr Rozen can give the evidence which John Holland says it anticipates. The basis for that anticipation is no more than speculative. I am not satisfied that there is a significant degree of probability that Mr Rozen will have relevant knowledge.

Conclusion on Legitimate Forensic Purpose

88    For the same reasons as the issue of a subpoena in the absence of a legitimate forensic purpose constitutes an abuse of process (Arnotts at 102), it would be an abuse of process for Mr Rozen to be called in the absence of a legitimate forensic purpose. I would not permit such a course and will thus dismiss John Holland’s notice of motion.

89    I should add that I have considered John Holland’s submission which criticises Comcare for failing to put Mr Rozen on affidavit. It says Comcare has elected not to produce an affidavit of the evidence that Mr Rozen can produce at trial. However, the prejudice which would flow from making Mr Rozen a witness in the case, is the very thing that Comcare seeks to avoid. No adverse inference is to be drawn from Comcare’s failure to kick an own goal.

the balancing process

90    If I had found a legitimate forensic purpose, for the reasons I have already explained, it would have been necessary that I assess its strength and importance to the issues to be determined and then balance that against any likelihood of prejudice and any relevant case management considerations. For the sake of completeness, and in case I should be found to have erred in my conclusion that no legitimate forensic purpose has been established, I will consider the balancing process.

The importance of the anticipated evidence to the issues to be determined

91    In assessing how potentially important the evidence may be, I have assumed that the evidence Mr Rozen will give is the evidence John Holland anticipates.

92    On the basis of my current understanding of the issues, I am of the view that John Holland’s submission exaggerates the importance of Mr Meredith to the proceeding. Mr Meredith is not “the complainant” that John Holland describes him to be. The complainant is Comcare. Its complaint is not that Mr Meredith was injured and the proceeding involves no claim for relief from Mr Meredith for any injury suffered by him. Comcare’s complaint is that John Holland failed to take all reasonably practicable steps to protect Mr Meredith’s health and safety at work. In particular, the essence of Comcare’s complaint is that Mr Meredith was exposed to the Pandrol Clipper in circumstances where there existed a risk of injury to him which had not been avoided by the taking of reasonably practicable steps. Comcare’s complaint is that the risk of injury from contact with dangerous parts of the machine should have been avoided including by:

    The installation of guarding to prevent contact with dangerous parts of the machine;

    The installation of a “dead man” switch;

    The conduct of a hazard identification and risk assessment on the machine;

    The provision of adequate training to the operator of the machine;

    The provision of adequate supervision of the operator.

93    In the context of such a complaint, evidence that Mr Meredith was injured whilst using the machine is probative of the existence of a risk of injury and the nature and extent of any such risk. Mr Meredith’s evidence as to how the injury occurred is thus probative of the risk of an injury occurring in that manner. However, Comcare’s case is not confined to the risk of an injury occurring in the precise manner in which Mr Meredith says his injury occurred. Even if it were, the existence of a risk of an injury occurring to the operator of the machine, in the manner in which Mr Meredith says he was injured, is capable of assessment independently of evidence of actual injury. Comcare’s case as to the nature and extent of the risk of injury is not dependent upon the Court accepting Mr Meredith’s account of how he was injured. The central issue is the nature and extent of any risk and whether reasonably practicable steps were available to be taken to avoid the risk. Whether or not Mr Meredith is believed as to the manner in which he says he was injured has but a small part to play in the determination of that central issue. The manner in which Mr Meredith was injured is not a “central fact” in issue in the trial as John Holland contends.

94    The other “central” matter John Holland relies upon and which it contends Mr Meredith’s credibility and Mr Rozen’s anticipated evidence is relevant to, is “the allegation that at least John Holland Rail directed Mr Meredith to use the Pandrol Clipper”. As I have earlier observed, the reason for John Holland’s intended reliance on the anticipated evidence is to contest the allegation that Mr Brooks directed Mr Meredith to use the machine. John Holland Rail’s Defence admits that such a direction was given. As such, that matter is not a fact in issue in the proceeding.

95    Further, Comcare’s claim of contravention is not dependent upon a direction having been given to Mr Meredith to use the Pandrol Clipper. The allegations of contravention of s  16(1) and (2)(c) of the OH&S Act are put on a basis that Mr Meredith was exposed to risk to his health and safety because of the failure of John Holland to take the reasonably practicable steps (including those set out at [89] above) alleged in the Second Further Amended Statement of Claim.

96    Insofar as John Holland may seek to impugn Mr Meredith’s credit for other purposes, those have not been identified. In my view, the anticipated evidence as to the manner in which Mr Meredith was injured is the only matter to be taken into account in the balancing process, if a balancing process had been required. As I have stated, that issue is of some significance but has neither the potential to be determinative of, nor is it central to, the issue of the existence of risk of exposure to injury and whether reasonably practicable steps should have been taken to avoid the risk.

Prejudice, delay and disruption

97    Comcare contends that it would suffer significant prejudice if Mr Rozen was called as a witness. If I were to accede to the proposition that Mr Rozen should be called and grant leave for a subpoena to issue to Mr Rozen, it seems inevitable that Comcare would lose Mr Rozen as its counsel. As I have earlier indicated, Mr Rozen sought a ruling from the Ethics Committee of the Victorian Bar when notice was initially given to him that John Holland sought to call him as a witness. On 24 March 2011, the following ruling was made:

4. Ruling:    Counsel should seek a ruling from the trial Judge as to whether the evidence sought to be led from him goes to a fact in issue in the proceedings.

(a)     If the Judge rules that it is not relevant to a fact in issue, Counsel may continue to act.

(b)     If the Judge rules that it does or could go to a fact in issue but there is no dispute about the contents of the note and Counsel is not required to be called, Counsel may continue to act.

(c)     If the Judge rules it is a fact in issue and/or there is a dispute about the content of the note, Counsel must seek leave of the Court to withdraw and return the brief.

98    Mr Rozen has not at this juncture sought the Court’s leave to withdraw as counsel. I will proceed on the basis that in the circumstances, the Court’s leave would be required, although nothing really turns on that matter at this time. I can infer that if I determined that Mr Rozen can be called as a witness, leave would be sought by Mr Rozen to withdraw. Ordinarily, a barrister should not act as counsel and witness in the same case and in particular where evidence to be adduced from counsel goes to a substantive matter rather than evidence of a limited and incidental procedural matter: Re Vandervell’s Trusts (No.2) [1974] Ch 269 at 283-4. The obvious ethical objections to Mr Rozen continuing to act as counsel in circumstances where he will be called as a witness, leads me to the conclusion that Mr Rozen will seek to withdraw and insofar as he needs the Court’s leave to do so, such leave would be granted. The submissions of both Comcare and John Holland and the evidence called in relation to Comcare’s allegation of prejudice proceed on the basis that if John Holland succeeds on its motion, Mr Rozen will need to be replaced and other counsel engaged. In my view that is a proper basis upon which I should assess the alleged likelihood of prejudice to Comcare.

99    Mr Rozen was first retained by Comcare in July 2008 to settle the original Statement of Claim and Application in the proceeding. Mr Rozen has extensive experience in occupational health and safety proceedings. Since July 2008, Mr Rozen has been retained by Comcare throughout the proceeding, save for a series of appearances in 2009 and early 2010 where he was unavailable. I accept the contention of Comcare that the litigation is complex. Mr Branagan’s affidavit deposes that Comcare’s correspondence file in the proceeding is over 3,000 pages and the court documents file is of some 2,000 pages. Transcript of the part heard trial constitutes 548 pages. So far two witnesses have been called. A third, Mr Meredith, is in cross-examination and there are a large number of witnesses still to be called in the proceeding.

100    There is a contest in the evidence before me as to the number of and availability of suitable counsel who could be engaged to replace Mr Rozen. Whilst I accept that it is likely that suitable counsel will be found to replace Mr Rozen, in my view there is nevertheless substantial prejudice to Comcare in losing its counsel of choice and briefing new counsel. I accept that there are likely to be substantial additional costs incurred by Comcare because of the preparation that new counsel would need to engage in, in order to become familiar with the proceeding and be in a position to properly represent Comcare. Mr Branagan has deposed that some 15 to 20 working days would be required for counsel to do that. On the basis that if Mr Rozen withdraws, Comcare would brief both senior and junior counsel to appear in lieu of Mr Rozen, Mr Branagan has estimated that Comcare will suffer additional costs of at least $100,000 and potentially up to $165,000. Whilst there may be an argument as to whether the costs of briefing senior counsel should be included, I am satisfied that replacing Mr Rozen will involve substantial additional costs well in excess of $50,000. The costs involved in new counsel coming up to speed are duplicated costs and there must be some real doubt as to whether those costs would be recoverable by Comcare, even if Comcare should succeed in the proceeding. In those circumstances the potential for significant prejudice should be regarded as real and not merely speculative.

101    Additionally, Comcare says that in replacing counsel it will lose advantages which Mr Rozen has and which new counsel will not be able to readily obtain. I accept that counsel replacing Mr Rozen will be at some disadvantage because counsel will not have witnessed the demeanour of Mr Meredith in the context of Mr Meredith’s credibility being under challenge and where new counsel will need to conduct the re-examination of Mr Meredith. However, I do not attach very significant weight to that matter, including because of the view I have earlier expressed as to the importance of Mr Meredith as a witness in the proceeding.

102    Primarily because of the duplicated costs likely to be incurred and the potential loss to Comcare of its counsel of choice, I accept that there is significant potential prejudice to Comcare should it now be required to engage new counsel.

103    Additionally, there are a number of other consequences brought about by John Holland’s notification that it wants to call Mr Rozen which I need to take into account. Those disruptive consequences are relevant to the exercise of my discretion and in particular to those matters which s 37M of the Federal Court Act requires be given consideration. The notification given by John Holland on day seven of the trial and the need for the matters raised by that notification to be dealt with, led to the adjournment of the trial and the loss of three days of hearing. That has also led to an extensive delay in the completion of the trial. I recognise that even if the trial had not been adjourned when it was, further hearing days would have been required because the trial was likely to require more time than that allocated. Whilst the need for additional days will have caused some delay, the extent of the delay in the completion of the hearing has been significantly increased by John Holland’s intent to call Mr Rozen and the need for the issues thereby raised to be resolved. A delay in the completion of a hearing involves prejudice not only to the parties but also to the workings of the Court. That raises inefficiencies in terms of wastage of court resources and prejudice to other litigants awaiting trial: Aon at [5], [17], [23]-[25], [30], [93]-[95] and [111]-[114]. Further, but for the disruption caused, Mr Meredith would have completed his evidence. What has occurred has meant that there has been a disruption to the completion of Mr Meredith’s evidence and a delay of several months prior to the resumption of his cross-examination. The likely additional strain caused by that disruption is also a consequence which I should take into account: Aon at [100]-[101]. Additionally, the disruption of a trial mid-stream has a tendency to undermine public confidence in the administration of justice: Aon at [5], [30] and [35]. That the source of the disruption involves the question of whether counsel in the case should be called as a witness, has a particular tendency to undermine that confidence.

104    Whilst it might be suggested that to some extent the disruption and delay is a consequence of the need to determine the issues which were raised by John Holland’s notification of its intent to call Mr Rozen, the responsibility for that delay and disruption should be entirely attributed to its source, because to do otherwise would be to reward the party who has caused the disruption “by weighing in its favour the disruptive consequences of its own application”: Aon at [35].

105    I am satisfied that the prejudice for Comcare which might reasonably be assumed to follow from the withdrawal of its counsel is likely to be substantial. I am also satisfied that the delay and other disruptive consequences to which I have referred are serious and highly undesirable. Those considerations would weigh heavily against the grant of John Holland’s motion if John Holland bears responsibility for them. It is to that matter I turn next.

Is John Holland Responsible for the Prejudice, Delay and Disruption?

106    John Holland contends that if there is any prejudice to Comcare by reason of Comcare losing Mr Rozen as counsel, the responsibility for that loss falls squarely on Comcare and in no respect on John Holland. John Holland contends that it is Comcare’s failure to call Mr Rozen as a witness that has compelled it to do so. Relying on Morley, John Holland contends that in the conduct of the proceeding, Comcare is under an obligation of fairness.

107    For the purpose of this application, I will proceed on the basis that Comcare has an obligation of fairness. Comcare did not contend to the contrary. The content of such a duty is a matter which is likely to be of some contest in the ultimate determination of this proceeding. I need not deal with that aspect other than to observe that relevantly for these purposes, John Holland asserts that pursuant to its duty of fairness, Comcare had a duty to ensure that all available witnesses whose evidence was necessary to explain and give a complete account of the events upon which the proceeding is based are called, or at least made available to be called by John Holland. On that basis, John Holland contends that Mr Rozen is a person whose evidence is necessary to ensure that a complete account of the events of 16 to 17 June 2007 is placed before the Court. John Holland says that Comcare was not entitled to keep from the Court, or from John Holland, evidence which might impugn the credibility of Mr Meredith. On that basis, John Holland says that, given the events at the conference with Mr Meredith on 12 December 2008, the Court and John Holland were entitled to expect that Comcare would have called Mr Rozen in Comcare’s case or made him available for cross-examination. John Holland therefore asserts that Comcare’s failure to call Mr Rozen has compelled John Holland to have to do so and thus Comcare, and not John Holland, bears responsibility for the need to call Mr Rozen and for the prejudicial consequences which flow from it.

108    John Holland refers in its submission to Mr Rozen as the “prosecutor” but I do not apprehend the submission to be asserting that either Mr Rozen or Comcare had a duty of prosecutorial fairness. Such a contention would run counter to the judgment in Morley (at paragraphs [678] to [700]), a decision upon which John Holland relies. The contention would also be counter to a decision of a Full Court of this Court in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [112] (Lander J, with whom Moore J agreed) and Standen v Feehan [2007] FCA 1761 (Lander J). However, for the purpose of dealing with the application before me, I will proceed on the basis that a failure by a statutory agency such as Comcare to call a witness can constitute a breach of the obligation of fairness: Morley at [728].

109    As I have previously stated by reference to Morley, the two questions that arise are as follows:

    Would Comcare be expected to call Mr Rozen?

    Would Mr Rozen “probably have knowledge” on any and if so which of the issues in the case?

110    As the court said in Morley, “the strength of a probability the person has relevant evidence informs the expectation that that party will call the person as a witness”: at [760].

111    For the reasons I have already expressed, there is not “a significant degree of probability” that Mr Rozen has relevant knowledge and I have not been satisfied that a legitimate forensic purpose exists for calling Mr Rozen. There is no reason to suggest that that position was any different at an earlier time. I therefore reject John Holland’s contention that Comcare should have itself called Mr Rozen as a witness. I rely also on what I have already said as to the degree of importance of any evidence Mr Rozen can give.

112    A further basis relied upon by John Holland for contending that it should not be held responsible for the lateness of its notification that it seeks to call Mr Rozen as a witness, is that it could not have known that Mr Rozen could give relevant evidence until day seven of the trial (23 March 2011). The blame for that lack of knowledge is placed at Comcare’s feet because it is alleged Comcare failed to discover, at an earlier time and well prior to the trial, Mr Rozen’s note. Mr Rozen’s note was not provided to John Holland until 23 March 2011. The note was requested by John Holland on the previous day. Comcare appears not to have claimed legal professional privilege in relation to Mr Rozen’s note. The reason for that was not explained. Any subsisting privilege was waived on the provision of the note.

113    Like the contention that Comcare should have called Mr Rozen as a witness, John Holland’s contention that it should be excused from blame because it should have received the note at an earlier time, relies upon the foundation that there was and is a legitimate forensic purpose for Mr Rozen to be called. That is not the case for the reasons I have already given.

114    In any event, the contention is founded on the proposition that Mr Rozen’s note should have been discovered and thus come into the possession of John Holland. In a civil penalty proceeding, an obligation to discover and produce a document is to be considered under the ordinary rules relating to discovery: Visy Industries at [112]. Under the Federal Court Rules, a party must make discovery of any document directly relevant to any issue raised on the pleadings: O15, r 2(3): Visy Industries at [102]. John Holland was not identified, by reference to the pleadings, the issue raised which would have required Mr Rozen’s note to have been discovered. Insofar as John Holland contend that Mr Rozen’s note goes to the issue of Mr Meredith’s credit, “issues as to credit are matters which are not raised upon the pleadings and do not oblige the parties to make discovery or produce documents”: Visy Industries at [105].

115    To the extent that John Holland relies on Comcare’s agreement to discover documents, that agreement relevantly covered documents that “were created by or provided to Comcare during or as a result of any investigation into the incident”. At best, it is no more than faintly arguable that such a description was intended to extend to a note created by counsel for Comcare, of a conference with a witness held after Comcare’s investigation of the incident was completed and after proceedings were issued. The conclusion that no agreement to produce a document of that kind existed is assisted by the fact that Comcare had objected to providing documents that related to its decision to prosecute and that, when providing discovery, Comcare relied upon legal professional privilege.

116    It must have been apparent to John Holland’s lawyers long before this trial commenced that Comcare had not provided records of communications between its lawyers and witnesses in the case. Yet despite what John Holland now says about the scope of the agreed category of documents to have been discovered, no prior challenge was made by John Holland to the asserted failure. The absence of any prior challenge is not explained.

117    For all those reasons I do not accept that John Holland does not bear responsibility for the prejudice, delay and disruption. The full extent of that responsibility will need to be addressed at a later time, including on the question of costs. It is sufficient that for current purposes I am satisfied, as I am, that substantial responsibility lies at the feet of John Holland.

Conclusion on Balancing Process

118    In my view, on the assumption that a legitimate forensic purpose exists for Mr Rozen to be called, the strength of that purpose in the context of the potential importance of the issues raised, is outweighed by the significant potential for prejudice and the delay and disruption involved in Mr Rozen being called as a witness. The “just resolution” of the dispute strongly favours the dismissal of John Holland’s motion.

disposition

119    I have determined that no legitimate forensic purpose has been established for Mr Rozen to be called as a witness. Further, if such a purpose had been established, I would nevertheless have dismissed John Holland’s motion for the reasons I have just explained.

120    I will dismiss the motion and reserve the question of costs for later consideration. In accordance with the orders I made on 24 March 2011 the trial will resume on 4 July 2011.

Associate:

Dated:    3 June 2011