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Key takeaways

In proceedings for work injury damages a party is not entitled to have any report or evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party at the pre-filing stage.

The court has a discretion to grant leave to a party to rely on late evidence, but that discretion will only be exercised if the evidence was not reasonably available to a party at the pre-filing stage and failure to grant leave would result in substantial prejudice.
The question of reasonable availability is interpreted strictly and the fact that the evidence was available to the defendant employer itself but not its insurer or legal representative will be sufficient for the court to refuse leave.

The court is not likely to find that a party is ‘substantially prejudiced’ by a failure to grant leave if the party has adduced and is able to rely on other evidence which goes to the same or similar issues.

Legislation

Section 318 (1) (d) of the Workers Compensation Act 1987 (the Act) provides that a party to work injury damages proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party’s behalf if the report or other evidence was not disclosed by the party in a pre-filing statement (PFS) or pre-filing defence (PFD) served under this Division, except with the leave of the court.

Section 318 (2) of the Act states that the court is not to grant leave under this section unless satisfied that –

• The material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and
• The failure to grant leave would substantially prejudice the party’s case.

Brief facts

The worker sustained an injury to his lumbar spine when he slipped on a puddle of spilled milk whilst collecting milk crates during the course of his employment.

He ultimately came to surgery by way of laminectomy and fusion on 13 June 2024 before providing notice of his intention to proceed with a claim for work injury damages after establishing a level of permanent impairment sufficient to breach the damages threshold prescribed by s 151H of the Act.

Liability in negligence was disputed by the defendant and the parties subsequently engaged in the pre-filing process. On 11 February 2025 the worker served a PFS. The defendant responded by serving a PFD. The claim was then the subject of an unsuccessful mediation in the Personal Injury Commission (PIC) on 19 May 2025.

The worker subsequently commenced proceedings in the District Court before Neilson DCJ.

Trial

On the first day of hearing the court was required to consider whether the defendant was able to call a witness to give evidence in circumstances where a statement from that witness did not form part of the PFD.

The solicitor for the defendant urged the court to allow the witness to give evidence on the basis that the existence and relevance of the witness was not known until he had the opportunity to examine spreadsheets produced by the employer in response to a subpoena issued by the worker on 6 May 2026. In his supporting affidavit, the defendant’s solicitor noted that he had since spoken to the proposed witness and ascertained that the witness was the last individual at the site of the worker’s injury and could give evidence that would assist the court regarding the system of work and the question of liability.

The worker disputed that the individual in issue was a ‘relevant witness’ and opposed him giving evidence. In so doing, the worker submitted that the defendant had not put a statement from the subject individual before the court or previously provided an outline of his proposed evidence.

Decision

DCJ Neilson noted at the outset that by operation of s 318 (1) neither the defendant or the worker were entitled to have any evidence admitted in the proceedings on behalf of that party if that evidence had not been disclosed by the party in its PFS or PFD.

In view of the above, the issues for the consideration of the court when exercising its discretion granted by s 318 (2) to admit the disputed evidence were:

• Was the late evidence ‘not reasonably available’ at the pre-filing stage and;
• Would failure to grant leave ‘substantially prejudice’ the defendant in its defence of the proceedings.  

DCJ Neilson referred with approval to the judgement of McColl JA in Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 who held that the discretion conferred by s 318 (2) must not be exercised to allow the admission of late evidence unless that court is satisfied that the matters set out in that provision are met.

The court then considered the more recent decision of Cavanagh J in Ljubic v Heat and Control Pty Ltd [2023] NSWSC 982. DCJ Neilson noted that Ljubic concerned the admission of a supplementary experts report in the plaintiff’s case where the court determined that the key point to be considered was whether the documents forming the basis of the supplementary report were reasonably available to the parties at the time of the PFS, rather than looking at when the report came into existence. Accordingly, it was necessary to look at the substance rather than the form of the proposed evidence.

Drawing upon the term ‘reasonably necessary’ as it appears in the Act, Neilson DCJ stated that he proposed to approach the question of ‘reasonably available’ in a similar way. That is, something was either available or not at the relevant time.
Returning to the present matter, His Honour was of the view that the documents from which the subject witness was identified must have been created at the time the relevant work was done such that ‘they have always been available’ to the employer as defendant. In the opinion of His Honour, as the worker brought his claim against the defendant, it mattered not that existence of the subject evidence had not been brought to the attention of its solicitor or insurer with the defendant’s failure to do so ‘the defendant’s problem’.

The court then dealt with the issue of prejudice briefly. His Honour noted that the defendant had served material to establish the system of work for cleaning spillages relevant to the issue of liability. Accordingly, it appears that His Honour was satisfied that the defendant had available to it, sufficient evidence to defend the claim.

Accordingly, DCJ Neilson refused leave to allow the witness to give evidence.

Comment

The decision confirms the reluctance of the court to exercise the discretion afforded by s 318 (2) to admit late evidence in proceedings for work injury damages by adopting a narrow interpretation of what constitutes evidence that was ‘reasonably available’ to the parties at the pre-filing stage.

In the case of a defendant employer, it matters not that it’s solicitor or insurer may not have been aware of the existence of evidence that may assist in the defence of the proceedings if the court is satisfied that the evidence in issue was reasonably available to the defendant employer itself as the party to the proceedings.

The case highlights the need for employers, insurers and their legal representatives to be vigilant and to fully investigate the circumstances of an injury for which a claim for damages has been notified at an early stage or otherwise risk not being able to rely on material evidence in the defence of the claim before the court.