Bakhit v Hartley Healy Pty Ltd [2024] QSC 88

SUPREME COURT OF QUEENSLAND CITATION: Bakhit v Hartley Healy Pty Ltd [2024] QSC 88 PARTIES: HAMDE BAKHIT (plaintiff) v HARTLEY HEALY PTY LTD ACN 151 817 971 (defendant) FILE NO: BS 14554 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 May 2024 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Sullivan J ORDER: The order of the Court will be as follows: 1. Pursuant to r 367(1) of the Uniform Civil Procedure Rules 1999 (Qld), the defendant be granted leave to reopen its case and adduce the following further evidence in the hearing of the separate questions, namely: (a) affidavit of Belinda Jayne Hughes filed 2 February 2024 (in full); (b) affidavit of Belinda Jayne Hughes filed 28 March 2024 (paragraphs [28] to [48] and exhibits BJH-8 to BJH-11); (c) affidavit of Trina Louise Cash filed 27 March 2024 (in full). 2. Costs reserved. CATCHWORDS: EVIDENCE – ADDUCING EVIDENCE – RE-OPENING THE CASE – BY PARTY – where the defendant seeks leave to re-open the case and adduce further evidence – whether leave ought to be granted in the circumstances Uniform Civil Procedure Rules 1999 (Qld), r 367(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld) -- 1 of 5 -- 2 Davies v Davies (No 1) [2019] QSC 293 Enkelmann v Stuart [No 2] [2023] QCA 198 COUNSEL: AP Collins with JR Moxon for the plaintiff CC Heywood-Smith with M Eade and J Borja-Erece for the defendant SOLICITORS: Barry Nilsson Lawyers for the plaintiff Hughes & Lewis Lawyers for the defendant [1] The current application is brought by the defendant pursuant to r 367(1) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and the inherent jurisdiction of the Court, for an order allowing the defendant to reopen its case and adduce further evidence in respect of a trial of separate questions which was heard between 5 to 7 February 2024. [2] The proceeding involves the proper construction of a release clause within a settlement deed entered into by the plaintiff with the defendant some time ago. That clause is as follows: “7.1 In consideration of Harley Healy and Allen-Ankin taking the steps set out in clauses 2 to 6 of this Deed, Bakhit releases and discharges Hartley Healy and Allen-Ankins from all claims which she may now have or may at any time have had or may at any time in the future have against Hartley Healy and/or Allen-Ankins in respect of or in connection with: (a) the Allegations; (b) the Discrimination complaint; and (c) any other matter relating to Bakhit’s employment with Hartley Healy or the cessation of that employment; Other than any claim for statutory benefits under the Workers Compensation and Rehabilitation Act 2003 (Qld) or for unpaid superannuation which she may be entitled to make.” [3] One of the issues in the proceeding is whether, on the proper construction of the release clause, a common law damages claim for personal injuries was released in respect of an injury said to have arisen whilst the plaintiff was in the employ of the defendant. [4] On the second day of the hearing, written submission were delivered by 10 am. Defence counsel had not called its only witness by this stage. Court was then scheduled to start at 11 am so that each party could read each other’s submissions. Each side’s written submissions contained specific submissions as to how the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) operated and how that operation was relevant to the proper construction of the release clause. -- 2 of 5 -- 3 [5] It is uncontentious that on the third and last day of trial, the plaintiff raised, for the first time, the operation of s 119 of the Act and how that operation was said to be relevant to the construction of the release clause in a way which was favourable to the plaintiff’s case. [6] On that occasion, it was fairly identified by the plaintiff’s counsel that the relevance of the operation of s 119 of the Act had been “developed overnight”. [7] The alleged operation and relevance of s 119 of the Act is submitted by the defendant to have come as a surprise to the defendant. [8] In one sense, s 119 of the Act was simply another provision of the Act which was raised in circumstances where the overall operation of the Act was already the subject of analysis and consideration. However, I am satisfied that the raising of s 119 of the Act for the first time on the last day did take the defendant by surprise. It had not been raised in the plaintiff’s submissions which had been delivered prior to the defendant closing its case. [9] In those circumstances, I made directions for the delivery of supplementary written submissions on the s 119 issue. Those supplementary submissions were ultimately filed by the parties. The defendant’s supplementary submissions were emailed on 21 February 2024. In those submissions, it was flagged that if the Court construed the release clause in a particular way, then the defendant would consider making an application for reopening its case so as to deliver additional evidence. The defendant also requested the opportunity to address the s 119 issue orally. [10] The matter came on for a further hearing on the s 119 issue on 25 March 2024. On this occasion, I identified that it was not appropriate for the Court to give some preliminary indication of the final construction of the release clause. I indicated that it was a forensic decision for the defendant as to whether it wished to bring an application to reopen its case. Counsel for the defendant took instructions and informed the Court that it did wish to bring the application. Directions were subsequently made for the present application to be determined on the papers with the benefit of written submissions by both parties. [11] Whether leave should be granted to reopen a case and allow in further evidence involves an exercise of a discretion. Relevant considerations in the exercise of that discretion will include: (a) the need for fairness so that a party is entitled to know the case it has to meet before making forensic decisions about the evidence it will adduce on matters in issue; (b) whether there has been a change in the subject matter of the litigation; (c) the significance of the new evidence to the disposition of the proceeding; (d) the reasons for the evidence not being led at the trial; (e) any delay in seeking leave to reopen; (f) the likely prejudice to the opposing party if the application is allowed; -- 3 of 5 -- 4 (g) the likely prejudice to the applicant if the application is refused.1 [12] The following considerations are relevant to this case. [13] The first is a consideration of fairness to each party in being able to reasonably ventilate relevant issues. Here, the hearing was for the determination of certain separate questions. [14] The plaintiff had not raised in its submissions the operation and relevance of s 119 of the Act to the proper construction of the release clause. The operation and relevance of s 119 of the Act had also not been raised by the defendant. Whilst it might be said that the general analysis of the Act which was undertaken should have raised the possibility that any section of the Act might have been ventilated in oral argument, on balance, I am satisfied that each party had overlooked the potential relevance of s 119 of the Act. [15] Having been made aware of the plaintiff’s contention as to the operation and relevance of s 119 of the Act to the proper construction of the release clause, the defendant flagged the possibility of leading additional evidence in respect of how s 119 of the Act factually operated in this case. The defendant did so in its supplementary submissions. Ms Belinda Hughes, a solicitor for the defendant, deposes to the view that had the s 119 issue been raised as potentially relevant to the construction of the release clause in the initial submissions, she would have sought, and likely obtained, instructions to lead the additional evidence. [16] I am satisfied that had the s 119 issue been raised in the submissions on the second day that consideration would have been given to the issue with a sensible possibility that similar evidence to that for which leave is sought may have been led at trial. [17] Seeking to lay blame for this situation is somewhat fruitless. The plaintiff did not raise the issue until very late. However, the defendant was generally analysing the Act in detail in its submissions and had also overlooked s 119 of the Act. The fact that the plaintiff belatedly came to the point perhaps should best be understood as reflecting the complexity of the Act and the continued careful analysis of the Act by counsel for the plaintiff. [18] Nonetheless, the issue only belatedly being identified and raised, in my view, points in favour of a grant of the leave sought. [19] Secondly, I do not believe that there has been any inordinate delay. The supplementary submissions which I allowed to be filed raised the prospect of the defendant seeking to reopen its case and its leading of evidence of this nature. Whilst in my view it was incorrect for the defendant to assume that the Court would give some preliminary indication of its final construction of the release clause prior to the delivery of judgment, the possibility of seeking to lead additional evidence was clearly flagged. There has been some delay, but not an inordinate delay. I treat this factor as essentially neutral. 1 See Davies v Davies (No 1) [2019] QSC 293 at [10] and Enkelmann v Stuart (No 2) [2023] QCA 198 at [16]. -- 4 of 5 -- 5 [20] Thirdly, the plaintiff has not put on evidence or submitted that the reopening of the defendant’s case and the adducing of the further evidence would cause it material prejudice. The absence of prejudice is an important factor to take into account. It favours the grant of leave. [21] Fourthly, I note that there are competing submissions as to the utility of the further evidence. The plaintiff submits there is no proper basis to adduce evidence of the type as an aid to construction. It is submitted that the settlement deed is entirely self- contained and the relevant evidence relating to its execution has been adduced. It is further submitted that no additional evidence is warranted in respect of the proper construction of the release clause. [22] The plaintiff submits that if the Court considers the plaintiff’s construction is correct, then it does not matter whether the plaintiff had a claim for compensation on foot at the time she signed the deed. If the defendant’s construction is correct such that the evidence becomes a relevant matter, the plaintiff accepts that she has led no evidence of having a claim on foot. Consequently, it is submitted that it does not matter whether the additional evidence is allowed to be adduced. [23] In contrast, the submissions of the defendant are to the effect that the evidence is directly relevant to how s 119 of the Act operated in fact in the particular circumstances of this case. It is submitted that this is relevant to how the release clause ought to be construed. [24] On this application, it is not appropriate, in my view, to make a final ruling on which of these various arguments is correct. These questions are potentially bound up in the final question that I have to determine in this proceeding. [25] Issues of relevance and futility ought to and can be dealt with in the final decision. If I ultimately conclude the evidence is entirely irrelevant or that its admission was futile, then the admission of the evidence will have no effect on the ultimate decision. [26] In all of the circumstances then, a consideration of the above factors supports that it is appropriate to allow the defendant to reopen its case and to adduce the further evidence in this proceeding. [27] In terms of costs, I will reserve the issue of costs until the final determination on the separate questions. [28] The order of the Court will be as follows: 1. Pursuant to r 367(1) of the UCPR, the defendant be granted leave to reopen its case and adduce the following further evidence in the hearing of the separate questions, namely: (a) affidavit of Belinda Jayne Hughes filed 2 February 2024 (in full); (b) affidavit of Belinda Jayne Hughes filed 28 March 2024 (paragraphs [28] to [48] and exhibits BJH-8 to BJH-11); (c) affidavit of Trina Louise Cash filed 27 March 2024 (in full). 2. Costs reserved. -- 5 of 5 --