Azar v Kathirgamalingan - [2011] NSWDC 56

District Court

New South Wales

Medium Neutral Citation: Azar v Kathirgamalingan [2011] NSWDC 56
Hearing dates: 17 March 2011
Decision date: 18 March 2011
Before: Truss DCJ
Decision:
1.Leave be granted under r 31.10(2) to show the surveillance evidence to the plaintiff in cross-examination and to use and tender it at the hearing.
2.Order that the defendant be excused from compliance with r 31.10(1) in respect of the surveillance evidence.
3.Order costs of the notice of motion be costs in the cause.

Catchwords: R 31.10 (Plans, photographs and models), surveillance evidence, defendant excused from complying with r 31.10(2) till after cross-examination
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987
Cases Cited: Australian Postal Commission v Hayes & Anor 87 ALR 283
Boyes v Colins [2000] WASCA 344
Broken Hill Proprietary Co Limited v Mason & Jennings (1996) 67 SASR 456
Halpin & Others v Lumley General Insurance Ltd [2009] NSWCA 372
Jaber v Rockdale City Counsel [2008] NSWCA 98
Markus v Provincial Insurance Co. Ltd (1983) 25 NSWCCR 1
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346
Robbins v Harbord (1994) 62 SASR 229
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Interlocutory applications
Parties: Nayla Azar by her tutor Pascal Ibrahim (plaintiff)
Imaharan Kathirgamalingan (defendant)
Representation: Mr M Daley (plaintiff)
Mr K Rewell SC with Mr W Fitzsimmons (defendant)
Brydens Law Office (plaintiff)
Sparke Helmore (defendant)

File Number(s): 2008/320476

Judgment

Issue for determination

These proceedings are listed for hearing on 21 March 2011 with a ten-day estimate.

The plaintiff, by her tutor who is her son, is claiming damages in respect of injuries which she received in a motor vehicle accident on 20 August 2003. There are also related proceedings by her former employer under s 151Z of the Workers Compensation Act 1987 .

As I understand the plaintiff's case she alleges significant physical and psychiatric injuries which have rendered her unemployable and in need of full-time care. The plaintiff is not entitled to non-economic loss as she is below the threshold. According to the defendant her claim as particularised exceeds $7,000,000.

The defendant's case, in short, is that the plaintiff suffered minor physical injuries, which have resolved and that the plaintiff was suffering from a pre-existing psychiatric illness. The defendant says, and the Court accepts, that the plaintiff's credit is a central issue in these proceedings.

The defendant has obtained surveillance evidence upon which he proposes to rely on at the hearing.

By notice of motion dated 10 March 2011 the defendant sought orders including:

(i) That leave be granted under r 31.10(2) to show the surveillance evidence to the plaintiff in cross-examination and to use and tender it at the hearing.

(ii) That the defendant be excused from compliance with r 31.10(1) in respect of the surveillance evidence.

The rule relevantly provides:

31.10 Plans, photographs and models

(1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph or model…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azar v Kathirgamalingan

Details

AGLC: Azar v Kathirgamalingan [2011] NSWDC 56
Case: [2011] NSWDC 56
Decision Date: 18 March 2011

CaseChat Overview and Summary

The case of Azar v Kathirgamalingan involved a dispute where the defendant sought an order to use surveillance evidence during cross-examination of the plaintiff. The case was heard in a court where the rules of civil procedure applied, and specifically, rule 31.10 was relevant. This rule pertains to the disclosure of plans, photographs, and models in civil proceedings. The defendant argued that they should be excused from the requirement to disclose the surveillance evidence to the plaintiff prior to its use in cross-examination.

The central legal issue before the court was whether the defendant should be excused from complying with the requirement to disclose the surveillance evidence to the plaintiff until after it was used in cross-examination. The court had to determine if there were exceptional circumstances justifying such an order under rule 31.10(2). The defendant contended that disclosure prior to cross-examination would prejudice their case as it would give the plaintiff an opportunity to prepare for the evidence and potentially lead to an unfair advantage.

The court granted the defendant's application, finding that there were indeed exceptional circumstances that warranted the order. The judge considered factors such as the potential for prejudice to the defendant's case if the evidence was disclosed before cross-examination, and the importance of the evidence in the context of the overall proceedings. The court ruled that the defendant could use the surveillance evidence in cross-examination without prior disclosure and could disclose it to the plaintiff only after it had been used in cross-examination. Additionally, the court ordered that the defendant be excused from the requirement to provide the surveillance evidence to the plaintiff before cross-examination, as stipulated in rule 31.10(1). The costs associated with the notice of motion were also ordered to be costs in the cause.

Orders

Orders of the court

1.Leave be granted under r 31.10(2) to show the surveillance evidence to the plaintiff in cross-examination and to use and tender it at the hearing.

2.Order that the defendant be excused from compliance with r 31.10(1) in respect of the surveillance evidence.

3.Order costs of the notice of motion be costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Azar v Kathirgamalingan [2011] NSWDC 56
Hearing dates:	17 March 2011
Decision date:	18 March 2011
Before:	Truss DCJ
Decision:	1.Leave be granted under r 31.10(2) to show the surveillance evidence to the plaintiff in cross-examination and to use and tender it at the hearing. 2.Order that the defendant be excused from compliance with r 31.10(1) in respect of the surveillance evidence. 3.Order costs of the notice of motion be costs in the cause.
Catchwords:	R 31.10 (Plans, photographs and models), surveillance evidence, defendant excused from complying with r 31.10(2) till after cross-examination
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987
Cases Cited:	Australian Postal Commission v Hayes & Anor 87 ALR 283 Boyes v Colins [2000] WASCA 344 Broken Hill Proprietary Co Limited v Mason & Jennings (1996) 67 SASR 456 Halpin & Others v Lumley General Insurance Ltd [2009] NSWCA 372 Jaber v Rockdale City Counsel [2008] NSWCA 98 Markus v Provincial Insurance Co. Ltd (1983) 25 NSWCCR 1 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 Robbins v Harbord (1994) 62 SASR 229
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Interlocutory applications
Parties:	Nayla Azar by her tutor Pascal Ibrahim (plaintiff) Imaharan Kathirgamalingan (defendant)
Representation:	Mr M Daley (plaintiff) Mr K Rewell SC with Mr W Fitzsimmons (defendant) Brydens Law Office (plaintiff) Sparke Helmore (defendant)
File Number(s):	2008/320476