Barnes v Brema Group Pty Ltd

[2020] ACTSC 183

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Barnes v Brema Group Pty Ltd

Citation:

[2020] ACTSC 183

Hearing Date:

7 July 2020

DecisionDate:

8 July 2020

Before:

Robinson AJ

Decision:

See [18]

Catchwords:

CIVIL LAW – NONDISCLOSURE OF MEDICO-LEGAL REPORTS – Reports contain surveillance footage – existing order to serve all evidence for trial prior to listing hearing – ex parte application to vary that order – appropriate to grant leave to withhold disclosure

Legislation Cited:

Court Procedures Rules2006 (ACT), rr 1241, 6704

Cases Cited:

Fuller v Allen [2020] ACTSC 32

Fuller v Allen (No 2) [2020] ACTSC 119

In the matter of an application under s 73 of the Civil Law (Wrongs) Act 2002 (ACT) [2009] ACTSC 53

Parties:

Matthew Barnes (Plaintiff)

Brema Group Pty Ltd (Defendant)

Representation:

Counsel

A Muller (Plaintiff)

Ex parte

Solicitors

Hall & Wilcox (Plaintiff)

Ex parte

File Number:

SC 403 of 2019

ROBINSON AJ

Introduction

1. Matthew Barnes (the plaintiff) has filed an Amended Statement of Claim alleging that he has suffered two workplace incidents occurring on 27 September 2016 and 9 February 2018 for which Brema Group P/L (the defendant) is liable to compensate him.

1. The proceedings are currently set down for a Listing Hearing on 9 July 2020. There is an existing order that the parties serve all evidence for trial prior to this date.

1. The defendant moves before me on an ex parte basis for an order in relation to the nondisclosure of a medico-legal report which makes reference to surveillance reports and footage.

1. The Court Procedures Rules2006 (ACT) proceed on the basis that an ex parte application for such orders can be made to the court.

Rules

1. The application before me is brought under r 6704 of the Court Procedures Rules. That rule is in these terms:

(1)This rule applies if a party intends to tender a plan, photograph, video or audio recording, or model at a trial.

(2)Unless the court otherwise orders, at least 7 days before the day the trial starts, the party must give all other parties an opportunity to-

(a)inspect anything mentioned in subrule (1) the party intends to tender; …

1. Rule 1241 deals with the service of expert reports. It is in different terms.

(1)Each party must serve on each other active party to a proceeding a copy of each expert report obtained by the party in accordance with any direction made by the court.

….

(5)    This rule applies subject to any order of the court.

Evidence

1. I have perused the “Statement of Particulars” filed on 18 June 2020. Those particulars show that the plaintiff is presently 34 years of age and has a future life expectancy of 49.39 years. The plaintiff claims substantial disabilities, a very large sum for past and future wage loss, loss of superannuation benefits and past and future domestic care and assistance, amongst other things.

1. Liability for the workplace incidents is in dispute. I am told from the bar table that there is a stark factual contest in relation to the injury circumstances of the second incident.

1. On the application before me, the defendant read the affidavit of Lauren Patricia Armstrong affirmed on 2 July 2020. The deponent exhibited reports from medical professionals and also the results of surveillance undertaken of the plaintiff at the request of the solicitors for the defendant. This included a surveillance report prepared by Quantumcorp and two reports of Dr Stephen Quain, an orthopaedic surgeon. That doctor had prepared an initial report for the solicitors for the defendant based on a history and examination. He was subsequently shown the surveillance material and changed his opinion in a second report.

1. Counsel told me that the defendant submitted that serving only the first of Dr Quain’s reports would be misleading to the plaintiff. That is because the plaintiff would prepare for trial on the basis of the text of that first report. I agree with this submission.

1. Counsel also told me that the reports of Dr Quain and the surveillance report were inextricably linked for the purposes of this application. I also agree with this submission.

Test

1. I take r 6704 to be placing an onus upon the party seeking the “otherwise order” to show that there is some reason to depart from the usual order of disclosing all evidence to the opponent prior to trial. Those reasons may be many and varied but they must be in the interests of justice. The Court Procedures Rules are built upon the disclosure of evidence as opposed to trial by ambush.

1. The forensic purpose identified for non-disclosure was that the plaintiff had given to medical professionals a vastly different account of his disabilities than is shown in the surveillance material and that the disclosure of the surveillance material would enable the plaintiff to tailor his evidence to take account of what is shown in the surveillance and what is not shown in the surveillance. It is said by the defendant that the findings of fact by the trial judge on the issue of the plaintiff’s disabilities could be more accurately undertaken by not disclosing surveillance material prior to the plaintiff giving evidence in chief. Any credit finding in respect of the issue of the plaintiff’s disabilities can also be relevant on the issue of liability in respect to the two incidents.

1. On the hearing, counsel for the defendant referred me to a number of cases: Fuller v Allen [2020] ACTSC 32 and Fuller v Allen (No 2) [2020] ACTSC 119 per Elkaim J. On an analogous provision under s 73 of the Civil Law (Wrongs) Act 2002 (ACT), I was also referred to the case designated as [2009] ACTSC 53 per Refshauge J. My decision is consistent with those authorities.

1. I propose to make the orders sought. They are justified on the evidence, subject to consideration of costs discussed below.

Costs

1. In argument, I raised the situation which might occur if material was not disclosed to a party ahead of the trial in that it may be necessary to obtain an adjournment, or costs could be thrown away by reason of the non-disclosure. This could happen for a number of reasons. One purpose of the pre-trial disclosure of materials to be used in the trial is to avoid this very risk. This risk is heightened when all of the reports of one doctor are not disclosed. The defendant seeking the dispensation should be at risk of having to pay the price of this dispensation should the circumstances warrant it. The trial judge will be in the best position to exercise any discretion.

1. On the other hand, an order can be made at this juncture as to the costs of this application and revisited by the trial judge, only if necessary.

Order

1.Grant leave to the defendant to withhold the disclosure of the reports of Dr Stephen Quain dated 5 March 2020 and 26 May 2020 pursuant to r 1241 of the Court Procedures Rules 2006 (ACT) until after the conclusion of the plaintiff’s evidence in chief or further order of the trial judge.

2.Grant leave to the defendant to withhold the disclosure of the report of Quantumcorp dated 2 March 2020 and associated surveillance material pursuant to r 6704(2) of the Court Procedures Rules 2006 (ACT) until after the conclusion of the plaintiff’s evidence in chief or further order of the trial judge.

3.Subject to any further order that the trial judge is minded to make, order that the costs of this application be costs in the cause.

4.The Court notes that the above leave was expressly granted on the basis that the defendant would be at risk of costs orders in relation to the trial should the trial be unnecessarily prolonged by reason of the above leave being granted.

5.Order that the Application in Proceedings lodged on 2 July 2020 together with the affidavit of Lauren Patricia Armstrong affirmed 2 July 2020 be placed in a sealed envelope and marked “not to be opened except by order of the Court”.

6.Order that the publication of this judgment be restricted until the plaintiff has given evidence in these proceedings.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.

Associate:

Date: 8 July 2020