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

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.

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.

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.

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

Rules

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; …

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

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.

Liability for the workplace incidents is in dispute. I am told from the bar table that there is a…

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 Barnes v Brema Group Pty Ltd

Details

AGLC: Barnes v Brema Group Pty Ltd [2020] ACTSC 183
Case: [2020] ACTSC 183
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Matthew Barnes sued Brema Group Pty Ltd for compensation following two workplace incidents. The defendant moved for an order that certain medico-legal reports and surveillance footage not be disclosed to the plaintiff prior to trial, as their disclosure could lead to the plaintiff tailoring their evidence based on the content of the reports and footage. The defendant argued that the surveillance footage contradicted the plaintiff's account of their disabilities, and that the non-disclosure would allow for more accurate findings of fact by the trial judge. The court considered the rules regarding the disclosure of evidence and found that the defendant's application was consistent with the relevant authorities. The court granted the defendant's application and ordered that the reports and footage not be disclosed until after the plaintiff had given evidence in chief or further order of the trial judge.

The court held that the defendant would be at risk of costs orders in relation to the trial if the trial was unnecessarily prolonged by reason of the above leave being granted. The court also ordered that the application in proceedings and affidavit be placed in a sealed envelope and marked "not to be opened except by order of the Court". Finally, the court ordered that the publication of this judgment be restricted until the plaintiff had given evidence in these proceedings.

Orders