C v S - [2024] NSWDC 346

District Court

New South Wales

Medium Neutral Citation: C v S [2024] NSWDC 346
Hearing dates: 11 July 2024
Date of orders: 11 July 2024
Decision date: 11 July 2024
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
In relation to the Notice of Motion dated 8 July 2024:
1. Upon the solicitor for the defendant through the defendant’s counsel, giving an undertaking to pay the applicable filing fee, leave is granted to file in court:
(a) The Notice of Motion dated 8 July 2024; and
(b) The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto.
2. The Notice of Motion is returnable instanter.
3. The Notice of Motion is to be heard ex parte and in a closed court.
4. The defendant is granted leave to tender at the hearing of the proceedings:
(a) The surveillance footage contained in the USB stick and report prepared by [Q] dated 3 June 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b);
(b) The desktop investigation report and annexures of [CD] dated 10 April 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b); and
(c) The expert report of [SH] dated 1 July 2024 and letter of instruction to [SH] by [K] Lawyers referred to in Exhibit B to the affidavit of [CSS],
notwithstanding the fact that such material has not yet been served on the plaintiff and subject to any other grounds relating to admissibility at the trial.
5. Until further order of the Court and pursuant to section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of:
(a) This Notice of Motion;
(b) The affidavit of [CSS];
(c) All of the documents and things contained in the Exhibit B to that affidavit;
(d) The transcript of this hearing;
(e) The judgment in respect of this Notice of Motion
be suppressed until the conclusion of the plaintiff’s evidence in chief to be given at the trial.
6. Reserve the costs of the Notice of Motion for determination by the trial judge at the hearing of the proceedings.
7. The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto, the submissions of Mr Hogan of 10 July 2024 and these orders, are to be placed in a sealed envelope with the following annotation: “Not to be opened except pursuant to an order of a Judge.”

Catchwords:
EVIDENCE – practice and procedure – exemption from service of evidence prior to trial – surveillance evidence and medical expert report sought to be relied on by defendant at trial – Markus order – evidence relevant to plaintiff’s credit and damages

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:
Halpin v Lumley General Insurance Ltd [2009] NSWCA 372
Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859
Latimer v Day [2015] NSWSC 11

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 C v S

Details

AGLC: C v S [2024] NSWDC 346
Case: [2024] NSWDC 346
Decision Date: 11 July 2024

CaseChat Overview and Summary

The parties in this case were C, the plaintiff, and S, the defendant. The dispute was centred around the defendant's request to use certain evidence during the trial, which had not yet been served on the plaintiff. The matter was heard in the Supreme Court of New South Wales. The defendant sought to introduce surveillance footage, a desktop investigation report, and an expert report concerning the plaintiff's credit and damages. These materials had not been served on the plaintiff prior to the trial, and the plaintiff argued this was a breach of procedural fairness.

The central legal issues before the court were whether the defendant could rely on the contested evidence, and if so, under what conditions. The court needed to determine if the defendant's application to introduce the evidence was justified and whether it was appropriate to suppress the evidence until a later stage in the trial. Additionally, the court had to consider whether the suppression of the evidence was necessary to protect the fairness of the trial process.

The court granted the defendant's application to tender the contested evidence, subject to the defendant providing an undertaking to pay the applicable filing fee. The court also ordered that the evidence could be introduced at the trial despite not having been served on the plaintiff, subject to any admissibility issues at trial. Furthermore, the court ordered the suppression of the evidence until the conclusion of the plaintiff's evidence in chief. The court found that this was necessary to protect the fairness of the trial and to prevent any potential prejudice to the plaintiff. The court also reserved the costs of the Notice of Motion for determination by the trial judge at the hearing of the proceedings.

Orders

Orders of the court

In relation to the Notice of Motion dated 8 July 2024:

1. Upon the solicitor for the defendant through the defendant’s counsel, giving an undertaking to pay the applicable filing fee, leave is granted to file in court:

(a) The Notice of Motion dated 8 July 2024; and

(b) The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto.

2. The Notice of Motion is returnable instanter.

3. The Notice of Motion is to be heard ex parte and in a closed court.

4. The defendant is granted leave to tender at the hearing of the proceedings:

(a) The surveillance footage contained in the USB stick and report prepared by [Q] dated 3 June 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b);

(b) The desktop investigation report and annexures of [CD] dated 10 April 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b); and

(c) The expert report of [SH] dated 1 July 2024 and letter of instruction to [SH] by [K] Lawyers referred to in Exhibit B to the affidavit of [CSS],

notwithstanding the fact that such material has not yet been served on the plaintiff and subject to any other grounds relating to admissibility at the trial.

5. Until further order of the Court and pursuant to section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of:

(a) This Notice of Motion;

(b) The affidavit of [CSS];

(d) The transcript of this hearing;

(e) The judgment in respect of this Notice of Motion

be suppressed until the conclusion of the plaintiff’s evidence in chief to be given at the trial.

6. Reserve the costs of the Notice of Motion for determination by the trial judge at the hearing of the proceedings.

7. The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto, the submissions of Mr Hogan of 10 July 2024 and these orders, are to be placed in a sealed envelope with the following annotation: “Not to be opened except pursuant to an order of a Judge.”

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	C v S [2024] NSWDC 346
Hearing dates:	11 July 2024
Date of orders:	11 July 2024
Decision date:	11 July 2024
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In relation to the Notice of Motion dated 8 July 2024: 1. Upon the solicitor for the defendant through the defendant’s counsel, giving an undertaking to pay the applicable filing fee, leave is granted to file in court: (a) The Notice of Motion dated 8 July 2024; and (b) The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto. 2. The Notice of Motion is returnable instanter. 3. The Notice of Motion is to be heard ex parte and in a closed court. 4. The defendant is granted leave to tender at the hearing of the proceedings: (a) The surveillance footage contained in the USB stick and report prepared by [Q] dated 3 June 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b); (b) The desktop investigation report and annexures of [CD] dated 10 April 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b); and (c) The expert report of [SH] dated 1 July 2024 and letter of instruction to [SH] by [K] Lawyers referred to in Exhibit B to the affidavit of [CSS], notwithstanding the fact that such material has not yet been served on the plaintiff and subject to any other grounds relating to admissibility at the trial. 5. Until further order of the Court and pursuant to section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of: (a) This Notice of Motion; (b) The affidavit of [CSS]; (c) All of the documents and things contained in the Exhibit B to that affidavit; (d) The transcript of this hearing; (e) The judgment in respect of this Notice of Motion be suppressed until the conclusion of the plaintiff’s evidence in chief to be given at the trial. 6. Reserve the costs of the Notice of Motion for determination by the trial judge at the hearing of the proceedings. 7. The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto, the submissions of Mr Hogan of 10 July 2024 and these orders, are to be placed in a sealed envelope with the following annotation: “Not to be opened except pursuant to an order of a Judge.”
Catchwords:	EVIDENCE – practice and procedure – exemption from service of evidence prior to trial – surveillance evidence and medical expert report sought to be relied on by defendant at trial – Markus order – evidence relevant to plaintiff’s credit and damages
Legislation Cited:	Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW)
Cases Cited:	Halpin v Lumley General Insurance Ltd [2009] NSWCA 372 Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859 Latimer v Day [2015] NSWSC 11