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

Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1

Prasad v AMP Life Limited [2012] NSWSC 1076

Sun v He [2022] NSWSC 145

Category:

Procedural rulings

Parties:

[C] (Plaintiff)
[S] (Defendant)

Representation:

Counsel:
N Hogan (Defendant)

Solicitors:
[K] Lawyers (Defendant)

File Number(s):

2022/xxxx

JUDGMENT

EX PARTE

EX TEMPORE

1. Before the Court is an ex parte application by the defendant, [S], in closed court, for orders which are commonly known as “Markus orders” and associated relief.

2. The usual obligation of a party wishing to rely on expert evidence or other expert reports or audio-visual recordings is that they must serve such material at least seven days before the commencement of a hearing in the case of audio-visual material, and in accordance with the orders of the Court in relation to other expert reports, including medical expert reports, such that the other party is on notice of that material before the trial.

3. Part 31.10 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:

“31.10   Plans, photographs, audio-visual recordings and models

(1)  At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2)  A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except—

(a)  in the case of a prescribed item—where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or

(b)  in any other case—by leave of the court.

(3)  This rule does not apply to any proceedings entered, or intended to be entered, in—

(a)  the Commercial List or the Technology and Construction List in the Supreme Court, or

(b)  the Commercial List or the Construction List in the District Court.

(4)  In this rule—

audio-visual recording includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means.

prescribed item means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing.”

4. Essentially, a party may refrain from serving audiovisual recordings and associated expert reports where a court order is obtained in the nature of a Markus order, and where the Court is satisfied that the party making the application has a legitimate forensic purpose for not giving the other party or parties an opportunity to inspect the item or to review the relevant expert report before the final hearing.

5. I will consider the applicable principles shortly.

6. The background to the application is that the plaintiff, [C], was a former [xxx]. The plaintiff ceased working in the [xxx] in about 2018 and was medically discharged in 2019. By Statement of Claim filed on [xx] 2022, the plaintiff asserts that the defendant [S] was negligent, in substance in failing to provide a safe system of work for the plaintiff and taking any, or any adequate, precautions for the safety of the plaintiff in relation to risks concerning her mental health. It is said that a breach of duty occurred and [S] is liable to the plaintiff in damages as a result. The action is brought for modified common law damages under the Workers Compensation Act 1987 (NSW).

7. The defendant has denied the claim in its Defence filed on [xx] 2022.

8. Relevant to the application brought is the Statement of Particulars filed on behalf of the plaintiff on [xx] 2022. This claims that the plaintiff suffers from post-traumatic stress disorder (PTSD) with generalised anxiety and panic attacks and temporomandibular joint dysfunction, with disabilities including intense and prolonged psychological distress, diminished interest in activities, feelings of detachment and estrangement from others, inability to experience positive emotions, irritability, difficulty concentrating, panic attacks, acute anxiety, social withdrawal, anhedonia, social avoidance, avoidance of public places and lack of intimacy and emotional disconnection from her children and her husband. Other alleged disabilities are also particularised..

9. The matter is listed for final hearing on [x] July 2024 with an estimate of seven days.

10. By the Notice of Motion dated 8 July 2024, as I have indicated, orders in the nature of Markus orders are sought. In support of the application, Mr Hogan of counsel, who appears for the defendant, has read the affidavit of [CSS] dated 8 July 2024.

11. [CSS] exhibits to his affidavit:

1. A number of medical reports which have been served by the plaintiff;

2. An expert report which essentially has undertaken an internet and social media search in relation to the plaintiff;

3. A surveillance report with attached photographs;

4. A video; and

5. A supplementary psychiatric report by [SH], expert psychiatrist.

12. It is unnecessary for the purposes of the application to set out in detail this material. In relation to the medical reports exhibited as Exhibit A to [CSS’] affidavit, there are various mentions of the plaintiff’s psychiatric and mental health condition. There is a report of Ms [Y] which refers to the plaintiff’s psychological health, including the various aspects of generalised anxiety and panic attacks, and with the plaintiff focusing on very reduced tasks. A report of Dr [Z] dated [xx] 2023 refers to the plaintiff having ongoing social avoidance and working memory impairments that affect her social and vocational functioning.

13. Dr [Z] expresses the opinion that the plaintiff remains psychologically symptomatic with active symptoms of depressive disorder resulting in significant impairments in her functioning.

14. There is a further report of Dr [W] dated [xx] 2023 following a video conference on the same date, which refers to the plaintiff not returning to previously enjoyed social and recreational activities including socialising regularly with her family and friends.

15. There is a supplementary report of Dr [Z] dated [xx] 2023 referring to the plaintiff having lost confidence and struggling with multitasking and struggling with decision-making and having lapses of attention at home.

16. It is also stated that there has been no improvement in the plaintiff’s functioning in the last 12 months and her anxiety has been debilitating and causing physical symptoms. A guarded prognosis is expressed by Dr [Z].

17. Also annexed is a certificate of capacity which suggests the plaintiff has PTSD with anxiety and depression and has no capacity for any type of work.

18. The medical reports referred to paint a picture of the plaintiff as being extensively debilitated by her psychiatric condition with limited social involvement and largely being confined to limited social activities with her family and domestic duties.

19. The material in Exhibit B to [CSS’] affidavit includes the report of Mr [V], who has undertaken a social media and internet review. That material, somewhat inconsistently with the factual basis and assumptions of the plaintiff’s medical reports, shows the plaintiff to be involved with three different sporting associations that her children are members of, and having involvement in voluntary positions including [xxx]. Various media publications making reference to the plaintiff are included as part of the report.

20. In addition, there is the surveillance report from [Q] dated [xx] 2024 containing photographs of the plaintiff involved in various sporting activities, including [xxx], and there is a film which is part of Exhibit B. Mr Hogan has informed me that it is in the same form as that which was sent to my Associate, which I have had the advantage of reviewing in chambers.

21. In substance, at least, one interpretation of the film is that the plaintiff undertakes a seemingly normal involvement as an active parent in the sporting activities of her children and interacts without apparent difficulties with other parents and other persons and her husband, and is an active participant and assistant in managerial positions in the sport.

22. Also exhibited is a report of [SH] who, whilst not being able to clinically assess the plaintiff and make a direct assessment of her ability to undertake work in the light of the surveillance material which has been provided to him, expresses the opinion that the online and video surveillance material provides a marked discrepancy between the objective evidence of the plaintiff’s functional abilities and what is described to the clinicians that have undertaken assessments of her.

23. [SH] gives opinions of different alternative explanations for those discrepancies which suggest that, whilst the plaintiff’s medical experts report her being socially avoidant, housebound and having reduced ability to care for herself, the video footage shows the plaintiff being able to function and appear comfortable and happy and having social interaction in a range of different relatively high stimulus environments. [SH] gives different potential interpretations of the film, with one possibility being that the disparity indicates a level of symptoms and impairment exaggeration.

24. In the light of that material, the application is made for the Markus orders. I have had the advantage of reviewing written submissions which are dated 10 July 2024 from Mr Hogan which have been of assistance to the Court.

25. In relation to the principles to be applied, in Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1, Clarke J made an order waiving a direction that all affidavit evidence be served before trial in relation to a plaintiff.

26. Prior to the current rule, the Court of Appeal in Halpin v Lumley General Insurance Ltd [2009] NSWCA 372 considered Markus in the light of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules then in force, and concluded, in paragraph 107, that courts in New South Wales have power under the Civil Procedure Act and the Uniform Civil Procedure Rules to make orders relieving one party to civil litigation from complying in whole or in part with directions that would otherwise require that party to disclose to the other in advance of the trial all affidavits and reports to be adduced in evidence at the trial. This was seen to be consistent with ss 58, 59 and 61 of the Civil Procedure Act.

27. Since that time, the courts have developed jurisprudence in relation to the principles to be applied in exercising the power under Part 31.10.

28. In Prasad v AMP Life Limited [2012] NSWSC 1076, Stevenson J set out the background to the exercise of the Markus discretion. In paragraph 22, drawing on the comments of the Court of Appeal in Halpin, above, Stevenson J set out the factors which in his view should be applied in considering an application of the type here. Paragraph 22 is as follows:

“22.  Drawing from the comments made by the members of the Court of Appeal in Halpin, I consider that I should bear in mind the following factors when considering AMP's application: -

(a)  I must consider whether the making of the orders would promote the speedy determination of the real issues in the proceedings and whether the making of the orders would promote the just, quick and cheap disposition of the proceedings (per Sackville AJA, with whom Tobias JA agreed, at [89] referring to the Civil Procedure Act 2005 s 61(1) and s 61(2)(c) and UCPR r 2.1 and r 2.3);

(b)  I must consider whether the dictates of justice will be served by the making of the orders (per Sackville AJA at [101]);

(c)  I should consider whether the material is of a kind that would be of assistance only to the withholding party in meeting the case of the deprived party and not of a kind which would assist the deprived party in the formulation and presentation of his or her own case (per Sackville AJA at [84] citing Barrett J (as his Honour then was) in Kon v AMP Life Ltd [2006] NSWSC 957);

(d)  it would normally be unjust to withhold material which might assist the deprived party (per Sackville AJA at [114]).

(e)  I should consider whether there is a risk that the material, if made available, would tend to tempt the deprived party to tailor his or her evidence, or at least consider doing so (per Sackville AJA at [84] citing Barrett J in Kon);

(f)  it is inappropriate for the Court to make any assessment as to the honesty of the party against whom fraud is alleged (per Sackville AJA at [119]);

(g)  but there is a need to be satisfied that there is some real basis for suspicion of fraud (per Basten JA at [37]);

(h)  it is relevant to take into account the likely risk of adjournment that the withholding of the material may cause and the impact on the prospects of settlement in the event that the material is withheld (per Sackville AJA at [97] and [98]);”

29. Of assistance also is the decision of Davies J in Latimer v Day [2015] NSWSC 11 where his Honour, in a very helpful judgment, set outs the principles to be applied. His Honour noted in paragraph 14 that Halpin pre-dated the enactment of the present rule and looked chiefly at whether the provisions of the Civil Procedure Act were inconsistent with the Court having the power to make orders of the kind involved in a Markus direction. His Honour held that the provisions were still relevant when considering whether a party has a legitimate forensic purpose to withhold the documents concerned. It was noted in Latimer, as in the present case, it was proposed that the material to be retained would be used to challenge the credibility of the plaintiff and the extent of injuries.

30. In paragraph 17, Davies J stated that the Court must be satisfied that the defendant has a legitimate forensic purpose for not providing the relevant items to the plaintiff for inspection. Davies J referred to the decision of Stevenson J in Prasad. His Honour noted in paragraph 16 that where the material sought was extensive, it was unnecessary for the judge to read or view the whole of the material. I wish to make clear that I have reviewed the whole of the material in the present case. His Honour also noted that the cases prior to the rule refer not to a legitimate forensic purpose but to a litigant being deprived of a legitimate forensic advantage.

31. His Honour also stated that what was required by the rules seemed to be a lesser requirement, although the result may not be different. In Latimer his Honour found in paragraph 8 that the defendant had demonstrated a legitimate forensic purpose for not giving the plaintiff the opportunity to inspect and view the audiovisual material, with that purpose concerning cross-examination of the plaintiff and possibly others to test their credibility in the light of the material. His Honour then went through the factors set out in paragraph 22 of Prasad.

32. In Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859 Adamson J, as her Honour then was, considered a similar Markus application which included surveillance video material and photographs. Her Honour found in paragraph 18 that compliance with the usual requirements for disclosure of the material would be detrimental to the administration of justice since it would prejudice the defendant’s right to test the credibility of the material and may provide to a plaintiff an opportunity to tailor his or her evidence and therefore diminish its forensic significance, particularly the reliance on what is commonly called a “good days/bad days” explanation, which her Honour described as frequently being given for inconsistencies between what is depicted in video evidence and the plaintiff’s evidence-in-chief.

33. In paragraph 11, her Honour noted that the principal issue in the proceedings would appear to be the plaintiff’s credibility, and therefore the application was appropriate, whilst her Honour confirmed, of course, that she had made no assessment of the plaintiff’s credit in granting the orders sought by the defendant.

34. Of note is that her Honour also considered it necessary to make orders under the Court Suppression and Non-Publication Orders Act 2010 (NSW) which are also sought in the present case.

35. In Sun v He [2022] NSWSC 145 Henry J considered a Markus application. In paragraphs 24 and following, her Honour referred to Markus and Halpin. In paragraph 26, her Honour indicated that while the usual course required a party to serve all the evidence on which they relied to the other parties prior to the commencement of the hearing, the authorities have recognised that in some of what she described as “exceptional circumstances”, a document or report should not be inspected or served, notwithstanding that it may be used at the hearing. Her Honour expressly referred to the factors set out by Stevenson J in Prasad, and, having applied those, was satisfied that there was an appropriate basis to grant the Markus order.

36. Her Honour also noted that the material could put the parties involved on notice and enable them to tailor or endeavour to tailor their evidence to meet those circumstances. Her Honour took the other factors into account and referred to Latimer v Day and accepted that there should be a closed court and suppression orders as sought in the present case.

29. Applying the principles in those cases and considering the factors in Prasad, in my opinion:

1. The orders sought would promote the speedy determination of the real issues in the proceedings and would promote the just, quick and cheap disposition of the proceedings and be consistent with the dictates of justice by having a proper testing of the plaintiff of her physical disabilities as asserted in her Statement of Claim and particulars;

2. I am satisfied that the material is of a kind that would be of assistance only to the withholding party being the defendant and not of a kind that would assist the deprived party being the plaintiff in the formulation and presentation of her case;

3. I accept that it is not unjust to withhold the material in the present case as the plaintiff would be aware of the activities shown in it;

4. I am of the view that the disclosure of the material would create a risk, if made available, by having the possibility of tempting the plaintiff to tailor her evidence or at least consider doing so;

5. I have not made any assessment of the honesty of the plaintiff as she may have some explanations for the discrepancy referred to by [SH];

6. While I take into account the possibility of a risk of adjournment if the material is withheld, that may only involve additional material being put to the plaintiff’s experts or possibly witnesses explaining her position. I do not think that risk is of such a high nature as to be a strong factor in not making the orders sought.

38. Ultimately, this case concerns the extent of the plaintiff’s alleged mental health issues and the effect on her daily life and her employability. That will involve questions of medical expert opinion but also the correctness of the plaintiff’s instructions to the medical experts and the effect on her life of the alleged mental health conditions she complains of, which she puts at the feet of the defendant. The material, if disclosed, in my view, may involve a tailoring of evidence and is relevant to the plaintiff’s credit. I make, as I indicate, no findings in relation to the plaintiff’s honesty or what is the appropriate interpretation of the material, as there are various possibilities as [SH] refers to.

39. In all those circumstances, I am satisfied that this is a proper case to exercise the discretion in relation to making of a Markus-type order.

40. [His Honour then made certain orders]

41. I make the following orders:

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:

1. The Notice of Motion dated 8 July 2024; and

2. 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:

1. 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);

2. 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

3. 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:

1. This Notice of Motion;

2. The affidavit of [CSS];

3. All of the documents and things contained in the Exhibit B to that affidavit;

4. The transcript of this hearing;

5. 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.”

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Decision last updated: 15 August 2024