Catanzariti v Muller
[2017] ACTSC 365
•5 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Catanzariti v Muller |
Citation: | [2017] ACTSC 365 |
Hearing Date: | 4 December 2017 |
DecisionDates: | 4 and 5 December 2017 |
ReasonsDate: | 5 December 2017 |
Before: | Mossop J |
Decision: | See [5] and [12] |
Catchwords: | PRACTICE AND PROCEDURE – APPLICATION – Application to withhold notification to the plaintiff of surveillance material and to not serve expert reports based on surveillance material – application already the subject of interlocutory orders by another judge – need for good reason to depart from earlier orders – no good reason – application dismissed |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 1242, 6704, 6704(2), 6704(5), 6704(6) |
Cases Cited: | Aon Risk Services Aust Ltd v ANU [2009] HCA 27; 239 CLR 175 Dean v More Than a Morsel [2002] ACTSC 101; 170 FLR 432 Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57 |
Parties: | Satu Catanzariti (Plaintiff) Rachel Muller (First Defendant) Insurance Australia Limited t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel A Black SC and D Crowe (Plaintiff) R Stitt QC and S Warren (First and Second Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Sparke Helmore (First and Second Defendant) | |
File Number: | SC 106 of 2015 |
MOSSOP J:
Introduction
These proceedings are a claim for damages arising from personal injury alleged to be caused by a motor vehicle accident. The final hearing was scheduled to commence
4 December 2017. On 1 December 2017 (the Friday before the commencement of the hearing) the second defendant (NRMA) made an ex parte application to Elkaim J seeking orders which would permit the defendants to not disclose certain medical reports to the plaintiff and the video surveillance film upon which those reports were, in part, based. His Honour did not make the orders sought by the second defendant: see Insurance Australia Ltd T/as NRMA Insurance [2017] ACTSC 361. The NRMA made an application for leave to appeal to the Court of Appeal constituted by a single judge. I heard that application on the morning of 4 December 2017 and dismissed it after the luncheon adjournment. I indicated that I would give my reasons for that decision today, which I have just done: Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57.
Immediately following the dismissal of an application for leave to appeal from the decision of Elkaim J, the defendant made an application to me as the trial judge for orders that were different to and inconsistent with the orders made by his Honour. His Honour had made orders refusing leave under r 6704 of the Court Procedures Rules 2006 (ACT) to withhold notification to the plaintiff of the surveillance material, refusing leave to withhold service of four medical reports and requiring that material to be notified or served by 4:00 pm that day, namely Friday 1 December 2017. That latter order was, upon the application of NRMA, stayed by his Honour pending the application for leave to appeal.
Having regard to the dismissal of the application for leave to appeal it was necessary to make some further procedural order in relation to the notification or disclosure of the material the subject of the stay order.
The NRMA’s application
It was in that context that the oral application was made by the NRMA for an order that the surveillance video and expert reports not be required to be disclosed to the plaintiff until the conclusion of the cross‑examination. The material relied upon in support of the application was the same material that had been relied upon before Elkaim J, namely the affidavit of Vanessa Parkins dated 1 December 2017 and a bundle of medical reports dated 29 November 2017.
Having heard oral submissions in support of the application in the absence of the representatives of the plaintiff, I dismissed the application and indicated that I would give reasons this morning. I subsequently made the following orders:
1. The defendant’s oral application is dismissed.
2. That the four expert reports along with any video surveillance that provided a basis for the opinions expressed in the reports be served upon the plaintiff forthwith.
In order to make the position clear I will also now make the additional order that the costs of the application be reserved.
Reasons for decision
My reasons for dismissal of the oral application and the making of the orders that I did are as follows.
The orders made by Elkaim J were interlocutory orders. Interlocutory orders may be varied from time to time. Therefore the mere fact that orders had been made at one point in time was no absolute barrier to the making of different orders at a different point in time. However, the orderly case management of matters is dependent upon procedural directions and rulings by one judge not being departed from by another judge without a good reason. That good reason might be provided by a change in circumstances which has occurred since the making of the earlier interlocutory order. It might be provided if the subsequent judge determines that the earlier decision was clearly wrong for some legal reason or made in circumstances where the facts of the case were not properly appreciated. However, in the absence of a good reason, a willingness on the part of judges to revisit earlier procedural rulings of other judges in the same matter undermines the capacity of the Court to properly impose procedural discipline upon parties and hence to dispose of matters fairly and in a timely manner. To make repeated applications in relation to interlocutory matters simply for the purpose of having a different judicial officer reach a different conclusion in relation to substantially the same material may amount to an abuse of the Court’s process. It is not necessary to decide whether that is the case here.
In the present case there had been no change in circumstances. The evidence relied upon in support of the oral application to me was the same evidence put before Elkaim J last Friday upon which his Honour made his decision. For reasons that I have given in the Court of Appeal proceedings it was not appropriate to grant leave in relation to that decision. Therefore there was no change in circumstances which would provide a good reason.
Further, this is not a case in which the decision was clearly wrong. Rather, it reflected a discretionary decision relevant to the manner in which the trial was likely to run and how, consistently with s 5A of the Court Procedures Act 2004 (ACT), it might most appropriately run. Whether it is appropriate in any particular case to permit nondisclosure of expert evidence will be very much dependent upon the circumstances of the case and the impression of the judge considering the issue as to how a trial might most effectively and fairly proceed. The significance to be placed upon the possible loss of the forensic advantage of being able to cross‑examine a plaintiff who has no knowledge of the existence or content of surveillance video, will also be dependent upon the particular circumstances of the case. Any determination will involve the balancing of the forensic loss to the defendant against the potential for the trial to proceed in a more orderly fashion if the usual regime of disclosure applies. Because the decision of Elkaim J was not clearly wrong and in the absence of any relevant change in circumstances, it is inappropriate to adopt a different approach. I accept that it does involve a loss of a forensic advantage to the defendant but do not consider that the loss is of such significance that his Honour’s decision was clearly wrong or, having regard to the significance of orderly case management, should be departed from. It is not a case in which the further and more detailed understanding of a trial judge has resulted in a different view about the appropriateness of a previous interlocutory order. Further, although the necessity to hear the application for leave to appeal and this application has disrupted the orderly process of the hearing in a manner not contemplated by his Honour, that fact cannot be permitted to undermine the conclusion reached by his Honour which gave significant weight to the desirability of ensuring that the final hearing of the matter proceeded in an orderly manner. The defendant cannot use the disruptive consequences of its own applications to support a departure from the outcome of the application before Elkaim J: see Aon Risk Services Aust Ltd v ANU [2009] HCA 27; 239 CLR 175 at [35].
The orders I made required the disclosure of the expert reports if they were to be relied upon. Order 2 required the disclosure of the surveillance material if it was relied upon by an expert in the preparation of the expert’s report. I made the order in this form because I considered that the disclosure of the surveillance material was more appropriately based upon the fact that privilege had been waived by reliance upon it in an expert report that had been served, rather than based upon r 6704. This approach is consistent with the decisions in More Than a Morsel v Dean [2003] ACTCA 9 and Dean v More Than a Morsel [2002] ACTSC 101; 170 FLR 432. I accept that there are at least two possible interpretations of r 6704(5)–(6), one of which is inconsistent with there being, notwithstanding the terms of sub-r (2), an obligation to serve the surveillance footage. It is not desirable to attempt to determine that issue in circumstances where it is not essential to do so and where it was not the subject of argument. Treating the issue of disclosure of the surveillance video as subsidiary to the disclosure of the expert reports is consistent with the manner in which NRMA’s claim was articulated in the application before Elkaim J in that it placed principal emphasis on the nondisclosure of the expert reports which were subject to r 1242.
Therefore in addition to the orders that I made yesterday, the further order of the Court is:
3. Costs of the oral application made on 4 December 2017 are reserved.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 December 2017 |
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