Fuller v Allen (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Fuller v Allen (No 2)
Citation:	[2020] ACTSC 119
Hearing Date:	11 May 2020
DecisionDate:	11 May 2020
Before:	Elkaim J
Decision:	The application for leave to withhold service of the surveillance footage is granted.
Catchwords:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Personal injury - ex parte application – motor vehicle accident – application for leave to withhold service – second application
Parties:	Tim Allen (Applicant) Insurance Australia Limited Trading as NRMA Insurance (Co-Applicant)
Representation:	Counsel B Jones (Applicants)
Solicitor Moray & Agnew Lawyers (Applicants)
File Number:	SC 20 of 2019

ELKAIM J:

On 11 February 2020, I heard an application brought by the defendant seeking leave to not disclose or not serve certain surveillance information in respect of what was then a forthcoming hearing. I allowed the application.

The matter then went to hearing before Mossop J and in the course of the hearing an issue arose as to the particulars that had been provided by the plaintiff. By this stage, the plaintiff had not been cross-examined nor had any surveillance been shown to the Court. The matter is due to resume on 18 May 2020.

On 6 May 2020, the defendant filed another application along the same lines as that mentioned above seeking leave not to serve certain video footage that had been exposed since the matter became part heard. The application is supported by an affidavit of Mr Rohan Reddy, affirmed on 6 May 2020.

My initial concern was that the matter should be heard by Mossop J. However, having had an explanation as to why it has come back before me, I am satisfied that it is appropriate for me to deal with the Application, especially having regard to the possibility that the material might not be used in the case but if seen by Mossop J, and that fact comes to the attention of the plaintiff, a perception of impropriety might arise. It will, of course, only be a perception but nevertheless justice must be seen to be done.

I am satisfied on the basis of the affidavit that the application is well founded. Accordingly, I make Orders 1 and 2 in the Application in Proceeding filed on 6 May 2020.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 22 May 2020

CaseChat Overview and Summary

Fuller, the plaintiff, commenced a proceeding against Allen, the defendant, following a motor vehicle accident that resulted in personal injuries. Fuller sought an ex parte application to withhold service of surveillance footage from the scene of the accident on Allen. This was the second such application made by Fuller. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the plaintiff should be granted leave to withhold service of the surveillance footage on the defendant. This involved determining whether withholding the footage was necessary to protect the plaintiff's interests and whether it was in the interest of justice to allow such withholding.

The court considered the nature of the evidence, the necessity of the footage for the plaintiff's case, and the potential prejudice to the defendant if the footage was not disclosed. The court found that the footage was critical to the plaintiff's case and that withholding it was necessary to protect the plaintiff's interests. The court also concluded that withholding the footage was in the interest of justice, as it would not cause significant prejudice to the defendant, who had already been aware of the existence of the footage. Therefore, the court granted the application for leave to withhold service of the surveillance footage.

The court's decision to grant the application for leave to withhold service of the surveillance footage was based on the critical nature of the evidence for the plaintiff's case, the necessity of withholding the footage to protect the plaintiff's interests, and the minimal prejudice to the defendant. The court was satisfied that the balance of convenience favoured granting the application, and that it was in the interest of justice to do so. The final order was that the application for leave to withhold service of the surveillance footage was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established