Galanopoulos v Zampogna (Ruling)

[2024] VCC 1374

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-22-00401

RACHEL GALANOPOULOS	Plaintiff
v
TENEILLE ZAMPOGNA	Defendant

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JUDGE:

HER HONOUR JUDGE MANOVA

WHERE HELD:

Melbourne

DATE OF HEARING:

2, 3, 4 and 5 September 2024

DATE OF RULING:

6 September 2024 (ex tempore)

10 September 2024 (revised)

CASE MAY BE CITED AS:

Galanopoulos v Zampogna (Ruling)

MEDIUM NEUTRAL CITATION:

[2024] VCC 1374

REVISED REASONS FOR RULING
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Subject:CIVIL PROCEDURE – ACCIDENT COMPENSATION

Catchwords: Admissibility of surveillance video taken of the plaintiff prior to the filing of an Originating Motion under section 93 of the Transport Accident Act – Privilege – Credit

Legislation Cited:      Transport Accident Act 1986 (Vic) ss 11, 12 and 94(10); Interpretation of Legislation Act 1984, s38; the Evidence Act 2008, ss101A and 103

Cases Cited:Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332; Beecham Group Ltd v Bristol-Myers Co [1979] VR 273; National Crime Authority v S (1991) 29 FCR 203; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; Australian Competition and Consumer Commission v Australian Safeway Stores (1998) 81 FCR 526

Ruling:  Surveillance is privileged and admissible.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC with Mr B Johnson	Arnold Thomas Becker
For the Defendant	Ms M Britbart KC with Ms K Popova	HWL Ebsworth Lawyers

HER HONOUR:

Introduction

1In this proceeding, the plaintiff claims damages for a range of injuries allegedly sustained in a transport accident on 29 February 2016.[1] The plaintiff claims damages in respect of injuries to her neck, low back, left knee and hip.

[1]Rear-end collision at traffic lights from which the plaintiff drove herself home, and later to the Royal Melbourne Hospital Emergency Department for assessment.

2The plaintiff has undergone a keyhole surgery to the left hip in September 2016 and a keyhole surgery to the left knee in July 2022. Both have been funded by the Transport Accident Commission. From the date of the accident to the present, the plaintiff has undergone many investigations, cortisone injections and various blocks directed to her neck, low back, left knee and hip.

3The defendant admits liability but disputes that all of the plaintiff’s injuries and current complaints are attributable to the transport accident.

4A jury was empanelled on Monday, 2 September 2024.

5A large bundle of investigation and operation reports relevant to the plaintiff’s various injuries and conditions is in evidence before the jury.[2]

[2]Exhibit P10

6The plaintiff is currently being cross-examined. In particular, the plaintiff was asked about the following matters:

(a)   her recovery from the hip surgery performed by Mr Jain in September 2016;[3]

(b)   whether, following the surgery, she was walking with a crutch and for what period of time. The plaintiff said she had the crutch for about 12 weeks which was uncommon;[4]

(c)   whether walking was painful for her (after the surgery), and if so, was she walking more slowly than normal (like she was walking around the court room). The plaintiff said she felt she was walking slowly and felt like she was somewhat wobbly as well;[5] and

(d)   the plaintiff described having a sharp burning pain and clicking sensation in the left knee and in early 2017, she had been using a crutch “on and off” and was still limping.[6]

[3]Transcript (“T”) 248

[4]T251

[5]T251

[6]T251-252

7At this point of the cross-examination, senior counsel for the defendant indicated that she wished to play some surveillance film.

8I then asked the jury to go out and have their mid-morning break.

9During the break, senior counsel for the plaintiff objected to the admissibility of the surveillance film.

10I was informed from the bar table that the surveillance film had been taken in February 2017, approximately one year after the transport accident, and prior to any litigation having been commenced by the plaintiff.[7]

[7]Senior counsel for the plaintiff said the serious Injury application was lodged on 15 April 2020 and granted on 29 January 2021, see T253

11Initially, the objection was based on a number of grounds, one of which was that the surveillance ought to have been disclosed in accordance with paragraph 15 of the “Transport Accident Act Common Law Protocols”.[8] However, this submission was subsequently expressly abandoned.[9]

[8]T254-255; Transport Accident Act Common Law Protocols – 1 July 2016

[9]T266

12Senior counsel submitted that the surveillance film should have been discovered by the defendant and nominated in Schedule 1 of the Affidavit of Documents under the section “documents required to be discovered”.[10] The basis for the submission was that no litigation had been contemplated in February 2017 (12 months after the transport accident and four years prior to the serious injury application being lodged).

[10]T255-256 and PCB 26-27

13There was ultimately no issue that surveillance film falls within the definition of “document” pursuant to section 38 of the Interpretation of Legislation Act 1984.[11]

[11]“Document” includes, in addition to a document in writing ... (e) any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom, see also T266-267

14Senior counsel for the plaintiff submitted that if I find that it was commissioned in reasonable contemplation of litigation, then the film was privileged and appropriately captured by Part 2 of the defendant’s affidavit of documents which claimed privilege over a range of enumerated documents, including “other reports of enquiries and sundry documents”[12] as they had been “brought into existence for the dominant purpose of the preparation of my case in this proceeding and/or obtaining legal advice”.[13]

[12]PCB 27

[13]PCB 26

15Ultimately the submissions in support of the application were refined by Senior counsel for the plaintiff as follows:

I.Was the surveillance film commissioned “in reasonable contemplation of litigation”? It was submitted I had to receive evidence from the person who commissioned it in order to determine this question.[14]

II.If yes to QI, it was not required to be disclosed and senior counsel for the defendant can now play it to the jury and put its contents to the plaintiff in cross-examination.

III.If no to QI, is it admissible under ss101A and 103 of the Evidence Act 2008 (“the Evidence Act”)?

[14]T269

16Senior counsel for the defendant submitted that the film was clearly privileged as it was in contemplation of litigation.[15] A year had elapsed since the accident during the majority of which the plaintiff had been off work and in receipt of payments, and had an operation, indicating a level of seriousness which might have a flow-on effect of litigation.[16] In particular the following points were made:

(a)   the Transport Accident Commission is an organisation which regularly deals with litigation flowing from transport accidents;

(b)   the objective indicia make it reasonable for proceedings to have been contemplated in 2017, when the surveillance was carried out;

(c)   there could have been no other reason for which the surveillance was undertaken and nothing has been put forward (on behalf of the plaintiff) as a possible reason for the surveillance film being brought into existence; and

(d)   it is entirely unexceptional for privilege to be claimed over surveillance film.[17]

[15]T257

[16]T258

[17]T272-273

Relevant legal principles

17The onus of establishing the basis of a claim for privilege rests upon the claimant.[18]

[18]National Crime Authority v S (1991) 29 FCR 203

18The claimant must establish that the “dominant purpose” of the document was related to litigation which at the time the document was produced, was reasonably contemplated.[19]

[19]Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

19The question whether litigation was reasonably contemplated is an objective one:

“Whether proceedings are anticipated must be determined by reference to objective criteria and not simply by reference to the subjective statements of a participant in the relevant information gathering or litigation preparing process. A document or communication cannot be given protection from production by the creator of the document or the person propounding it in the form of a communication uttering the litany — I brought it into existence for the purpose (be it sole or otherwise) of legal proceedings. Nor is it sufficient, in my view, for the person to say — I anticipated proceedings would be brought at the time I brought the document into existence and the purpose for which I did so was those proceedings.”[20]

[20]Australian Competition and Consumer Commission v Australian Safeway Stores (1998) 81 FCR 526 at 558

20In determining whether litigation was reasonably contemplated it is necessary to find that there was a real prospect of it.[21]

[21]Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 per Batt JA at 341

Transport Accident Act 1986

21Part 2 of the Transport Accident Act 1986 (“the Act”) establishes the Transport Accident Commission and provides that:

(a)   the objectives of the Commission are to manage the transport accident compensation scheme as efficiently as possible;[22] and

(b)   the functions of the Commission include administering the Transport Accident Fund; receiving, assessing and accepting or rejecting claims for compensation; defending proceedings relating to claims for compensation; and paying compensation to persons entitled to it.[23]

[22]Pursuant to s11 of the Act

[23]Pursuant to s12 of the Act

22Part 6 of the Act relates to legal rights outside the Act, and Division 2 of Part 6 provides for various indemnities in respect of which the Commission is liable to indemnify drivers of registered motor vehicles.

23Section 94(10) relevantly provides that the Commission may undertake settlements, take over the conduct of proceedings on behalf of indemnified persons and may defend proceedings in the name of and on behalf of indemnified persons.

Consideration

24Due to the test being objective, and not being able to be satisfied by a witness simply uttering the incantation “I brought it into existence in contemplation of legal proceedings”, I consider I do not require evidence from a witness as to the dominant reason for which the film was brought into existence.

25The Transport Accident Commission is the sole statutory body responsible for administering the statutory benefits scheme under the Act. It has extensive experience in all aspects of the scheme, including the conduct of litigation, whether that be in relation to statutory benefits under the Act at VCAT, serious injury applications, or litigation at common law on behalf of indemnified drivers.

26It is to be expected therefore that TAC employees are aware of all aspects of the scheme when performing their duties in relations to claims under the Act.

27The plaintiff’s TAC claim form appears to have been completed and faxed on the day of the accident – 29 February 2016. It provides:

“I was stationary at the lights when a car coming from behind rear-ended me. … The car coming from behind failed to stop and rear-ended my vehicle.”[24]

[24]PCB 551-552

28The injuries were described as “Neck Pain, Head – Lower Back Pain”.[25]

[25]PCB 553

29This would clearly signal to any employee dealing with the claim that there is a very real prospect that ultimate liability at common law for injuries arising from the transport accident may have to be conceded by the TAC on behalf of the indemnified driver.

30At the time the surveillance film was apparently commissioned, the plaintiff had an accepted claim for “neck and lower back pain”.

31The TAC had funded her hip surgery and associated post-surgery rehabilitation costs. Further, the plaintiff had been off work for approximately ten months and her loss of earnings had also been compensated under the claim.

32Given the high degree of risk that liability would be unlikely to be able to be disputed, any sensible claims agent would have assessed the ongoing risk. This is especially so when an initial claim for neck and back pain was, within 12 months, extended to incorporate hip surgery.

33At the time the surveillance film had been commissioned, a claim would have involved a not-insignificant amount of payments made to the plaintiff personally and to any hospital, her treating surgeon, doctors, radiologists, physiotherapists and other rehabilitation specialists.

34I consider that in the circumstances there was a real prospect of litigation and the surveillance film would therefore have been commissioned with that in mind. I accept the submissions made on behalf of the defendant that there can be few other explanations for the step taken by the claims officer.

35I therefore find the surveillance film was subject to privilege which was appropriately claimed in the affidavit of documents sworn by the defendant.

36This finding makes it unnecessary for me to consider in any detail the remainder of the submissions relating to the applicability of ss101A and 103 of the Evidence Act, and the related submission of the defendant that the film related solely to credit and was therefore not required to be discovered.[26]

[26]Civil Procedure Victoria, Williams, Neil J para 29.01.25; Beecham Group Ltd v Bristol-Myers Co [1979] VR 273, referred to at T276

37Section 101A of the Evidence Act provides:

“credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that—

(a)is relevant only because it affects the assessment of the credibility of the witness or person …”

38The wording of this section suggests that the focus of the enquiry is the relevance of the evidence rather than the use to which the tendering party seeks to put the evidence. I therefore reject the submission that the defendant’s counsel only intended to use the video for credit and it is therefore not captured by the provisions.

39I accept the submission of senior counsel for the plaintiff that even if the surveillance film depicts the plaintiff performing movements which she swore on oath she could not perform,  it must also depict the plaintiff moving in some fashion which necessarily would be a piece of evidence the jury can use in respect of its assessment of her function (at least at the time the video was taken). I therefore reject the submission the surveillance film would be relevant only because it affects credit or that it relates solely to credit.

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