Hay v Maules Creek Coal Pty Ltd

[2022] NSWSC 1118

Supreme Court

New South Wales

Medium Neutral Citation:

Hay v Maules Creek Coal Pty Ltd [2022] NSWSC 1118

Hearing dates:

On the papers

Decision date:

23 August 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Grant leave for the motion dated 22 August 2022 to be heard ex parte in chambers.

(2) Pursuant to rule 31.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR:) the Defendant is excused from compliance with rule 31.10 of the UCPR concerning audio visual recording/s and/or investigation reports arising from or prepared in relation to the plaintiff referred to in paragraph 11 of the Affidavit of Najeh Marhaba dated 22 August 2022 (“the Material”).

(3) Subject to Order (4) or further order of the Court, order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the ground set out in s 8(1)(a) of that Act the following are not to be disclosed:

(a)   these orders;

(b)   the notice of motion;

(c)   the affidavit relied upon in support of the motion;

(d)   the Material.

(4) Order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds set out in s 8(1)(a) of that Act:

(a)   leave be granted to the Defendant to:

(i)   utilise the Material in the course of the hearing to show to witnesses and/or tender; and/or

(ii)   show the Material to the Plaintiff in cross-examination of the Plaintiff; and

(b)   the Plaintiff is not to be notified of these orders until such time as the Defendant discloses same.

(5) Subject to the right of the Defendant to utilise the Material in Order 4 above in the course of the hearing and in preparation for same order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the ground set out in s 8(1)(a) of that Act the materials referred to in Order (3) above are held by the Court in a sealed envelope marked "confidential" and not to be disclosed until further order of the Court.

(6)   Order (3) is to operate until the completion of the plaintiff’s cross-examination.

(7)   Liberty to the Defendant to apply to make any application for further or consequential orders in relation to this application.

(8)   Costs of this application to be costs in the cause.

Catchwords:

CIVIL PROCEDURE — Exemption from service of evidence prior to trial — surveillance evidence of plaintiff sought to be relied on by defendant at trial — where evidence is material to plaintiff’s credit

CIVIL PROCEDURE — Hearings — Suppression and non-publication — order made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 12

Uniform Civil Procedure Rules 2005 (NSW), r 31.10

Cases Cited:

Australian Postal Corporation v Hayes (1989) 23 FCR 320; [1989] FCA 176

Category:

Procedural rulings

Parties:

Donita Anne Hay (Plaintiff)
Maules Creek Coal Pty Ltd (Defendant)

Representation:

Counsel:
Not applicable

Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2020/202981

JUDGMENT

Introduction

1. By notice of motion dated 22 August 2022, Maules Creek Coal Pty Ltd (the defendant) seeks orders relieving it of the obligation of serving material on Donita Hay (the plaintiff) as well as non-publication orders. The application was made ex parte without notice to the plaintiff and considered in chambers.

2. My reasons for making the orders sought are as follows.

Factual background

3. By statement of claim filed on 9 July 2020, the plaintiff claims damages in respect of physical injuries to her lower back and legs and psychological injuries resulting in anxiety and depression. She alleges that she suffered these injuries when she was thrown when driving a dump truck as an employee of the defendant. Her statement of particulars filed on 9 July 2020 includes, as “particulars of continuing disabilities”:

“interference with the ability to undertake pre-injury work and social activities …”

4. In her statement of particulars filed on 3 June 2022, the plaintiff claims a total loss of earning capacity (at a rate of $1,600 net per week) to age 67 years (when she will become eligible for the aged pension). The plaintiff has filed and served an evidentiary statement and a supplementary evidentiary statement and served the expert reports on which she proposes to rely at the hearing of the matter which is listed to commence on 30 August 2022 with an estimate of four days.

5. The defendant disputes the consequences of the injuries and, accordingly, the quantum of damages. As part of its investigation of the claim, the defendant arranged for surveillance to be conducted on the plaintiff. The surveillance, which was conducted earlier this year, indicates that the plaintiff has engaged in activities which would, on their face, appear to be inconsistent with her particulars of damage and the level of disability to which she deposes in her evidentiary statements.

Relevant statutory provisions

6. Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 31.10, relevantly provides:

“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.

…

(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.”

Consideration

The orders excusing non-disclosure

7. In substance, the defendant submitted that it ought not be required to disclose to the plaintiff the material described above in advance of the hearing since such disclosure would prejudice its opportunity to test the plaintiff’s credit, which is a principal issue in the proceedings and will be highly germane to the assessment of damages.

8. UCPR, r 31.10 provides for two separate bases for the tender of material such as a surveillance video and report: first, that such material constitutes a “prescribed item” since it was obtained by the defendant for the purpose of testing the plaintiff’s credibility at the hearing; and second, if the leave of the Court is granted. The defendant has chosen to seek the Court’s leave in advance of the hearing in order to confirm its entitlement to withhold disclosure of the material before the time when disclosure would otherwise be required (7 days before the commencement of the hearing, being 23 August 2022).

9. Having considered the still photographs contained in the surveillance report, and the narrative descriptions, together with the other material relied on by the defendant, I am persuaded that compliance with the usual requirements for disclosure of the material would be detrimental to the administration of justice. Disclosure of the surveillance material would tend to prejudice the defendant’s right to test the credibility of the plaintiff. 

10. In the following passage from Australian Postal Corporation v Hayes (1989) 23 FCR 320; [1989] FCA 176, Wilcox J at 326-327 addressed the importance of such material being withheld until the claimant is cross-examined:

“… If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness' evidence cannot properly be tested, procedural fairness has been denied. Reference is made to R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 33-34 by way of example.

In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant. One way of testing the credit of such a claimant, counsel say, is to ask questions which require the claimant to commit himself or herself in relation to the extent of the disability — the actions which he or she can, and cannot, perform — before confronting the claimant with a film depicting his or her actions. If it should happen, in such a case, that the film shows the claimant performing actions which have been said to be impossible, doubt may be cast upon the claimant's credit, causing the tribunal of fact to be cautious about relying on the claimant's evidence in relation to matters incapable of objective demonstration. If, in such a case, a claimant has seen the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed and uncontradicted.

I think that the above submission must be accepted. It is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Mr J W Smyth QC called ‘closing the gates’: see ‘The Art of Cross Examination’ (Autumn 1988) Bar News at 12-13. It is important, in that process, that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture.”

11. In the present case, the material sought to be withheld until the plaintiff is cross-examined squarely falls within the category referred to in the passage extracted above. As his Honour observed, disclosure of such material prior to cross-examination may provide the plaintiff with an opportunity to tailor her evidence and therefore diminish its forensic significance. The value of surveillance ought not be underestimated since it depicts what the plaintiff is capable of doing when she is unaware that she is being observed. Disclosure in advance of the conclusion of examination in chief can lead to evidence that the plaintiff was on medication on a particular day or the “good days/bad days” explanation which is not uncommonly given for inconsistencies between what is depicted in the video and the plaintiff’s evidence in chief.

12. Before making the orders sought by the defendant it is necessary to take into account the matters referred to in Part 6 of the Civil Procedure Act 2005 (NSW) and, in particular, whether the orders sought will facilitate “the just, quick and cheap resolution of the real issues in the proceedings”: s 56.

13. For the reasons given above, I apprehend that the plaintiff’s credibility will be a, if not the, principal issue in the proceedings.  It is just to allow the defendant to test the plaintiff’s credibility in circumstances where she will have neither time nor opportunity to modify her evidence to accommodate the video surveillance evidence. Time will tell whether it is quick or cheap. Disclosure of such material in the course of cross-examination of the plaintiff might lead to the matter being resolved. However, if this does not occur, it may be necessary for the video to be played in full to the Court and to doctors who have given expert opinions on the level of the plaintiff’s disability. The latter scenario may result in a lengthening of the hearing time. I do not consider that there is any element of injustice in withholding the material from the plaintiff. The plaintiff cannot reasonably be taken by surprise by the video. The only element of surprise arises from the circumstance that she was actually seen and recorded doing the things of which she can be taken to have known she was capable.

14. I am satisfied that it is necessary, in the interests of justice, to make the orders sought. To the extent to which the orders might add to the cost and time of the litigation, they are nonetheless necessary.

15. I confirm that I have made no assessment of the plaintiff’s credit in granting the orders sought by the defendant. It is sufficient to note, as referred to above, that there is an apparent inconsistency between the plaintiff’s particulars of disability on the one hand and the surveillance report and the still photographs on the other. 

Application for non-publication orders

16. As referred to above, the defendant also applies for orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act). In deciding whether to make an order under s 7 of the Act, I am required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The grounds on which such an order may be made are set out in s 8. I am satisfied that the orders sought by the defendant are necessary to prevent prejudice to the proper administration of justice. This ground is provided for in s 8(1)(a). The extract from Australian Postal Corporation v Hayes set out above describes the adverse consequences for the administration of justice which can result from premature disclosure of material germane to the credit of a plaintiff in a case such as the present.

17. Section 12 of the Act requires the court to ensure that a suppression or non-publication order operates for no longer than is reasonably necessary to achieve the purpose for which the order is made. The only purpose of the order is to prevent the plaintiff from gaining prior knowledge of the contents of the surveillance before she is cross-examined about them. This is a relatively confined restriction on open justice. For this reason, the order under the Act can cease to be operative as soon as the material is disclosed to the plaintiff by the defendant at a forensically suitable time in the proceedings.

Costs

18. The defendant has sought an order that the costs of the application be cost in the cause. I am satisfied that this is an appropriate order.

Orders

19. For the reasons given above, I make the following orders:

1. Grant leave for the motion dated 22 August 2022 to be heard ex parte in chambers.

2. Pursuant to rule 31.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR:) the Defendant is excused from compliance with rule 31.10 of the UCPR concerning audio visual recording/s and/or investigation reports arising from or prepared in relation to the plaintiff referred to in paragraph 11 of the Affidavit of Najeh Marhaba dated 22 August 2022 (“the Material”).

3. Subject to Order (4) or further order of the Court, order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the ground set out in s 8(1)(a) of that Act the following are not to be disclosed:

1. these orders;

2. the notice of motion;

3. the affidavit relied upon in support of the motion;

4. the Material.

4. Order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds set out in s 8(1)(a) of that Act:

1. leave be granted to the Defendant to:

1. utilise the Material in the course of the hearing to show to witnesses and/or tender; and/or

2. show the Material to the Plaintiff in cross-examination of the Plaintiff; and

2. the Plaintiff is not to be notified of these orders until such time as the Defendant discloses same.

5. Subject to the right of the Defendant to utilise the Material in Order 4 above in the course of the hearing and in preparation for same order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the ground set out in s 8(1)(a) of that Act the materials referred to in Order (3) above are held by the Court in a sealed envelope marked "confidential" and not to be disclosed until further order of the Court.

6. Order (3) is to operate until the completion of the plaintiff’s cross-examination.

7. Liberty to the Defendant to apply to make any application for further or consequential orders in relation to this application.

8. Costs of this application to be costs in the cause.

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Decision last updated: 14 September 2022