Jasem v Presmist Formwork Contractors Pty Ltd
[2020] NSWSC 859
•02 July 2020
Supreme Court
New South Wales
Medium Neutral Citation: Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859 Hearing dates: 2 July 2020 Decision date: 02 July 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Leave granted to file the notice of motion dated 1 July 2020 and be returnable instanter and heard ex parte.
(2) Pursuant to s 71 of the Civil Procedure Act 2005 (NSW) the hearing of the application be conducted in closed court.
(3) Pursuant to UCPR 31.10(2)(b) grant leave to the defendant to tender the video recordings of the plaintiff recorded on 8 February 2019, 9 February 2019, 14 February 2019, 29 October 2019, 5 December 2019 and 17 December 2019, and the written report from the surveillance operative pertaining thereto (the first prescribed items) and order that the defendant is excused from complying with the provisions of UCPR 31.10(1) regarding the first prescribed items.
(4) Pursuant to UCPR 31.28(3)(a) grant leave to the defendant to rely on the supplementary medical reports of Dr Dalton dated 30 June 2020, Dr Stening dated 30 June 2020, and Dr Marchart dated 1 July 2020 (the second prescribed items) and order pursuant to s 61(2)(c) of the Civil Procedure Act 2005 and UCPR 2.1 that the defendant is excused from complying with the provision of UCPR 31.28 with respect to the second prescribed items.
(5) Order pursuant to s 7 of the Court (Suppression and Non Publication) Orders Act 2010 prohibiting the disclosure (by publication or otherwise) of the orders made on this application, the application itself, the affidavit of Melissa Fenton dated 30 June 2020, the exhibits tendered in support of this application, any transcript of the hearing of the application, and the reasons for decision until either the showing of or the tender by the defendant of each of the first and second prescribed items at the hearing, subject to and without precluding the defendant from utilising each of the first and second proscribed items in the course of the hearing, to show the images stored digitally to the plaintiff or other witnesses or to tender this material to the Court (the time of disclosure) or until further order.
(6) Note that this order is made pursuant to s 8(1)(a) of the Court (Suppression and Non Publication) Orders Act 2010, namely, it is necessary to prevent prejudice to the proper administration of justice.
(7) Subject to the right of the defendant to use the first and second prescribed items in orders 3 and 4 above in the course of the hearing as set out in orders 3 and 4:
(a) order that this application, the orders made on this application, and the documents and evidence relating to this application, together with the reasons for decision and the transcript be treated as confidential in the court file, and placed in a sealed envelope marked “Confidential, only to be opened in accordance with orders made by Adamson J on 2 July 2020”.
(b) these orders and the first and second prescribed items are not be to be disclosed until either the time of disclosure or until further order.
(8) The costs of this application are reserved.
(9) The non-publication orders set out above are subject to the defendant’s right to disclose these orders to the Court during the course of the proceedings.
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), ss 56, 61, 71
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 12
Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 31.10, 31.28
Cases Cited: Australian Postal Corporation v Hayes (1989) 23 FCR 320; [1989] FCA 176
Category: Procedural and other rulings Parties: Walid Jasem (Plaintiff)
Presmist Formwork Contractors Pty Ltd (ACN 137 687 739) (Defendant)Representation: Counsel:
Solicitors:
No appearance for the plaintiff (application heard ex parte)
S McCarthy (Defendant)
Colin Biggers & Paisley (Defendant / Cross-claimant)
File Number(s): 2017/96805 Publication restriction: Non-publication of any information or material prohibited until disclosed by the defendant as provided for in the orders (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Judgment
Introduction
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By notice of motion filed in Court on 2 July 2020, Presmist Formwork Contractors Pty Ltd (the defendant) seeks orders relieving it of the obligation of serving material on Walid Jasem (the plaintiff). The application was made ex parte without notice to the plaintiff.
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At the conclusion of the hearing, I made the orders sought and indicated to Mr McCarthy, who appeared on behalf of the defendant, that I would provide reasons later. What follows are my reasons for making the orders.
Factual background
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By statement of claim filed on 30 March 2017, the plaintiff claimed to have suffered an injury on 31 March 2014 when he is alleged to have fallen from formwork on a building on which the defendant was working. It does not appear that the statement of claim was served. The plaintiff filed an amended statement of claim on 27 April 2017, which was served. In his evidentiary statement dated 8 November 2017, the plaintiff set out how the incident occurred and the symptoms from which he suffered as a result of the injury.
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The matter is listed for hearing to commence on 6 July 2020. Pursuant to the practice note, the plaintiff has served a schedule of damages dated 30 June 2020 in which he claims an amount in the order of $3 million. The amounts in the schedule indicate that he claims to be totally incapacitated for work from the date of the accident for the rest of his working life. He claims a loss of $1,800 net per week, which results in a claim for $585,000 for past economic loss and future economic loss in the order of $1.3 million. He also claims damages for domestic assistance, both for the past and the future, of nine hours a week.
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The defendant disputes that the accident occurred at all as it was neither observed nor reported. The defendant also disputes 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 in 2019, indicates that the plaintiff engaged in sustained activities which would, on their face, appear to be inconsistent with his particulars of damage and schedule of damages. The defendant has shown the surveillance to three doctors, Drs Machart, Stening and Dalton, to whom it has referred the plaintiff for medicolegal assessment. Each has provided a report setting out his opinion as to the effect of the surveillance. The surveillance has not been shown to Dr Bodel, the plaintiff’s expert, but a subpoena has been issued to secure his attendance at the hearing.
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Mr McCarthy has informed me that there are two matters in the surveillance video which could be regarded as favourable to the plaintiff’s case. He has disclosed these matters to me as part of his duties as counsel as the matter has been heard ex parte. The first matter is that, on 14 February 2019, the plaintiff went shopping with his son who carried the shopping bags. The second matter is that the plaintiff was not seen engaging in remunerative work at any of the times at which his activities were observed by the surveillance operative.
Consideration
The orders excusing non-disclosure
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In substance, the defendant submitted that the defendant ought not to be required to disclose to the plaintiff the material described above in advance of the hearing since such disclosure would prejudice its right to a fair hearing. In particular, earlier disclosure would deprive the defendant of the opportunity of testing the plaintiff’s credit, which is a principal issue in the proceedings and substantially affects not only the quantum of damages but also liability.
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Having considered the still photographs contained in the surveillance report, together with the other material adduced by the defendant, I am satisfied that this is a case where 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 plaintiff. It is a matter of common experience that disclosure of such material may provide a plaintiff with an opportunity to tailor his or her evidence and therefore diminish its forensic significance. The value of surveillance ought not be underestimated since it depicts what a plaintiff is capable of doing when he or she believes that no one is observing his or her activities. 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 frequently given for inconsistencies between what is depicted in the video and the plaintiff’s evidence in chief.
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In the following passage from Australian Postal Corporation v Hayes (1989) 23 FCR 320; [1989] FCA 176, Wilcox J at 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.”
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In the present case, the material sought to be withheld until the plaintiff is cross-examined plainly falls within the category addressed by Wilcox J. 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.
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As referred to above, the principal issue in the proceedings would appear to be the plaintiff’s credibility. This matter bears on whether the accident occurred, whether the plaintiff has suffered an injury as a consequence of the accident and, if so, whether there is any ongoing disability as a result. It is just that the defendant ought be permitted to test the plaintiff’s credibility in circumstances where he will have had neither time nor opportunity to tailor his evidence to accommodate the video surveillance evidence. Whether it is quick or cheap remains to be seen. Sometimes, the unexpected disclosure of such material can lead to a resolution of the matter. On other occasions, the video needs to be played in full to the court and to doctors who have not seen it before, which can 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. After all, he knows what he did on 14 February 2019 and cannot reasonably be taken by surprise by the video. The only element of surprise arises from the circumstance that he was seen and recorded doing the things which he can be taken to have known that he did.
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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 to ensure the justice of the proceedings. 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 that there is an apparent stark inconsistency between the plaintiff’s schedule of damages and allegations of disability on the one hand and the surveillance report and the still photographs on the other. As referred to above, the defendant has issued a subpoena to Dr Bodel to secure his attendance. This step ought be sufficient to ensure that the matter does not need to be adjourned for that purpose.
Application for non-publication orders
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It is necessary to consider separately the orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act). In deciding whether to make an order under this Act, I am obliged to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The power to make an order derives from s 7 of the Act. 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 deleterious effect on 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.
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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 and the defendant’s medical reports before he is cross-examined about them. This is a relatively confined restriction on open justice. All will be revealed in due course when the plaintiff is in the witness box under cross-examination. 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.
Hearing in person
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The defendant also sought an order that the hearing of this matter take place in person rather than via audio-visual link (AVL). I do not have the power to make such an order since the determination of what matters will be heard in person and what matters will be heard via AVL is a decision for the Chief Justice. I have informed the Chief Justice that I consider this matter to be one in which the interests of justice would be far better served by a hearing in person. Since making the orders, I have been notified that this matter has been selected as one which will be heard in person.
Costs
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The defendant has sought that the costs of this application be reserved. This is appropriate, given that the plaintiff has not been heard on this application.
Orders
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The orders I made at the conclusion of the hearing of this application were as follows:
Leave granted to file the notice of motion dated 1 July 2020 and be returnable instanter and heard ex parte.
Pursuant to s 71 of the Civil Procedure Act 2005 (NSW) the hearing of the application be conducted in closed court.
Pursuant to UCPR 31.10(2)(b) grant leave to the defendant to tender the video recordings of the plaintiff recorded on 8 February 2019, 9 February 2019, 14 February 2019, 29 October 2019, 5 December 2019 and 17 December 2019, and the written report from the surveillance operative pertaining thereto (the first prescribed items) and order that the defendant is excused from complying with the provisions of UCPR 31.10(1) regarding the first prescribed items.
Pursuant to UCPR 31.28(3)(a) grant leave to the defendant to rely on the supplementary medical reports of Dr Dalton dated 30 June 2020, Dr Stening dated 30 June 2020, and Dr Marchart dated 1 July 2020 (the second prescribed items) and order pursuant to s 61(2)(c) of the Civil Procedure Act 2005 and UCPR 2.1 that the defendant is excused from complying with the provision of UCPR 31.28 with respect to the second prescribed items.
Order pursuant to s 7 of the Court (Suppression and Non Publication) Orders Act 2010 prohibiting the disclosure (by publication or otherwise) of the orders made on this application, the application itself, the affidavit of Melissa Fenton dated 30 June 2020, the exhibits tendered in support of this application, any transcript of the hearing of the application, and the reasons for decision until either the showing of or the tender by the defendant of each of the first and second prescribed items at the hearing, subject to and without precluding the defendant from utilising each of the first and second proscribed items in the course of the hearing, to show the images stored digitally to the plaintiff or other witnesses or to tender this material to the Court (the time of disclosure) or until further order.
Note that this order is made pursuant to s 8(1)(a) of the Court (Suppression and Non Publication) Orders Act 2010, namely, it is necessary to prevent prejudice to the proper administration of justice.
Subject to the right of the defendant to use the first and second prescribed items in orders 3 and 4 above in the course of the hearing as set out in orders 3 and 4:
order that this application, the orders made on this application, and the documents and evidence relating to this application, together with the reasons for decision and the transcript be treated as confidential in the court file, and placed in a sealed envelope marked “Confidential, only to be opened in accordance with orders made by Adamson J on 2 July 2020”.
these orders and the first and second prescribed items are not be to be disclosed until either the time of disclosure or until further order.
The costs of this application are reserved.
The non-publication orders set out above are subject to the defendant’s right to disclose these orders to the Court during the course of the proceedings.
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Decision last updated: 13 July 2020
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