Jasem v Presmist Formwork Contractors Pty Ltd - [2020] NSWSC 859

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 859
Decision Date: 02 July 2020

CaseChat Overview and Summary

In the case of Jasem v Presmist Formwork Contractors Pty Ltd, the defendant sought an exemption from the usual requirement to serve evidence prior to the trial. The defendant wished to rely on surveillance footage of the plaintiff, which was deemed to be material to the plaintiff's credit. The defendant argued that the footage was relevant to the plaintiff's credibility and could potentially impact the outcome of the trial. The court had to determine whether the defendant was entitled to an exemption from the usual evidence service requirement.

The central legal issue before the court was whether the defendant was entitled to an exemption from the usual requirement to serve evidence prior to the trial. Specifically, the court had to consider whether the surveillance footage of the plaintiff was material to the plaintiff's credit and whether such evidence could be exempt from the usual service requirements. The court also had to decide whether to grant an order suppressing and prohibiting the publication of the surveillance footage, as the defendant argued that such footage could prejudice the plaintiff's reputation and potentially impact the fairness of the trial.

In determining the matter, the court held that the surveillance footage was indeed material to the plaintiff's credit. The footage was considered relevant to the plaintiff's credibility and could potentially impact the outcome of the trial. The court granted the defendant an exemption from the usual requirement to serve evidence prior to the trial, allowing the defendant to rely on the surveillance footage at trial. Furthermore, the court made an order suppressing and prohibiting the publication of the surveillance footage, recognising the potential prejudice it could cause to the plaintiff's reputation and the fairness of the trial.

In conclusion, the court granted the defendant an exemption from the usual requirement to serve evidence prior to the trial, allowing the defendant to rely on the surveillance footage at trial. The court also made an order suppressing and prohibiting the publication of the surveillance footage, recognising the potential prejudice it could cause to the plaintiff's reputation and the fairness of the trial.

Orders