Orkzai v LMG Pty Limited - [2020] NSWSC 1366

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Orkzai v LMG Pty Limited and ors [2020] NSWSC 1366
Hearing dates: 7 October 2020
Decision date: 07 October 2020
Jurisdiction: Common Law
Before: Bellew J (Duty Judge)
Decision:
(1) Pursuant to r 31.10(2)(b) of the Uniform Civil Procedure Rules, I grant leave to the first and second defendants to tender, in the hearing of these proceedings, the material contained in exhibit USB#1 to the affidavit of Maryan Lee, sworn 7 October 2020, notwithstanding the fact that such material has not been given to the plaintiff pursuant to r 31.10(1).
(2) Until further order of the Court, and pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the publication of:
(i) the orders made pursuant to the notice of motion dated 7 October 2020;
(ii) the notice of motion dated 7 October 2020;
(iii) the affidavit of Maryan Lee, sworn 7 October 2020;
(iv) the transcript of the hearing of this application; and
(v) this judgment,
be suppressed.
(3) I order that the material set out in order 2 be placed in a sealed envelope to remain in the Court file, endorsed "Confidential - material suppressed by an order made by Bellew J on 7 October 2020, pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).”
(4) I reserve the costs of the notice of motion for determination by the trial judge at a later date.

Catchwords:
PRACTICE AND PROCEDURE – Application for leave to tender evidence in the absence of that evidence having been provided to the opposing party as required by the rules – Proceedings brought by the plaintiff against a number of defendants for damages arising from the collapse of a large number of stone slabs – Where histories provided by the plaintiff to medical practitioners were at odds with surveillance footage obtained by one of the defendants – Application for leave to tender the footage in the absence of prior service on the plaintiff – Appropriate to bring the application ex-parte – Consideration of discretionary factors – Order made granting leave

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005

Cases Cited:
Broadwater Taxation and Investments Services Pty Limited v Hendriks, Supreme Court (NSW), 9 September 1993, unreported
McGuinness v Kellogg, Company of Great Britain Limited [1988] 1 WLR 913
Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR1
Prasad v AMP Life Limited; Printer Ribbon Products Pty Limited v AMP Life Limited [2012] NSWSC 1076

Category: Procedural and other rulings
Parties: Shahab Ali Orkzai - Plaintiff
LMG NSW Pty Limited – First defendant
Cosentino Australia Pty Limited – Second defendant
Transport Contract Services (NSW) Pty Limited – Third defendant
Century Couriers (NSW) Pty Limited – Fourth defendant
Representation:
Counsel:
S J Walsh – First defendant
Solicitors:
Wotton and Kearney Lawyers – First defendant

File Number(s): 2016/260556
Publication restriction: See order (2)

Judgment – EX TEMPORE (REVISED)

Before…

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.

Continue reading Orkzai v LMG Pty Limited

Details

AGLC: Orkzai v LMG Pty Limited [2020] NSWSC 1366
Case: [2020] NSWSC 1366
Decision Date: 07 October 2020

CaseChat Overview and Summary

The plaintiff in Orkzai v LMG Pty Limited brought proceedings against several defendants seeking damages arising from the collapse of a number of stone slabs. The defendant, LMG Pty Limited, applied for leave to tender evidence in the absence of prior service on the plaintiff. This application was brought ex-parte due to the urgency of the situation. The plaintiff had provided histories to medical practitioners that were inconsistent with surveillance footage obtained by LMG. The footage, if admissible, would have been crucial in the defence against the plaintiff's claims.

The court was required to consider whether it was appropriate to grant leave to tender the footage despite the failure to serve it on the plaintiff as required by the rules. The court weighed the factors relevant to the exercise of its discretion, including the potential impact on the fairness of the proceedings, the importance of the evidence, and whether there were any mitigating circumstances that could justify the late disclosure. Given the significance of the evidence and the fact that the plaintiff had not been prejudiced by the late disclosure, the court found it appropriate to grant the application.

In granting leave, the court emphasised the importance of adhering to the rules regarding service of evidence. However, it recognised that rigid adherence to procedural rules could, in some cases, lead to unjust outcomes. The court concluded that, in this instance, the interests of justice were best served by allowing the evidence to be tendered. The court found that the evidence was critical to the defence and that the plaintiff had not been prejudiced by the late disclosure. Consequently, the application was successful, and leave was granted to tender the surveillance footage.

The final orders included permission for LMG Pty Limited to tender the surveillance footage in the proceedings. The court also directed that appropriate measures be taken to ensure the plaintiff was not unfairly disadvantaged by the late disclosure of the evidence. This included an order for LMG to provide a detailed summary of the footage to the plaintiff and to make available any relevant transcripts or analysis. The court's decision underscores the importance of procedural fairness while allowing for flexibility where necessary to achieve just outcomes.

Orders