Orkzai v LMG Pty Limited

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.