Re an application for leave to appeal by Insurance Australia ltd
[2017] ACTCA 57
•5 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Re an application for leave to appeal by Insurance Australia Ltd |
Citation: | [2017] ACTCA 57 |
Hearing Date: | 4 December 2017 |
DecisionDate: | 4, 5 December 2017 |
ReasonsDate: | 5 December 2017 |
Before: | Mossop J |
Decision: | 4 December 2017: 1. The application for leave to appeal is dismissed. 2. Costs are reserved. 3. Liberty is granted to each party to apply in relation to costs on 5 December 2017: The liberty to apply granted on 4 December 2017 extends, if necessary, to an application to have the plaintiff in SC106 of 2015 joined as a party to this application for the purposes of dealing with any question of costs. |
Catchwords: | PRACTICE AND PROCEDURE – APPLICATION – Application for leave to appeal an interlocutory decision of a judge of the Supreme Court pursuant to r 5311 of the Court Procedures Rules 2006 (ACT) – decision refusing party leave to withhold notification of surveillance material and service of medical reports based upon surveillance material – decision not attended with sufficient doubt to warrant it being reconsidered |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 606(1)(f), 6704 Supreme Court Act 1933 (ACT), s 37A(4) Uniform Civil Procedure Rules 2006 (NSW), r 31.10 |
Cases Cited: | Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 Haridemos v Insurance Australia Ltd [2012] ACTSC 12; 6 ACTLR 95 Re an application under s 73 of the Civil Law (Wrongs) Act 2002 (ACT) [No 2] [2011] ACTSC 26 |
Parties: | Insurance Australia Limited t/as NRMA Insurance (Applicant) |
Representation: | Counsel R Stitt QC and S Warren (Applicant) |
| Solicitors Sparke Helmore Lawyers (Applicant) | |
File Number: | ACTCA 62 of 2017 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Elkaim J Date of Decision: 1 December 2017 Case Title: Insurance Australia Limited t/as NRMA Insurance Citation: [2017] ACTSC 361 |
MOSSOP J:
Introduction
This is an application for leave to appeal from a decision of Elkaim J given last Friday: Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361. I heard the application for leave to appeal yesterday and dismissed the application. I indicated that I would give my reasons for that decision this morning and I now do so.
The underlying proceedings are proceedings claiming damages for personal injury arising out of a motor vehicle accident. Breach of duty is admitted but the extent of any liability and the issue of contributory negligence are in contest. The applicant has obtained surveillance footage of the plaintiff in those proceedings and has provided that surveillance footage to three of its medical experts who have prepared supplementary reports which express opinions based upon, among other things, the content of the surveillance footage. In substance the position of the applicant is that the surveillance footage reflects adversely upon the credibility of the plaintiff and indicates that the capacities of the plaintiff are greater than disclosed to the various doctors who have seen her for the purposes of the proceedings.
The surveillance material was obtained on 23 October 2017. There is no evidence as to when that material was provided to the solicitors for the applicant. On 9 November 2017 the applicant’s solicitors received instructions to obtain supplementary reports from three doctors, Dr Lim, Professor Youssef and Professor Spira. The surveillance video was provided to the doctors. Supplementary reports were provided as follows:
(a)Dr Lim, 21 November 2017;
(b)Professor Youssef, 21 and 27 November 2017; and
(c)Professor Spira, 28 November 2017.
On 1 December 2017 an application was made to Elkaim J, sitting as the duty judge, for orders relieving the NRMA of the obligation to serve those reports and all related letters of instructions and correspondence. Orders were also sought so that oral evidence from those experts be permitted notwithstanding the non-service of the four supplementary reports. An order was sought under r 606(1)(f) of the Court Procedures Rules 2006 (ACT) permitting the covert surveillance film of the plaintiff not to be subject to disclosure. Ancillary orders were made in order to protect the confidentiality of the application.
The application was brought by originating application rather than by an application in the substantive proceedings. This appears to have been done so as to ensure that the application did not come to the notice of the plaintiff. Whatever might be said about the appropriateness of bringing an application separate to the substantive proceedings, the proceedings were clearly defective in that the plaintiff was not named as a party to the proceedings and hence was not bound by any orders made. However that defect was one which would have been capable of remedy.
Elkaim J substantially refused the application. His Honour made the following orders:
(i)The defendant is refused leave, prior to the hearing, to withhold notification to the plaintiff of the surveillance material.
(ii)The defendant is refused leave to withhold service of the medical reports of Dr Lim dated 21 November 2017, Dr Youssef dated 21 November 2017 and 27 November 2017 and Dr Spira dated 27 November 2017.
(iii)If the defendant wishes to rely on the above material it must notify the plaintiff of the existence of the surveillance and serve the reports referred to in the previous order by 4:00 pm today, Friday, 1 December 2017.
Following the making of these orders the NRMA applied for a stay of order (iii) so that it could make an application for leave to appeal. That application was lodged for filing that same afternoon.
When the substantive proceedings were called on Monday 4 December 2017, senior counsel for the applicant identified that there had been the previous application to Elkaim J and that the applicant had lodged an application for leave to appeal which it wished to pursue. I ultimately decided that it was appropriate that I hear and determine the application for leave to appeal sitting as the Court of Appeal: see Supreme Court Act 1933 (ACT) s 37J(1)(a). Neither party submitted that if I did so there would be, in the event that leave to appeal was refused, any difficulty with me hearing the substantive case.
I heard argument in support of the application for leave to appeal in the absence of the representatives of the plaintiff. Following the luncheon adjournment I dismissed the application for leave to appeal. I indicated that I would give my reasons this morning and these are my reasons.
The Decision Below
The decision made by Elkaim J was clearly interlocutory. An appeal from such a decision may only be brought to the Court of Appeal with leave of the Court of Appeal: Supreme Court Act 1933 (ACT) s 37A(4). The onus lies upon the party who applies for leave to appeal to satisfy the Court of Appeal that the decision of the primary judge was attended with sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave was refused supposing the decision to be wrong: see Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 at [30]–[35]; More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 at [4].
Elkaim J at [6] recognised the defendants are appropriately often sceptical of claims of injury resulting in particularisation of losses of large sums of money, particularly where the injuries involved are soft tissue in nature. He noted that defendants will frequently organise surveillance. He referred to the obligation in r 6704 to notify the opposing party of the existence of surveillance material and give that party the opportunity to view it.
He identified (at [11]) that the defendant was anxious that it would lose any practical advantage it might otherwise have had if the plaintiff was forewarned of the surveillance or the medical opinion. He accepted that the presence of a legitimate forensic purpose was an important consideration in determining whether to permit the defendant to withhold the surveillance material and the medical reports.
He accepted (at [14]) for present purposes that the surveillance material did not assist the plaintiff’s case.
His Honour (at [15]-[26]) concluded that the case was not one which justify the making of the orders sought.
First, he identified that although there were times when trial by ambush was not unusual that was before detailed case management and the necessity to ensure that trials, once commenced, proceeded to finality.
Second, his Honour considered that there was little weight in the defendant’s assertion that it would lose any tactical advantage. Although his Honour accepted that the plaintiff may “tone down” the evidence she would otherwise have given, she would not be saved from the effect of the surveillance material because:
(a)She has given histories to medical experts and been examined by them so that she could be cross‑examined upon the surveillance material. His Honour pointed to extracts from a report of each of the doctors to illustrate the point that the contradiction with the plaintiff’s case has already been established.
(b)The evidence on the surveillance would also contradict the histories and examination recorded in the medical reports relied upon by the plaintiff.
(c)“[T]he plaintiff will be taken to have provided the instructions for the preparation of the Amended Statement of Particulars which is inconsistent with the surveillance”.
As a consequence his Honour concluded that the forensic advantage to be gained by withholding the material was one that the applicant would not lose.
Third, his Honour referred to the fact that the medical reports each dealt with matters besides the surveillance. He expressed the opinion that there was no justification for those other matters being withheld from the plaintiff.
Notwithstanding that the seven day period referred to in r 6704 could not be complied with, his Honour made a direction permitting notification to the plaintiff of the surveillance material and service of the expert reports by 4:00 pm on the day of the application, namely 1 December 2017.
Draft Notice of Appeal
The draft notice of appeal identifies the grounds of appeal as follows:
a. His Honour erred in finding and construing that the plaintiff’s evidence had already been established in histories given to various treating and qualified medical experts and there was already established contradiction between the plaintiff’s evidence and surveillance.
b. His Honour erred in finding and construing that the defendant will not lose a legitimate forensic advantage should the reports of Dr Lim dated 21 November 2017, Dr Youssef dated 21 November 2017 and 27 November 2017 and Dr Spiro dated 27 November 2017 and surveillance provided to these experts for the purpose of completing their reports be served on the plaintiff prior to the substantive proceedings listed on 4 December 2017.
c. His Honour erred in finding and construing that at trial the plaintiff will be taken to have provided the instructions for the preparation of the Amended Statement of Particulars which is inconsistent with the surveillance.
d. His Honour erred in the distinction to be drawn in relation to the presence of a legitimate purpose between the NSW law found at 31.10 of the Uniform Civil Procedure Rules 2006 and the ACT law found at rule 6704 the Court Procedure Rules 2006.
Consideration
In assessing whether there is sufficient doubt to warrant the decision being reconsidered it must be borne in mind that the decision in relation to which leave is sought is a discretionary decision involving a question of practice and procedure. It is therefore a decision of a type in relation to which a tight rein must be kept on appeals and which will only be interfered with if the judge below exercised the discretion on the basis of some wrong principle, error of fact, taking into account an irrelevant consideration, failing to take into account a relevant consideration, or in a manner which was unreasonable or plainly unjust.
The first three grounds of appeal each appear to challenge conclusions of fact. The fourth appears to challenge a conclusion of law.
It is clear that his Honour recognised that there was a legitimate forensic purpose behind the withholding of the material. He recognised at [11] that the applicant was anxious not to lose “any tactical advantage it might otherwise have if the plaintiff is forewarned about either the surveillance or the medical opinion”. However his Honour balanced against that the matters referred to at [16] in his judgment, namely the desirability of ensuring a fair trial in which the parties arrive at court on the first day of the hearing knowing the case that the opposing side proposes to present. For the purpose of undertaking that balancing exercise his Honour considered the extent to which the defendant would lose any tactical advantage. His Honour’s conclusion at [24] was that the forensic advantage would not be lost.
The first ground of appeal was not explained in any detail. I understood it to be a submission that there was more that could be done during the course of cross‑examination to establish the contradiction between the plaintiff’s evidence and what is shown on the surveillance video if no notice was given of the content of that video and the medical reports. While his Honour did find that the contradiction was established as a result of the examinations conducted for the purposes of medical reports, his Honour was clearly aware of the potential for the plaintiff to minimise the contradiction by “toning down” her evidence: see judgment below at [17].
The second ground of appeal challenges the alleged conclusion that no legitimate forensic advantage would be lost if the medical reports and surveillance were served. This conclusion appears to be most clearly stated in his Honour’s summary of his views at [27] where he says that “the tactical advantage that the defendant already has is unlikely to be undermined because of the contradictions between the surveillance and the already served medical reports”. It is clear, however, that his Honour recognised that a tactical advantage would be lost and that the question was what weight should be given to that loss: see judgment below at [17]. Thus the conclusion reached must be read as one which is part of the balancing exercise between the loss of a tactical advantage to the defendant on the one hand and the desirability of ensuring that the plaintiff is aware of the case which is to be met.
The third proposed ground of appeal relates to the statement at [23] that “the plaintiff will be taken to have provided the instructions for the preparation of the Amended Statement of Particulars which is inconsistent with the surveillance”. On the application for leave no submissions were directed at this point. It is not uncommon for plaintiffs to be cross‑examined in some detail about the extent of their involvement with the preparation of the statement of particulars filed under the rules. While it is often difficult for defendants to establish exactly how much the plaintiff knew or understood about the technical process involved in particularising a case, his Honour was clearly correct in identifying that the plaintiff will to some extent to have adopted to the claims recently made in the statement of particulars about the extent of injuries and disabilities.
The fourth ground of appeal is that his Honour erred in the distinction to be drawn in relation to the presence of a legitimate forensic purpose between r 31.10 of the Uniform Civil Procedure Rules 2006 (NSW) and r 6704 of the Court Procedures Rules. This ground was not developed in submissions in support of the application for leave. There can however be no doubt that the rules are drafted differently. His Honour was correct in identifying that there is no express reference to “legitimate forensic purpose” in r 6704. His Honour was also correct in identifying at [12] that “the presence of a legitimate forensic purpose is an important consideration”.
Having regard to the proposed grounds of appeal I did not consider that his Honour’s decision was attended with sufficient doubt to warrant its reconsideration. Because it was a discretionary decision on a matter of practice and procedure it was one in relation to which reasonable judges might have reached different conclusions. However the grounds of appeal do not identify any error of fact, error of principle, any relevant or irrelevant consideration, any unreasonable or unjust outcome which would give rise to sufficient doubt about the appropriateness of the decision as to warrant its reconsideration on appeal.
The written and oral submissions in support of the application for leave to appeal focused on the decision in Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 (‘Markus’) which had been applied in Kon v AMP Life Ltd [2006] NSWSC 957. They also referred to the decision in Latimer v Day [2015] NSWSC 11 which was referred to in his Honour’s judgment. The applicant contended that “the expert medical reports and the covert surveillance meet the criteria for Markus protection”. The applicant emphasised that the emphasised that the issue would be one of significant public importance and that it was of commercial significance to insurers to have an articulation by the Court of Appeal of the circumstances in which non-disclosure of material would be permitted. It also submitted that his Honour’s conclusion that a contradiction was already established by reason of the existence of expert medical reports recording histories and the results of examinations was inconsistent with the approach adopted by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] in which his Honour expressed the view that material in doctors’ records needed to be treated with some caution.
I do not consider that these additional submissions demonstrate that his Honour’s decision is attended with sufficient doubt so as to warrant its reconsideration. A transcript of the proceedings before his Honour was not available for the purposes of the application for leave to appeal. Whether or not the decision in Markus was referred to expressly in the course of argument before his Honour, there can be no doubt, having regard to his Honour’s reasons, that he was well aware of the potential under the rules to make orders permitting the non-disclosure of medical reports or surveillance material in an appropriate case. It is clear that the rules provide the capacity to make orders protecting the confidentiality of certain documents in the circumstances contemplated by the decision in Markus. The Court has recognised the existence of such a power on a number of occasions: see for example Re an application under s 73 of the Civil Law (Wrongs) Act 2002 (ACT) [No 2] [2011] ACTSC 26; Haridemos v Insurance Australia Ltd [2013] ACTSC 130; Haridemos v Insurance Australia Ltd [2012] ACTSC 12; 6 ACTLR 95. The real question is whether the Court should in the circumstances of the case exercise its discretion in favour of making such an order. His Honour exercised that discretion in the context of the particular circumstances of this case and, although he reached the conclusion inconsistent with the maintenance of confidentiality, the decision is a discretionary one and one which is not attended with sufficient doubt to warrant interference with it.
So far as the decision in Mason v Demasi is concerned, this decision does not lay down any fixed rule. It quite reasonably promotes caution in relation to apparent inconsistencies between medical records or between medical records and oral testimony having regard to the various factors there outlined. How significant any of these considerations will be in any particular case will be acutely fact sensitive. The decision in Mason v Demasi does not undermine the general proposition articulated by his Honour, namely, that histories and examination findings of a plaintiff which have already been given or made will demonstrate a contradiction with surveillance video if it exists even if that material is disclosed prior to the hearing.
Plainly, as I have emphasised the significance of apparent contradictions will have to be worked out with careful attention to the circumstances of this case but that does not undermine the point that his Honour made.
Conclusion
It is for these reasons that I dismissed the application for leave to appeal. I reserved the question of costs and gave the parties liberty to apply to have that question dealt with if necessary. I should add, and I will make a further order, that liberty to apply granted
extends, if necessary, to an application to have the plaintiff joined as a party to that application for the purposes of dealing with any question of costs.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 December 2017 |
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