Uniting Church Homes v COUBRAY - [2000] WADC 166

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: UNITING CHURCH HOMES -v- COUBRAY [2000] WADC 166

CORAM: COMMISSIONER LEY

HEARD: 17 MARCH 2000

DELIVERED : Delivered Extemporaneously on 17 MARCH 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 3751 of 1998

BETWEEN: UNITING CHURCH HOMES
Applicant/Defendant
AND
CAROLYN COUBRAY
Respondent/Plaintiff

Catchwords:

Evidence - Video surveillance film - Whether legal professional privilege attaches - Application for order for non-disclosure prior to trial - O 36 r 4 Rules of the Supreme Court.

Legislation:

Nil

Result:

Leave granted to defendant to adduce video evidence at trial but application for order that defendant be excused from disclosing film to plaintiff prior to trial refused.

Representation:

Counsel:

Applicant/Defendant : Mr E A Panetta
Respondent/Plaintiff : Mr R Cywicki

Solicitors:

Applicant/Defendant : Macdonald Rudder
Respondent/Plaintiff : Phillips Fox

Case(s) referred to in judgment(s):

Boyes v Colins [1999] WADC 111
McPhee v City of Wanneroo & Ors, unreported; DCt of WA; Library No 4808; 14 March 1996
National Employers Mutual General Insurance Association v Waind [1978] 141 CLR 648
Wardle v The State of Western Australia, unreported; DCt of WA; Library No D970162; 23 May 1997

Case(s) also cited:

Andrew Winn Johnson v American Home Assurance Company, unreported; SCt of WA; Library No 940557; 10 October 1994
Esso Australia Resources Limited v The Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67
Grant v Downs (1976) 135 CLR 674
Kahn v Armaguard Ltd [1994] 3 All ER 545
Liszka v Castledine, unreported; DCt of WA; Library No D990030; 10 February 1999
Lloyd v Centurion Roller Shutters Pty Ltd & Anor (1994) 10 SR (WA) 202
Strowse v Hales Precision Metal Products Pty Ltd (1997) 19 SR (WA) 68
Wagner v Southern, unreported; DCt of WA; Library No 4997; 25 July 1996

COMMISSIONER LEY: This is an application by the defendant for orders that:
1.The defendant have leave to adduce video evidence at the trial of this action;
2.The defendant be excused from producing the video evidence to the plaintiff prior to the trial.
The application is made under O 36 r 4 of the Supreme Court Rules which provides:
"Unless before or at the trial the Court otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless, at least 10 days before the trial the parties, other than the party who intends to produce it, are given the opportunity to inspect it and to agree to its admission without further proof."
In relation to that Rule, it has been held in this Court that video surveillance films such as the one the subject of this application is a photograph within the meaning of r 4: see McPhee v City of Wanneroo & Ors, unreported; DCt of WA; Library No 4808; 14 March 1996 per Judge Barlow. I adopt that interpretation.
The application in this case is supported by the affidavit of Michelle Lee Williams sworn on 17 January 2000. The relevant parts of that affidavit read as follows:
"4. CGU Insurance Limited (the defendant's insurer) has in its possession seven video surveillance films ('films') for which privilege is claimed on the grounds that the film was obtained by assessors retained by CGU Insurance for the sole purpose of defending this litigation.
5.The films shows (sic) the plaintiff performing activities which are contrary to the plaintiff's assertions as to her capacity to perform certain activities. The activities disclosed on the films are also at variance with the plaintiff's claims to various medical practitioners.
6.It would be unfair and prejudicial to the defendant to be denied the opportunity to adduce the films at trial because the films affect the plaintiff's credibility as to the extent of her alleged injuries and her capacity to perform her pre-accident employment and other activities. There are also more general issues as to the plaintiff's credibility regarding the circumstances of the alleged accident pleaded by the plaintiff.
7.It would be contrary to the interests of justice to (sic) the defendant to be compelled to show the film to the plaintiff before the trial of the plaintiff's action because it would enable the plaintiff to tailor her evidence at trial.
8.The content of the films are (sic) unlikely to facilitate a settlement of the plaintiff's action because liability is disputed with respect to the plaintiff's alleged accident.
9.Disclosure of the content of the films would not necessitate an adjournment of the trial."
Although Ms Williams says in par 4 of her affidavit that privilege is claimed in respect of the video surveillance films, it is not at all clear what type of privilege is being claimed. The fact that she says that the film was obtained "for the sole purpose of defending this litigation" suggests that it is legal professional privilege which is being claimed.
Indeed, counsel for the defendant told me that his client was claiming that the video surveillance films were protected from production by legal professional privilege.
However, legal professional privilege only attaches to communications passing between legal adviser and client. That was made clear by Mason J in National Employers Mutual General Insurance Association v Waind [1978] 141 CLR 648 where he said, at 654:
"Two preliminary comments should be made about the way in which the case for the appellant was presented. First, the argument at times seemed to suggest that it is the intended use of documents in litigation which attracts the relevant privilege. This of course is not so. The relevant head of privilege is legal professional privilege which attaches to communications passing between the legal adviser and client."
In par 4 of her affidavit, Ms Williams does not say that legal advisers were involved at all. She says:
"The film was obtained by assessors retained by CGU Insurance."
Therefore, on the evidence, the film is not and does not form part of a communication between legal adviser and client.
For that reason, it is my view that the film is not protected from production by legal professional privilege. If the film is not privileged, there is no basis to make an order that the defendant be excused from producing the film to the plaintiff. It must do so.
Even if that were not correct, there are other difficulties and deficiencies in the application. In par 5 and par 6 of Ms Williams' affidavit she says simply that the film was important to test the plaintiff's credibility. However, a mere assertion that credibility is in issue is not sufficient to justify non-disclosure to the plaintiff. It must be shown that non-disclosure is in the interests of justice: see Wardle v The State of Western Australia, unreported; DCt of WA; Library No D970162; 23 May 1997, Boyes v Colins [1999] WADC 111, (Judge Groves).
In my view, there is nothing in Ms Williams' affidavit which shows that non-disclosure of the video surveillance film to the plaintiff would be in the interests of justice.
Ms Williams also says in her affidavit that showing the film to the plaintiff would be unlikely to facilitate a settlement because liability is in dispute. However, claims in which liability is disputed are often settled. The fact that liability is in issue can never be said to be something which will prevent a settlement.
Ms Williams also says that non-disclosure of the film would not cause an adjournment. However, there are many circumstances in which an adjournment might be necessary and indeed I understood counsel for the defendant to concede that those circumstances could exist in this case.
Therefore, even if I were satisfied that the film was privileged, which I am not, I would not be prepared to order that the defendant be excused from disclosing the film to the plaintiff. Accordingly, I am prepared to make an order in terms of para 1 of the summons granting the defendant leave to adduce video evidence at the trial of this action but I refuse an order in terms of par 2.