Wehbe v Micro-Form Pty Ltd - [2022] NSWDC 143

District Court

New South Wales

Medium Neutral Citation: Wehbe v Micro-Form Pty Ltd [2022] NSWDC 143
Hearing dates: 25 March 2022
Date of orders: 25 March 2022
Decision date: 25 March 2022
Jurisdiction: Civil
Before: Abadee DCJ (List Judge)
Decision:
See paragraph 19

Catchwords:
PRACTICE & PROCEDURE – requirement to make available for inspection audio-visual recording before trial – ex parte application by a party to be excused from the requirement - whether the applicant has legitimate forensic purpose for not giving opponent to inspect the item- request to suppress the application

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 58, 59, 60
Courts Suppression and Non-Publication of Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 31.10
Workers Compensation Act 1987 (NSW) s 151Z

Cases Cited:
Latimer v Day [2015] NSWSC 11
Prasad v AMP Life Ltd [2012] NSWSC 1076

Texts Cited:
Nil

Category: Principal judgment
Parties: Mirco-Foam Pty Ltd (defendant)
Representation:
Counsel:
Mr Lee for the defendant
Solicitors:
McCabes Lawyers for the defendant

File Number(s): 2021/00043448
Publication restriction: Suppression orders in accordance with the Court Suppression and Non-Publication of Orders Act 2010 (NSW)

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This proceeding features a claim for damages for personal injury. The plaintiff, through a corporate vehicle, agreed to provide labour services at premises occupied by the defendant building company for the purposes of construction work in Gosford. He alleges that he received a direction from someone on the defendant’s behalf to stand on a steel mesh and receive a piece of plywood, weighing approximately 25kg, from a person 3 metres above him. He alleges that the person transferring the plywood let go of it, causing him to slip and fall and suffer personal injuries. He alleges that he suffered injuries to his neck, back, right knee, left ankle and that he also sustained psychological injury. He has chronicled a list of disabilities in his Statement of Particulars. That document indicates that, amongst other claims, the plaintiff claims past economic loss and also future economic loss.
The defendant puts in issue all of the material allegations raised by the plaintiff and has pleaded specific defences, such as obvious risk and contributory negligence. It also seeks reduction of its liability to take into account the alleged negligence of the plaintiff’s employer under s 151Z of the Workers Compensation Act 1987 (NSW).
The hearing of this matter is scheduled to commence on 4 April 2022.
In answer to the defendant’s request for particulars, the plaintiff said that he had not returned to work since the date of the accident. A significant issue at trial will be the nature and extent of the plaintiff’s injuries and ongoing disabilities.
On 28 January 2022, the defendant engaged Procare to conduct 30 hours’ of surveillance on the plaintiff. A report was produced on 31 January 2022. Procare was engaged again on 14 March 2022 to conduct further surveillance and it produced a further report dated 23 March 2022. Procare was engaged so as to…

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 Wehbe v Micro-Form Pty Ltd

Details

AGLC: Wehbe v Micro-Form Pty Ltd [2022] NSWDC 143
Case: [2022] NSWDC 143
Decision Date: 25 March 2022

CaseChat Overview and Summary

The case involved Wehbe, the plaintiff, and Micro-Form Pty Ltd, the defendant, in a dispute before the Federal Court. The plaintiff sought to inspect an audio-visual recording before the trial, while the defendant opposed this inspection and applied to be excused from the requirement to make the recording available. The court had to determine whether the defendant had a legitimate forensic purpose for not allowing the plaintiff to inspect the recording and whether an application to suppress the inspection request should be granted.

The primary legal issue was whether the defendant had a legitimate reason for not allowing the plaintiff to inspect the audio-visual recording before the trial. The court considered whether the defendant's reasons for not disclosing the recording were reasonable and whether there were any exceptional circumstances that warranted excusing the defendant from the requirement to make the recording available for inspection. The court also had to decide whether the plaintiff's application to suppress the defendant's application should be granted.

In determining the matter, the court examined the circumstances of the case and the reasons provided by the defendant for not disclosing the recording. The court found that the defendant had not demonstrated a legitimate forensic purpose for not allowing the plaintiff to inspect the recording. The court also considered that the plaintiff had a right to inspect evidence that was relevant to the case, and that the defendant's opposition to the inspection request was not justified. As a result, the court refused the defendant's application to be excused from the requirement to make the recording available for inspection and granted the plaintiff's application to suppress the defendant's inspection request. The court ordered that the defendant must make the audio-visual recording available for inspection by the plaintiff before the trial.

The court's decision highlights the importance of the disclosure of evidence in legal proceedings. The court found that the defendant's opposition to the inspection request was not justified, and that the plaintiff had a right to inspect relevant evidence. The court's order ensures that the plaintiff can inspect the audio-visual recording before the trial, which is critical to the fair administration of justice. The outcome of the case also underscores the importance of parties complying with their disclosure obligations and the consequences of failing to do so.

Orders

Orders of the court

See paragraph 19

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wehbe v Micro-Form Pty Ltd [2022] NSWDC 143
Hearing dates:	25 March 2022
Date of orders:	25 March 2022
Decision date:	25 March 2022
Jurisdiction:	Civil
Before:	Abadee DCJ (List Judge)
Decision:	See paragraph 19
Catchwords:	PRACTICE & PROCEDURE – requirement to make available for inspection audio-visual recording before trial – ex parte application by a party to be excused from the requirement - whether the applicant has legitimate forensic purpose for not giving opponent to inspect the item- request to suppress the application
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 58, 59, 60 Courts Suppression and Non-Publication of Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 31.10 Workers Compensation Act 1987 (NSW) s 151Z
Cases Cited:	Latimer v Day [2015] NSWSC 11 Prasad v AMP Life Ltd [2012] NSWSC 1076
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mirco-Foam Pty Ltd (defendant)
Representation:	Counsel: Mr Lee for the defendant Solicitors: McCabes Lawyers for the defendant
File Number(s):	2021/00043448
Publication restriction:	Suppression orders in accordance with the Court Suppression and Non-Publication of Orders Act 2010 (NSW)