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

1. 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.

2. 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).

3. The hearing of this matter is scheduled to commence on 4 April 2022.

4. 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.

5. 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 enable the defendant to be in a position to test the plaintiff’s credibility.

6. Ms Emily Truong, an employed solicitor of the firm representing the defendant, deposes to having reviewed the surveillance material and photographs, and opines that there is nothing in the material that would assist the plaintiff’s case. To the contrary, she deposes that the footage indicated that on numerous days, the plaintiff left his home early, parked his motor vehicle near construction sites and worked on the sites until 2pm or 3pm each day, sometimes with the exception of lunch breaks. She also deposed to her concern that if the material was disclosed to the plaintiff, it would enable him to tailor his evidence.

7. By an ex parte notice of motion, filed in Court today and made returnable instanter, the defendant seeks an order pursuant to r 31.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) for the Court’s leave to be excused from complying with the general requirement that a party intending to rely upon audio-visual recording, and other ‘prescribed items’ make those items available for the opposite party’s inspection at least 7 days before the hearing. It also seeks an order supressing publication of the application and the affidavit in support, these orders and the transcript until after the defendant’s tender of them.

8. Ms Truong annexed to her affidavit the two reports from Procare, which set out the detail of the surveillance and annexed a series of photographs. It suffices to indicate that the plaintiff was photographed in the garb of a construction worker and was seen working, in the company of others, on different construction sites.

Consideration

9. As with all procedural applications, in deciding whether to grant the exception in r 31.10, the Court is to make a determination according to the dictates of justice: Civil Procedure Act 2005 (NSW), s 58; which evaluative determination is affected by the case-management objects in ss 56-57 and also the matters in ss 59-60. The principles were relevantly summarised, although not specifically in connection with the service of audio-visual material, by Stevenson J in Prasad v AMP Life Ltd [2012] NSWSC 1076 at [22], which were followed in a case which did concern audio-visual material, being that of Davies J in Latimer v Day [2015] NSWSC 11.

10. It is convenient for me to partially reproduce (excising citations) what was said by Stevenson J at [22], which statement I respectfully adopt.

“(c) I should consider whether the material is of a kind that would be of assistance only to the withholding party in meeting the case of the deprived party and not of a kind which would assist the deprived party in the formulation and presentation of his or her own case;

(d) it would normally be unjust to withhold material which might assist the deprived party.

(e) I should consider whether there is a risk that the material, if made available, would tend to tempt the deprived party to tailor his or her evidence, or at least consider doing so;

(f) it is inappropriate for the Court to make any assessment as to the honesty of the party against whom fraud is alleged;

(g) but there is a need to be satisfied that there is some real basis for suspicion of fraud;

(h) it is relevant to take into account the likely risk of adjournment that the withholding of the material may cause and the impact on the prospects of settlement in the event that the material is withheld.”

11. By the claim he makes for economic loss, as particularised, and the nature of the controversy regarding the extent of his injuries, the plaintiff’s credibility at the hearing will be a material question.

12. The Court was not invited to wade through the audio-visual recording itself about 1 hour. On the hearing of this application, Mr Lee indicated to the Court that he had viewed the surveillance material in its entirety which he estimated it to last for 1 hour in the aggregate and there is nothing in it that could be thought to assist the plaintiff’s case, and further, its content is such that if disclosed, it would enable the plaintiff to tailor his case.

13. I find that the material will not assist the plaintiff’s case and, in view of the discrepancy between the way in which he asserts his claim for economic loss (and future loss of capacity) and what is depicted in the surveillance, that disclosure of the material carries the substantial risk that the plaintiff may be tempted to tailor his evidence. Prima facie, I am satisfied that a legitimate forensic purpose arises in not giving the plaintiff, or his legal representatives, opportunity to inspect the audio-visual material and other prescribed items.

14. I take into account other matters which potentially affect the plaintiff’s interests. First, by the ordinary operation of the rule, through which the plaintiff, and his lawyers, would have access to the material prior to the hearing, would conceivably promote the prospects of settlement. However, a countervailing circumstance is the proximity between today’s date and the hearing date and it is unlikely that the parties will wish to participate in a mediation or settlement conference between now and then. Further, it could legitimately be argued that although the Court naturally encourages settlement negotiations, it should be loath to act in a way whereby, through the making of procedural orders, the Court has been an agent in what might be described as evening up, or levelling of, the scales, in terms of the parties’ respective litigation risks and hence their bargaining positions, in any further settlement negotiations that occur. Indeed, it is not inconceivable that upon a successful tender of the audio-visual material, any prior settlement negotiations may revive during the trial itself in any event.

15. Secondly, should the Court’s expectation be disappointed, that is to say, if some part of the content of the surveillance material does in fact assist the plaintiff, then it will be open for the plaintiff, through his legal representatives, to object to the tender of the material. That is a function of a change of position from the basis upon which the order for non-disclosure was made at an ex parte pre-trial application.

16. Thirdly, if, in the apparently unlikely event, an adjournment becomes necessary to enable the plaintiff to deal with the audio-visual material, it would very likely, if not inevitably, be at the defendant’s cost.

17. Other than the matters I have alluded to, I do not consider that there is anything in the provisions of the Civil Procedure Act 2005 (NSW) which I have alluded to which are antithetical to the making of the order.

18. I have indicated that this application was made ex parte and in closed court. I am satisfied that it was necessary to prevent prejudice to the administration of justice and necessary in the interests of justice generally, that such course be followed: Courts Suppression and Non-Publication of Orders Act 2010 (NSW). As to the first aspect, the Court must be capable of controlling its procedures to facilitate the adversarial nature of civil litigation. If the hearing was open, it would negate the purpose for the Court’s order under r 31.10. As to the latter aspect, although of course there is the public interest in open justice, which must always be acknowledged, it is outweighed because of the forensic matters I have alluded to. I also note that the limitation on open justice is for a limited period, until after the material and prescribed items have been tendered. These same reasons also justify suppression of the application and the affidavit in support, these reasons for judgment and the orders that follow, again, until the material which is the subject of the application has been tendered at the hearing.

19. The Court orders:

1. The defendant is excused from complying with the requirement of r 31.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) to the extent that it is not required to provide for the inspection of the plaintiff (by himself, his legal representatives or other agents) the audio-visual recordings and other prescribed items the subject of the notice of motion, set out in the affidavit of Emily Truong (dated 24 March 2022) prior to the commencement of the hearing.

2. The publication of these Orders, the defendant’s notice of motion dated 25 March 2022, the affidavit of Emily Truong dated 24 March 2022 and any transcript of today’s hearing of the application, are suppressed until the showing or the tender by the defendant of each of the said prescribed items at the hearing, subject to and without precluding the defendant from utilising each of the said items in the course of the hearing to show or to tender the images digitally in Exhibit B and Exhibit D to a witness.

3. Subject to the right of the defendant to utilise the said prescribed items in Order 2 above in the course of the hearing as stated in Order 2 above:

1. the Orders, the notice of motion and supporting affidavit be enclosed in a sealed envelope marked “Confidential: Order pursuant to UCPR r 31.10 – not to be opened nor contents disclosed without 24 hours’ notice in writing to the defendant and thereafter only upon an order of the Court, including not to be disclose to the plaintiff or his legal representatives at the commencement of the hearing listed to commence on 4 April 2022”; and

2. the said material in order 2 is not be disclosed, until further Order by the Court, which shall not be made without 24 hours’ notice in writing to the defendant of such intended disclosure and shall not be disclosed to the plaintiff, or the plaintiff’s legal representatives at the commencement of the hearing listed to commence on 4 April 2022.

4. Costs of the application are reserved.

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Decision last updated: 05 May 2022