Zavodny v Couper and QBE

SUPREME COURT OF QUEENSLAND

CITATION:

Zavodny v Couper & QBE [2018] QSC 238

PARTIES:

ALAN FRANK ZAVODNY
(Applicant)
v
KEVIN RAYMOND COUPER
(First Respondent)
And
QBE INSURANCE (AUSTRALIA) LIMITED
(CAN 003 191 035)

FILE NO/S:

SC 523 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

16 October 2018

DELIVERED AT:

Cairns

HEARING DATE:

12 October 2018

JUDGE:

Henry J

ORDERS:

1.   Application granted.

2.   The respondents will provide to the applicant copies of the surveillance reports listed in the respondents’ list of documents dated 22 February 2018.

3.   I will hear the parties as to further orders.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES
– LEGAL PROFESSIONAL PRIVILEGE – disclosure of
documents pursuant to Motor Accident Insurance Act 1994 – whether surveillance reports obtained by insurer should be provided to the claimant – whether surveillance reports are disclosable pursuant to s 47(1) of Act – whether surveillance reports fall within s 48(2) of Act – whether the surveillance reports come within the description “investigative reports, medical reports and reports relevant to the claimant’s rehabilitation”.

TORTS – STATUTES, REGULATIONS, ETC - APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – RELATING TO VEHICLES AND TRAFFIC – GENERALLY – where the plaintiff has a personal injuries case arising from a traffic collision – disclosure of
documents pursuant to Motor Accident Insurance Act 1994 – whether surveillance reports obtained by the insurer are disclosable pursuant to s 47(1) of Act – whether surveillance reports fall within s 48(2) of Act – whether the surveillance reports come within the description “investigative reports, medical reports and reports relevant to the claimant’s rehabilitation”.

Motor Accident Insurance Act 1994 (Qld) s 48(2)
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules1999 (Qld) r 223, r 393

Samways v Workcover Queensland & Ors (No 2) [2010] QSC 273, cited.
State of Queensland v Allen [2012] 2 Qd R 148, cited.
Turpin v Allianz Australia Insurance Ltd [2002] 1 Qd R 692, cited

COUNSEL:

AR Philp QC for the applicant
R Morton for the respondents

SOLICITORS:

Roati Legal for the applicant
Barry Nilsson for the respondents

1. The applicant is plaintiff in a personal injuries case arising from a traffic collision.  An issue at the soon to be listed trial will be whether he has recovered from his injuries. 

2. The respondents served the applicant with an updated list of documents dated 22 February 2018.  That list introduced a number of documents not present in the respondents’ previously served list dated 24 May 2017.  Of present interest are the privileged documents described thus in the list:

   “Part 2 – Documents for which privilege is claimed

No.	Description of document	Person who made document	Date (if any)
…	…	…
9.	Instructions to surveillance operatives	Barry.Nilsson.	Various
10.	Surveillance report	Verifact	Various
11.	Surveillance report	GHA	Various”

1. The applicant seeks an order pursuant to r 223 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) for the production for inspection of “all reports, photographs and…