District Court New South Wales

• Medium Neutral Citation: Azar v Kathirgamalingan [2011] NSWDC 56
• Hearing dates: 17 March 2011
• Decision date: 18 March 2011
• Before: Truss DCJ

Decision

1.Leave be granted under r 31.10(2) to show the surveillance evidence to the plaintiff in cross-examination and to use and tender it at the hearing.

2.Order that the defendant be excused from compliance with r 31.10(1) in respect of the surveillance evidence.

3.Order costs of the notice of motion be costs in the cause.

• Catchwords: R 31.10 (Plans, photographs and models), surveillance evidence, defendant excused from complying with r 31.10(2) till after cross-examination
• Legislation Cited: Civil Procedure Act 2005; Uniform Civil Procedure Rules 2005; Workers Compensation Act 1987
• Cases Cited: Australian Postal Commission v Hayes & Anor 87 ALR 283; Boyes v Colins [2000] WASCA 344; Broken Hill Proprietary Co Limited v Mason & Jennings (1996) 67 SASR 456; Halpin & Others v Lumley General Insurance Ltd [2009] NSWCA 372; Jaber v Rockdale City Counsel [2008] NSWCA 98; Markus v Provincial Insurance Co. Ltd (1983) 25 NSWCCR 1; Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; Robbins v Harbord (1994) 62 SASR 229
• Texts Cited: Ritchie's Uniform Civil Procedure NSW
• Category: Interlocutory applications
• Parties: Nayla Azar by her tutor Pascal Ibrahim (plaintiff); Imaharan Kathirgamalingan (defendant)
• Representation: Mr M Daley (plaintiff); Mr K Rewell SC with Mr W Fitzsimmons (defendant); Brydens Law Office (plaintiff); Sparke Helmore (defendant)
• File Number(s): 2008/320476

Judgment

Issue for determination

1 These proceedings are listed for hearing on 21 March 2011 with a ten-day estimate.

2 The plaintiff, by her tutor who is her son, is claiming damages in respect of injuries which she received in a motor vehicle accident on 20 August 2003. There are also related proceedings by her former employer under s 151Z of the Workers Compensation Act 1987 .

3 As I understand the plaintiff's case she alleges significant physical and psychiatric injuries which have rendered her unemployable and in need of full-time care. The plaintiff is not entitled to non-economic loss as she is below the threshold. According to the defendant her claim as particularised exceeds $7,000,000.

4 The defendant's case, in short, is that the plaintiff suffered minor physical injuries, which have resolved and that the plaintiff was suffering from a pre-existing psychiatric illness. The defendant says, and the Court accepts, that the plaintiff's credit is a central issue in these proceedings.

5 The defendant has obtained surveillance evidence upon which he proposes to rely on at the hearing.

6 By notice of motion dated 10 March 2011 the defendant sought orders including:

(i) That leave be granted under r 31.10(2) to show the surveillance evidence to the plaintiff in cross-examination and to use and tender it at the hearing.

(ii) That the defendant be excused from compliance with r 31.10(1) in respect of the surveillance evidence.

7 The rule relevantly provides:

31.10 Plans, photographs and models

(1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2) A party who fails to comply with subrule (1) may not tender the plan, photograph or model in evidence except by leave of the court.

...

8 The defendant's initial application was for the Court to deal with his motion on an ex parte basis in chambers or in court but without the name appearing on any lists. This request was declined with the Court indicating that the application would only be dealt with if the plaintiff's solicitors were notified and were given the opportunity to be heard.

9 The matter came before me yesterday. The evidence relied upon by the defendant was an affidavit sworn 15 March 2011 by Mr Newton, his solicitor. At the defendant's request this affidavit has been placed in a sealed envelope in the court file as it was considered inappropriate for its contents to be disclosed to the trial judge.

10 The notice of motion refers to an affidavit of 10 March 2011 by the solicitor. That affidavit had been prepared on the basis that the application would be heard ex parte and contained certain information, in particular as to the contents of the surveillance evidence which does not appear in the second affidavit. This affidavit was returned to the defendant's solicitor yesterday.

11 The Court declined the defendant's offer to view the film for two reasons. Firstly, I did not consider it necessary to do so in order to determine this application and in any event, there was insufficient time. The Court is prepared to accept the defendant's assurance that the surveillance evidence is relevant to the plaintiff's credit.

12 The plaintiff provided the Court with written submissions. Although they bear the heading of these proceedings the Court was informed that they were, in fact, prepared for the purposes of an earlier hearing.

Whether r 31.10 applies to surveillance evidence

13 Senior counsel for the defendant asked the Court to note that despite this application the defendant does not concede that the rule applies to surveillance film.

14 Photograph is not defined in the Uniform Civil Procedure Rules 2005 ( UCPR ) to the extent that note 31.10.15 in Ritchie's Uniform Civil Procedure NSW suggests that surveillance film falls within the rule, it was submitted that the Practice is incorrect.

15 The Court was not referred to any decision of a superior court in NSW which is directly on point. It would appear that there is none.

16 In Boyes v Colins [2000] WASCA 344 the Western Australian Full Court determined that video film was a discoverable document. Under the relevant rules the definition of document included film and the matter was determined on that basis. Justice Ipp referred to the question of whether video film fell within the definition of photograph . The defendant's counsel had initially accepted that it was but submitted that it was open to the Court to find otherwise [33].

17 The Court informed counsel that due to insufficient time for this issue to be argued and determined fully, the Court would deal with this application on the basis that r 31.10 applies to surveillance evidence.

Whether leave ought be granted

18 The defendant submitted that if r 31.10 does apply leave ought be granted because this is an exceptional case because the plaintiff's credit is in issue to a greater extent than in other matters.

19 Senior counsel for the defendant relied upon the following authorities:

• Australian Postal Commission v Hayes & Anor 87 ALR 283 (Willcox J)
• Robbins v Harbord (1994) 62 SASR 229 (Supreme Court of South Australia in Banco)
• Broken Hill Proprietary Co Limited v Mason & Jennings (1996) 67 SASR 456 (Debelle J)

as authority for the proposition that the opportunity of presenting a case involves not merely the opportunity of adducing evidence but of testing the opponent's evidence and that these are examples of cases where access to film was withheld until after cross-examination. They involved situations not dissimilar to that which occurred in Markus v Provincial Insurance Co. Ltd (1983) 25 NSWCCR 1 (Clarke J).

20 The plaintiff's submissions focussed firstly, on the trend in litigation in more recent times towards what was colloquially referred to as a cards on the table approach as opposed to the former, often referred to as trial by ambush . The submissions refer to a number of authorities including:

• Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346
• Jaber v Rockdale City Counsel [2008] NSWCA 98

21 More recently, Halpin & Others v Lumley General Insurance Ltd [2009] NSWCA 372, was not a personal injuries case but concerned a refusal to pay an insurance claim. At first instance the defendant had obtained an order excluding certain affidavits and other potential evidence from the scope of an order requiring each party to serve the evidence on which it intended to rely at the trial. The plaintiff unsuccessfully challenged this order in the Court of Appeal. After observing that the trial judge had the power to make such an order pursuant to s 61 of the Civil Procedure Act 2005 ( CPA ) and r 2.1, the Court then considered whether such an order should have been made taking into account ss 56 - 58 of the CPA .

22 Sackville JA, with whom Tobias JA agreed, referred to the two approaches to litigation and said at [101]:

"There is no inconsistency between these statements of principle and the existence of a power, exercisable for good cause and appropriate circumstances, to direct that a party may withhold affidavits until trial. The making of such a direction does not imply that the trial is to be conducted 'by ambush', nor that the party seeking the direction has failed to co-operate in identifying and elucidating the issues in trial. On the contrary, the statutory criteria that must be taken into account for a direction to be made should ensure that the issues are clearly defined and that the party seeking the directions demonstrates that the 'dictates of justice' will be served by the direction."

23 His Honour concluded at [107]:

"For these reasons I conclude that courts in New South Wales have power under the CP Act and the UCPR to make orders relieving one party to civil litigation from complying, in whole or in part, with directions that would otherwise that party to disclose to the other in advance of the trial all affidavits and reports to be adduced in evidence at the trial."

24 In a separate judgment Basten JA, agreed with the orders proposed and stated at [317]:

"The reasonable entitlement of a defendant to preserve pre-trial confidentiality in the results of its investigations, in the face of suspected fraud, remains a legitimate interest."

25 His Honour went on to say, however, that there is no reason to require a judge at a pre-trial stage to assume or to be satisfied that there is fraud, untruthfulness or deceit although the judge would need to be satisfied that there is some real basis for suspicion so that withholding the material is legitimate in all the circumstances.

26 Obviously caution is required before one party is given what could be regarded as a forensic advantage by being exempted from a requirement of the rules. Mr Daley submitted that the making of the orders sought would cause unfairness to the plaintiff, as she may not now be able to recall the events recorded in this evidence. This is not unusual in personal injury litigation especially where some years have elapsed since the accident and the plaintiff is unwell. Plaintiffs are only required to give their evidence to the best of their recollection, imperfect as that may be. A plaintiff giving truthful evidence generally has nothing to fear from surveillance evidence. On the other hand, the disclosure of such evidence would give the plaintiff, not giving evidence in a truthful manner, the opportunity to tailor his or her evidence to meet the film. Whilst openness and cooperation are not only desirable but are now also required in modern litigation it is not necessarily appropriate where credit is an issue.

27 For these reasons the Court concludes that in the circumstances of this case the orders sought in [(i)] and [(ii)] of the notice of motion ought be made. Whilst in so concluding the Court is mindful of the possible consequences of such orders in the context of the relevant provisions of the CPA , in particular s 56 (Over-riding purpose) the Court is nevertheless required to follow the dictates of justice (s 58).

28 Order (iii) which the defendant seeks is an order giving leave to the defendant to show the film to his experts and not being required to serve supplementary reports dealing with the film until after cross-examination. The Court declines to make this order because it would give the defendant an unfair advantage as the plaintiff will not have had such opportunity.

**********

Decision last updated: 01 July 2011