Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859

Supreme Court New South Wales

Medium Neutral Citation: Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859 Hearing dates: 2 July 2020 Decision date: 02 July 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Leave granted to file the notice of motion dated 1 July 2020 and be returnable instanter and heard ex parte. (2) Pursuant to s 71 of the Civil Procedure Act 2005 (NSW) the hearing of the application be conducted in closed court. (3) Pursuant to UCPR 31.10(2)(b) grant leave to the defendant to tender the video recordings of the plaintiff recorded on 8 February 2019, 9 February 2019, 14 February 2019, 29 October 2019, 5 December 2019 and 17 December 2019, and the written report from the surveillance operative pertaining thereto (the first prescribed items) and order that the defendant is excused from complying with the provisions of UCPR 31.10(1) regarding the first prescribed items. (4) Pursuant to UCPR 31.28(3)(a) grant leave to the defendant to rely on the supplementary medical reports of Dr Dalton dated 30 June 2020, Dr Stening dated 30 June 2020, and Dr Marchart dated 1 July 2020 (the second prescribed items) and order pursuant to s 61(2)(c) of the Civil Procedure Act 2005 and UCPR 2.1 that the defendant is excused from complying with the provision of UCPR 31.28 with respect to the second prescribed items. (5) Order pursuant to s 7 of the Court (Suppression and Non Publication) Orders Act 2010 prohibiting the disclosure (by publication or otherwise) of the orders made on this application, the application itself, the affidavit of Melissa Fenton dated 30 June 2020, the exhibits tendered in support of this application, any transcript of the hearing of the application, and the reasons for decision until either the showing of or the tender by the defendant of each of the first and second prescribed items at the hearing, subject to and without precluding the defendant from utilising each of the first and second proscribed items in the course of the hearing, to show the images stored digitally to the plaintiff or other witnesses or to tender this material to the Court (the time of disclosure) or until further order. (6) Note that this order is made pursuant to s 8(1)(a) of the Court (Suppression and Non Publication) Orders Act 2010, namely, it is necessary to prevent prejudice to the proper administration of justice. (7) Subject to the right of the defendant to use the first and second prescribed items in orders 3 and 4 above in the course of the hearing as set out in orders 3 and 4: (a) order that this application, the orders made on this application, and the documents and evidence relating to this application, together with the reasons for decision and the transcript be treated as confidential in the court file, and placed in a sealed envelope marked "Confidential, only to be opened in accordance with orders made by Adamson J on 2 July 2020". (b) these orders and the first and second prescribed items are not be to be disclosed until either the time of disclosure or until further order. (8) The costs of this application are reserved. (9) The non-publication orders set out above are subject to the defendant's right to disclose these orders to the Court during the course of the proceedings. Catchwords: CIVIL PROCEDURE — Exemption from service of evidence prior to trial — surveillance evidence of plaintiff sought to be relied on by defendant at trial — where evidence is material to plaintiff's credit CIVIL PROCEDURE — Hearings — Suppression and non-publication — order made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 61, 71 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 12 Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 31.10, 31.28 Cases Cited: Australian Postal Corporation v Hayes (1989) 23 FCR 320; [1989] FCA 176 Category: Procedural and other rulings Parties: Walid Jasem (Plaintiff) Presmist Formwork Contractors Pty Ltd (ACN 137 687 739) (Defendant) Representation: Counsel: No appearance for the plaintiff (application heard ex parte) S McCarthy (Defendant)