Orkzai v LMG Pty Limited and ors [2020] NSWSC 1366

Supreme Court New South Wales

Medium Neutral Citation: Orkzai v LMG Pty Limited and ors [2020] NSWSC 1366 Hearing dates: 7 October 2020 Decision date: 07 October 2020 Jurisdiction: Common Law Before: Bellew J (Duty Judge) Decision: (1) Pursuant to r 31.10(2)(b) of the Uniform Civil Procedure Rules, I grant leave to the first and second defendants to tender, in the hearing of these proceedings, the material contained in exhibit USB#1 to the affidavit of Maryan Lee, sworn 7 October 2020, notwithstanding the fact that such material has not been given to the plaintiff pursuant to r 31.10(1). (2) Until further order of the Court, and pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the publication of: (i) the orders made pursuant to the notice of motion dated 7 October 2020; (ii) the notice of motion dated 7 October 2020; (iii) the affidavit of Maryan Lee, sworn 7 October 2020; (iv) the transcript of the hearing of this application; and (v) this judgment, be suppressed. (3) I order that the material set out in order 2 be placed in a sealed envelope to remain in the Court file, endorsed "Confidential - material suppressed by an order made by Bellew J on 7 October 2020, pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)." (4) I reserve the costs of the notice of motion for determination by the trial judge at a later date. Catchwords: PRACTICE AND PROCEDURE – Application for leave to tender evidence in the absence of that evidence having been provided to the opposing party as required by the rules – Proceedings brought by the plaintiff against a number of defendants for damages arising from the collapse of a large number of stone slabs – Where histories provided by the plaintiff to medical practitioners were at odds with surveillance footage obtained by one of the defendants – Application for leave to tender the footage in the absence of prior service on the plaintiff – Appropriate to bring the application ex-parte – Consideration of discretionary factors – Order made granting leave Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Broadwater Taxation and Investments Services Pty Limited v Hendriks, Supreme Court (NSW), 9 September 1993, unreported McGuinness v Kellogg, Company of Great Britain Limited [1988] 1 WLR 913 Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR1 Prasad v AMP Life Limited; Printer Ribbon Products Pty Limited v AMP Life Limited [2012] NSWSC 1076 Category: Procedural and other rulings Parties: Shahab Ali Orkzai - Plaintiff LMG NSW Pty Limited – First defendant Cosentino Australia Pty Limited – Second defendant Transport Contract Services (NSW) Pty Limited – Third defendant Century Couriers (NSW) Pty Limited – Fourth defendant Representation: Counsel: S J Walsh – First defendant