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 Solicitors: Wotton and Kearney Lawyers – First defendant File Number(s): 2016/260556 Publication restriction: See order (2) Judgment – EX TEMPORE (REVISED) 1. Before the Court is a notice of motion filed by the first defendant in these proceedings seeking, amongst other things, an order pursuant to r 31.10(1) of the Uniform Civil Procedure Rules 2005 (the Rules). Counsel for the first defendant has informed me that senior counsel for the second defendant is on notice of the application and supports it. 2. For reasons which will become apparent in a moment, the application has been dealt with on an ex-parte basis without notice to the plaintiff, and has come before me in my capacity as the duty judge today. 3. The notice of motion is supported by an affidavit of Maryan Lee, a solicitor, sworn on 7 October 2020. Ms Lee's affidavit establishes the following facts. 4. The plaintiff has brought an action against the defendants for damages arising from an incident that occurred on 11 November 2014 when he alleges that he was in the process of delivering approximately 1.8 tonnes of stone slabs to the first defendant when the slabs fell on him. The plaintiff has sued: 1. the first defendant as the consignee of the slabs; 2. the second defendant as the consigner of the slabs; 3. the third defendant as his deemed employer; and 4. the fourth defendant as the entity responsible for transporting the slabs. 1. The proceedings are listed to commence before Walton J in this Court on 12 October 2020, with an estimated hearing time of three weeks. 2. The plaintiff alleges that he has suffered significant injuries as a consequence of the circumstances which I have briefly outlined. Those injuries are said to include a head injury, an intra-cranial haemorrhage, brain damage, an occlusion of the right common carotid artery, and psychiatric injury. Medical evidence filed in the proceedings contains the suggestion that the plaintiff also suffers from a left hemiplegia, blindness in his right eye, and limited vision in his left eye, as well as other ongoing sequelae. In the current particulars filed with the Court, the plaintiff alleges, amongst other things, that he is unable to walk without assistance, that he cannot stoop, bend or stand independently, that he cannot lead an independent life, and that he requires extensive assistance in his day to day activities. 3. The plaintiff has prepared a schedule of damages in an amount which exceeds $12 million. More than $8 million of that amount is claimed for future care and assistance for 24 hours per day, 7 days per week, along with the cost of equipment and associated services. 4. The plaintiff asserts that he receives full time domestic assistance from a Mr Abbas. It is anticipated that Mr Abbas will give evidence that he assists the plaintiff with all domestic activities, including transportation services, personal assistance in showering and dressing, cooking, cleaning, and household chores. Provision is also made in the schedule for a private funds manager, at a cost of at least $1.25 million, that claim being made on the basis that the plaintiff suffers from a cognitive impairment and is incapable of managing his finances and paying bills. 5. As one might expect, a number of medical reports have been exchanged by the parties in the proceedings. Some of those medical reports are set out in the affidavit of Ms Lee. [1] The affidavit states that the reports are annexed but that is in fact not so. It has been explained to me that a decision was taken not to annex that material given its magnitude. I have therefore not read the actual reports to which reference is made. However, counsel for the first defendant indicated that he was content to proceed on the basis of the summaries of parts of those reports which are set out in the affidavit. 6. I do not propose to deal with each and every assertion made, or said to have been made, by the plaintiff to the medical practitioners who have examined him. However, the following matters appear to me to be of some significance. 7. Ms Walcot, who is an Occupational Therapist qualified by the defendants, provided a report on 17 April 2019 following an examination of the plaintiff. In carrying out a functional assessment, Ms Walcot recorded that the plaintiff had a standing tolerance of five minutes with support, that he could not walk without the support of Mr Abbas, and that he otherwise had a walking tolerance of less than ten minutes before needing to sit. It was also reported to Ms Walcot that the plaintiff needed a carer to put toothpaste on his toothbrush, and to take him out to socialise. 8. Dr Walker, a Neuropsychologist, provided a report on 18 March 2017, in which he expressed a conclusion that the results of psychometric testing were strongly suggestive of non-credible performances and exaggeration of difficulties, or a deliberate effort to perform poorly, on the part of the plaintiff. 9. Dr Brown, a Psychiatrist, provided a report of 11 September 2018. He agreed with the analysis and conclusions of Dr Walker, and considered that the plaintiff was malingering the degree of neurocognitive deficits from which he is said to suffer. Dr Brown also recorded that the plaintiff provided a history of only being able to walk a short distance at a time. 10. On 25 September 2020 the plaintiff's solicitor served a report of Dr Kumar, a Psychiatrist. Dr Kumar reported, amongst other things, that the plaintiff was receiving three hours of commercial care per day, and that his carer took him out for walks and to go shopping once a week, and that he assisted with his tasks of daily living. Bearing those matters in mind, the first defendant undertook surveillance of the plaintiff on 28 and 29 September, and 1 October 2020. The contents of that evidence are summarised in Ms Lee's affidavit. [2] 11. Once again, I do not propose to deal with each and every one of the observations set out in the affidavit which appear on the footage. However, it is of some significance that on 28 September 2020, between the hours of 8.09am and 8.33am, the plaintiff was seen to be walking on a footpath and using a walking stick periodically. He was seen to leave home on foot on his own at 10.27am and walk a distance of 500 to 600 metres to a local shopping centre where he was seen using an automatic teller machine. He was then seen to walk home, before again leaving home and walking to a park, and then walking around the park and sitting on a park bench. Not dissimilar observations were made of the plaintiff on 29 September 2020 and on 1 October 2020. On 1 October the plaintiff was seen between 8.03am and 8.24am walking with a person (who I infer was his carer) for a distance estimated to have been 1.2 kilometres, before returning home. He was seen to walk a similar distance later that day, between the hours of 1.14pm and 1.38pm. 12. On the whole of the evidence, there is a prima facie inconsistency between what was found on medical assessments of the plaintiff, and/or what was reported by the plaintiff to medical practitioners, and the plaintiff's capacities exhibited in the surveillance footage. Such inconsistencies are evident in more than one respect. 13. It is against that background that the plaintiff seeks an order pursuant to r 31.10 of the Rules. That rule is in the following terms: 31.10 Plans, photographs, audio-visual recordings and models (1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording 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, audio-visual recording or model in evidence except-- (a) in the case of a prescribed item--where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or (b) in any other case--by leave of the court. (3) This rule does not apply to any proceedings entered, or intended to be entered, in-- (a) the Commercial List or the Technology and Construction List in the Supreme Court, or (b) the Commercial List or the Construction List in the District Court. (4) In this rule-- "audio-visual recording" includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means. "prescribed item" means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing. 1. As formulated in the course of oral submissions, what the plaintiff seeks is an order for leave under r 31.10(2)(b). The bringing of the application ex-parte is consistent with authority. [3] A grant of leave under the rule can be made, if appropriate, in the exercise of the Court's general discretionary powers. There are a number of matters which inform the exercise of that discretion. 2. In Markus v Provincial Insurance Company Limited [4] Clarke J (as his Honour then was) noted a submission made by the defendant in the case in the following terms: "…[T]he interests of justice would not be served by allowing the applicant to have access to documents which would not advance the applicant's case, but which on the other hand would, if the applicants are not genuine, put the applicants on notice of some allegedly suspicious circumstances, and enable them to tailor on endeavour to tailor their evidence to meet the circumstances." 1. It was the submission of counsel for the first defendant that those observations encapsulated, in effect, the position before me. 2. The decision in Markus was considered by Santow J in Broadwater Taxation and Investments Services Pty Limited v Hendriks, [5] where his Honour observed that a helpful way of approaching the issue was to ask whether giving access to the materials would deprive a litigant of a legitimate forensic advantage, legitimacy being determined by asking how the interests of justice would be best served. 3. In Prasad v AMP Life Limited; Printer Ribbon Products Pty Limited v AMP Life Limited, [6] Stevenson J enumerated a number of the matters which inform the exercise of the discretion. 4. The first of those matters is a consideration of whether the making of the orders would promote the speedy determination of the real issues, and the just, quick, and cheap disposition of, the proceedings. In my view, in light of the medical evidence to which I have referred, the nature of the surveillance footage is such that the making of the order sought would be generally conducive to the speedy determination of a number of substantive issues in the proceedings, including the plaintiff's credit. For the same reason, and again bearing in mind the nature of the material, I am satisfied that the second of the matters to which Stevenson J referred, namely, the dictates of justice, would be served by the making of the order sought. 5. A further matter to which his Honour referred was whether the material in question was 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 that would assist the deprived party in the formulation and presentation of his or her own case. It is apparent, at least at a prima facie level, that the surveillance material will be of assistance only to the first and second defendants as the withholding parties. Nothing in the affidavit of Ms Lee suggests, in any way, that the surveillance footage is likely to assist the plaintiff in the formulation and presentation of his case. 6. Another matter identified by his Honour as a relevant consideration is whether or not it would be unjust to withhold material which might assist the deprived party. For the reasons already stated, the material summarised in the affidavit of Ms Lee does not appear to me to be of a kind which would assist the plaintiff, who is the deprived party for present purposes. 7. A further relevant consideration identified by his Honour is whether or not there is a risk that the material, if made available, would tend to tempt the deprived party (i.e. the plaintiff) to tailor, or consider tailoring, evidence. It is impossible for me to reach a definitive conclusion as to whether or not the plaintiff would be so tempted. It is also not part of my function on this application to determine the honesty of the plaintiff. However, I am satisfied that the material would certainly have the capacity to give rise to such a temptation. 8. A further factor to be considered is the need to be satisfied that there is some real basis for at least a suspicion of a lack of candour on the part of the plaintiff. In a number of respects, the contents of medical evidence, and what appears on the surveillance footage, are diametrically opposed. That, in my view, is a factor which supports a lack of candour and honesty on the part of the plaintiff. 9. Finally, it is relevant to take into account any risk of an adjournment that the withholding of the material may cause, and the impact on any prospects of settlement in the event that the material is withheld. There is no evidence before me which enables me to make a determination of either of those issues. 10. It will be apparent from that analysis of these matters which inform the exercise of the discretion that they favour, and in my view favour overwhelmingly, the making of the order sought. 11. Orders are also sought for the suppression of certain material pursuant to ss 8(1)(a) and 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). Given the entirety of the evidence and all of the considerations to which have referred, I am satisfied that an order suppressing certain material is necessary to prevent prejudice to the proper administration of justice, and in particular, necessary to prevent prejudice to the proper conduct of the case of at least the first and second defendants. 12. Accordingly and for those reasons, I make the following orders: 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: 1. the orders made pursuant to the notice of motion dated 7 October 2020; 2. the notice of motion dated 7 October 2020; 3. the affidavit of Maryan Lee, sworn 7 October 2020; 4. the transcript of the hearing of this application; and 5. this judgment, 6. be suppressed. 1. 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)." 2. I reserve the costs of the notice of motion for determination by the trial judge at a later date. ********** Endnotes 1. Commencing at [16]. 2. Commencing at [41]. 3. McGuinness v Kellogg, Company of Great Britain Limited [1988] 1 WLR 913. 4. (1983) 25 NSWCCR 1 at 2. 5. Supreme Court (NSW), 9 September 1993, unreported. 6. [2012] NSWSC 1076 at [22]. Amendments 15 October 2020 - The suppression orders made by Bellew J were revoked by Walton J on 13 October 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2020