Wehbe v Micro-Form Pty Ltd [2022] NSWDC 143

District Court New South Wales

Medium Neutral Citation: Wehbe v Micro-Form Pty Ltd [2022] NSWDC 143 Hearing dates: 25 March 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Civil Before: Abadee DCJ (List Judge) Decision: See paragraph 19 Catchwords: PRACTICE & PROCEDURE – requirement to make available for inspection audio-visual recording before trial – ex parte application by a party to be excused from the requirement - whether the applicant has legitimate forensic purpose for not giving opponent to inspect the item- request to suppress the application Legislation Cited: Civil Procedure Act 2005 (NSW) ss 58, 59, 60 Courts Suppression and Non-Publication of Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 31.10 Workers Compensation Act 1987 (NSW) s 151Z Cases Cited: Latimer v Day [2015] NSWSC 11 Prasad v AMP Life Ltd [2012] NSWSC 1076 Texts Cited: Nil Category: Principal judgment Parties: Mirco-Foam Pty Ltd (defendant) Representation: Counsel: Mr Lee for the defendant

Solicitors: McCabes Lawyers for the defendant File Number(s): 2021/00043448 Publication restriction: Suppression orders in accordance with the Court Suppression and Non-Publication of Orders Act 2010 (NSW)

EX TEMPORE REASONS FOR JUDGMENT

Introduction 1. This proceeding features a claim for damages for personal injury. The plaintiff, through a corporate vehicle, agreed to provide labour services at premises occupied by the defendant building company for the purposes of construction work in Gosford. He alleges that he received a direction from someone on the defendant's behalf to stand on a steel mesh and receive a piece of plywood, weighing approximately 25kg, from a person 3 metres above him. He alleges that the person transferring the plywood let go of it, causing him to slip and fall and suffer personal injuries. He alleges that he suffered injuries to his neck, back, right knee, left ankle and that he also sustained psychological injury. He has chronicled a list of disabilities in his Statement of Particulars. That document indicates that, amongst other claims, the plaintiff claims past economic loss and also future economic loss. 2. The defendant puts in issue all of the material allegations raised by the plaintiff and has pleaded specific defences, such as obvious risk and contributory negligence. It also seeks reduction of its liability to take into account the alleged negligence of the plaintiff's employer under s 151Z of the Workers Compensation Act 1987 (NSW). 3. The hearing of this matter is scheduled to commence on 4 April 2022. 4. In answer to the defendant's request for particulars, the plaintiff said that he had not returned to work since the date of the accident. A significant issue at trial will be the nature and extent of the plaintiff's injuries and ongoing disabilities. 5. On 28 January 2022, the defendant engaged Procare to conduct 30 hours' of surveillance on the plaintiff. A report was produced on 31 January 2022. Procare was engaged again on 14 March 2022 to conduct further surveillance and it produced a further report dated 23 March 2022. Procare was engaged so as to enable the defendant to be in a position to test the plaintiff's credibility. 6. Ms Emily Truong, an employed solicitor of the firm representing the defendant, deposes to having reviewed the surveillance material and photographs, and opines that there is nothing in the material that would assist the plaintiff's case. To the contrary, she deposes that the footage indicated that on numerous days, the plaintiff left his home early, parked his motor vehicle near construction sites and worked on the sites until 2pm or 3pm each day, sometimes with the exception of lunch breaks. She also deposed to her concern that if the material was disclosed to the plaintiff, it would enable him to tailor his evidence. 7. By an ex parte notice of motion, filed in Court today and made returnable instanter, the defendant seeks an order pursuant to r 31.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) for the Court's leave to be excused from complying with the general requirement that a party intending to rely upon audio-visual recording, and other 'prescribed items' make those items available for the opposite party's inspection at least 7 days before the hearing. It also seeks an order supressing publication of the application and the affidavit in support, these orders and the transcript until after the defendant's tender of them. 8. Ms Truong annexed to her affidavit the two reports from Procare, which set out the detail of the surveillance and annexed a series of photographs. It suffices to indicate that the plaintiff was photographed in the garb of a construction worker and was seen working, in the company of others, on different construction sites.