Hay v Maules Creek Coal Pty Ltd [2022] NSWSC 1118

Supreme Court New South Wales

Medium Neutral Citation: Hay v Maules Creek Coal Pty Ltd [2022] NSWSC 1118 Hearing dates: On the papers Decision date: 23 August 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave for the motion dated 22 August 2022 to be heard ex parte in chambers. (2) Pursuant to rule 31.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR:) the Defendant is excused from compliance with rule 31.10 of the UCPR concerning audio visual recording/s and/or investigation reports arising from or prepared in relation to the plaintiff referred to in paragraph 11 of the Affidavit of Najeh Marhaba dated 22 August 2022 ("the Material"). (3) Subject to Order (4) or further order of the Court, order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the ground set out in s 8(1)(a) of that Act the following are not to be disclosed: (a) these orders; (b) the notice of motion; (c) the affidavit relied upon in support of the motion; (d) the Material. (4) Order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the grounds set out in s 8(1)(a) of that Act: (a) leave be granted to the Defendant to: (i) utilise the Material in the course of the hearing to show to witnesses and/or tender; and/or (ii) show the Material to the Plaintiff in cross-examination of the Plaintiff; and (b) the Plaintiff is not to be notified of these orders until such time as the Defendant discloses same. (5) Subject to the right of the Defendant to utilise the Material in Order 4 above in the course of the hearing and in preparation for same order pursuant to section 7(b) of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), on the ground set out in s 8(1)(a) of that Act the materials referred to in Order (3) above are held by the Court in a sealed envelope marked "confidential" and not to be disclosed until further order of the Court. (6) Order (3) is to operate until the completion of the plaintiff's cross-examination. (7) Liberty to the Defendant to apply to make any application for further or consequential orders in relation to this application. (8) Costs of this application to be costs in the cause. 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), s 56 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 12 Uniform Civil Procedure Rules 2005 (NSW), r 31.10 Cases Cited: Australian Postal Corporation v Hayes (1989) 23 FCR 320; [1989] FCA 176 Category: Procedural rulings Parties: Donita Anne Hay (Plaintiff) Maules Creek Coal Pty Ltd (Defendant) Representation: Counsel: Not applicable