Supreme Court New South Wales Medium Neutral Citation: Sam Iaali v JV Auto Repairs Pty Limited t/as One Shop Mobile Mechanic; Grace Worldwide (Australia) Pty Ltd v JV Auto Repairs Pty Ltd t/as One Stop Mobile Mechanic [2023] NSWSC 257 Hearing dates: 20 March 2023 Date of orders: 22 March 2023 Decision date: 22 March 2023 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The Notice of Motion is stood over to the trial judge. (2) Costs are reserved. Catchwords: CIVIL PROCEDURE – service in accordance with Rule 31.10 of the UCPR – defendant seeking order to excuse service of material – whether serving material would significantly reduce its evidentiary weight – held that question should be determined by trial judge motion dismissed. Legislation Cited: Civil Procedure Act 2005 (NSW) s 56. Uniform Civil Procedure Rules (NSW) rr 31.10 and 31.28. Cases Cited: Boyes v Colins (2000) 23 WAR 123. Halpin Lumley General Insurance Ltd (2009) 78 NSWLR 265 Markus v Provincial Insurance Company Ltd (1988) 23 NSWCCR1 Monteleone v Thorn [2020] NSWLR 265 Category: Procedural rulings Parties: Sam Iaali (Plaintiff) JV Auto Repairs Pty Limited trading as One Stop Mobile Mechanic (Defendant) Representation: Counsel: D-L. Del Monte (Plaintiff/ Respondent to Motion) D. Kelly (Defendant/ Applicant to Motion) Solicitors: Hicksons Lawyers (Plaintiff) Defendant (Nicole Oglesby). File Number(s): 2020/00037911 2018/00087212 Judgment 1. By Notice of Motion filed 10 March 2023, the defendant in two sets of proceedings, JV Auto Repairs Pty Limited trading as One Stop Mobile Mechanic, seeks orders that first, it is excused from complying with the provisions of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') r 31.10(1) and secondly, that it be granted leave not to serve surveillance footage of the plaintiff in the first proceedings, Sam Iaali, until he has finished giving his oral evidence. 2. The defendant relies on the affidavit of its solicitor Nicole Oglesby sworn 10 March 2023. D. Kelly appeared for the defendant. DL. De Monte appeared for the plaintiff. The plaintiff opposes the orders sought. 3. There are two related sets of proceedings. They are Sam Iaali v JV Auto Repairs Pty Limited t/as One Shop Mobile Mechanic (2020/00037911) and Grace Worldwide (Australia) Pty Ltd v JV Auto Repairs Pty Ltd t/as One Stop Mobile Mechanic (2018/00087212). 4. In the first proceedings the plaintiff (Mr Iaali) brings a claim for personal injury damages arising from an incident that is alleged to have occurred on 16 March 2017, during the course of his employment to the defendant. The plaintiff in the second proceedings Grace Worldwide (Australia) Pty Ltd ('Grace Worldwide') ('the second proceedings'). 5. In the second proceedings, Grace Worldwide, as Mr Iaali's employer, seeks recovery of workers compensation already paid to Mr Iaali by the defendant. 6. These matters are listed for a five-day trial commencing on 3 April 2023. Hence, this judgment needs to be given as a matter of urgency. To that end, these reasons will be brief. 7. In her affidavit Nicole Oglesby deposed that she had instructions not to waive privilege of any of the material referred to. 8. She deposes that Mr Iaali's credibility is in issue in the proceedings. The defendant holds five surveillance reports prepared on various dates between 5 August 2020 and 1 December 2022 concerning some 59 minutes of surveillance of Mr Iaali during that period (collectively, 'the surveillance material'). 9. In the first proceedings, Mr Iaali claims damages for non-economic loss, past and future out-of-pocket expenses, past and future economic loss and past and future care. 10. Mr Iaali alleges that he sustained the following injuries as a result of the incident on 16 March 2017: 1. cervical spine; 2. thoracic spine; 3. mechanical lumbar spine injury associated with abnormal gait; 4. fractured toes and crush injury to the left foot; 5. surgical scarring; and 6. post-traumatic stress disorder. 1. Mr Iaali alleges that as a result of these injuries he suffers with continuing disabilities, including: 1. pain and restriction of movement in the neck, thoracic spine, lumbar spine and left foot; 2. difficulty standing for long periods of time; 3. difficulty sitting for long periods of time; 4. difficulty walking long distances; 5. difficulty driving; 6. walks with an antalgic gait favouring his left side; and 7. inability to resume gainful employment. 1. Ms Oglesby deposed that the surveillance material suggests Mr Iaali has a greater capacity than alleged, and has the capacity to engage physically, mentally, socially and recreationally in a manner that is inconsistent with his alleged injuries and disabilities. 2. The defendant has obtained reports from medical and occupational therapy experts which were annexed to Mr Oglesby's affidavit, namely, Associate Professor Michael Shatwell (dated 2 June 2020) and Dr Brian Zeman and Mr John Raue (dated 6 February 2021) and Sandra Colyer (dated 7 November 2022) (the defendant's primary expert reports). These reports have been served on Mr Iaali. 3. Following service of the defendant's primary reports, the surveillance material was sent to those medical experts by the defendant for comment in relation to the following two questions. They are: Q1. How did [Mr Iaali's] presentation in the surveillance footage compare with his presentation and his complaints during your [earlier] assessment… … Q2. Has the surveillance footage caused you to alter your opinion as to [Mr Iaali's] capacity? If so, how has it altered your opinion. 1. Mr Oglesby annexed supplementary reports: Associate Professor Michael Shatwell (dated 23 December 2022); Dr Brian Zeman (dated 21 December 2022); Ms Sandra Colyer (15 December 2022). These supplementary reports were prepared following the expert's receipt of the surveillance material where they answered the two questions above and were served on Mr Iaali's solicitors. 2. In their respective supplementary reports, the defendant's experts identified inconsistencies between Mr Iaali's presentation in the surveillance material and with his presentation during their physical assessments of him in May 2020, January 2020, January 2021 and July 2022. Mr Oglesby deposed that the defendant proposes to tender copies of the surveillance material after Mr Iaali has been cross-examined. 3. The defendant has also provided copies of the surveillance to Grace Worldwide, the defendant in the second proceedings, which has stipulated that it does not waive privilege in order to assist with attempts at settlement. The basis of providing the surveillance is that legal professional privilege is not waived. The UCPR 1. The defendant referred to rr 31.10 and 31.28 of the UCPR, which reads as follows: 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. … (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. … 31.28 Disclosure of experts' reports and hospital reports (1) Each party must serve experts' reports and hospital reports on each other active party— (a) in accordance with any order of the court, or (b) if no such order is in force, in accordance with any relevant practice note, or (c) if no such order or practice note is in force, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under subrule (1) (other than an order solely for abridgment or extension of time) may be made without serving notice of motion. (3) Except by leave of the court, or by consent of the parties— (a) an expert's report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) without limiting paragraph (a), an expert's report or hospital report, when tendered under section 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) the oral expert evidence in chief of any expert is not admissible unless an expert's report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied— (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1). 1. At the most recent status review on 3 March 2023, Cavanagh J made the following order: "I order that the orthopaedic and psychiatric evidence to be adduced by the plaintiff be adduced in the usual way; that is, without conclaves so that they can be called and cross-examined by the defendant." 1. His Honour explained: "[Mr Dous, counsel for Mr Iaali at the status review hearing] you don't have to worry about conclaves with the orthos [orthopaedic specialists] and psychs [psychiatrists], just call them along. You'll have the benefit of knowing what the surveillance is at the worst after the plaintiff is cross-examined and no doubt you can get instructions from them because the defendant is causing all this, adduce further oral evidence in chief from them if you need to about the significance of the surveillance. The judge is there to hear the case so that's fine, you can call further oral evidence from them about the significance of the surveillance (T6.21-33)." 1. The defendant referred to Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 ('Halpin') and Monteleone v Thorn [2020] NSWLR 265 ('Monteleone'). Mr Iaali referred to Boyes v Colins [2000] WASCA 344 ('Boyes'). 2. In Halpin, the Insured appellants had alleged in their statement of claim that a theft had occurred from their home at Orchard Park, on 10 August 2006. They alleged that sporting memorabilia stolen, including valuable rugby league jerseys and cricket bats, which were the subject of a specified contents cover under a policy with the respondent insurer ('the policy'), the sum Insured being $1 million. The Insured made a claim under the policy, which the insurer refused on the basis of deceit or fraud. The insurer brought a Notice of Motion seeking an order, without reference to the UCPR, that "the requirement that all affidavit evidence to be relied upon by [the Insurer] be served on [the Insured] be waived in respect of certain affidavits, on the basis of the discretion discussed in Markus v Provincial Insurance Company Ltd (1983) 25 NSWCCR 1. 3. The primary judge in Markus considered that the evidence that the insurer wished to hold back fell into four categories: an affidavit of one of the lay witnesses, an affidavit of the second lay witness; a report by a forensic accountant (in light of the insurer fraud allegation) and affidavits by insurance investigators. 4. The Insured argued that there was no proper basis for upholding the insurer's motion, as the insurer "bore an onus in respect of the evidence contained within the documents" it sought to withhold. 5. The primary judge noted that in a case where each side carried an onus of proof "the sort of rigid distinction sought by the [Insured] has no place": Halpin at [67]. Such an approach was quite contrary to the principle underlying the exercise of the Markus discretion, which was to allow a party to hold back documents if the interests of justice so dictated. The Insured brought an appeal: 6. In dismissing the appeal, Sackville AJA (with whom Tobias JA agreed) stated: "[93] The application of the criteria laid down by ss 56-58 is not without difficulty. There is, or at least may be, a tension between the just resolution of the real issues in proceedings and the quick and cheap resolution of those issues. A reasonable opportunity to lead evidence, cross-examine witnesses and present a case (cf CP Act, s 62(4)), depending on the nature of the claim, may be very difficult to achieve quickly and cheaply. Similarly, the "just determination of the proceedings" (s 57(1)(a)) may detract from "the efficient use of available judicial … resources" (s 57(1)(c)), if the latter expression means minimising the judicial resources required to resolve a given number of cases. To some extent the tension is ameliorated by the concept of proportionality, introduced by ss 57(1)(d) and 60 of the CP Act. Nonetheless, the exercise of powers in conformity with the "overriding purpose" is likely to involve some balancing of competing objectives. [94] The CP Act does not expressly accord paramountcy to the just determination of the proceedings, although this is the first object stated in s 57(1) of the CP Act. In contrast, for example, the rule considered by the High Court in Aon Risk Services (Court Procedures Rules 2006 (ACT), r 21(1)) states that the purpose of the Rules is: to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense. Similarly, the Civil Procedure Rules 1998 (UK), made under the Civil Procedure Act 1997 (UK), state (r 1.1(1)) that the: Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. The expression "deal with cases justly" includes, so far as practicable, the following considerations (r 1.1(2)): (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate - (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. [95] Whatever difficulties there may be in reconciling the objectives embodied in the overriding purpose stated in s 56(1) of the CP Act, it is clear that the court has wide powers to make directions for the conduct of proceedings, including the directions relating to the disclosure or withholding of affidavits or reports on which a party intends to rely at a hearing. It is necessary, in the exercise of such powers for the court to take into account the mandatory considerations identified in the CP Act and the UCPR. Those considerations may suggest the exercise of caution before one party is given an apparent forensic advantage by being partially exempted from a requirement to exchange affidavits and reports prior to the trial. But it is impossible to say, irrespective of the justice of the particular case or the issues at stake, that the court's powers can never be wide enough to make orders of the kind made in the present case. [96] Specifically, if the court considers that an order permitting one party to withhold affidavit or other material from the other party pending the trial is likely to assist in the speedy determination of the real issues between the parties (CP Act, s 61(1)) or is likely to advance the just, quick and cheap disposal of the proceedings (UCPR, r 2.1), it has power to make the order. Whether the order is appropriate in a particular case will depend on a number of considerations, including the application to the circumstances of the case of the criteria stated in CP Act, s 57(1) and the "dictates of justice" as defined in s 58(2)." 1. In Monteleone, the defendants to a personal injuries and workers compensation claim broadly similar to the present proceedings, sought an order by a Notice of Motion to excuse compliance with r 31.10(1) of the UCPR in respect of eight investigation reports, and the accompanying video of the plaintiff going about a series of activities. 2. At [6]-[8], Garling J in Monteleone concluded: "[6] It seems to me that the proper construction of this rule is that the onus is on a party who intends to tender any of the items set out in r 31.10(1) at a hearing to consider whether or not disclosure ought to occur, or else whether it can satisfy the Court that it had a legitimate forensic purpose for not disclosing the material. Whether or not the party had a legitimate forensic purpose is one which seems to me to depend, at least in part, on what the issues joined at the trial are, the evidence led during the trial, the real issues in dispute, and the weight which the evidence may carry. As well, there may be balancing considerations to be considered when the material is tendered. [7] As the discussions recorded in the transcript of this hearing will show, there are an enormous range of factual possibilities as to the circumstances surrounding the tender of material of the kind under consideration. The Court best placed to determine the balancing of all of those issues, including the obligations under the rule and admissibility in accordance with the Evidence Act 1995, is the Court which is hearing the proceedings rather than a different court in advance of, and not seized with, all of the facts and not having the benefit of submissions from both parties, such as this Court is, to make that determination. [8] In the circumstances in this case, I think it is inappropriate for this Court to make a determination in advance granting the leave which is sought and I leave it to the trial Judge to determine whether the material should be admitted, notwithstanding the failure to serve it." 1. The Notice of Motion was dismissed. 2. In Halpin, Sackville AJA referred to the West Australian case of Boyes, which was raised by Mr Iaali's counsel in support of the submission that this Court could or should not make the order sought by the defendant and stated at [104]-[107]: "[104] A number of points should be made about Boyes v Collins. First, it was a decision on an application under a particular rule of court. Secondly, Ipp J's statement of principle recognised that the rule itself expressly contemplated that an order could be made in appropriate circumstances excusing a party from compliance with the disclosure requirements. Thirdly, the respondent made it plain that there was no allegation of malingering or conscious presentation of a fraudulent claim (at 139 [53]). The only allegation was that the appellant was not suffering a physical disability in consequence of the accident he had sustained. Fourthly, the trial judge had acted in accordance with an almost uniform approach that had been adopted in the District Court to applications of this kind. That approach assumed that it was essential for the doing of justice, even in the absence of an allegation of malingering, to allow a defendant to take a plaintiff and the plaintiff's doctors by surprise by confronting them with a video that they had not previously seen (at 140 [54]-[55]). [105] Ipp J characterised the District Court's practice as virtually identical to the refusal of the nineteenth century common law courts to countenance pre-trial discovery of documents. His Honour rejected the practice as based on a pessimistic view of the standards of honesty of litigating parties (at 140 ([56])). The practice was also inconsistent with the "cards on the table" approach to litigation adopted in Western Australia (at 143 [64]). [106] Boyes v Collins does not support the proposition that a court in New South Wales has no power to make a direction authorising a party to withhold material that might be adduced in evidence from the other party until the trial. Nor does the judgment identify the "persuasive grounds" that would be necessary to displace the "bias" towards disclosure underlying O 36 r 4. It was enough for the Court in Boyes v Collins to point to circumstances, such as the fact that there was "every chance" that the trial would have to be adjourned and that the plaintiff had already committed herself as to the nature and extent of her disabilities (at 142 [62], 145 [73]), suggesting that a departure from the general rule was not warranted. Conclusion on Power [107] For these reasons I conclude that courts in New South Wales have power under the CP Act [Civil Procedure Act 2008 (NSW)] and the UCPR to make orders relieving one party to civil litigation from complying, in whole or in part, with directions that would otherwise require that party to disclose to the other in advance of the trial all affidavits and reports to be adduced in evidence at the trial. The sources of such a power include, (although they are not necessarily limited to) CP Act, s 61(1), (2)(c) and UCPR, rr 2.1, 2.3. In exercising the power, a court is required to take into account the overriding purpose of the CP Act and the UCPR stated in s 56(1) of the CP Act and the objects identified in s 57(1). It is also necessary to take into account, insofar as relevant, the object of minimising delay, within the limitations outlined in s 59 of the CP Act and the principle of proportionality embodied in s 60. The court may also have regard to the matters specified in s 58(2), to the extent it considers those matters relevant. As I have explained, a decision in a particular case is likely to require a weighing of considerations that will not always be easy to reconcile." Defendant's submissions 1. Counsel for the defendant submitted that legal professional privilege has not been waived over the surveillance material. Further, it was argued that the use of surveillance at trial involves objective evidence of the extent of the plaintiff's injuries and disabilities. 2. As noted at the outset of these reasons, the defendant seeks that I stand over the Notice of Motion to the trial judge or, excuse it from complying with UCPR r 31.10(1) by granting it leave not to serve the surveillance material until Mr Iaali has finished giving his oral evidence at trial. 3. The defendant submitted that the plaintiff's credibility is a significant issue in these proceedings and it consequently wishes to preserve a forensic advantage by withholding the surveillance material at this stage so as not to afford Mr Iaali the opportunity to tailor his evidence in an effort to diminish the effect of the surveillance material. Plaintiff's submissions 1. Counsel for Mr Iaali seeks orders that the surveillance material be produced his legal representatives on two main bases. They are, first, that the surveillance material has already been produced to Grace Worldwide and secondly, legal professional privilege has been waived over the defendant's expert reports and if the surveillance is disclosed, Mr Iaali's psychiatric and orthopaedic experts can view the surveillance prior to the trial. They will then be able to discuss the material in their joint reports and when giving conclave evidence, thus decreasing costs and saving time in line with s 56 of the Civil Procedure Act 2005 (NSW). According to the plaintiff's counsel, as some of the relevant information has already been disclosed to the plaintiff, there is no longer any legitimate forensic purpose to withholding the surveillance material. 2. Aa noted, Mr Iaali referred to Boyes, in which the Full Court stated, (Ipp J (with whom Pidgeon and Wallwork JJ agreed), that the trial judge erred in failing to adopt the correct approach to an application under O 36 r 4 of the rule of the Supreme Court 1971 (WA), which was broadly to the same effect as UCPR r 31.10. Ipp J said (at [60]) that in determining an application under O 36 r 4, "the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstances of the individual case to make an order in terms of the rule". Resolution 1. In Halpin, the New South Wales Court of Appeal disagreed with the approach taken by the Supreme Court of Western Australia in Boyes. Boyes is also at odds with this Court's decision in Monteleone. It is my view that Halpin is the applicable law in the present case. 2. Further, Cavanagh J has already made orders that pursuant to UCPR r 31.28, the orthopaedic and psychiatric evidence be adduced in the usual way; that is, without conclaves so that they can be called and cross-examined by the defendant. 3. In these circumstances, it is my view that the decision as to whether the video evidence should be disclosed is best left to the trial judge. It is not appropriate that I grant leave pursuant to Part 31.10(1)(b) at this stage. 4. To maintain the status quo of Cavanagh J's order, I stand the Notice of Motion dated 10 March 2023 adjourned over to the trial judge. The COurt orders: 1. The Notice of Motion is stood over to the trial judge. 2. Costs are reserved. ********** Amendments 22 March 2023 - Typo on cover sheet. 22 March 2023 - Reported decision citation. 23 March 2023 - Full stop. 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: 23 March 2023