C v S [2024] NSWDC 346

District Court New South Wales

Medium Neutral Citation: C v S [2024] NSWDC 346 Hearing dates: 11 July 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Civil Before: Dicker SC DCJ Decision: In relation to the Notice of Motion dated 8 July 2024: 1. Upon the solicitor for the defendant through the defendant's counsel, giving an undertaking to pay the applicable filing fee, leave is granted to file in court: (a) The Notice of Motion dated 8 July 2024; and (b) The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto. 2. The Notice of Motion is returnable instanter. 3. The Notice of Motion is to be heard ex parte and in a closed court. 4. The defendant is granted leave to tender at the hearing of the proceedings: (a) The surveillance footage contained in the USB stick and report prepared by [Q] dated 3 June 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b); (b) The desktop investigation report and annexures of [CD] dated 10 April 2024 in Exhibit B to the affidavit of [CSS] pursuant to UCPR Rule 31.10(2)(b); and (c) The expert report of [SH] dated 1 July 2024 and letter of instruction to [SH] by [K] Lawyers referred to in Exhibit B to the affidavit of [CSS], notwithstanding the fact that such material has not yet been served on the plaintiff and subject to any other grounds relating to admissibility at the trial. 5. Until further order of the Court and pursuant to section 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of: (a) This Notice of Motion; (b) The affidavit of [CSS]; (c) All of the documents and things contained in the Exhibit B to that affidavit; (d) The transcript of this hearing; (e) The judgment in respect of this Notice of Motion be suppressed until the conclusion of the plaintiff's evidence in chief to be given at the trial. 6. Reserve the costs of the Notice of Motion for determination by the trial judge at the hearing of the proceedings. 7. The affidavit of [CSS] dated 8 July 2024, together with the exhibits thereto, the submissions of Mr Hogan of 10 July 2024 and these orders, are to be placed in a sealed envelope with the following annotation: "Not to be opened except pursuant to an order of a Judge." Catchwords: EVIDENCE – practice and procedure – exemption from service of evidence prior to trial – surveillance evidence and medical expert report sought to be relied on by defendant at trial – Markus order – evidence relevant to plaintiff's credit and damages Legislation Cited: Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Halpin v Lumley General Insurance Ltd [2009] NSWCA 372 Jasem v Presmist Formwork Contractors Pty Ltd [2020] NSWSC 859 Latimer v Day [2015] NSWSC 11 Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 Prasad v AMP Life Limited [2012] NSWSC 1076 Sun v He [2022] NSWSC 145 Category: Procedural rulings Parties: [C] (Plaintiff) [S] (Defendant) Representation: Counsel: N Hogan (Defendant)