KIRAN v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and COLE JA 20 June 1996 [1996] NSWCA 307 MOTOR VEHICLE ACCIDENT — finding of fact. APPEAL AND NEW TRIAL — PRIVILEGED MATERIAL WITHHELD — WHETHER SUBSTANTIAL WRONG. The plaintiff alleged that on the evening of 18 June 1990 an unidentified vehicle forced him to cross a median strip and collide with an oncoming vehicle. On the basis of evidence from the driver of that vehicle, cross-examination, inconsistencies in earlier statements and assessment of the plaintiff's credit, the trial judge was not satisfied on the balance of probabilities that there had been any such unidentified vehicle. The appellant challenged the decision of the trial judge to disallow cross-examination by counsel for the plaintiff and to refuse access to documents of an insurance investigator for which privilege was claimed. However, during an adjournment the tapes from the trial disclosed that the cross-examination was not restricted. The issue on the appeal was whether the material from the investigation withheld from counsel caused any substantial wrong or miscarriage at the trial such as to call for the intervention of the Court. HELD, dismissing the appeal: Having inspected the investigator's documents, it was clear that any error in the trial judge's ruling on the question of privilege was not such as to occasion a substantial wrong or miscarriage. Handley JA. This is an appeal by a plaintiff from a verdict and judgment for the defendant entered by Patten DCJ on 18 August 1995. The plaintiff sued the nominal defendant for injuries allegedly sustained as a result of negligence of the part of an unidentified motor vehicle on the evening of 18 June 1990. The plaintiff was driving his vehicle north in Bexley Road, Bexley North where there are two lanes for traffic in each direction divided by a median strip. At the point at which the collision occurred, the road curves to the right going downhill in the direction in which the plaintiff was travelling. The plaintiff, who was travelling in the centre lane next to the median strip, gave an account of being forced to turn his vehicle to the right as a result of the activities of the unidentified vehicle which came up on the inside lane and cut across immediately in front of him. As a result of the avoiding action taken by the plaintiff, his vehicle crossed the median strip and he was involved with a collision with a vehicle being driven by a Mr Manetestas in the opposite direction. The trial Judge was not satisfied on the balance of probabilities that there had been any such unidentified vehicle as claimed by the plaintiff. In a careful judgment his Honour reviewed the plaintiffs credit and carefully assessed this in the light of his cross-examination, alleged inconsistencies with earlier statements made to medical practitioners or the police, and discrepancies between his evidence as to the extent of his disabilities as a result of the accident, and that observed on video film taken of the plaintiff over two days during the year before the trial. 2 UNREPORTED JUDGMENTS The plaintiff's account of how the accident occurred was not corroborated and was contrary to the evidence of Mr Manetestas who did not observe any third vehicle at the relevant time. The original notice of appeal contained five grounds but Mr Leslie QC who appeared for the appellant, sensibly limited his submissions to ground two which alleged error on the part of the trial Judge in disallowing cross-examination by counsel for the plaintiff and declining to order that counsel have access to documents of the investigator, Mr Habgood. Mr Habgood, who had conducted the surveillance on the plaintiff and who had exposed video film showing the plaintiffs activities over an hour and a half on 17 February 1994, and over one and a half minutes on the following day, gave short formal evidence-in-chief. Mr Mooney, who appeared for the plaintiff at the trial, after one question in cross-examination, made a call pursuant to the Evidence Act for documents in the possession of the defendant related to correspondence, letters, reports from Messrs Abbott Tout, solicitors, to Business and Insurance Risk Consultants and similar documents passing from that entity to Messrs Abbott Tout. Counsel appearing for the defendant produced the documents but claimed privilege. I should add that prior to the start of cross-examination, counsel for the defendant had tendered the pages from the witness's diary covering the events of 16 and 17 February so far as the plaintiff was concerned, and no question arises in relation to the witness's diary records for those days. The relevant documents having been produced to the court, and objection based on legal professional privilege taken, his Honour heard legal argument. Counsel for the plaintiff asserted that the use made by the defendant of the video film and diary records relating to the surveillance of the plaintiff on 16 and 17 February 1994, operated as a waiver of privilege for all other surveillance activities undertaken by the witness of the plaintiff at the request of the defendant. Ultimately, his Honour rejected the submission of counsel for the plaintiff that privilege had been waived. Following his Honour's ruling, counsel for the plaintiff announced that he had no further questions. The defendant then closed his case. There was only short documentary material in reply and counsel then addressed. Page 101 of the appeal book, where his Honour's ruling on the claim for privilege is recorded, indicates that part of that ruling could not be transcribed. Pursuant to a subpoena, the legal advisers for the appellant obtained access to the relevant tapes which had recorded the proceedings in the District Court and were able to play back those tapes during the luncheon adjournment. At the resumption of the hearing after lunch, Mr Leslie acknowledged that the words which had not been transcribed did not significantly add to or qualify the material in the appeal book recording his Honour's ruling on the claim for privilege. It is apparent therefore that his Honour did not, at that stage, restrict the cross-examination of the witness by counsel for the plaintiff except to the extent that his Honour refused access to the material for which privilege had been claimed. Counsel for the plaintiff was free to ask further questions of the witness and in particular to ask him about the extent to which the plaintiff had been under surveillance by him at other times. No such questions were asked and his Honour did not, at that point in the transcript, otherwise confine cross-examination by counsel for the plaintiff. URJ KIRAN v THE NOMINAL DEFENDANT (Handley JA) 3 Moreove, earlier at p 23 of the trial transcript, not paginated in the appeal books, his Honour had indicated that counsel for the plaintiff would 'be entitled to cross-examination (sic) the witness about what he saw on other days'. Mr Mooney made no attempt to take advantage of this indication that such cross-examination would be allowed. In the circumstances it is clear that the first basis on which Mr Leslie put the case for the appellant has totally failed and should be rejected. The second basis on which the appeal has been supported is that the trial Judge fell into error in restricting access to material of the witness, Habgood, for which privilege had been claimed. Shortly after opening the appeal Mr Leslie called for this material which was produced by senior counsel for the respondent, and in due course was tendered and admitted without objection and became exhibit A in this Court. In my judgment there is no need for this Court to indicate a final view on whether the claim for legal professional privilege was properly sustained by the learned trial Judge although, speaking for myself, I have considerable misgivings about that ruling. The material that was withheld from counsel for the plaintiff is now in evidence before this Court, and this Court is in a position to consider whether or not the ruling made by his Honour occasioned any substantial wrong or miscarriage such as to call for the intervention of this Court. Having read and carefully considered this material I have reached the firm conclusion that there is nothing in it that would have appreciably altered the effect of the video evidence of the plaintiff and exhibit 10 the diary notes recorded by the investigator during 16 and 17 February 1994. It appears that there was further surveillance of the plaintiff on 18, 21, 22 and 24 February 1994, but video film was only exposed for a total of one and a half minutes. The diary of the witness, Habgood, indicates that the plaintiff's activities on 18 February during the minute and a half in question, neither assisted the plaintiff's case nor cut down the defendant's case. The surveillance undertaken of the plaintiff on the other days in February 1994 was uneventful, and in general there was no direct observation of the plaintiff at all during those days. The material also indicates that the plaintiff earlier had been under surveillance during August 1993, this period of surveillance being the subject of an earlier report. The investigator's conclusions summarised in that report were as follows: During the period of surveillance the claimant was observed to enter, alight and drive a motor vehicle and walk up and down slopes in a free and relaxed gait. The claimant was also seen to place his right knee against the rear bumper of his vehicle while leaning into the boot for one minute twenty seconds. The claimant performed these activities without any sign of restriction or discomfort. In my judgment those observations of the plaintiff and any video film relating thereto which might have been elucidated as a result of any cross-examination based on the relevant material would not have appreciably advanced the plaintiff's case or significantly impaired the defendant's case. Ihave previously omitted to refer to part of the report of 4 March 1994 during which the investigator recorded: During the period of surveillance, the claimant was observed to enter, alight and drive a motor vehicle on a number of occasions as well as walking with a free and relaxed gait for approximately 2 kilometres. During the latter period of surveillance, the claimant was seen to walk with a limp favouring his right leg. 4 UNREPORTED JUDGMENTS While the latter statement indicates that the plaintiff was suffering from some mild difficulty with his right leg and knee, this in itself was not a matter of controversy at the trial, as the plaintiff had significant surgery on his right knee on occasions and in a manner which was not the subject of any contest. In the circumstances I have concluded that any error which the learned trial Judge may have fallen into in his ruling on the question of privilege was not such as to occasion any substantial wrong or miscarriage. In these circumstances it is clear, having regard to the provisions of Supreme Court Rules Pt 51 r 16(1) that there is no occasion for this Court to order a new trial. I would propose therefore that the appeal should be dismissed with costs. Clarke JA. I agree. Cole JA. I also agree. LESLIE: On the question of costs, it's not until we come here and see the documents that we know that there is no miscarriage. I submit there should be no order for costs. Clarke JA. The order of the Court will be that the appeal is dismissed with costs. The point raised has a measure of substance in that the documents could not have been inspected by the appellant without a ruling of the Court or consent of the respondent. The point of the matter, however, is that the appellant did nothing about this until later than the 11th hour. Indeed a number of aspects of the case were left until the hearing commenced, this being one of them and I am not persuaded that if the appellant had sought to see the documents prior to the hearing as it ought to have sought, it would not have had access to those documents. In the circumstances, the Court sees no reason to vary the usual order. Handley JA. What are we to do with exhibit A? Clarke JA. The tapes are kept by the Court are they not Mr Leslie? LESLIE: Yes your Honour. CLARKE JA: What about exhibit A. DONOHUE: That might be returned to my instructing solicitor and we'd give an undertaking to retain it for a period of 28 days if that were a convenient course. CLARKE JA: Exhibit A is to be returned to the respondent upon its undertaking to keep them for 28 days. Orders accordingly. Counsel for the appellant: A J Leslie QC Solicitors for the appellant: Steve Masselos and Co Counsel for the respondent: PM Donohoe QC/D Cochrane Solicitors for the respondent: Abbott Tout