District Court New South Wales Medium Neutral Citation: Cockburn v The Trust Company Ltd [2014] NSWDC 60 Decision date: 01 April 2014 Before: Cogswell SC DCJ Decision: Evidence not inadmissible by virtue of non-inspection. Catchwords: Evidence - admissibility - covert surveillance DVD - plaintiff not given an opportunity to inspect - consideration of leave - alternatively whether legitimate forensic purpose demonstrated. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 31.10(1) and (2). Rules of the Supreme Court 1971 (WA). Cases Cited: Boyes v Colins [2000] WASCA 344; 23 WAR 123. Brown v Metro Meat International Ltd [2000] WASCA 123. Category: Interlocutory applications Parties: Raymond Cockburn (plaintiff) The Trust Company Ltd (first defendant) Jeminex Brands and Operations Pty Ltd (formerly Beaver Brands Pty Ltd) (second defendant) Representation: Counsel: AJ Lidden SC, MA Campbell (plaintiff) SE McCarthy (defendants) File Number(s): DC 2012/176113 Judgment 1This is a case about a man who claims to have injured his right wrist and arm in an accident. One of the issues in the case appears to be the extent of any disability arising from that injury. Mr S E McCarthy who appears for the defendants has been cross examining the man whose name is Raymond Cockburn. Mr McCarthy now wants to show Mr Cockburn a DVD of a film taken of Mr Cockburn covertly. 2Mr McCarthy wants to show it to Mr Cockburn whilst he is in the witness box and in cross examination so that I therefore would also see it. In the normal course that would require that it be tendered into evidence. 3Ms M A Campbell, who appears with Mr A J Lidden SC for Mr Cockburn, has objected to the admissibility of the DVD. The specific objection which she took was based upon UCPR 31.10(1). That provides that seven days before a hearing a party who intends to tender an audio visual recording "must give the other parties an opportunity to inspect it and to agree to its admission without proof". That has not happened in this case. 4Mr McCarthy points to the exceptions to that rule. There are two exceptions provided for in UCPR 31.10(2). One is "in the case of a prescribed item" (which this DVD is). If I am "satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item" then there is no problem for Mr McCarthy in not complying with subrule (1). The other exception is where I grant leave. 5Ms Campbell argues that the question of fairness to both parties is a factor. She has drawn my attention to the footnotes in Ritchie's Uniform Civil Procedure NSW which in turn refer to two decisions of the West Australian Court of Appeal. They are Boyes v Colins [2000] WASCA 344; 23 WAR 123 and Brown v Metro Meat International Ltd [2000] WASCA 123. Both cases concern a similar problem. Boyes specifically concerned the corresponding rule in the Rules of the Supreme Court 1971 (WA). Ipp J, speaking on behalf of the Court of Appeal in Boyes v Colins, gave close consideration to the applicability of that rule. The issue in that case concerned obtaining leave to be excused from the requirement to inspect the document. 6Because this is an interlocutory judgment given in the course of this hearing I do not propose to refer in detail to Ipp J's judgment except to observe that, with respect, his Honour has very thoroughly canvassed the issues concerning this question. His Honour expressed the view at [60] that in determining an application (I infer, for leave) "the Court should be biased towards disclosure". His Honour reviewed the change in the approach to litigation over a century and a half. 7Mr McCarthy on the other hand points to the fact that the rule in New South Wales is different and was amended in 2011. As I said, there are two bases to excuse compliance with the rule. One is leave, which is the subject of the Western Australian decisions. But the other is if I am satisfied that the tendering party had a legitimate forensic purpose for not giving or providing an opportunity to inspect the item. 8In my opinion that requirement of demonstrating a legitimate forensic purpose raises a different issue to the leave question. Leave necessarily requires the judge to consider reasons for and against compliance with a particular rule; but the other exception requires me to be convinced or satisfied that the party tendering the document has a legitimate forensic purpose. Mr McCarthy said the legitimate forensic purpose is obvious, that is, that the witness, Mr Cockburn, should not have been given an opportunity to see the video in advance and tailor his evidence accordingly. (I am not suggesting that he would have done that, but that is the purpose relied upon by Mr McCarthy.) 9Such a purpose is criticised and its basis somewhat undermined in Ipp J's discussion of the issue. But of course, that was in the context of whether or not to grant leave. It seems to me that UCPR 31.10(2)(a) has made specific provision for a party to make a judgment about withholding such a document, relying upon their ability to convince the Court that they had a legitimate forensic purpose for doing so. The assessment of the Court is of whether or not that party had a legitimate forensic purpose. 10To my mind, the defendants have demonstrated that they did have a legitimate forensic purpose and, accordingly, the tender is not inadmissible - but only because of the defendants' failure to comply with UCPR 31.10(1). I do note that that is a limited basis of objection, and Mr Lidden SC has indicated that he requires in due course strict proof of the document. 11Both parties are agreed that I may view the DVD during Mr Cockburn's cross examination, and if it is ultimately rejected, put it out of my mind. ********** 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: 30 May 2014