Supreme Court New South Wales Medium Neutral Citation: Latimer v Day [2015] NSWSC 11 Hearing dates: 21 January 2015 Date of orders: 23 January 2015 Decision date: 23 January 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. The defendant is excused from complying with the provisions of UCPR r 31.10(1). 2. The publication of these Orders made on this application, the application itself, the affidavit of Paul Baram dated 21 January 2015 and any transcript of the hearing of the application are suppressed, until the showing or the tender by the defendant of each of the said prescribed items at hearing, subject to and without precluding the defendant from utilising each of the said prescribed items in the course of the hearing to show or to tender the images stored digitally in Exhibit DVD #1, Exhibit DVD #2, Exhibit DVD #3 and Exhibit DVD #4 to a witness. 3. Subject to the right of the defendant to utilise the said prescribed items in Order 2 above in the course of the hearing as stated in Order 2 above: a. the Orders, documents and evidence relating to this application be sealed in an envelope marked "Confidential: Order pursuant to UCPR r 31.10- not to be opened nor contents disclosed without 24 hours' notice in writing to the defendant and thereafter only upon an Order of the Court, including not to be disclosed to the plaintiff or the plaintiff's legal representatives at the commencement of the hearing listed to commence on 16 February 2015" and b. the said material in Order 3(a) above is not to be disclosed until further Order by the Court, which shall not be made without 24 hours' notice in writing to the defendant of such intended disclosure and shall not be disclosed to the plaintiff or the plaintiffs legal representatives at the commencement of the hearing listed to commence on 16 February 2015. 4. Costs of this application are reserved. Catchwords: PROCEDURE – production of documents – requirement to make available – audio-visual and other material before trial – exceptions – material withheld for a legitimate forensic purpose – surveillance film – request to suppress application Legislation Cited: Civil Procedure Act 2005 (NSW) Courts Suppression and Non-publication of Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265 Kon v AMP Life Ltd [2006] NSWSC 957 Markus v Provincial Insurance Co Ltd (Supreme Court (NSW) Clarke J, 11 May 1983, unrep) Ng v Goldberg (Supreme Court (NSW), Young J, 17 Aug 1993, unrep) Prasad v AMP Life Ltd [2012] NSWSC 1076 Category: Procedural and other rulings Parties: Gregory William Latimer (Plaintiff) Maurice Jerome Day Jr (Defendant) Representation: Counsel: R Weinstein SC & M Walsh (Plaintiff) (ex parte application) Solicitors: Norton Rose Fulbright Australia (Plaintiff) File Number(s): 2009/339881 Publication restriction: Publication of Davies J's judgment re Plaintiff's NOM dated 21 January is restricted until the final determination of the proceedings subject to any order otherwise made by the trial judge. Judgment 1. The Defendant applies ex parte for an order pursuant to rule 31.10(1) Uniform Civil Procedure Rules 2005 (NSW) excusing him from providing certain audio-visual recordings to the Plaintiff for inspection prior to the hearing which is fixed for 16 February 2014. 2. Rule 31.10 relevantly provides: 31.10 Plans, photographs, audio-visual recordings and models (cf SCR Part 14, rule 2, Part 36, rule 8; DCR Part 28, rule 11; LCR Part 23, rule 4) (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. 1. The Plaintiff claims damages from the Defendant, who is a neurosurgeon, in relation to spinal surgery performed on the Plaintiff's lower back on 14 March 2006. That surgery was to treat the Plaintiff's disabilities arising out of workplace injuries sustained from 2003 to 2005 when the Plaintiff worked as a coal miner. 2. The surgery was supposed to be a left L3-4 microdiscectomy but the Defendant inadvertently performed a microdiscectomy on the L2-3 level and removed fragments of the disc to achieve decompression of the Plaintiff's L3 nerve root. By a further Amended Defence filed 16 January 2015 breach of duty has been admitted. What remains in issue is causation of damages, taking into account the Plaintiff's prior lumbar pathology, and the assessment of damages. 3. In his Fifth Amended Statement of Particulars filed 12 November 2014 the Plaintiff claims a large number of disabilities and restrictions including but not limited to the following: Unable to stand for prolonged periods, unable to walk for prolonged periods, a restricted use of his back, difficulty lifting and carrying, restriction of hip movement, difficulty walking on uneven ground, difficulty performing pushing and pulling actions, difficulty performing pre-injury leisure activities like playing golf. 4. He claims domestic and other assistance for car washing and gardening. 5. In his evidentiary statement filed 14 October 2013 he repeats many of the restrictions in his Statement of Particulars and expands upon them. He says, for example: I suffer sciatica down both of my legs when my back pain is severe. I walk slowly with visible limp and stoop occasionally. Prior to being operated on by Dr Day, sport was a very important part of my life. I enjoyed skiing, surfing, bodysurfing, cycling and golf. I used to service our motor vehicles but I cannot do that any more. I have attempted to wash our cars on a number of occasions but struggle to do so. My wife now assists me with this by undertaking the parts that require bending. I find it difficult to exercise. I used to walk often, but I find this aggravates my back. I cannot bend down and play with my grandchildren. I am unable to stand for prolonged periods, unable to walk for prolonged periods without pain relief. I am restricted in the use of my back. I have a reduced trunk range of movement. I have difficulty walking on uneven ground. I have difficulty reaching items below waist level. I have difficulty performing pre-injury leisure activities like playing golf. From the date of surgery performed by Dr Day I have required personal domestic and handyman assistance, including, inter alia, gardening. Assistance with that and other domestic tasks has been provided by my wife and son. The car washing and repairs and general maintenance have been neglected since my surgery. I have purchased a self-propelled lawn mower to assist with the lawn mowing. 1. To a lesser extent, the Plaintiff's wife and a friend of the Plaintiff, Greg Ruskin, give similar evidence. For example, the Plaintiff's wife says in her evidentiary statement: Since Greg was operated on by Dr Day I have noticed significant changes in him. He is unable to play golf or go on golf holidays like he used to. He cannot stand upright. He stoops because of the back pain. His left leg buckles underneath him when he walks. 1. The audio-visual material consists of surveillance recordings made of the Plaintiff in November/December 2014 and January 2015. In all four of the DVDs the Plaintiff is shown walking to golf courses and playing golf. In two of the DVDs he is shown carrying out tasks outside his property including washing his car, lawn mowing and other garden tasks. 2. The Defendant seeks to be excepted from compliance with r 31.10(1) on the basis that the audio-visual recordings are prescribed items as defined in subr (4). Although the solicitor's affidavit does not say so, these recordings were self-evidently made in connection with the proceedings at the request of the Defendant for the purpose of testing the credibility of the Plaintiff at the hearing. What is demonstrated in these recordings must be relevant to the Plaintiff's credibility on the basis of what is claimed in his Statement of Particulars and his Evidentiary Statement. They are, therefore, prescribed items. 3. It may be, although this is not entirely clear, that the material will be used to challenge the credibility of the Plaintiff's wife and Mr Ruskin. 4. The Court must then be satisfied under subr (2) that the Defendant has a legitimate forensic purpose for not providing these items to the Plaintiff for inspection. 5. Prior to the enactment of the Rule a number of cases had dealt with analogous principles associated with access to subpoenaed documents and service of affidavits in advance of a hearing – see for example, Markus v Provincial Insurance Co Ltd (Supreme Court (NSW), Clarke J, 11 May 1983, unrep); Ng v Goldberg (Supreme Court (NSW), Young J, 17 Aug 1993, unrep); Kon v AMP Life Ltd [2006] NSWSC 957. The Court of Appeal in Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265 in a case involving an application by a Defendant not to serve affidavits in advance of the hearing, approved the principle (called the Markus principle) in the context of the provisions of the Civil Procedure Act 2005 (NSW). 6. Halpin pre-dated the enactment of the present rule and looked chiefly at whether the provisions of the Civil Procedure Act were inconsistent with the Court having the power to make orders of the kind under consideration. Those provisions of the Civil Procedure Act are still relevant when considering whether a party has a legitimate forensic purpose to withhold the documents concerned. Stevenson J in Prasad v AMP Life Ltd [2012] NSWSC 1076 at [22] has usefully summarised the matters to be taken into account. None of the earlier cases concerned surveillance material but such material seems to me to be perhaps the best example of material that might be sought to be withheld. 7. The recordings on the four DVDs exhibited to the affidavit of Paul Baram of 21 January 2015 contain hours of recordings. I have viewed samples of each of the DVDs but time has not permitted me to view the entirety of the material. Mr Weinstein of Senior Counsel gives me his assurance that he, his junior and his solicitor have viewed the entirety of the material, that there is nothing in the material that could be thought to assist the Plaintiff's case, and that the material is such that if disclosed would enable the Plaintiff to tailor his evidence or to consider doing so. These are the two significant matters to consider derived from Markus and the other cases. I accept that assurance. It accords entirely with the impression I gained from the various excerpts of the recordings that I have viewed. 8. Where material of this nature is extensive, as this material is, I do not consider that it is necessary for the judge before whom a pre-trial application is made, to read or view the whole (or in some cases, any) of the material. Whilst the trial judge may need to view the whole of the material, resources of the Court are not infinite. The Plaintiff will not be without remedy if it transpires, for example, that some part of the material might have supported the Plaintiff's case. It would be open to the trial judge to reject the tender of the material under subr (1) if there was shown to be a change from the position upon which the judge hearing the pre-trial application decided that application. At worst, if an adjournment of the trial was necessary it would likely be at the Defendant's cost. 9. The cases pre-dating the enactment of the rule refer not to a legitimate forensic purpose but to a litigant being deprived of a legitimate forensic advantage that might be obtained by the party seeking to withhold the information (Ng v Goldberg (p 26 of the Butterworths reproduction); Kon v AMP at [13]; Halpin at [119]). What is required by the Rule seems to me to be a lesser requirement although the result may not be different. 10. In my opinion, the Defendant has demonstrated a legitimate forensic purpose for not giving the Plaintiff the opportunity to inspect and view the audio-visual material. That purpose concerns the way cross-examination of the Plaintiff (and possibly others) will be conducted to test their credibility in the light of the evidentiary material they have already put forward. I have given consideration to whether the disclosure of the material might advance settlement as discussed in Halpin. I note, however, that a mediation has already been held and was, I assume, unsuccessful. Considerations arising from the provisions of the Civil Procedure Act do not result in there being no legitimate forensic purpose on the Defendant's part. 11. This application was made ex parte in a closed court and with all details of the application suppressed. I am satisfied that it was both necessary to prevent prejudice to the administration of justice and necessary in the interests of justice that such a course should be followed: section 8(1)(a) and (e) of the Courts Suppression and Non-publication of Orders Act 2010 (NSW). The public interest is the appropriate control that the Court must have over its own procedures, noting that the adversarial system of justice involves forensic decisions including what the earlier cases have called a forensic advantage. In relation to s 8(1)(e) I find also that the public interest significantly outweighs the public interest in open justice. The limitation on open justice is for a relatively short period of time until the trial. For the same reason I will order that this judgment and the orders that flow from it should be suppressed until the material the subject of the application has been produced at the hearing. 12. The orders I make are: 1. The defendant is excused from complying with the provisions of UCPR r 31.10(1). 2. The publication of these Orders made on this application, the application itself, the affidavit of Paul Baram dated 21 January 2015 and any transcript of the hearing of the application are suppressed, until the showing or the tender by the defendant of each of the said prescribed items at hearing, subject to and without precluding the defendant from utilising each of the said prescribed items in the course of the hearing to show or to tender the images stored digitally in Exhibit DVD #1, Exhibit DVD #2, Exhibit DVD #3 and Exhibit DVD #4 to a witness. 3. Subject to the right of the defendant to utilise the said prescribed items in Order 2 above in the course of the hearing as stated in Order 2 above: a. the Orders, documents and evidence relating to this application be sealed in an envelope marked "Confidential: Order pursuant to UCPR r 31.10- not to be opened nor contents disclosed without 24 hours' notice in writing to the defendant and thereafter only upon an Order of the Court, including not to be disclosed to the plaintiff or the plaintiff's legal representatives at the commencement of the hearing listed to commence on 16 February 2015" and b. the said material in Order 3(a) above is not to be disclosed until further Order by the Court, which shall not be made without 24 hours' notice in writing to the defendant of such intended disclosure and shall not be disclosed to the plaintiff or the plaintiffs legal representatives at the commencement of the hearing listed to commence on 16 February 2015. 4. Costs of this application are reserved. ********** ADDENDUM (26 May 2016): These proceedings have now concluded. Orders 2 and 3 (the suppression and non-publication orders) are now set aside. 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: 26 May 2016