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1. These proceedings involve a claim for negligence against a firm of solicitors. The plaintiff settled workers’ compensation proceedings. He claims that the advice that he was given about his claim and about the proposed settlement was negligent. He claims that, as at the date of settlement, his condition had not settled and that, in those circumstances, had he been properly advised, he would not have settled the proceedings for the amount that he did. He has subsequently undergone a number of very significant back operations. He alleges total incapacity for work. The extent of his work capacity, if any, is likely to be a matter of significance at the hearing.

2. This is an application for an order under r 6704 of the Court Procedures Rules 2006 (ACT) that the requirements of subrule (2) be dispensed with. Subrule (2) requires a party who intends to tender a plan, photograph, video or audio recording or model at a trial to allow all other parties to inspect the thing and agree to its submission without proof. An application to depart from this rule does not need to be served on the other party: r 6704(3). The rule permits the application and the thing to be kept in a container such as an envelope, not to be opened unless the court orders: subrules (3)-(4). Significantly, subrule (5) provides that non-compliance with subrule (2) “does not affect the admissibility of a plan, photograph, video or audio recording, or model”. However, subrule (6) provides that compliance or non-compliance with subrule (2) may be taken into account on the question of costs.

3. The interpretation of the rule is not straightforward. I have previously referred to, but not determined, uncertainties with its interpretation: see Catanzariti v Muller [2017] ACTSC 365 at [11]. The obligation in subrule (2) is in mandatory terms. It is those mandatory terms which led the defendant to make the present application. However, the limiting of the consequences of non-compliance to a question of costs suggests that, while the rule is stated in mandatory terms, it only has costs consequences. If the order is complied with and a party inspects the thing but does not agree to its admission without proof then, if the admissibility is formally proved, there may be a cost consequence. On the other hand, if there is non-compliance with the rule and its tender or proposed tender results in a need for an adjournment of the proceedings, then subrule (6) allows the non-compliance to be taken into account on the question of costs.

4. As pointed out by Elkaim J in Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361, the equivalent rule in New South Wales (Uniform Civil Procedure Rules 2005 (NSW), r 31.10) is different to that in the Australian Capital Territory (ACT). The most significant difference is that in the New South Wales provision there is a prima facie prohibition on tendering the document if the rule has not been complied with.

5. The ACT rule is modelled on, and in identical terms to, the rule in Queensland: Uniform Civil Procedure Rules 1999 (Qld), r 393. The Queensland Court of Appeal has given this rule a more extended operation than explained above. In Coster v Bathgate [2005] QCA 210; 2 Qd R 496 at [13], the Court of Appeal said, of the subrule which is the equivalent of r 6704(2): UCPR r 393(2) implicitly abolishes the common law right of a party to claim privilege for video recordings of the type under consideration on the grounds that the recording was brought into existence for the purposes of the litigation.

6. However, neither the reasons of the Court of Appeal nor the headnote in the authorised report makes reference to the full terms of r 393, in particular, subrules (5) and (6) which, by implication, can be interpreted as qualifying the mandatory nature of the obligation in subrule (2).

7. If the effect of r 6704 is, as suggested by the decision in Coster, to remove the privilege over surveillance material, then, in circumstances where there was an obligation of disclosure under the Rules or by statute, that material would be required to be disclosed.

8. In the present case, disclosure of documents was ordered and each party has filed a list of documents. Rule 611 provides an obligation for continuing disclosure which would require disclosure of documents if they were not privileged. Therefore, if the Coster interpretation of the effect of the rule was correct, dispensing with r 6704 would be to avoid a disclosure obligation that otherwise existed.

9. In the present case, the material the subject of the application falls into two categories: surveillance material and Facebook material.

10. The surveillance material arises from surveillance undertaken of the plaintiff on 26 and 27 January 2024. That was a weekend when the plaintiff was observed setting up and operating a food van outside a brewery in Dalmeny, New South Wales. The documents recording his activities are: (a) a series of photographs;

(b) approximately 153 minutes of video of the plaintiff;

(c) some surveillance notes recording his activities; and

(d) a surveillance report containing the photographs taken and various commentary.

11. The photographs and videos show the plaintiff setting up and operating a food van. The set up includes putting up an awning involving manipulation of things at head height while standing on a ladder, carrying gas bottles and carrying the metal base for a display flag. It also includes walking up steps, walking around the van and cooking within the van in a manner which discloses no apparent restriction or pain. Counsel for the defendant did disclose, however, that within a few days of these videos being taken, the defendant understands that the plaintiff underwent a further spinal fusion operation.

12. The Facebook material is a bundle of printouts from a Facebook page of a business known as Papa Joe’s catering. The plaintiff appears to be involved in the running of the business with his wife. The bundle of extracts from the Facebook page includes a large number of photographs of Italian food. The plaintiff appears in a number of photographs relevant to working out the activities of the business. Amongst the photographs immediately relevant to the operation of the business are other photographs consistent with the plaintiff having been subject to very serious spinal operations.

13. The defendant wishes to be able to rely upon the material for the purposes of cross-examining the plaintiff, particularly in relation to his capacity to work and also, potentially, as to credit, depending upon the evidence that he gives at the hearing.

14. The application was presented in a straightforward manner by reference to the terms of the rule. No reference was made to the history of the rule or the decision of the Queensland Court of Appeal in Coster. The application was brought out of an abundance of caution because of the mandatory terms of subrule (2). Having regard to the limited argument as to the operation of the rule, this is not an appropriate case in which to attempt to resolve whether the reasoning in Coster should be adopted in relation to r 6704. The present application may be dealt with on the basis that either it is simply brought out of an abundance of caution in order to avoid an apparent contravention of subrule (2), even though the only consequences may be consequences in relation to costs, or it is in order to avoid non-compliance with the obligation for continuing disclosure. Obviously, if the latter is the true position, then the burden on the defendant is a heavier one.

15. In either circumstance, I consider that it is appropriate to make an order under subrule (2) so as to permit the material to be used at the hearing. The reason that this is appropriate is that the issue of the plaintiff’s work capacity appears to be one of significance for the determination of the case and the material may be significant in testing the plaintiff’s evidence and his credibility. I was told that there are only two references in the notes of general practitioners to the plaintiff having assisted his wife with the business and that working in the business was not referred to in the histories recorded in expert reports served by the plaintiff. The plaintiff’s work in the Papa Joe’s catering business may therefore be forensically significant.

16. The evidence has not been used for the purposes of preparation of expert evidence, and as a consequence, nondisclosure will not include the nondisclosure of further expert material. It will not be a case of the defendant relying upon expert reports based upon the material in circumstances where the plaintiff has not been able to arrange the same.

17. I accept that the nondisclosure of the material carries with it the risk that an adjournment of the proceedings or some other accommodation may be necessary arising out of the late disclosure of the evidence. I also accept that disclosure of material such as this prior to trial promotes the rational assessment of the merits of each side’s position and hence is conducive to the resolution of the proceedings prior to trial.

18. However, on balance, I consider that it is consistent with the proper determination of the matter that the defendant be permitted to not disclose this material until the plaintiff has given his evidence-in-chief. Given that I have not resolved the issue as to the effect of the rule on legal professional privilege in light of the decision in Coster, I consider that it is appropriate to require, as a condition of the order dispensing with the requirement under r 6704(2), the disclosure of the material in any event prior to the re-examination of the plaintiff. That will put relevant material in the possession of the plaintiff even if the defendant has not chosen to tender it prior to then.

Orders

19. The orders of the Court are: 1. Pursuant to rr 6704(2) and (3) of the Court Procedures Rules 2006 (ACT), the requirements on the defendant under rr 6704(2)(a) and (2)(b) are dispensed with in relation to exhibit NB 1 to the affidavit of Nancy Barakat dated 10 April 2024, on the condition that the exhibit is disclosed to the plaintiff no later than the commencement of the plaintiff’s re-examination at the trial. 2. Prior to the conclusion of the evidence of the plaintiff at the trial, the application in proceeding dated 10 April 2024, the affidavit of Nancy Barakat dated 10 April 2024 and exhibit NB 1 to that affidavit are to be kept in an envelope on the court file which is only to be opened if the court orders it to be opened. 3. The costs of the application are reserved.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 18 April 2024