The applicant, who is the first defendant in personal injury proceedings fixed for hearing for a period of 10 days commencing on 10 August 2020 before Davies J, makes an ex parte application for relief from observing the strict requirements of rule 31.10 of the Uniform Civil Procedure Rules 2005 (NSW). That rule requires a party, at least seven days before the commencement of the hearing, who intends to tender any planned photograph or audio visual recording or model at the hearing to give the other parties an opportunity to inspect it and agree to its admission without proof.
The visual recording the subject of the present application is surveillance footage obtained of the plaintiff over a period of time, commencing I think in about 2017 and up until the present. As I have said, the case is one for personal injuries, and on the sample of the plaintiff's and defendant's medical evidence I have been provided with it might be said to fall into a familiar category. The plaintiff's injuries are said to be an injury to his cervical spine, shoulders and arms, and the diagnostic label of complex regional pain syndrome has been applied to at least part of that consultation of symptoms. That condition has certain criteria that must be satisfied before a diagnosis is supportable. It is generally recognised that there is disagreement among medical practitioners about whether those criteria are truly objective, verifiable clinical signs or they depend, in truth, upon the veracity of the patient reporting an accurate history of the development of symptoms and the symptoms reported fitting into a recognised clinical pattern. Certainly, the nature of the plaintiff's injuries is not susceptible to demonstration in an objective way by x-rays, CT scans, MRI scans or other diagnostic aides.
He also claims, from what I have read, and as the case has been explained to me by Mr Catsanos of senior counsel, who appears with Ms Keating for the applicant, of severe disability resulting from these injuries. The case is such that, for instance, on his side of the record, Dr Patrick, a general and vascular surgeon, whose reports are frequently seen in our courts, opines that he is totally unfit for work, needs ongoing medical treatment, including medication of a very strong type, and requires domestic and household assistance to complete the activities of daily life.
Dr Zeeman is a rehabilitation specialist whose reports are relied upon by the defendant. He is also a witness familiar to the courts in this State. He opines that the plaintiff is medically fit for normal duties, has recovered from any injury he actually suffered and is exhibiting the signs of what he refers to as abnormal illness behaviour or conscious exaggeration.
I have not viewed the surveillance footage. I have formed the view that as I am dealing with this matter on an ex parte basis, without the benefit that will be afforded the trial judge, of seeing and hearing the plaintiff's evidence and considering the cross-examination based upon any surveillance footage, in the context of the whole evidence of the case, that my task in deciding whether relief should be granted to the defendant as sought is to make a more or less objective assessment of the issues and of such of the evidence as is before me, to decide whether it is in the interests of justice or the administration of justice that the defendant be relieved of the obligation to comply with rule 31.10.
I should say, that from the description of the surveillance footage in the reports of doctors who have now seen it, it does not sound, if I may say, dramatic, and indeed, as I discussed with Mr Catsanos during the course of his submissions, there's no "king hit", showing the plaintiff in paid employment, or engaging in what might be referred to as a labour of Hercules. At the same time, his presentation to the doctors has been such that, even surveillance showing him engaging in the ordinary activities of daily life in an apparently unrestricted manner might have a real forensic effect.
Doctor Zeeman, in his report evaluating the surveillance footage, which is annexed to the second of Mr Gerathy's affidavits of 23 July 2020 and 28 July 2020 says that when the plaintiff presented to him he was barely able to hold a highlighter with two hands, and claimed very marked restriction and reduction in his neck and arm movements, which he thought were inconsistent with what he saw on the film.
The Court has power under rule 2.1 to give such directions and make such orders for the conduct of proceedings as appear convenient to the just, quick and cheap disposal of the proceedings, whether or not those directions or orders are inconsistent with the Uniform Civil Procedure Rules. Doubtless this Court has ample power in its inherent jurisdiction to control its own practice and to dispense with the requirements of the rules.
In Halpin and Others v Lumley General Insurance Limited (2009) 78 NSWLR 265, [2009] NSWCA 372 Sackville AJA, with whom Tobias JA agreed, referred to the consideration that the Court can give such directions as it thinks fit, but also observed that these powers are not unlimited. They are required to be exercised having regard to the overriding purpose of civil litigation expressed in section 56 of the Civil Procedure Act 2005 (NSW). I bear this in mind in dealing with this application together with all the criteria laid down by ss 56 to 58 of the Act, so far as they are presently relevant. Sackville AJA however said, at [101]:
"There is no inconsistency between these statements of principle and the existence of a power, exercisable for good cause in appropriate circumstances, to direct that a party may withhold affidavits until trial. The making of such a direction does not imply that the trial is to be conducted "by ambush", nor that the party seeking the direction has failed to co-operate in identifying and elucidating the issues in dispute. On the contrary, the statutory criteria that must be taken into account for a direction to be made should ensure that the issues are clearly defined and that the party seeking the direction demonstrates that the "dictates of justice" will be well served by the direction."
A similar application to that made by Mr Catsanos was considered by Davies J in Latimer v Day [2015] NSWSC 11. His Honour said, at [13]:
"Prior to the enactment of [r 31.10] a number of cases had dealt with analogous principles associated with access to subpoenaed documents and service of affidavits in advance of a hearing. (Citations omitted.) The Court of Appeal in Halpin v Lumley General Insurance, in a case involving an application by the Defendant not to serve affidavits in advance of the hearing, approved (the Markus principle) in the context of the Civil Procedure Act 2005 (NSW)."
The Markus principle is a reference to the judgment of Clarke J (as his Honour then was) in Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1. That judgment concerned an ex parte application to withhold access to non-privileged subpoenaed documents produced by the defendant from the plaintiff's lawyers until the completion of cross-examination of the plaintiff. The practice of making such applications, as Davies J and Hoeben J (as Hoeben Cj at CL then was), the trial judge in Halpin, said, became known as the Markus principle. It in turn was based upon part of what Moffitt P said in National Employers' Mutual General Insurance Association Limited v Waind and Hill [1978] 1 NSWLR 372. The President speaking of the Court's power to exercise control over documents produced to it under subpoena said (at page 383):
"However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who has not issued a subpoena until his opponent has an opportunity to use the documents in cross-examination." (My emphasis.)
His Honour also said, on the same page:
The critical question for present purposes, however, arises in relation to this second step, as to the exercise of the power of the judge to permit inspection. Does he have a judicial discretion to permit the use of the documents in any such way as he considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts, or is his power restricted, so the documents can only be used in a more limited way, so access is given to them only to enable their tender in evidence or in some of the other limited ways submitted. (My emphasis.)
It is not necessary for me to go on and discuss his Honour's answer to that question. However, the interests of the elucidation of the truth, may be an important factor to consider in determining whether directions should be given for the relief that Mr Catsanos seeks in this case.
I should also record that rule 31.10 itself, contemplates that there may be circumstances in which a party is justified in not complying with it. For instance, rule 31.10(2) creates an exception to the general rule that a party who has failed to comply is excluded from tendering the material withheld. That exception is, in the case of surveillance footage as in question here, defined to as a "prescribed item", where the Court is satisfied that a party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item. "Prescribed items" are defined to cover surveillance material or other material obtained at the request of a party "for the purpose of testing the credibility of a witness at the hearing".
It seems to me, notwithstanding the power of the trial judge to, I will say forgive a party's noncompliance by finding "legitimate forensic purpose", there is still a place for the type of advance application on an ex parte basis considered in Markus and in Halpin. It removes the uncertainty from the party's position and allows the party to go forward with the assurance that its approach, if approved by the Court in advance, will not be called into question at the point of tender.
There is another factor which I should consider, as discussed with Mr Catsanos and that relates to the consideration that here the medical conclaves have already taken place and joint reports have been produced. That is an important factor when one bears in mind the application of the overriding purpose to the exercise of the discretion in this case. There may be cases where withholding the surveillance footage or other material prima facie caught by rule 31.10, or another rule, might derail that process which is now characteristic of the way civil proceedings are conducted in the Common Law Division. The conference of experts and the production of joint reports greatly reduce the issues to be determined in Court and thereby reduces the time taken for civil trials both of which further the overriding purpose. That is a matter which has given me the greatest concern in the consideration of this application.
However, given the disparity of opinion between Dr Patrick and Dr Zeeman, I inquired of Mr Catsanos whether the process in this case had served to bring the doctors marshalled on each side of the record together in consensus on important issues. As one may have apprehended in a case like this, my understanding from what Mr Catsanos told me is that in effect the process had not served to produce much by way of common ground, if anything.
In those circumstances, permitting the surveillance to be withheld will not, as it were, derail that important part of the process. It may be, of course, if I accede to this application that either the doctors when giving evidence concurrently will have to be shown the footage or after cross-examination of the plaintiff arrangements will need to be made for the plaintiff's doctors to view the footage before giving evidence. These questions, of course, will be in the discretion of the trial judge.
I am satisfied in the circumstances of this case, for the reasons I have given, that it is in the interests of the elucidation of the truth that the defendant be relieved from compliance with the requirements of rule 31.10(1) in relation to the surveillance footage and the Facebook evaluation report that was also obtained which contains some footage of the plaintiff disporting himself in a manner which may be inconsistent with his presentation to the doctors.
It seems to me that the proper elucidation of the truth is a legitimate forensic purpose in accordance with the rule, if that be relevant, and that the analysis of Moffitt P of the relevant judicial discretion holds good today in the perhaps somewhat more rigorous regime which applies to civil litigation under the Civil Procedure Act.
I appreciate that not everyone accepts that permitting a plaintiff's evidence to be tested by confronting him or her with what is said to be inconsistent surveillance footage in cross-examination is a fair procedure. The learned authors of Ritchie's Uniform Civil Procedure New South Wales refer to the Western Australia cases of Boyes v Colins (2000) 23 WAR 123; [2000] WASCA 344 and Brown v Metro Meat International Ltd [2000] WASCA 123 where cogent reasons were given to demonstrate that catching a plaintiff by surprise may not serve the interests of justice in that randomly obtained surveillance is likely to cover ordinary activities of a type the subject may readily forget and the wrong impression may be given by a plaintiff's inability to give a convincing answer to questions when confronted with apparently inconsistent footage months or years after the footage was obtained.
Those matters remain important. However, there are two things about that. First, I am satisfied that when shown footage that had been given to a doctor for evaluating a total and permanent disablement claim that the plaintiff had made to an insurer, he went to, as it were, great efforts to justify all of the apparent inconsistencies by making a very detailed statement explaining them. That gives rise, I think, to a legitimate concern about whether compliance of the rule would lead to a reconstruction of evidence rather than a genuine explanation of any apparent inconsistencies if one exists.
Secondly, those Western Australian cases were considered by Sackville AJA in Halpin and did not dissuade his Honour from the legitimacy of orders relieving parties from compliance with rules and directions requiring the compulsory exchange of evidence where that is in the interests of justice.
In the circumstances, I am persuaded that I should make the orders as sought by the first defendant.
[2]
Amendments
28 May 2024 - Publication restriction lifted due to completion of legal process
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Decision last updated: 28 May 2024