Mason-Leonarder v Balfran Removals Pty Ltd [2025] ACTSC 191

1. The plaintiff in these proceedings, Dean Mason-Leonarder, alleges that he sustained multiple injuries in the course of his employment with the first defendant, Balfran Removals Pty Ltd. By an Amended Originating Claim and Statement of Claim filed 1 July 2024, the plaintiff seeks damages for personal injury.

2. By way of an application filed on 5 May 2025, the first defendant seeks leave to withhold service of reports of Procare dated 25 November 2024 and 10 January 2025 and associated video footage, until after the conclusion of the plaintiff's evidence in chief, pursuant to r 6704 of the Court Procedures Rules 2006 (ACT).

3. I heard the plaintiff’s application ex parte on 8 May 2025 and made the orders sought in the first defendant’s application. I made additional orders on 9 May 2025, following further submissions by the first defendant at my request.

4. These are my reasons for making those orders.

Background

5. In late 2022, the second defendant (the Canberra Institute of Technology) engaged the first defendant to provide employees and a truck to move and dispose of furniture at its Bruce Campus.

6. The plaintiff was an employee of the first defendant. His duties included moving furniture at the Bruce Campus of the second defendant on 25 October 2022. The plaintiff was injured whilst attempting to move a desk from the back of the first defendant’s truck into the skip bin on that date.

7. The plaintiff alleges the second defendant directed employees of the first defendant not to park the truck directly next to a skip bin, creating an unsafe method of moving furniture, and additionally failed to provide proper lifting equipment.

8. In a Statement of Claim that was filed on 11 April 2024, the plaintiff alleges that he sustained a range of injuries, including a lumbar disc injury, displacement of the left S1 nerve root, aggravation to a degenerative lumbosacral disc, disc prolapse and psychological injury as a result of the negligence of the first and/or second defendants. The plaintiff further alleges that he has sustained ongoing disabilities arising from these injuries, including chronic pain in his lower back and left leg, tenderness and weakness in his lower back, numbness in his left leg, adjustment disorder, requirement for back surgery and relevantly, reduced capacity to stand, walk and drive for prolonged periods of time. The plaintiff claims damages for future treatment expenses, economic loss and domestic care and assistance. I was informed by Mr Fordham SC, who appears for the first defendant, that the plaintiff’s claim is in excess of $1.5 million.

9. The plaintiff lodged a Workers Compensation Claim on 4 November 2022, which was accepted by the first defendant's workers compensation insurer, QBE Insurance. The plaintiff continues to receive weekly compensation and treatment expenses.

10. On 8 November 2024, the first defendant’s solicitor arranged for Procare Group to conduct surveillance of the plaintiff’s activities. Procare Group prepared a report dated 25 November 2024 summarising observations and footage of the plaintiff obtained on 21, 22 and 23 November 2024. Procare Group conducted further surveillance over 3 and 4 January 2025, and prepared a further report dated 10 January 2025.

11. The surveillance footage, as described by the reports, relevantly reveals the plaintiff driving, walking, carrying a large boxed fan, bending at the waist to the ground, bending over to pick up a stroller, removing and carrying a child car seat, pushing a cart containing items, squatting to retrieve a bag, erecting a sun shelter, and holding and carrying children and a baby.

12. The first defendant has claimed privilege over the surveillance footage and the reports of Procare Group.

13. In the Grounds of Application, the first defendant noted that the plaintiff has alleged “a substantial level of disability arising out of the alleged injuries, and makes very large claims for future treatment expenses, economic loss and domestic assistance consequent upon this level of disability”. The first defendant asserted that the surveillance footage is “inconsistent with [the plaintiff’s] contemporaneous reporting of his level of disability to the workers compensation insurer, the medico-legal experts and to his treatment providers”.

14. In the Grounds of Application, the first defendant submitted that it has “reasonable cause to suspect that the plaintiff is deliberately and dishonestly exaggerating his level of disability for financial gain”. The first defendant further submitted that “disclosing the surveillance footage at this stage would unfairly prejudice the first defendant by allowing the plaintiff to tailor his evidence to take account of what is shown in the surveillance and what is not shown in the surveillance”. Finally, the first defendant submitted that findings of fact by the trial judge regarding the plaintiff's disabilities “will be made more accurately by not disclosing surveillance material prior to the plaintiff giving evidence in chief”.

15. In an affidavit filed in support of the application, the first defendant’s instructing solicitor further stated that: (i) The surveillance evidence “may reveal activities inconsistent with the plaintiff’s claims, potentially undermining his credibility”; and (ii) The surveillance “is relevant to the issues of the nature and extent of the plaintiff’s injuries and the impact on his ability to work”.

16. In his helpful and frank oral submissions on the ex parte application, Mr Fordham SC explained that the first defendant does not suggest that the plaintiff was not injured in the accident. Mr Fordham SC submitted that the significance of the reports only relates to the extent of the plaintiff’s injury. In particular, noting the significant quantum claimed by the plaintiff, Mr Fordham SC submitted that exaggeration of the injury could have a significant effect on the damages which would be awarded.

17. Mr Fordham SC fairly drew the Court’s attention to the fact that some aspects of the surveillance footage may assist the plaintiff. In particular, he informed me that the surveillance footage depicts the plaintiff limping throughout a day at the beach. Mr Fordham SC informed the Court that any use of the surveillance footage in the proceedings will involve the playing of the whole footage, including the parts which may assist the plaintiff.

Relevant Rule and Authorities

18. Rule 6704 of the Court Procedures Rules 2006 (ACT) is set out in the following terms: 6704 Plans, photographs, video or audio recordings and models (1) This rule applies if a party intends to tender a plan, photograph, video or audio recording, or model at a trial. (2) Unless the court otherwise orders, at least 7 days before the day the trial starts, the party must give all other parties an opportunity to— (a) inspect anything mentioned in subrule (1) the party intends to tender; and (b) agree to its admission without proof. Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule. (3) An application for an order under subrule (2) need not be served on another party and the court may direct that the application and any supporting evidence be placed in a sealed container, for example, an envelope. (4) The container may be opened only if the court orders it to be opened. (5) Noncompliance with subrule (2) does not affect the admissibility of a plan, photograph, video or audio recording, or model. (6) Compliance or noncompliance with subrule (2) may be taken into account on the question of costs. (7) In this rule: model includes a model or image generated by a computer. Determination

19. Rule 6704 has been considered in a number of decisions of this Court, including Agnello v Johnson [2024] ACTSC 106; Catanzariti v Muller [2017] ACTSC 365; Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361; Fuller v Allen [2020] ACTSC 32; and Barnes v Brema Group Pty Ltd [2020] ACTSC 183.

20. As Mossop J explained in Agnello at [4] – [8] and [14], there are uncertainties in the operation of r 6704 and its interaction with other provisions in the Court Procedure Rules. In particular, there are unresolved questions about whether r 6704 has the effect of removing privilege over surveillance material, and whether the consequences of non-compliance with r 6704 extend beyond the potential for an adverse costs order to preclude the non-complying party from tendering the material: Agnello at [14]. As in Agnello, I do not need to resolve those questions in the present application: Agnello at [14].

21. I am satisfied that it is appropriate to make an order under r 6704(2) to permit the surveillance reports and associated footage to be used at the hearing.

22. The extent of the plaintiff’s injury is significant in the determination of the plaintiff’s case. The surveillance material may in turn be important in testing the plaintiff’s evidence and his credibility, particularly concerning the extent of his injuries. As in Agnello, the surveillance reports have not been used for the purposes of preparation of expert evidence, and non-disclosure will not include the non-disclosure of further expert material: see similarly Agnello at [16].

23. Like Mossop J in Agnello, I have taken into account the risk that non-disclosure at this stage of the proceedings may cause an adjournment after disclosure is made (although Mr Fordham SC assured me that this was unlikely); and that non-disclosure may reduce the prospects of resolution of the proceedings prior to trial: Agnello at [17].I have also borne in mind that I do not have any evidence before me which suggests that the plaintiff has positively lied in his answers to date.

24. Nonetheless, I accept Mr Fordham SC’s submission that the claim is a large one, which includes loss of earnings and capacity to engage in domestic activities, and that the surveillance evidence suggests that there has been some exaggeration in the claim that has been made.

25. In these circumstances, I considered it to be necessary to allow the first defendant to test the plaintiff’s credibility “in circumstances where [he] will have neither time nor opportunity to modify his evidence to accommodate the video surveillance evidence”: see similarly Hay v Maules Creek Coal Pty Ltd [2022] NSWSC 1118 at [13].

26. Accordingly, it was appropriate to make an order under r 6704 of the Court Procedure Rules permitting the first defendant to withhold service of the reports of Procare and the associated video footage until after the conclusion of the plaintiff’s evidence in chief.

Amendment of orders

27. Following the initial hearing, I sought further submissions from Mr Fordham SC concerning the form of the orders that should be made. In particular, I noted that in Agnello, Mossop J considered it appropriate to require, as a condition of the order dispensing with the requirement under r 6704(2), that the material be disclosed in any event prior to the re-examination of the plaintiff: Agnello at [18]. In Boyes v Colins [2000] WASCA 344 at [92], Ipp J similarly expressed the view that an order of this nature should be conditioned upon an undertaking by the defendant to tender the surveillance footage or to produce the footage to the plaintiff. I asked Mr Fordham SC whether there would be any objection to the present order being similarly conditioned.

28. Mr Fordham SC submitted that such a condition was not appropriate. He submitted that if the first defendant does not adduce the surveillance footage in cross-examination, the footage would not be relevant, and could not be adduced by the plaintiff in re-examination. He submitted that in these circumstances, there is no basis for the order to require that there be disclosure of the surveillance footage to the plaintiff at the conclusion of the plaintiff’s cross-examination.

29. I do not agree. The first defendant seeks a dispensation from a rule which would otherwise require that the first defendant serve the surveillance material if the first defendant sought to preserve its ability to use the material during the hearing.

30. It is not self-evident that a plaintiff would not be able to adduce material of this nature in re-examination. Alternatively, a plaintiff might seek leave to reopen his or her case where surveillance footage is only served at the conclusion of cross-examination and the plaintiff considers that the surveillance footage will advance his or her case. Whether the footage would be admissible in re-examination, or on any application to reopen in the present case will be a question for the trial judge (assuming that the plaintiff seeks to adduce the material). Any issue about the admissibility of the material is not a basis for continuing to withhold the material from the plaintiff after the cross-examination has concluded.

31. Further, it will be necessary for this judgment to be suppressed so as to prevent the plaintiff from gaining prior knowledge of the contents of the surveillance before he is cross-examined about them. This interference with open justice should be kept to the minimum required. For this reason, it is necessary for this judgment to be published, and made available to the plaintiff as soon as the cross-examination concludes.

Orders

32. For the above reasons, I made the following orders: (1) Pursuant to rr 6704(2) and (3) of the Court Procedures Rules 2006 (ACT), the requirements on the first defendant under rr 6704(2)(a) and (2)(b) are dispensed with in relation to the reports of Procare dated 25 November 2024 and 10 January 2025 and associated video footage, on the condition that the reports and associated video footage are disclosed to the plaintiff no later than the commencement of the plaintiff’s re-examination at the trial. (2) Pursuant to r 6704(3), I direct that the application in proceeding dated 5 May 2025 and the affidavit of Rebecca Huleatt dated 5 May 2025 are to be kept in a sealed envelope on the court file which is only to be opened if the court orders it to be opened. (3) Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), there is to be no publication of this judgment, including the name of any party or evidence therein, until the conclusion of the cross-examination of the plaintiff. (4) I make no order for costs.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: H Clift Date: 9 May 2025