Morton v Colonial Mutual Life Assurance Society Limited

The evidence relied upon 12 In support of the orders sought in its Interlocutory Application, Colonial Mutual relies upon two affidavits of Ms Hanlon - one affirmed on 15 May 2013 and a later affidavit affirmed on 25 June 2013. 13 In addition to identifying by way of the two Schedules the documents sought to be brought within the terms of the interlocutory orders sought, the Affidavits also set forth: a summary background to the present proceeding; and some of the evidence to be relied upon at the hearing before his Honour Justice Yates, including a Consolidated Outline of Evidence to be given by Mr Morton - the Consolidated Outline being some 115 paragraphs in length and over 250 pages of annexed documents. In addition to these materials, the affidavit affirmed on 25 June 2013 also: identifies by way of "categories" the documents the subject of the proposed Markus orders; sets forth the reasons why the Markus orders are sought - including, in summary form, an assertion that the "orders are sought to preserve the forensic advantage that the courts in Markus and Halpin have described as important in assessing the credit of the witness"; identifies the investigations that have been carried out in respect of Mr Morton - including an identification by way of a range of dates the surveillance that has been carried out and the manner in which the disclosure of that material could enable Mr Morton to "tailor his evidence"; and the basis upon which Ms Hanlon believes that Mr Morton may "tailor his evidence" if the documents are prematurely disclosed. 14 Ms Hanlon's affidavit affirmed on 15 May 2013 was made available to Mr Morton and his legal advisers; her affidavit of 25 June 2013, however, was not disclosed to even Mr Morton's legal advisers. Some parts of the latter affidavit, it may be noted, could not have been disclosed without also disclosing the content of the very documents sought to be withheld. The non-disclosure of those parts of her affidavit can readily be understood; but, in such circumstances, every effort should be made to disclose the balance of the affidavit so that those advising a party have as much material available to them as possible. The ability of an opposing party to provide assistance to the Court is self-evidently reduced where more material - rather than less - has been unnecessarily withheld. 15 But such was the fate confronting Senior Counsel appearing for Mr Morton. Notwithstanding that disadvantage, the hearing proceeded.

The discretion to order non-disclosure - power and discretion 16 As the Interlocutory Application makes apparent, the order for non-production relies expressly upon the two decisions in Markus v Provincial Insurance Co Ltd and Halpin & Ors v Lumley General Insurance Ltd. 17 In Markus v Provincial Insurance Co Ltd claims for legal professional privilege had been made in respect to three reports by a loss assessor. Clarke J upheld that claim in respect to two of the reports but concluded that the claim failed in respect to the third report. His Honour nevertheless declined to order production of the third report. In doing so, his Honour concluded as follows: I return then to the question whether I should order production for inspection of the first document. The defendant has submitted the interests of justice would not be served by producing the document because it contains material which does not advance the plaintiffs case but which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them to tailor or endeavour to tailor their evidence to meet the circumstances. The plaintiffs have been hampered in seeking to answer the submission by the inability to inspect the documents before making his submissions. It accordingly falls on me to endeavour to ensure that I exercise a discretion, which I undoubtedly have (see Kimberly Mineral Holdings Ltd (In Liq) & Anor v McEwan, (1980) 1 NSWLR, 210), fairly in favour of one or other of the parties. In my opinion the document, which contains in the main results of discussions with police officers and other persons together with hypotheses based on those discussions, is of such a nature that its material would not enable the plaintiffs to be in a better position from the point of view of presentation of the case at trial. On the other hand it is clear that the only purpose in my view to be served by letting the plaintiffs see this documentation would be to put them on notice of the allegedly suspicious circumstances. Subject to one matter, I am of the view that the interests of justice are against the requirement that there be production. The one matter which has been urged by counsel for the plaintiffs is that the facilitation of settlement. It is said that, if the plaintiffs could assess these matters which are advanced as reasons in part, at least, why the claim is rejected, then the prospect of settlement might be stronger. Bearing in mind the view that I have that the ultimate question is going to be as to the genuineness or otherwise of the plaintiffs, and again in the interests of justice that they may be put on notice at an earlier date of the allegedly suspicious circumstances, I think this factor, to the extent to which it is entitled to consideration, is outweighed by the greater interest of ensuring that the Court gives justice between the parties. In Halpin & Ors v Lumley General Insurance Ltd, the Court of Appeal concluded that there remained a power to order the non-disclosure of documents of the kind exercised by Clarke J in Markus v Provincial Insurance Co Ltd. The power remained notwithstanding the introduction of the Civil Procedure Act 2005 (NSW) and the "overriding purpose" of that Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". 18 The decision in Markus v Provincial Insurance Co Ltd does not seem to have been previously invoked in any decision of this Court. 19 The power to make such an order and the discretionary nature of the power was, however, not put in issue. The real question which was the subject of debate focussed upon the discretionary considerations to be applied by the Court when making such an order. 20 The source of the power may be found in a variety of places. Without attempting to be exhaustive, r 5.04(1) of the Federal Court Rules 2011 provides that "the Court may make directions for the management, conduct and hearing of a proceeding" and r 5.04(3) provides that the Court may make directions (for example) "in relation to": the filing of affidavits (Item 5); discovery and inspection of documents (Item 10); the disclosure and exchange of reports of experts (Item 15); and the manner in which documentary evidence is to be presented at the hearing (Item 24). The power to make directions is not a power to be narrowly construed and is a power to be exercised in accordance with (in particular) the duty likewise imposed upon this Court to facilitate the "just resolution of disputes according to law" and as "quickly, inexpensively and efficiently as possible": Federal Court of Australia Act 1976 (Cth), s 37M(1). A like duty is imposed on parties to proceedings before this Court to act in accordance with this "overarching purpose": s 37N. 21 Reference may also be made to r 20.32 of the Federal Court Rules 2011 and the power of the Court to make an order for the production and inspection of documents. Rule 24.20 also deals with those circumstances where objection is taken to the inspection of documents produced on subpoena. There always remains, of course, the general power of the Court conferred by r 1.34 to dispense with compliance with any of the Rules. 22 Such provisions confer ample power upon the Court to make orders of the kind sought in the Interlocutory Application. 23 Underlying the existence and exercise of the power are fundamental concerns as to procedural fairness and the proper administration of justice. A party who is required to disclose in advance material intended to be relied upon both to make out that party's case and as a tool to be employed in the cross-examination of an opposing party may be denied a fair hearing. Prior disclosure may potentially advantage an opponent and unfairly prejudice the very means whereby the opponent's claims may be effectively tested. But any withholding of any material ostensibly upon the basis of preserving a forensic advantage to one party necessarily takes an opposing party by surprise - indeed, that is a principal reason motivating an order being sought to withhold material so as to achieve maximum advantage. Where such an order is made, it continues what has long been referred to as "trial by ambush". 24 In this Court, the tension between ordering prior disclosure of material that may assume evidential significance and the withholding of some of that material has received limited attention. 25 One decision has arisen when judicial review was sought of a direction made by the Administrative Appeals Tribunal that video surveillance film should be shown to the claimant at the outset of her evidence in chief: Australian Postal Commission v Hayes (1989) 23 FCR 320. In setting aside this direction and in concluding that the direction infringed the opposing party's ability to effectively cross-examine the claimant, Wilcox J observed: Counsel argue that the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material; it is not enough that the party against whom the evidence is led has the right to present evidence in reply. Moreover, although counsel accept that there exists some discretion to control cross-examination so as to ensure relevance and to guard against repetition and prolixity, it is said that the right to cross-examine means the right effectively to cross-examine. If directions given by a court or a tribunal have the effect of so fettering cross-examination that a witness' evidence cannot properly be tested, procedural fairness has been denied. … In a case where there is a dispute as to the existence of a physical disability, being a disability whose existence or otherwise cannot be established by independent objective evidence and in relation to which the acceptance or rejection of the claimant's account of his or her symptoms is likely to be critical, counsel contend that the right to cross-examine effectively must include the right to test the credit of the claimant. One way of testing the credit of such a claimant, counsel say, is to ask questions which require the claimant to commit himself or herself in relation to the extent of the disability - the actions which he or she can, and cannot, perform - before confronting the claimant with a film depicting his or her actions. If it should happen, in such a case, that the film shows the claimant performing actions which have been said to be impossible, doubt may be cast upon the claimant's credit, causing the tribunal of fact to be cautious about relying on the claimant's evidence in relation to matters incapable of objective demonstration. If, in such a case, a claimant has seen the film before he or she has become committed to an account of the disabilities, the claimant may tailor his or her evidence so as to accommodate the film, leaving false evidence unexposed and uncontradicted. I think that the above submission must be accepted. It is the everyday experience of those who attend courts that cross-examination is at its most effective when the evidence of a witness is able to be confronted by documents. But, as with any other cross-examination, it is normally necessary for the cross-examiner first to have the witness commit himself or herself to a precise version of relevant matters; the process which the late Mr J W Smyth QC called "closing the gates": see "The Art of Cross Examination" (Autumn 1988) Bar News at 12-13. It is important, in that process, that a mendacious witness not be aware of the material available to the cross-examiner to contradict the evidence under manufacture: (1989) 23 FCR 326-7. This decision, and other like decisions, has since been referred to by Gyles J in Australian Postal Corporation v Bessey [2001] FCA 266 at [16], 32 AAR 508 at 512. His Honour there observed that the "authorities establish that, absent special circumstances, Australia Post was denied natural justice or procedural fairness at least in not being able to show the video to the respondent in cross-examination and ask questions based upon that". The non-disclosure of video film in personal injury cases is a course which has been pursued, not only in the Administrative Appeals Tribunal, but in other forums as well: e.g., BHP Pty Co Ltd v Mason (1996) 67 SASR 456 at 461-462 per Debelle J; Foster v Tolco Pty Ltd [2012] NSWSC 1395 at [42] per Adamson J. But, in Kingham v Cole [2002] FCA 45 at [26], 118 FCR 289 at 297, Heerey J somewhat critically said that the decision in Hayes "appears to elevate a useful forensic technique to the status of a mandatory legal rule binding an administrative decision-maker". His Honour declined to follow the earlier decision. 26 The circumstances in which video surveillance film should be withheld and its production delayed until the stage of cross-examination of a claimant also received attention in the Full Court of the Supreme Court of Western Australia in Boyes v Colins [2000] WASCA 344, 23 WAR 123. The trial Judge had there concluded that there would be no unfairness to the claimant in that case to deny her access to video material prior to the trial. The sole question for resolution was the manner of exercise of the discretion conferred by Order 36 r 4 of the Rules of the Supreme Court 1971 (WA) which provided as follows: Unless before or at the trial the Court otherwise orders, no plan, photograph or model shall be receivable in evidence at the trial of an action unless at least 10 days before the trial the parties, other than the party who intends to produce it, are given the opportunity to inspect it and to agree to its admission without further proof. Ipp J (whilst sitting as a member of the Full Court) concluded that the trial Judge had erred in the exercise of the discretion. Pidgeon and Wallwork JJ agreed with Ipp J. An application for special leave to appeal to the High Court was refused by Gaudron and Hayne JJ: Colins v Boyes [2001] HCA Tran 557. It was said that the "identification of matters relevant to the questions whether and in what circumstances a defendant should give pre-trial discovery of surveillance video tapes intended to be produced on the trial of a plaintiff claiming damages for personal injury is quintessentially a task for the intermediate appellate court of the jurisdiction concerned". 27 Both in Hayes and Bessey, Judges of this Court have recognised that an order should be made withholding surveillance video evidence only in "exceptional" or "special" circumstances. Heerey J in Kingham v Cole, with respect, was correct in concluding that the withholding of such evidence should not be elevated to a "mandatory legal rule". Although different results have followed in different cases, it may be questioned whether there is any necessary inconsistency between those decisions and the decision Boyes v Colins. There is, unquestionably however, a greater degree of analysis in Boyes v Colins of those matters to be taken into account when entertaining an application for an order that evidence - be it video surveillance evidence or other evidence - should be withheld. 28 When identifying those considerations relevant to the manner in which the discretionary power was to be exercised in Boyes v Colins, Ipp J referred (inter alia) to: the potential for plaintiffs giving dishonest evidence and the view there expressed that "the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstances of the individual case to make an order in terms of the rule": [2000] WASCA 344 at [60]. In doing so, Ipp J referred with approval to the observations of Mathews J in Re Taxation Appeals NT 94/281-291 [1995] AATA 95, 30 ATR 1279 that the situations in which evidence could be withheld would be "rare indeed" and that it "would certainly not be sufficient for a party merely to show that the material was capable of contradicting another party's version, even accepting that the credibility of that other party was critical to the case"; the need to take into account the potential unfairness to both parties and not merely the interests of the party seeking to withhold the video surveillance material; the fact that the appellant in that case had already committed herself as to the nature and extent of her disabilities; the policy that had been pursued by the Supreme Court of Western Australia, and other Courts, which endorsed the practice of parties putting their "cards on the table"; the fact that it is erroneous to reason that there is an absence of prejudice and that the Court should give no protection to a claimant who has failed to properly and accurately advise her legal advisers as to their physical capabilities; the need for consideration to be given to "case management and related considerations"; and "unfairness in regard to settlement negotiations". 29 These considerations and the reasoning generally of Ipp J in Boyes v Colins, it is respectfully concluded, are equally apposite to the exercise of the discretionary power sought to be invoked by Colonial Mutual in the present Interlocutory Application. 30 Two specific submissions advanced by Senior Counsel on behalf of Mr Morton should be mentioned - lest it be thought that they have been overlooked. 31 First, in seeking disclosure of the documents reliance was placed upon ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). To withhold production, it was submitted was contrary to s 37M. As was the like conclusion in Halpin, the existence of a power to make an order of the kind now sought by Colonial Mutual is not denied by ss 37M or 37N. Those provisions, however, may assume relevance when considering the separate question as to the manner in which that discretionary power is to be exercised. The duties imposed by ss 37M and 37N certainly do not extend to any qualification or abrogation of the substantive right preserved by legal professional privilege; indeed, that privilege is not abrogated by any general statutory provision: Baker v Campbell (1983) 153 CLR 52 at 116-117 per Deane J. Nor, for present purposes, do those provisions impose any duty upon a party to conduct proceedings in a manner which deprives it of a legitimate forensic advantage in testing the credibility of a witness. Different considerations may well apply where the credibility of a witness does not arise as a centrally relevant issue to be resolved or possibly where it is not the credibility of the applicant that is in issue. It is unnecessary to resolve where the boundaries may be drawn as to where the duties imposed by ss 37M and 37N begin to intrude on the manner in which parties may previously have conducted their litigation. It is sufficient to conclude that those duties do not deny the existence of the power for this Court to make an order of the kind made by the Supreme Court of New South Wales in the Markus decision. The provisions remain, however, relevant to the manner in which that power is to be exercised. 32 Second, the submission that the conduct of Colonial Mutual in seeking the present interlocutory orders is contrary to an asserted duty to act in "good faith" is rejected. No authority was supported from the proposition that any asserted duty of "good faith" on the part of an insurer extends to a duty to disclose in advance of litigation documents that are protected by legal professional privilege or a duty to disclose documents that would or may prejudice the manner in which it intends to conduct its defence.

The order to be made 33 In the circumstances of the present proceeding it is respectfully concluded that orders should be made preserving to Colonial Mutual the forensic advantage of presenting to Mr Morton certain documents for the first time in his cross-examination. The making of such an order does not deny procedural fairness to Mr Morton; he remains free to advance his claims in such manner as he sees fit consistent with his statement as to the limits of his physical abilities. He will do so with the certain knowledge that he will in all likelihood be confronted with surveillance material which a cross-examiner believes can best be employed without giving him advance knowledge of its contents. To not make such an order, however, would be to deny procedural fairness to Colonial Mutual. 34 The making of such an order, it is respectfully concluded, is warranted when consideration is given to: the nature of the claim being made, namely a claim to personal injury and disability, being a claim inherently within the sole ability of Mr Morton to present for medical examination and a claim difficult to otherwise objectively verify; the fact that the credibility of Mr Morton is expected to be a central issue to be resolved in the ultimate hearing; the comparative inability to otherwise effectively test the claims being advanced by Mr Morton; and the fact that the affidavit material of Ms Hanlon provides a basis for concluding that a distinct possibility exists that Mr Morton may well "tailor his evidence" if he is given advance notice of the surveillance material. In making reference to these criteria, no assumption has been made as to the manner in which the trial Judge may ultimately assess Mr Morton's credibility and no finding made that Mr Morton would in fact "tailor his evidence". It has been considered sufficient to conclude that very real questions as to his credibility will inevitably arise during the hearing and that there is a distinct possibility that he may "tailor his evidence". 35 The making of such an order is considered to be warranted notwithstanding: the fact that Mr Morton has provided an account of his disabilities both in his Consolidated Outline of Evidence and in statements made to a number of medical practitioners. Notwithstanding these accounts: the account provided, for example in the Consolidated Outline of Evidence, is expressed (for whatever reason) in such general terms as to permit or accommodate considerable latitude in such answers as may be given in cross-examination. Ipp J in Boyes v Colins referred to cases where it was suggested that a plaintiff is "malingering and has feigned or contrived his symptoms" and went on to observe that "[a]ny cross-examiner worthy of the art will expose lying in such a case. That is what the adversarial system is all about": [2000] WASCA 344 at [68]. It is not to be understood that his Honour was there denying the possibility that in some cases, albeit perhaps "rare cases", advance notice of a hitherto undisclosed piece of evidence will deny a cross-examiner any real ability to cross-examine effectively. Rather than the withholding of evidence hindering the expeditious resolution of cases, there remain some cases where a cross-examination effectively carried out may bring about a speedy (and just) resolution. The present proceeding, it is respectfully concluded, is such a case. 36 It is obviously not for this Court to attempt to pre-empt how successful any cross-examination of Mr Morton may be or what may be the assessment made by the trial Judge of Mr Morton's credibility. The cross-examination may "fall flat" and the trial Judge may form a view that the documents the subject of the present order do not materially assist in any assessment as to credit. His Honour may form a contrary view. It is sufficient for present purposes to conclude that Colonial Mutual should not be denied the opportunity to advance its case in such manner as it may be professionally advised by its Senior Counsel. To disclose the documents the subject of the present opportunity would deny it that opportunity. 37 To so conclude is not also to conclude that in every case where the credibility of a witness is in question that the making of an order of the present kind would be warranted. It is the nature of the facts contained within the surveillance material, together with the account provided by Ms Hanlon, which warrants the making of the order in the present proceeding.

CONCLUSIONS 38 The making of an order presently withholding certain material from Mr Morton and his advisers should be made. But not in the terms sought in the Interlocutory Application. 39 No order should be framed, for example, in a manner which seeks to pre-empt orders that may be made for discovery or the terms in which a subpoena may be sought. Any order should be confined to the non-disclosure of identifiable documents. 40 Nor should an order be made in respect to all of the documents identified in Schedules 1 and 2 to the affidavit of Ms Hanlon of 25 June 2013. During the course of the hearing, a number of particular categories of documents received specific attention, namely: (i) documents which have already been provided to Mr Morton and his legal advisers, albeit with some parts of those documents "masked" or "redacted" such that it is only those parts that are sought to be covered by any order to be made; and (ii) documents which recorded the results of inquiries made but which it was difficult to see would deny any forensic advantage to a cross-examiner if disclosed in advance (e.g., pages 144 to 150). During the course of a short adjournment, Senior Counsel for Colonial Mutual also re-assessed the claims being made and: (iii) voluntarily disclosed some documents. No order should be made withholding those documents - or like documents. The order to be made should be confined to: documents - such as those exemplified by (for example) pages 473-480 of Schedule 2 to the affidavit of Ms Hanlon of 25 June 2013; and documents - such as those exemplified by pages 481-509 of Schedule 2 to the affidavit of Ms Hanlon of 25 June 2013; documents - such as those exemplified by pages 510-519 of Schedule 2 to the affidavit of Ms Hanlon of 25 June 2013; and documents which would also disclose the nature or content of such documents. The identification of these documents in this manner, it is appreciated, is necessarily "Delphic". The obvious difficulty is to identify material in a manner which does not disclose its contents. 41 The conclusion reached, it is accepted, preserves some elements of what has pejoratively been labelled "trial by ambush". It is accepted that in limited circumstances "trial by ambush" remains either the only means whereby the true factual merits of a case may be resolved or a means whereby the true factual merits of a case may most likely be resolved. 42 The Applicant on the Interlocutory Application, Colonial Mutual, is to draft Short Minutes of Orders to give effect to these reasons. Those orders, it is anticipated, may be somewhat lengthy - and, perhaps, the form of a Schedule to an order may be the best means of identifying the documents to be withheld. But those documents should be specifically identified. To preserve confidentiality, the draftsman may see fit to identify documents or parts of documents by reference to the page numbers to the affidavit of Ms Hanlon of 25 June 2013.

THE ORDER OF THE COURT IS:

1. The Applicant on the Interlocutory Application, Colonial Mutual Life Assurance Society Limited, is to bring in Short Minutes of Orders to give effect to these reasons within 5 days. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.