UCPR 224 & 393(2): disclosure & surveillance

Brady v Woolworths Ltd (No 2) [2010] QDC 289

CATCHWORDS:

CIVIL PROCEDURE – DISCOVERY AND INTERROGATORIES – PRODUCTION AND INSPECTION OF DOCUMENTS – whether the applicant can be excused for disclosing surveillance material to the plaintiff prior to trial – whether the applicant can be excused from disclosing further expert opinion on the surveillance material.

Devereaux DCJ

His Honour applied Coster v Bathgate [2005] QCA 210 to dismiss the defendant’s application in circumstance where:

[6] For the purposes of making this decision I am prepared to proceed on the basis that the surveillance footage demonstrates conduct by the plaintiff inconsistent with the disabilities she asserts in her statement of loss and damage dated 19 August 2009. The defendant’s solicitor deposes the opinion that it appears, based on the surveillance footage, the plaintiff is at least exaggerating or overstating the physical effects of the incident.

[8] Under r 393(2), unless the court orders otherwise, the defendant must give the plaintiff, at least 7 days before the trial starts, an opportunity to inspect the video recordings and the opportunity to agree to their admission without proof. In Coster v Bathgate [2005] QCA 210 the court said:

“[13] 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.”

[9] Later the court remarked:

“The discretions to be exercised under UCPR r 224 and r 393 are unfettered except by the constraint that they be exercised judicially in the particular circumstances of each case.”

[10] The starting point must be that the video recordings and any future expert reports would be documents under r 211 and should be disclosed. Rule 224, which empowers a court to order that a party be relieved to any extent of the duty of disclosure, relevantly provides:

“(2) Without limiting sub-rule (1), the court may, in deciding whether to make the order, have regard to the following –

(a) the likely time, cost and inconvenience involved in disclosing the documents or classes of documents compared with the amount involved in the proceeding;

(b) the relative importance of the question to which the documents or classes of documents relate;

(c) the probable effect on the outcome of the proceeding of disclosing or not disclosing the documents or classes or documents;

(d) other relevant considerations.”

[11] In Coster v Bathgate the court considered factors relevant to the exercise of the discretion under r 224 and r 393.

“[21] On the one hand, there is a trend towards ensuring that interlocutory processes and, ultimately, the trial of an action, take place against a background of full and timely disclosure by the parties of their respective cases and even of the evidence to be relied on in support of those cases.

[23] Countervailing considerations include: the extent, if at all, to which the evidence suggests that a plaintiff’s claim is exaggerated or involves misrepresentation; the role surprise may play in unmasking exaggeration, deception or fraud and the inherent desirability of doing so; the forensic value of the ability to confront a witness in cross-examination with evidence, previously undisclosed to the witness, which conflicts with his or her sworn evidence and the importance of the plaintiff’s credibility to the outcome of the case. In some circumstances, particularly where the plaintiff’s case is heavily dependent on his or her credibility, it may be unjust to deny a defendant full opportunity to test that credibility.”

[12] The Court referred to Martin v Kennedy [1992] 2 Qd R 109. In that case, the trial

judge prevented the use, by the defendant by election, of secretly recorded

conversation to which the plaintiff was a party because it was not disclosed pursuant

to a rule of court. The decision of the Court of Appeal, to overturn the trial judge’s

ruling, rested on the conclusion that the evidence did not come within the class of

evidence that was required to be disclosed, namely, expert or economic evidence.

[13] Thomas J., with whom Ryan J. and Mackenzie J. (in general) agreed, commented further:

“The very nature of such evidence means that its efficacy would be virtually destroyed if it had to be disclosed before trial. The detection of fraud, and the exposure of exaggeration are important matters in the administration of this area of justice, and I should be reluctant to conclude that evidence of this nature requires to be disclosed in advance. The words of the rule do not require such an interpretation.”2

[14] Mackenzie J. said, at 113,

“…. it may be inferred that the primary purpose for which it was sought to tender the evidence in the recordings was to establish what physical actions were performed by the respondent during the course of that inspection. When such evidence rebuts claims as to the extent of the effects of an alleged injury and proves exaggeration it is extremely cogent in relation to the issue of the extent of economic loss. In forensic terms its value lies in the element of surprise. It is in this context that the ground of appeal arose.”

[15] Similar sorts of comments were made in King v Nolan [1992] 2 Qd R 498, which was decided shortly after Martin v Kennedy. There, the defendants obtained a video record of the plaintiff which cast doubt upon his claims. The tapes were disclosed early in the trial – the plaintiff and his expert witnesses were cross-examined by reference to them. The tapes had been shown to the defendants’ expert before the trial. However, the trial judge prevented the defendants’ expert from giving evidence based on the tapes because they had not been disclosed under District Court Rule 149A(4)(e) which required the defendant to file and serve supplements to the statement of expert and economic evidence.

[16] Thomas J. considered the evidence relevant and admissible and there was ‘no provision anywhere in the rule which gives the court the power to exclude evidence when a defendant breaches the obligation imposed by para (e).’3

[17] Later, his Honour added,

“I would add a word concerning the application of r. 149A to surveillance reports, videos, and associated forms of evidence. Such evidence is not required to be disclosed under this rule (Martin v. Kennedy [1992] 2 Qd.R. 109). Its disclosure would defeat its primary purpose. This would be equally defeated if its existence were disclosed in medical reports exchanged between the parties. Alive to this, it is hardly surprising that a solicitor might consciously decide to defer the moment of showing such evidence to his  doctors until such time as the tapes are disclosed to the plaintiff. It may reasonably be supposed that this was the designed course in the present proceedings. Such a course is designed consistently with the requirements of the rule. It is idle to say that such a course is contrary to the spirit of the rule if it is not contrary to its letter. In truth the present situation exposes a conflict between two matters of public interest — one being the desirability of maximum disclosure of the true case of each party before trial, and the other that unless the defendant can conceal the existence of this kind of evidence from the other party, its utility will be destroyed. On my reading of the rule the defendant did nothing to infringe it in its preparation and conduct of this particular trial. Whilst I think that such a sequence is legitimate in the case of genuine evidence tending to show that the plaintiff’s claim is fraudulent or untruly based, courts must be astute to ensure that evasions are not extended on behalf of defendants to other areas. If problems of this kind are encountered, it may be necessary to draw up a fresh rule.” (Italics added)

[18] The comments made in Martin v Kennedy and, probably also, King v Nolan informed the Court’s comments in Coster v Bathgate. But the latter decision did not depend on the comments.4

[19] In Geary v Heupeden [1992] 2 Qd R 475, Demack J ordered that the defendant give to the plaintiff, who was to be medically examined pursuant to applicable legislation, all medical and other documents submitted to the examining medical officer. After referring at length to the comments of Thomas J in Martin v Kennedy His Honour said:

“If the rules of professional privilege in respect of the material obtained for the purpose of preparing for trial are to be broken down, they must be broken down in an even handed way. I cannot understand how in fairness a plaintiff can be compelled to expose everything, while a defendant is permitted the forensic advantage of holding back significant evidence. I should have thought that the material, if disclosed, would facilitate settlement, and so achieve the evident purpose of the rule [under consideration in Martin v Kennedy]. It would also allow the medical witnesses to give proper consideration to all relevant evidence.”

Conclusion

[20] The purpose of the UCPR – to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense – would be better served in this case by the disclosure of the material and any further expert opinion the defendant obtains based on it. I have not been told anything to exclude the chance that disclosure may well lead to settlement.

[21] If the forensic value, to a party, of the ability to confront a witness in cross examination with previously undisclosed evidence which undermines the witness’s credibility could ever outweigh the public purposes of the UCPR, I do not think it does so in this case.

[22] Taking into account the considerations set out in rule 224 and discussed in Coster v Bathgate, I am not satisfied that any exception to the requirement for disclosure should be made with respect to the surveillance evidence and any consequent medical opinion. The application is dismissed.

2 [1992] 2 Qd R 109 at 112

3 [1992] 2 Qd R 498 at 501

4 [2005] QCA 210 at [11]

fyi: ealier posting – s.27 PIPA – obligation to disclose and provide information regarding this matter.

Brisbane Barrister – David Cormack

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