Sam Iaali v JV Auto Repairs Pty Limited t/as One Shop Mobile Mechanic; Grace Worldwide (Australia) Pty Ltd v JV Auto Repairs Pty Ltd t/as One Stop Mobile Mechanic

1. [1]

   By Notice of Motion filed 10 March 2023, the defendant in two sets of proceedings, JV Auto Repairs Pty Limited trading as One Stop Mobile Mechanic, seeks orders that first, it is excused from complying with the provisions of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) r 31.10(1) and secondly, that it be granted leave not to serve surveillance footage of the plaintiff in the first proceedings, Sam Iaali, until he has finished giving his oral evidence.

2. [2]

   The defendant relies on the affidavit of its solicitor Nicole Oglesby sworn 10 March 2023. D. Kelly appeared for the defendant. DL. De Monte appeared for the plaintiff. The plaintiff opposes the orders sought.

3. [3]

   There are two related sets of proceedings. They are Sam Iaali v JV Auto Repairs Pty Limited t/as One Shop Mobile Mechanic (2020/00037911) and Grace Worldwide (Australia) Pty Ltd v JV Auto Repairs Pty Ltd t/as One Stop Mobile Mechanic (2018/00087212).

4. [4]

   In the first proceedings the plaintiff (Mr Iaali) brings a claim for personal injury damages arising from an incident that is alleged to have occurred on 16 March 2017, during the course of his employment to the defendant. The plaintiff in the second proceedings Grace Worldwide (Australia) Pty Ltd (‘Grace Worldwide’) (‘the second proceedings’).

5. [5]

   In the second proceedings, Grace Worldwide, as Mr Iaali’s employer, seeks recovery of workers compensation already paid to Mr Iaali by the defendant.

6. [6]

   These matters are listed for a five-day trial commencing on 3 April 2023. Hence, this judgment needs to be given as a matter of urgency. To that end, these reasons will be brief.

7. [7]

   In her affidavit Nicole Oglesby deposed that she had instructions not to waive privilege of any of the material referred to.

8. [8]

   She deposes that Mr Iaali’s credibility is in issue in the proceedings. The defendant holds five surveillance reports prepared on various dates between 5 August 2020 and 1 December 2022 concerning some 59 minutes of surveillance of Mr Iaali during that period (collectively, ‘the surveillance material’).

9. [9]

   In the first proceedings, Mr Iaali claims damages for non-economic loss, past and future out-of-pocket expenses, past and future economic loss and past and future care.

10. [10]

    Mr Iaali alleges that he sustained the following injuries as a result of the incident on 16 March 2017:

11. [11]

    Mr Iaali alleges that as a result of these injuries he suffers with continuing disabilities, including:

12. [12]

    Ms Oglesby deposed that the surveillance material suggests Mr Iaali has a greater capacity than alleged, and has the capacity to engage physically, mentally, socially and recreationally in a manner that is inconsistent with his alleged injuries and disabilities.

13. [13]

    The defendant has obtained reports from medical and occupational therapy experts which were annexed to Mr Oglesby’s affidavit, namely, Associate Professor Michael Shatwell (dated 2 June 2020) and Dr Brian Zeman and Mr John Raue (dated 6 February 2021) and Sandra Colyer (dated 7 November 2022) (the defendant’s primary expert reports). These reports have been served on Mr Iaali.

14. [14]

    Following service of the defendant’s primary reports, the surveillance material was sent to those medical experts by the defendant for comment in relation to the following two questions. They are:

15. [15]

    Mr Oglesby annexed supplementary reports: Associate Professor Michael Shatwell (dated 23 December 2022); Dr Brian Zeman (dated 21 December 2022); Ms Sandra Colyer (15 December 2022). These supplementary reports were prepared following the expert’s receipt of the surveillance material where they answered the two questions above and were served on Mr Iaali’s solicitors.

16. [16]

    In their respective supplementary reports, the defendant’s experts identified inconsistencies between Mr Iaali’s presentation in the surveillance material and with his presentation during their physical assessments of him in May 2020, January 2020, January 2021 and July 2022. Mr Oglesby deposed that the defendant proposes to tender copies of the surveillance material after Mr Iaali has been cross-examined.

17. [17]

    The defendant has also provided copies of the surveillance to Grace Worldwide, the defendant in the second proceedings, which has stipulated that it does not waive privilege in order to assist with attempts at settlement. The basis of providing the surveillance is that legal professional privilege is not waived.

The UCPR

1. [18]

   The defendant referred to rr 31.10 and 31.28 of the UCPR, which reads as follows:

2. [19]

   At the most recent status review on 3 March 2023, Cavanagh J made the following order:

3. [20]

   His Honour explained:

4. [21]

   The defendant referred to Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 (‘Halpin’) and Monteleone v Thorn [2020] NSWLR 265 (‘Monteleone’). Mr Iaali referred to Boyes v Colins [2000] WASCA 344 (‘Boyes’).

5. [22]

   In Halpin, the Insured appellants had alleged in their statement of claim that a theft had occurred from their home at Orchard Park, on 10 August 2006. They alleged that sporting memorabilia stolen, including valuable rugby league jerseys and cricket bats, which were the subject of a specified contents cover under a policy with the respondent insurer (‘the policy’), the sum Insured being $1 million. The Insured made a claim under the policy, which the insurer refused on the basis of deceit or fraud. The insurer brought a Notice of Motion seeking an order, without reference to the UCPR, that “the requirement that all affidavit evidence to be relied upon by [the Insurer] be served on [the Insured] be waived in respect of certain affidavits, on the basis of the discretion discussed in Markus v Provincial Insurance Company Ltd (1983) 25 NSWCCR 1.

6. [23]

   The primary judge in Markus considered that the evidence that the insurer wished to hold back fell into four categories: an affidavit of one of the lay witnesses, an affidavit of the second lay witness; a report by a forensic accountant (in light of the insurer fraud allegation) and affidavits by insurance investigators.

7. [24]

   The Insured argued that there was no proper basis for upholding the insurer’s motion, as the insurer “bore an onus in respect of the evidence contained within the documents” it sought to withhold.

8. [25]

   The primary judge noted that in a case where each side carried an onus of proof “the sort of rigid distinction sought by the [Insured] has no place”: Halpin at [67]. Such an approach was quite contrary to the principle underlying the exercise of the Markus discretion, which was to allow a party to hold back documents if the interests of justice so dictated. The Insured brought an appeal:

9. [26]

   In dismissing the appeal, Sackville AJA (with whom Tobias JA agreed) stated:

10. [27]

    In Monteleone, the defendants to a personal injuries and workers compensation claim broadly similar to the present proceedings, sought an order by a Notice of Motion to excuse compliance with r 31.10(1) of the UCPR in respect of eight investigation reports, and the accompanying video of the plaintiff going about a series of activities.

11. [28]

    At [6]-[8], Garling J in Monteleone concluded:

12. [29]

    The Notice of Motion was dismissed.

13. [30]

    In Halpin, Sackville AJA referred to the West Australian case of Boyes, which was raised by Mr Iaali’s counsel in support of the submission that this Court could or should not make the order sought by the defendant and stated at [104]-[107]:

Defendant’s submissions

1. [31]

   Counsel for the defendant submitted that legal professional privilege has not been waived over the surveillance material. Further, it was argued that the use of surveillance at trial involves objective evidence of the extent of the plaintiff’s injuries and disabilities.

2. [32]

   As noted at the outset of these reasons, the defendant seeks that I stand over the Notice of Motion to the trial judge or, excuse it from complying with UCPR r 31.10(1) by granting it leave not to serve the surveillance material until Mr Iaali has finished giving his oral evidence at trial.

3. [33]

   The defendant submitted that the plaintiff’s credibility is a significant issue in these proceedings and it consequently wishes to preserve a forensic advantage by withholding the surveillance material at this stage so as not to afford Mr Iaali the opportunity to tailor his evidence in an effort to diminish the effect of the surveillance material.

Plaintiff’s submissions

1. [34]

   Counsel for Mr Iaali seeks orders that the surveillance material be produced his legal representatives on two main bases. They are, first, that the surveillance material has already been produced to Grace Worldwide and secondly, legal professional privilege has been waived over the defendant’s expert reports and if the surveillance is disclosed, Mr Iaali’s psychiatric and orthopaedic experts can view the surveillance prior to the trial. They will then be able to discuss the material in their joint reports and when giving conclave evidence, thus decreasing costs and saving time in line with s 56 of the Civil Procedure Act 2005 (NSW). According to the plaintiff’s counsel, as some of the relevant information has already been disclosed to the plaintiff, there is no longer any legitimate forensic purpose to withholding the surveillance material.

2. [35]

   Aa noted, Mr Iaali referred to Boyes, in which the Full Court stated, (Ipp J (with whom Pidgeon and Wallwork JJ agreed), that the trial judge erred in failing to adopt the correct approach to an application under O 36 r 4 of the rule of the Supreme Court 1971 (WA), which was broadly to the same effect as UCPR r 31.10. Ipp J said (at [60]) that in determining an application under O 36 r 4, “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”.

Resolution

1. [36]

   In Halpin, the New South Wales Court of Appeal disagreed with the approach taken by the Supreme Court of Western Australia in Boyes. Boyes is also at odds with this Court’s decision in Monteleone. It is my view that Halpin is the applicable law in the present case.

2. [37]

   Further, Cavanagh J has already made orders that pursuant to UCPR r 31.28, the orthopaedic and psychiatric evidence be adduced in the usual way; that is, without conclaves so that they can be called and cross-examined by the defendant.

3. [38]

   In these circumstances, it is my view that the decision as to whether the video evidence should be disclosed is best left to the trial judge. It is not appropriate that I grant leave pursuant to Part 31.10(1)(b) at this stage.

4. [39]

   To maintain the status quo of Cavanagh J’s order, I stand the Notice of Motion dated 10 March 2023 adjourned over to the trial judge.

   1. (1)

      The Notice of Motion is stood over to the trial judge.

   2. (2)

      Costs are reserved.