Orkzai v LMG Pty Limited and ors [2020] NSWSC 1366

Orkzai v LMG Pty Limited and ors [2020] NSWSC 1366

Leave to tender the surveillance footage without prior inspection was warranted because the evidence disclosed a prima facie inconsistency between the plaintiff's reported medical conditions and functional limitations and his observed capacities in the surveillance footage; the footage appeared to assist only the first and second defendants and not the plaintiff's formulation of his case; disclosure had the capacity to tempt tailoring of evidence; and the discretionary factors overwhelmingly favoured preserving the defendants' legitimate forensic advantage in the interests of justice.

Jurisdiction
Australia
Judgment Date
07 October 2020
Procedural Posture
Common Law Procedural Ruling in Damages Proceedings Arising From Personal Injury / Ex Parte Notice of Motion Before Trial Seeking Leave to Tender Surveillance Footage Without Prior Inspection and Suppression Orders
Outcome
Leave granted to the first and second defendants to tender the surveillance material without prior provision to the plaintiff; suppression and sealing orders made; costs reserved.
Legal Topics
['leave to Tender Audio Visual Surveillance Material' 'failure to Give Prior Inspection Under R 31.10(1) of the Uniform Civil Procedure Rules 2005' 'ex Parte Application' 'legitimate Forensic Advantage' 'risk of Tailoring Evidence' 'suppression to Prevent Prejudice to the Proper Administration of Justice']
['practice and Procedure' 'evidence' 'civil Procedure' 'suppression and Non Publication Orders' 'personal Injury'] ['leave to Tender Audio Visual Surveillance Material' 'failure to Give Prior Inspection Under R 31.10(1) of the Uniform Civil Procedure Rules 2005' 'ex Parte Application' 'legitimate Forensic Advantage' 'risk of Tailoring Evidence' 'suppression to Prevent Prejudice to the Proper Administration of Justice']

Case Brief

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Procedural Posture

Common Law Procedural Ruling in Damages Proceedings Arising From Personal Injury / Ex Parte Notice of Motion Before Trial Seeking Leave to Tender Surveillance Footage Without Prior Inspection and Suppression Orders

Legal Issues

  1. 1 ['Whether the first and second defendants should be granted leave under r 31.10(2)(b) of the Uniform Civil Procedure Rules 2005 to tender surveillance footage that had not been given to the plaintiff for inspection under r 31.10(1).' 'Whether it was appropriate to determine the application ex parte without notice to the plaintiff.' 'Whether suppression orders should be made under the Court Suppression and Non-Publication Orders Act 2010 (NSW).']

Ratio Decidendi

Leave to tender the surveillance footage without prior inspection was warranted because the evidence disclosed a prima facie inconsistency between the plaintiff's reported medical conditions and functional limitations and his observed capacities in the surveillance footage; the footage appeared to assist only the first and second defendants and not the plaintiff's formulation of his case; disclosure had the capacity to tempt tailoring of evidence; and the discretionary factors overwhelmingly favoured preserving the defendants' legitimate forensic advantage in the interests of justice.

Court Disposition

Leave granted to the first and second defendants to tender the surveillance material without prior provision to the plaintiff; suppression and sealing orders made; costs reserved.

Orders

  • ['Pursuant to r 31.10(2)(b) of the Uniform Civil Procedure Rules, leave was granted to the first and second defendants to tender, in the hearing of the proceedings, the material contained in exhibit USB#1 to the affidavit of Maryan Lee sworn 7 October 2020, notwithstanding that it had not been given to the plaintiff...