Clements v Margalit & Anor [2025] QDC 197

DISTRICT COURT OF QUEENSLAND CITATION: Clements v Margalit & ors [2025] QDC 197 PARTIES: MADONNA THERESE CLEMENTS (Plaintiff) v THEA ISABEL MARGALIT (First defendant) AND ALLIANZ AUSTRALIA INSURANCE LIMITED (ABN 15 000 122 850) (Second defendant) FILE NO/S: D 14/23 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Ipswich DELIVERED ON: 11 December 2025 DELIVERED AT: Brisbane HEARING DATE: 9 October 2025 JUDGE: Grigg DCJ ORDERS: 1. The second defendant is entitled to bring this application in the Brisbane registry of the District Court of Queensland pursuant to rule 50 of the Uniform Civil Procedure Rules 1999 (Qld). 2. Pursuant to section 45 and 50 of the Motor Accident Insurance Act 1994 (Qld), the plaintiff is ordered to deliver to the second defendant’s solicitors the following documents within 14 days of the date of this order: -- 1 of 11 -- (a) A statutory declaration confirming: (i) dates the plaintiff hiked across the Arctic Circle, Tasmania, Uganda and Tanzania along with details of transportation to the hike locations, accommodation details (such as hotels, motels, hostels or campsites) and detailed itinerary of the trips, including a schedule of hiking routes and checkpoints; (b) Photographs and any video footage the plaintiff holds documenting her hiking adventures across the Arctic Circle, Tasmania, Uganda and Spain contained on the USB stick referred to by the plaintiff during her evidence given on 9 October 2025. (c) Posts to social media platforms sharing her adventures with a wider audience contained on the USB stick referred to by the plaintiff during her evidence given on 9 October 2025. 3. The plaintiff pay the second defendant’s costs of and incidental to the hearing of the application filed 7 October 2025, on a standard basis. 4. The file is to be administratively transferred back to the Ipswich registry of the District Court of Queensland. CATCHWORDS: INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – OTHER MATTERS – where the second defendant, the Compulsory Third Party insurer, seeks disclosure from the plaintiff pursuant to sections 45 and 50 of the Motor Accident Insurance Act 1994 (Qld) PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – MAKING AVAILABLE PLANS, PHOTOGRAPHS, VIDEO OR AUDIO RECORDINGS AND MODELS – where the plaintiff claims damages for personal injuries from the first and second defendants following a motor vehicle accident – where the plaintiff has undertaken a number of overseas hiking trips since the accident – where the second defendant filed an application seeking disclosure of documents, photographs, videos, and social media posts from the plaintiff, in relation to the plaintiff’s various overseas hiking trips – whether the documents sought are directly relevant to assessing the plaintiff’s claimed disabilities and functional capacity – whether disclosure of the material would -- 2 of 11 -- be unreasonably burdensome or a gross invasion of the plaintiff’s privacy LEGISLATION: Acts Interpretation Act 1954 (Qld) sch 1 Motor Accident Insurance Act 1994 (Qld) ss 45, 50 Personal Injuries Proceedings Act 2002 (Qld) ss 22, 27 Uniform Civil Procedure Rules 1999 (Qld) r 223, 702. CASES: Attard v Hore [2002] QSC 437 Digby v The Compass Institute Inc & Anor [2015] QSC 308 Elizabeth Ann Findlay v Queensland Folk Federation Inc and Ors [2016] QDC 87 Gad v Allianz Australia Insurance Limited [2024] NSWPICMP 475 Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 310; [2003] 2 Qd R 251 Haug v Jupiters Ltd [2007] QCA 199; [2008] 1 Qd R 276 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 Samways v WorkCover Queensland (No 2) [2010] QSC 273 Suncorp Metway Insurance Ltd v Brown [2004] QCA 325; [2005] 1 Qd R 204 COUNSEL: M P Williams for the second defendant (applicant) A D Stobie for the plaintiff (respondent) SOLICITORS: Moray&Agnew for the second defendant (applicant) McNamara Law for the plaintiff (respondent) -- 3 of 11 -- 1 Introduction [1] On 19 April 2023 the plaintiff commenced proceedings by Claim and Statement of Claim (SOC) against the first defendant and second defendant for damages for personal injuries arising out of a motor vehicle accident on 31 July 2019. [2] The second defendant is the Compulsory Third Party (CTP) insurer of the driver of the at fault vehicle. [3] Liability has been admitted, with the quantum of damages the remaining issue in the proceeding. [4] The second defendant has made an application that: (a) pursuant to sections 45 and 50 of the Motor Accident Insurance Act 1994 (Qld) (MAIA), the plaintiff be ordered to deliver to the second defendant’s solicitors the following documents within 14 days of the date of this order: (i) A statutory declaration confirming: (A) dates the plaintiff hiked across the Arctic Circle, Tasmania, Uganda and Tanzania along with details of transportation to the hike locations, accommodation details (such as hotels, motels, hostels or campsites) and detailed itinerary of the trips, including a schedule of hiking routes and checkpoints; (ii) Photographs and any video footage the plaintiff holds documenting her hiking adventures across the Arctic Circle, Tasmania, Uganda and Spain. (iii) Posts to social media platforms sharing her adventures with a wider audience; or alternatively, (b) pursuant to rule 223 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the plaintiff provide the second defendant: (i) documents in the possession of the plaintiff detailing: (A) hikes undertaken by the plaintiff across the Arctic Circle, Tasmania and Uganda along with details of transportation to the hike locations, accommodation details (such as hotels, motels, hostels or campsites) including itinerary and any schedule of hiking routes or checkpoints; (B) the El Camino hike in Spain undertaken by the plaintiff. (ii) photographs and any video footage the plaintiff holds documenting her hiking adventures across the Arctic Circle, Tasmania, Uganda and Spain. (iii) posts to social media platforms sharing her adventures with a wider audience. -- 4 of 11 -- 2 [5] A number of requests for this material have been made since 25 July 2024, but to date the plaintiff has refused to disclose the material or information on the basis that it would be unreasonably onerous or is unlikely to be directly relevant to a major issue. Relevant Law [6] Section 45 of the MAIA creates an obligation on a claimant to cooperate with the insurer with respect to the provision of certain information and documentation. [7] Section 45 provides relevantly: 45 Duty of claimant to cooperate with insurer (1) A claimant must cooperate with the insurer and, in particular – (a) must provide the insurer with copies of reports and other documentary material (including written statements made by the claimant or by witnesses) in the claimant’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation; and (b) must give information reasonably requested by the insurer about – (i) the circumstances of the accident out of which the claim arose; and (ii) the nature of the injuries resulting from the accident and of any consequent disabilities and financial loss; and (iii) if applicable—the medical treatment and rehabilitation services the claimant has sought or obtained; and (iv) the claimant’s medical history (as far as it is relevant to the claim), and any other claims for compensation for personal injury made by the claimant. … (emphasis added) [8] Pursuant to section 45(7), any information provided in accordance with s 45(1) must be verified by statutory declaration if that is what is required by the insurer. [9] It is not in dispute that documentary material includes electronic documents, videos and photographs.1 Contentions [10] The second defendant seeks documents and details about four hiking trips undertaken by the plaintiff since the date of the accident. [11] The second defendant submits that the documents sought will shed light on, for example, the difficulty of the terrain, camping conditions and whether the plaintiff 1 Acts Interpretation Act 1954 (Qld) sch 1 s.v. ‘document’. -- 5 of 11 -- 3 would have had, or did have, difficulty with her alleged significant daily headaches, nausea, vertigo and dizziness whilst undertaking those activities and carrying her own pack. [12] The plaintiff contends that the documents requested are not sufficiently detailed in terms of what information is sought and that it is not clear how they may have a substantial bearing on the real issues in the proceeding. The plaintiff also submits that there is a large volume of media material which will be burdensome and expensive for the plaintiff and her advisers to compile, check and review. The plaintiff also submits that it will involve a gross invasion of her privacy. Consideration [13] In Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 310; [2003] 2 Qd R 251 at 265, White JA stated that s 45(1)(b) of the MAIA covered “the whole field of what an insurer … would want to know about the claim…”, including the injury sustained “and its sequalae”. [14] Williams JA spoke of the obligation in section 45 as a broad duty in Suncorp Metway Insurance Ltd v Brown [2004] QCA 325; [2005] 1 Qd R 204. His Honour said:2 “When regard is had to the objects of the legislation set out in s 3, and in particular the object “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”, the intent of the legislature, in my view, was to impose a broad general duty on a claimant to cooperate with the insurer. To that end the claimant is obliged by s 37 and s 45, amongst others, to provide very detailed information to the insurer at an early stage. There is, albeit impliedly, a clear obligation on the claimant to do all things necessary to provide the insurer with the information referred to in those two sections.” [15] A similar provision to section 45 is found in section 27 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).3 Jerrard J in Haug v Jupiters Ltd [2007] QCA 199; [2008] 1 Qd R 276 said the explanatory notes state the “clear purpose” of the disclosure obligations of the PIPA is to ensure parties “have enough information to assess liability and quantum in relation to a claim; and that it imposes an obligation on a respondent to co-operate with the claimant by providing that information”.4 Is the material requested directly relevant to matters in issue? [16] It is not in dispute that the plaintiff has, since the date of the accident, travelled in and out of Australia, hiked across the Arctic Circle, Tasmania and Uganda, and hiked the El Camino trail in Spain. [17] The plaintiff provided a statutory declaration on 25 October 2024 which swore to dates that she had completed overseas travel. Upon review, that statutory declaration did not align with material obtained by the second defendant from the Department of Home Affairs. As a result of the deficiencies in the first statutory declaration, a further 2 Suncorp Metway Insurance Ltd v Brown [2004] QCA 325; [2005] 1 Qd R 204, [14]. 3 See Personal Injuries Proceedings Act 2002 (Qld) ss 22, 27; these provisions set out the duties of the claimant and respondent to provide documents and information and refers the obligation information concerning consequent disabilities and prospects of rehabilitation. 4 Haug v Jupiters Ltd [2007] QCA 199; [2008] 1 Qd R 276, [8]. -- 6 of 11 -- 4 statutory declaration was provided on the 22 November 2024 to update her travel activities. [18] Through the statutory declarations, the plaintiff disclosed that she undertook the following activities since the date of the accident: (a) guided arctic trekking holiday in January 2020 at Tromso, Norway; (b) trip to Uganda between 30 June and 8 July 2022 on a guided gorilla trekking tour and between 8 July 2022 and 17 July 2022, a nine day trek; (c) trip to Tanzania between 17 July 2022 and 22 July 2022; (d) trip to the United Arab Emirates between 23 July 2022 and 24 July 2022; (e) trip to Spain between 28 August 2024 and 18 September 2024 where she underwent a pilgrimage walk for the MND & Me Foundation; (f) trip to Portugal and Morocco between 19 September 2024 and 2 October 2024; and (g) New Zealand trip between 11 March 2023 and 19 March 2023, wherein she underwent a sightseeing holiday, including canoeing down the Whanganui river. [19] In the SOC, the plaintiff alleges she has sustained the following injuries and impacts because of the motor vehicle collision: (a) ongoing pain to her right forehead, cervical spine, lumbar spine, pelvis; (b) headaches, dizziness and reduced balance and vertigo; (c) reduced ability to engage in everyday tasks; (d) reduced capacity for chores requiring bending, lifting, forceful and repetitive use of the upper limbs, crouching or forward or overhead reach; (e) restricted capacity to undertake outdoor property maintenance tasks including tractor work, mowing and use of power tool; (f) restricted recreational activities including difficulty engaging in her previous recreational pursuits of bike riding, trekking, and renovation of classic motor vehicles. [20] In support of her claim, the plaintiff has provided several medicolegal reports regarding her physical capacity. [21] Given the nature of the recreational activities the plaintiff has disclosed engaging in following the accident and her claimed injuries, it is not outside the bounds of common sense that documents which demonstrate and reflect the extent of the plaintiff’s medical conditions and prospects of rehabilitation are required to be disclosed. The defendant disputes the nature and effect and the significance of each of the claimed injuries, and the symptoms, and says that the symptoms are inconsistent -- 7 of 11 -- 5 with her capacity to undertake those hikes. Without knowing more, one may query how a person with the claimed injuries could embark on a multi-day trek. A “trek” is defined by the Macquarie dictionary as a physically challenging and difficult activity: trek noun 1. an overland journey, especially a difficult one, as the Great Trek undertaken by migrating South Africans by ox wagon. 2. a physically challenging journey, undertaken for sport or recreation. 3. a journey of considerable distance or inconvenience: my journey to work is quite a trek by public transport. –verb (i) (trekked, trekking) 4. to travel or migrate overland, especially with difficulty. 5. to undertake a physically challenging journey for sport or recreation: they went trekking in the Andes. 6. to undertake a journey of considerable distance or inconvenience relative to its object: I picked the wrong size and had to trek back into town to exchange it. (emphasis added) [22] In addition to the requirements set out in section 45 of the MAIA, the UCPR provides in rule 211 that a party has a duty to disclose documents that are: (a) in the possession or under the control of the party; and (b) directly relevant to an allegation in issue in the pleadings; and (c) if there are no pleadings—directly relevant to a matter in issue in the proceeding. [23] It is uncontroversial that a “directly relevant” document is one which contains something that tends to prove or disprove an allegation in issue.5 [24] The documents requested by the second defendant are directly relevant to the issues in the proceeding, namely the determination of any consequent disability and the plaintiff’s functional capacity. They are relevant to the plaintiff’s capacity for activities of daily living and recreation and therefore her capacity for employment and need for care and assistance and treatment. [25] The expression “directly relevant” should not be taken to mean direct evidence as opposed to circumstantial evidence. For example, a document may not itself prove a fact in issue but it may nonetheless supply circumstantial evidence which, taken with other evidence, tends to do so. Such documents are caught by the disclosure obligation and must be produced unless there is another valid basis for objection such as privilege. [26] The disclosure of social media posts and photographs is not uncommon in these types of matters.6 They may be relevant to assessment of whether the activities and 5 Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102, 105. 6 For example, see Elizabeth Ann Findlay v Queensland Folk Federation Inc and Ors [2016] QDC 87; Gad v Allianz Australia Insurance Limited [2024] NSWPICMP 475; Black-Bassett v Woolworths Limited [2014] -- 8 of 11 -- 6 movements undertaken by the plaintiff are consistent with the instructions given the medical experts who have prepared reports to assist the Court in its determination. [27] The documents are directly relevant to an assessment of the plaintiff’s claim.7 Would the disclosure be unreasonably onerous? [28] The issue is whether such disclosure is unreasonably onerous. [29] There is no argument that the requested material exists. The plaintiff deposed to having a vast amount of material stored in hard copy and in electronic copy. She told the Court she used a digital camera to take photographs on her trips and that the photographs remain on her computer or on a hard drive. She deposes to having “thousands of photos and hours of video footage from [her] hiking adventures”. During cross-examination, she said that the hard drive containing the photographs was in one of 200 boxes stored at the property in which she is presently residing.8 The plaintiff also said the photographs were on a USB stick which she had easy access to. She said almost all of the photographs were of animals and scenery. It is photographs of the terrain the second defendant seeks. [30] The plaintiff said she could not physically go through all the boxes to try and find information about her trips as she did not know whether she still had any relevant documents. The plaintiff said they could be in there, but that she did not know. During cross-examination, the plaintiff was able to provide some details of the dates of trips, locations and activities undertaken. [31] The plaintiff accepted that during cross-examination she had been able to give some of the details about transportation, accommodation, itinerary, which had been previously requested. [32] When asked why she swore that the request for documents was unreasonably onerous and that the material was unlikely to be directly relevant to any issue in this matter, she said she did not know.9 [33] In relation to her Instagram and Facebook pages, the plaintiff told the Court they were not extensive and that she “doesn’t use [these platforms] a lot”.10 How then can a review of the photographs uploaded to those sites be overburdensome? [34] I can appreciate that in some cases a request for a social media history which contains thousands of photographs may be oppressive. Here, the request is limited to four treks undertaken across the Arctic Circle, Tasmania, Uganda and Spain, and in this way the request has been narrowed to activities undertaken within a narrow set of dates. [35] The evidence of the plaintiff is that the material: VCC 2046. At the hearing of Digby v The Compass Institute Inc & Anor [2015] QSC 308, which related to a claim for a psychiatric injury allegedly causing social isolation, Atkinson J accepted a submission that Facebook was a ‘modern diary’ and disclosable. 7 Samways v WorkCover Queensland (No 2) [2010] QSC 273, [20] 8 Transcript of hearing dated 9 October 2025, pp 1-17, lines 9 – 14. 9 Transcript of hearing dated 9 October 2025, pp 1-15, lines 12 – 13. 10 Transcript of hearing dated 9 October 2025, pp 1-15, lines 15 – 18. -- 9 of 11 -- 7 (a) is limited in relation to the social media posts; and (b) readily accessible via USB. [36] Given that the material is both available in hard copy form and electronically (on a USB stick), in my opinion, only an electronic copy need be provided. It does not seem to be an overburdensome task to filter the photographs on the USB by date stamp. Would the disclosure involve an unreasonable invasion of privacy? [37] I note the comments of Dutney J in Attard v Hore [2002] QSC 437. In that case, the insurer sought disclosure of the plaintiff’s Centrelink file. The plaintiff submitted disclosure was an unwarranted intrusion into the civil liberties of the plaintiff. Dutney J was not persuaded that this was a relevant argument. His Honour said:11 “I am not persuaded that the civil liberties argument can be sustained in a case where a party comes to the Court seeking an order from the Court that she be paid a substantial sum of money as a result of injuries which she says she has suffered. It seems to me that the price of seeking such an order from the Court is disclosure of a great deal of material which in other circumstances would be considered confidential. Unfortunately for plaintiffs, that is the price they pay if they want to receive a substantial damages award.” (emphasis added) [38] The claim of the disclosure being intrusive was also made here. One cannot simply fail to disclose relevant material because of some delicacy or privacy concern. Personal injuries matters are by their very nature intrusive. It is difficult to understand the basis of this submitted concern when the plaintiff’s evidence was that the requested material was primarily photographs of animals and scenery. Conclusion [39] I will make the following orders: (a) pursuant to section 45 and 50 of the Motor Accident Insurance Act 1994 (Qld) the plaintiff is ordered to deliver to the second defendant’s solicitors the following documents within 14 days of the date of this order: (i) A statutory declaration confirming: (A) dates the plaintiff hiked across the Arctic Circle, Tasmania, Uganda and Tanzania along with details of transportation to the hike locations, accommodation details (such as hotels, motels, hostels or campsites) and detailed itinerary of the trips, including a schedule of hiking routes and checkpoints; (ii) Photographs and any video footage the plaintiff holds documenting her hiking adventures across the Arctic Circle, Tasmania, Uganda and Spain contained on the USB stick referred to by the plaintiff during her evidence given on 9 October 2025. 11 Attard v Hore [2002] QSC 437, 3. -- 10 of 11 -- 8 (iii) Posts to social media platforms sharing her adventures with a wider audience contained on the USB stick referred to by the plaintiff during her evidence given on 9 October 2025. Costs [40] The starting point is that costs usually follow the event and are ordered to be paid on a standard basis.12 However, costs may be ordered to be paid on an indemnity basis under r 704(1) of the UCPR. [41] The plaintiff pay the second defendant’s costs of and incidental to the hearing of the application filed 7 October 2025, on a standard basis. 12 Uniform Civil Procedure Rules 1999 (Qld) r 702. -- 11 of 11 --