Coster v Bathgate [2005] QCA 210 [2005] 2 Qd R 496

SUPREME COURT OF QUEENSLAND CITATION: Coster v Bathgate [2005] QCA 210 PARTIES: EX PARTE BRIAN ROBERT COSTER (plaintiff/respondent) v BRIAN ALLAN BATHGATE (defendant/appellant) FILE NO/S: Appeal No 2033 of 2005 SC No 9585 of 2005 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 June 2005 DELIVERED AT: Brisbane HEARING DATE: 28 April 2005 JUDGES: McMurdo P, Muir and Philippides JJ Judgment of the Court ORDER: Appeal dismissed CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – DISCLOSURE – appellant a defendant in an action for damages for personal injury commenced by respondent – liability and damages at issue – in statement of loss and damage respondent claimed injuries rendered him unsuited to heavy manual or semi-sedentary forms of activity and that he had increasingly experienced difficulty coping with his ordinary work duties as a courier – appellant undertook video surveillance of respondent performing physical activities at work – applied to Supreme Court for exemption from obligation to disclose video recording and associated materials to respondent pursuant to r 393(2) Uniform Civil Procedure Rules 1999 (Qld) – application dismissed – whether any error in primary judge's exercise of discretion District Court Rules 1968 (Qld), r 149A Uniform Civil Procedure Rules 1999 (Qld), r 212, r 224, r 393 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited House v The King (1936) 55 CLR 499, applied -- 1 of 7 -- 2 In re the Will of F B Gilbert (dec'd) (1946) 46 SR(NSW) 318, considered Martin v Kennedy [1992] 1 Qd R 109, distinguished COUNSEL: R J Clutterbuck for the appellant No appearance for the respondent, the appeal was heard ex parte SOLICITORS: Burns Lawyers for the appellant No appearance for the respondent, the appeal was heard ex parte [1] THE COURT: This is an ex parte appeal from an interlocutory order of a judge of the Trial Division sitting in applications. Her Honour dismissed the appellant defendant, Mr Bathgate's, ex parte application to exempt him from compliance with the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") r 393(2). That sub-rule requires the parties to disclose matters, including reports and videos, to other parties at least seven days before the trial or hearing. [2] The plaintiff, Mr Coster, who is now 36 years old, commenced an action, originally in the District Court, against Mr Bathgate for damages. He contended that Mr Bathgate caused him injury in a marine accident on 22 October 2000 on the Southport Broadwater when he was being towed behind Mr Bathgate's jet ski in a rubber tyre or tube. Mr Coster transferred his claim to the Supreme Court in late 2004. Both liability and the quantum of damages are in issue. He claims to have significantly injured his hip, knee, lumbar spine and cervical spine in the accident. He contends his symptoms are easily aggravated by strenuous physical activity and that these injuries have affected his ability to remain in paid employment and to enjoy the recreational activities he took part in before the accident. He claims substantial compensation for past and future economic loss as well as past and future care and assistance. [3] In his statement of loss and damage dated 7 February 2005, Mr Coster disclosed that he was employed by First Express Couriers from 17 November 2003 to 30 June 2004 and from 1 July 2004 to 4 February 2005 grossing payments of $18,772 (net $15,088) and $18,714.70 (net $15,044) respectively. [4] He claimed: "As a consequence of the injuries sustained with the accident, [he] has been rendered unsuited to heavy manual activity or semi- sedentary forms of activity requiring prolonged standing, walking, running, jumping or carrying objects and [he] is restricted to sedentary work practices. [He] would be capable of the duties required of a taxi driver, truck driver, call centre operator, car park attendant or a telemarketer. [His] average net weekly rate of pay whilst gainfully employed in the financial year prior to the accident was an amount of $654.80. [His] current net weekly rate of pay as a courier is approximately $481.00, representing a net weekly loss of at the rate of $173.80 and continuing. -- 2 of 7 -- 3 [He] is increasingly experiencing difficulty coping with his ordinary duties as a courier. [He] is unlikely to continue in his current position after 2 years. … When seen by Dr Morgan on 5 July 2004, [he] continued to experience left hip and buttock discomfort with groin pain. Pain and discomfort were present daily and of a near constant nature. [He] had a walking endurance of 5 or 10 minutes. … The pain was described as constant. … [He] is unable to lift items of any weight or to sit for long periods of time. He finds it difficult to concentrate and has reduced agility. … [He] has trouble walking and is very slow and weak." [5] Mr Bathgate's lawyers had Mr Coster examined by Dr David Morgan, Associate Professor in Orthopaedic Surgery, on 5 July 2004. Dr Morgan said: "Mr Coster has been rendered unsuited to heavy, laborious forms of manual activity or semi-sedentary forms of activity which require prolonged standing, walking, running, jogging or the carrying of heavy objects. Instead he should be restricted to sedentary work practices. He would be capable of the duties required of a taxi driver, a truck driver, a call centre operator, a car park attendant or a telemarketer. … I would recommend that he avoid heavy, laborious forms of activity in the domestic setting. Lawn mowing, heavy gardening and household repairs would ideally be excluded from his list of duties." [6] Mr Bathgate's lawyers instructed private investigator, Mr Warren R Wex, who conducted surveillance of Mr Coster between 5.45 am and 11.52 am on Wednesday, 22 December 2004. His observations included the following matters relied on as significant. At 7.06 am Mr Coster removed parcels from the rear of an Isuzu truck, walked with them into a business premises and then walked briskly back to the truck. After completing other deliveries, he jogged briskly back to his vehicle at 7.39 am. At 8.11 am he removed from the truck a large cardboard box which appeared to be heavy and carried it to shops. At 10.35 am Mr Coster carried what appeared to be a number of (perhaps three) 10 litre plastic type drums in each hand. Mr Coster appeared to be moving freely with a striding gait, climbing easily in and out of the cabin and the back of his truck, carrying what sometimes appeared to be heavy parcels and containers with ease. His truck appeared to be heavily sprung so that the vehicle bounced and jerked over uneven surfaces. -- 3 of 7 -- 4 [7] The learned primary judge made the following observations and findings. Mr Coster had disclosed his employment as a courier, acknowledging he was able to carry out such duties. The observations of Mr Wex are not entirely consistent with Mr Coster's statement that he has trouble walking and is very slow and weak but they do not suggest significant exaggeration or fraud. The case is not one where there is a real risk of Mr Coster manufacturing a story to meet the events recorded in the material so as to justify an order exempting him from compliance with UCPR r 393. [8] Mr Bathgate's counsel in this appeal contends that the learned judge erred, first, in the exercise of her discretion in refusing the application and, second, in failing to give sufficient regard to the material before her. His outline of submissions asserted, at least by inference, that the primary judge erred in concluding that an order of the nature sought should not be made where "the evidence did not specifically demonstrate fraud".1 In paragraph 8 of the outline, the submission is put on the basis that the error lay in the primary judge’s "focusing primarily on the question of fraud". [9] These submissions do less than justice to the primary judge’s reasons. After an acknowledgement that the facts alleged to be established by the videos are “not entirely consistent” with Mr Coster's assertions as to the extent of his injuries, her Honour remarked: "But the real issue is whether I consider that disclosure of the information would have a significant effect on the defendant’s ability to expose either significant exaggeration or fraud. It does not seem to me, as I have said, that the case rises to that level." [10] Nothing in the reasons suggests that, having so identified "the real issue", her Honour considered solely, or predominantly, matters relating only to fraud. [11] The above conclusions are sufficient to dispose of the appeal but it is desirable to make some additional observations. [12] The primary judge was informed that the application was brought under UCPR r 393. That rule requires, relevantly, that a party intending to tender a video recording at a trial or hearing, unless the court otherwise orders, give the other parties an opportunity to inspect the recording at least seven days before the commencement of the trial or hearing. Sub-rule (3) of the rule permits the court to make an order on an ex parte application exempting the applicant from its obligations. [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. [14] The right to claim privilege in respect of medical reports based on such videos as materials brought into existence for the purposes of litigation is abolished by UCPR r 212(2) which provides: "A document consisting of a statement or report of an expert is not privileged from disclosure." 1 Outline, paragraph 5. -- 4 of 7 -- 5 [15] UCPR r 224 empowers the court to relieve a party from its disclosure obligations to the extent stipulated in the order. [16] The application, in order to succeed in its entirety, needed to be brought under both UCPR r 224 and r 393. Under each rule the primary judge was required to exercise a discretion having regard to the facts placed before her on the application. That is what she did. [17] In his statement of loss and damage, Mr Coster claimed to be unable to lift items of any weight, to have reduced agility, trouble in walking and to be slow and weak. Mr Bathgate contends that Mr Wex's video recordings of Mr Coster working as a courier show Mr Coster engaged in physical activities which reveal physical capabilities inconsistent with his claims. [18] The primary judge attached considerable importance to the fact that Mr Coster had disclosed that he was employed as a courier. She deduced from this that he had acknowledged an ability to move about and carry objects to the extent necessary to perform the work required in that occupation. That, in turn, led her to conclude: "The videotape will be a matter for assessment by the Court as to the extent of agility disclosed by the plaintiff. There is no element of surprise in what the plaintiff is actually doing because he has disclosed that he works as a courier. It will simply be a matter of his explanation of his level of agility as a witness as against what is disclosed on the videotape. It does not in short seem to me one of those cases where there is a real risk of the plaintiff manufacturing a story to meet the events. It is simply a matter of opinion." [19] The observation concerning the risk of a manufactured story was a response to a submission by Mr Bathgate's counsel that disclosure of the video would give rise to such a risk. The reasons do not suggest that the existence or degree of such a risk, or the prospects of unmasking or preventing fraud, were the only matters regarded by the primary judge as relevant to the exercise of her discretion. [20] 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. There are, however, a number of factors, some of which are competing, which will normally be thought relevant to the exercise of the discretion in cases such as this. [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. That trend is evidenced, inter alia, by: the disclosure requirements of UCPR r 212(2) and r 393; the requirements in UCPR r 547 concerning the provision of statements of loss and damage and by the increasingly more common requirement that evidence in chief be contained in statements or affidavits served before the trial. Conducting litigation in this way facilitates early settlements, promotes greater efficiencies in the conduct of hearings and assists in securing more just determinations. This is consistent with UCPR r 5 which provides that the purpose of the UCPR is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. -- 5 of 7 -- 6 [22] Those with experience of personal injuries trials will be aware that a great deal of time can be spent in dealing with the consequences of undisclosed video film of a plaintiff’s activities. The tape has to be played for viewing by the plaintiff in court. Often it, or a copy of it, will need to be played for the benefit of the plaintiff’s medical experts. At times the defendant’s legal representatives will not have had the foresight to obtain a report based on the video film from the defendant’s own medical experts. Apart from the time consumed by these matters, arrangements made with medical practitioners for their attendance can be superseded and the making of alternative arrangements can prove troublesome. Such delays and inconveniences can, of course, be reduced significantly if appropriate precautions are taken. [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;2 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. [24] The weight to be given to any such matter, and any other which emerges from differing factual situations, will depend on the tribunal’s assessment of the facts of the case. The tribunal’s determination, normally, will be the result of the exercise of a judgment in which the tribunal’s experience plays a role. Not infrequently, reasonable minds may differ as to how the discretion should be exercised. [25] Mr Bathgate's counsel referred to a decision of this Court in Martin v Kennedy3 which held that the former r 149A District Court Rules 1968 (Qld) did not apply to a video-taped recording of a plaintiff's physical movement nor to a contemporaneous tape recording of an interview with him. The ratio of that case, which preceded the UCPR, is of no real assistance here. Mr Bathgate particularly emphasised the observations of Mackenzie J at 113: "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." [26] The difficulty for Mr Bathgate is that her Honour was not persuaded that Mr Wex's report demonstrated significant exaggeration. Nothing in the learned primary judge's reasons indicate that her Honour considered her discretion to be fettered by irrelevant or wrong considerations or that she took into account irrelevant matters or failed to take relevant matters into account. [27] Courts have traditionally exercised great caution in reviewing interlocutory decisions, particularly where those decisions give effect to the exercise of a discretion on a point of practice or procedure, and do not determine substantive 2 Cf Martin v Kennedy [1992] 1 Qd R 109 at 112. 3 [1992] 1 Qd R 109. -- 6 of 7 -- 7 rights.4 As Sir Frederick Jordan explained in In re the Will of F B Gilbert (dec'd)5 in a frequently cited passage:6 " … I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." [28] Mr Bathgate has not demonstrated that the learned primary judge acted on any wrong principle of law or that her decision to refuse the application was outside a sound exercise of discretion: House v The King. 7 [29] The appeal must be dismissed. 4 See, for example, Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 5 (1946) 46 SR (NSW) 318 at 323. 6 See, for example, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 and Paringa Mining & Exploration Co PLC v North Flinders Mines Ltd (1988) 165 CLR 452 at 457-8. 7 (1936) 55 CLR 499 at 507-508. -- 7 of 7 --