Colins v Boyes P95/2000 [2001] HCATrans 557 (25 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P95 of 2000

B e t w e e n -

JAMES CECIL COLINS

Applicant

and

MELANIE BOYES

Respondent

Application for special leave to appeal

GAUDRON J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 25 OCTOBER 2001, AT 9.56 AM

Copyright in the High Court of Australia

MR W.S. MARTIN, QC: If it please the Court, with my learned friend, MR G.R. HANCY, I appear on behalf of the applicant. (instructed by Lawrence & Howell)

MR N.J. MULLANY: If it please your Honours, I appear for the respondent. (instructed by James McManus & Associates)

MR MARTIN: Your Honours, if leave were granted in this case, the appeal would resolve the question of whether a particular philosophical approach to the desirability of complete pre-trial disclosure - - -

HAYNE J: My word, now that would be a remarkable result if leave were granted, Mr Martin.

MR MARTIN: Your Honour, the question is whether that philosophical approach overrides a rule which has as its evident purpose the avoidance of the unnecessary expense in requiring the attendance of witnesses to formally prove such matters as - - -

GAUDRON J: Is not the real rule with which we are concerned the rule for discovery?

MR MARTIN: Certainly, your Honour.

GAUDRON J: This rule about production of photographs is a bit of a red herring in this case, is it not?

MR MARTIN: It was the rule that was used by the Full Court.

GAUDRON J: Well, I know it is, but the question is whether, if you are going to use these documents, or this document, you should discover it, is it not?

HAYNE J: There is no doubt it is a continuing obligation to make discovery, is there Mr Martin?

MR MARTIN: None at all, your Honour, and the video was discovered.

HAYNE J: Yes.

GAUDRON J: But privilege claimed in respect of - - -

MR MARTIN: But privilege claimed in respect of inspection.

GAUDRON J: Yes, but is not the real question how you can maintain privilege if you intend to actually use it?

MR MARTIN: But there is no present intent to necessarily use the video.

GAUDRON J: Then why make the application? You are wasting the Court's time if there is no intent.

MR MARTIN: Because the question of whether or not the video will be used depends upon the evidence to be given by the plaintiff.

HAYNE J: Mr Martin, really, I mean no present intent is something that we became very used to in Part A and Part B documents and the presence of the intention was measured in nanoseconds. Is that the field for debate here?

MR MARTIN: Your Honour, the situation in the District Court of Western Australia is that there is no requirement for the provision of witness statements prior to trial. So that all that a defendant has before a trial is the pleading, which provides a very general description of the extent of the plaintiff's injuries, and the medical reports, so that the precise extent of the symptomatology that the plaintiff presents to the court is not known until the plaintiff gets in the witness box and produces his or her evidence.

HAYNE J: So what have you got the surveillance tapes for?

MR MARTIN: To ensure that if that evidence is given in terms which is contradictory to the surveillance tapes, the surveillance tapes can then be used.

HAYNE J: What do you lose by producing it?

MR MARTIN: What you lose, your Honour, is the capacity to fully test through cross-examination the evidence of the plaintiff, because the plaintiff is forewarned as to what is on the tapes and can tailor the evidence accordingly and provide explanations for what the tapes reveal. Your Honours, that proposition has the support of significant authority in a number of jurisdictions.

GAUDRON J: The proposition assumes that the witness is going to perjure himself or herself.

MR MARTIN: It allows for the possibility that the witness may, not perhaps deliberately, but under the pressures of the nature of the case, overstate the symptoms for a variety of different reasons. Perhaps the symptoms may have a psychological derivation which is not always present.

HAYNE J: That possibility is at least lessened if inspection is had of the surveillance tapes before trial, is it not? We all get to the point of the case much quicker.

MR MARTIN: Your Honour, the trouble is that the trial judge is called upon to assess the credit of the witness in an area in which the witness is the only source of evidence with respect to the extent of the symptoms in many cases of soft tissue injury, so that the doctors and the court are entirely dependent upon the witness' evidence as to the symptoms. Often the trial judge is put in the position of having to assess the credit of the witness and a reliable means of doing that is testing the witness' evidence as to the extent of his or her injuries by reference to objective material that shows the capacity of the witness in environments in which the witness is not aware of observation.

HAYNE J: Therefore, you go to trial with more than the plaintiff's version of events. You go to trial with the tape of the plaintiff repairing the tyre that just happened to go flat while the surveillance tape was running.

MR MARTIN: Yes, your Honour. Then, if the plaintiff has given evidence to the effect that functions of that kind were quite beyond him, then the trial judge is assisted in his or her assessment of the plaintiff's credit. Whereas, if the tape is disclosed prior to trial, the plaintiff would not overstate the extent of the symptomatology to that extent, and so a useful forensic device is denied the court.

Your Honours, if I go back to where I started in relation to this rule, the position arrived at by the Full Court was that this video was privileged. It was discovered and the subject of what the court found was a valid claim for privilege. It follows, therefore, that we were not obliged to provide inspection of the tape until such time as privilege was waived. Privilege only is waived at the point of time when the video is used. What the court has, however, done is used a rule which does not pertain to these matters at all to override the privilege, if I could - - -

GAUDRON J: It was your application, was it not? You made the application?

MR MARTIN: Because the rule provides that if we do not get the order of the court, the video cannot be used. Your Honour, our submission is that, when exercising the discretion in that regard, a trial judge, a judge at first instance, properly takes into account the purpose of the rule. If I could just take your Honours to the rule. There are two strong pointers to its purpose. Your Honours will find it on page 7 of the application book. Your Honours will see the rule provides:

Unless before or at the trial the Court otherwise orders no plan, photograph or model shall be receivable in evidence -

et cetera, unless a certain time before:

the parties other than the party who intends to use it are given the opportunity to inspect it and agree to its admission without further proof.

The two points are, firstly, that the rule applies only to plans, photographs or models, that is, it is the form of the evidence not its substance, so that in a situation in which an investigator observes a plaintiff playing a game of tennis and were to give evidence to the effect that he observed the plaintiff displaying a full range of shots in relation to the tennis game, there would be no obligation under this rule to give advance notice of evidence of that kind. However, if the same investigator has with him a camera and takes a record of what he observed, then there is an obligation to disclose. With respect, it is illogical that the form of the evidence should dictate whether or not it was required to be disclosed prior to trial.

The second strong indicator is, of course, the last line of the rule which provides that the obligation is to provide an:

opportunity to inspect it and to agree to its admission without further proof.

Your Honours, this rule is the copy of an English rule introduced into the English rules of court as a consequence of the report of the Evershed Committee in 1953. We have included that in the supplementary papers given to the Court. It is the very last page in those supplementary papers. The reason for the recommendation of Lord Evershed was quite expressly the rule should be introduced in order to avoid the unnecessary attendance of photographers and preparers of plans.

So a rule which has that evident purpose has now been construed in the Full Court to override the privilege that would otherwise attach to evidence because only of the particular form that evidence takes. In our submission, there is no justification for construing the rule in that way. That proposition, your Honour, is supported by a number of lines of authority at intermediate level in this country. In the Federal Court, Justice Wilcox; the Supreme Court of South Australia, Justice Dobelle; the Full Court of Queensland in Martin v Kennedy, and decisions of the Supreme Court of British Columbia are to the same effect.

On the other side of the line is the decision of the English Court of Appeal in Carne v Armaguard, but that involves a rule which expressly requires special reasons for non-disclosure of the video. There is also on the other side of the line the decision of Justice Matthews in the AAT, but that decision did not deal with privileged material. Your Honours, it is, in our submission, very significant. It is not really addressed by the Full Court, but the effect of their construction of the rule is to override privilege before the privilege is waived.

GAUDRON J: I would have thought merely by making the application you must have waived the privilege, myself. You must have had an intention at that point to use the document. If you did not have an intention, you were just asking for an advisory opinion, you were just asking the judge for a sort of supplementary advice on evidence as to how to conduct your case.

MR MARTIN: No, with respect. The purpose of the application was to preserve the capacity to waive the privilege if and when an appropriate point arose to do that. That was the purpose of the application. The question of whether or not the video will be used in this case or, indeed, most cases that one would contemplate - - -

GAUDRON J: If there is no question yet as to whether or not you will use the video tape, why should this Court concern itself with the issue?

MR MARTIN: Because if - - -

GAUDRON J: No, I am serious about that, Mr Martin. Where is the issue? If you have not yet got an intention to use the video tape, where is there a matter of controversy or concern which this Court should involve itself, could involve itself?

MR MARTIN: Because, your Honour, if the order stands we will be required to elect to either waive privilege now - - -

GAUDRON J: Yes, exactly right. Why should you not be required to elect that if you are going to ask a court for the benefit of a rule? Why should you not be asked to make that election here and now if you want this Court to concern itself with the case, because unless you make that election here and now - - -

HAYNE J: If you have not already made it.

GAUDRON J: - - - it is an academic matter and this Court never concerns itself with academic matters.

MR MARTIN: Your Honours, can I put the submission that it is not academic because the effect of the construction of the rule that has been put upon it by the Full Court is to require us to give up a right that we currently have.

GAUDRON J: Assuming you have it. It is by no means obvious to me that you have it.

MR MARTIN: With respect, the Full Court has ruled that we are entitled to privilege and the privilege was not waived.

GAUDRON J: Were you to get special leave to appeal, that might be a matter in contention.

MR MARTIN: It might, your Honour, but, as the record presently stands, there is a ruling to the effect that we have the privilege and we have not waived it. So that we have the right to go to trial with privileged material in our possession and elect whether or not to use it during the course of the trial. The effect of the construction of the rule which the Full Court has put upon it, a construction which we say cannot be sustained by anything in its language or its provenance, is to require us to elect prior to trial whether to abandon a privilege that we would otherwise enjoy up to the point of trial. The effect of that is that we must now determine, without knowing what the plaintiff's evidence will be, whether or not she should see the video in advance of giving that evidence. If we want to reserve the capacity to use the video, effectively we will have to disclose it to her, with the adverse consequence that her evidence may be modified accordingly and the possible forensic - - -

HAYNE J: Why is that adverse? That is an assumption that I just do not understand. Why is it adverse to have the plaintiff give evidence according to what objective material reveals to be the plaintiff's capacity?

MR MARTIN: Because the forensic utility of the video is significantly diminished.

HAYNE J: What does that mean?

MR MARTIN: What it means, your Honour - - -

HAYNE J: I am not being captious, Mr Martin.

MR MARTIN: No, no.

HAYNE J: What is this advantage that you should have?

MR MARTIN: The advantage is that the trial judge is required to assess the plaintiff's credit generally with respect to her evidence as to the extent of the symptomatology. If, on a particular topic she gives evidence which is contradicted by the video, he or she, the trial judge, then has a significant pointer to the credit of the plaintiff generally.

HAYNE J: Let it be assumed, to take a purely hypothetical case, that the video shows the plaintiff changing the flat tyre on a Mack truck when the plaintiff previously has told doctors that he or she cannot bend more than five degrees. If the document is discovered, if the film is discovered, assumedly the plaintiff will come along and say, "Yes, I can change the wheel on a Mack truck". What is the disadvantage to the defendant in that - - -

MR MARTIN: Your Honour, in that extreme case the disadvantage would be very small indeed, and in all probability there would be voluntary disclosure of the video prior to trial. But that is not the common case, with respect. The common case is where there are much greater degrees of margin, degree, extent, exaggeration, so that, for example, the plaintiff says, "I can't raise my arm above a certain level", and yet the video shows her reaching to pick something off a shelf. So then one can use that to - those questions of degree and, if you like, extent, are best assessed by a trial judge seeing the plaintiff give his or her evidence and then seeing them confronted with the video material. That then provides very useful forensic guidance to the extent to which reliance can be placed upon the plaintiff's evidence generally and that guidance - - -

HAYNE J: That seems to me to be a pursuit of the sporting theory of justice that was decried at the turn of the century in America.

MR MARTIN: With respect, your Honour, the notion that a witness is confronted by material that they are not presently aware of in cross-examination is not a foreign one. It is a notion that occurs every day in our courts and it is relied upon by those who are required to assess fact as a reliable basis for assessing credit.

Your Honours, this issue is of every day significance in three States, in Western Australia, Queensland and Tasmania, and the consequence of this decision is that Western Australia is now the only State in the country in which pre-trial disclosure is required as a matter of course. This case, in our submission, would be the appropriate vehicle for the resolution of this issue because it has no particular unusual circumstances that would prevent the decision of the Court being of general application, and it would resolve the divergence in authority to which I have referred and would, in our submission, if the appeal were resolved in our favour, bring Western Australia into line with the practices in the rest of the country.

Your Honour, the position adopted in the court below depended largely by analogy to discovery. We say that analogy sustains our argument because, of course, the obligation to give discovery does not include the obligation to provide inspection of privileged material. That, with respect, is the fundamental point that the Full Court did not give sufficient weight to, that the effect of the rule, as they construed it, was to override a privilege that we otherwise enjoyed.

Your Honour, the other issues touched by the Full Court involved a question of the risk of adjournment. In our submission there is a low risk because, of course, the plaintiff is always the first witness called so the material comes out early. There is no evidence in the extensive material before the Full Court to the effect that the previous practice had resulted in significant levels of adjournment in the District Court. The Full Court also relied on analogy to expert witnesses. Again, we say the position with respect to pre-trial disclosure of expert testimony is very different indeed, that testimony is very different in its nature. The same forensic considerations with respect to assessment of credit do not arise.

Your Honour, the other point made by the Full Court we have already touched upon to some extent and that is the proposition that there is no prejudice to a defendant because, by the time of trial, the plaintiff is committed to a particular course with the consequence that, in the words of Justice Ipp, any cross-examiner worthy of his salt can attack credit successfully. With respect, that overlooks the fact that in the District Court the commitment to the course of the extent of the injuries is of a very limited kind to be found only in the pleadings and in the medical reports and not in disclosure of the precise extent of the evidence that is to be given. Your Honours, in our submission, for those various reasons this is an appropriate case for the grant of leave.

GAUDRON J: Thank you. We need not trouble you Mr Mullany.

The identification of matters relevant to the questions whether and in what circumstances a defendant should give pre-trial discovery of surveillance video tapes intended to be produced on the trial of a plaintiff claiming damages for personal injury is quintessentially a task for the intermediate appellate court of the jurisdiction concerned. It follows that the application does not raise a question which warrants the intervention of this Court.

Accordingly, special leave is refused, and with costs.

AT 10.15 AM THE MATTER WAS CONCLUDED