Moray & Agnew acted for NRMA Insurance in these significant ACT Supreme Court decisions. The Court made orders granting NRMA leave to withhold service of surveillance footage on the plaintiff pursuant to rule 6704 of the Court Procedures Rules 2006 (ACT).

Background

The ex-parte applications were made in the context of a motor vehicle accident personal injury claim in which liability had been admitted and quantum alone was in dispute. During the course of the proceedings, various periods of surveillance of the plaintiff had been obtained.

In order to preserve NRMA’s forensic advantage for the substantive hearing, ex-parte applications were made pursuant to rule 6704 of the Court Procedures Rules 2006 (ACT) seeking an order to withhold service of this surveillance material from the plaintiff until a further order of the Court.

NRMA would then be able to seek an order for the release and service of the surveillance during the cross-examination of the plaintiff. This would provide NRMA with a significant forensic advantage to meet the plaintiff’s substantial claim for damages.

Rule 6704 provides that, ‘unless the court otherwise orders’, surveillance footage would have to be provided to the plaintiff 7 days before the hearing starts. The same rule provides the Court with the capacity to make an order that the footage not be served.

The prior seminal decision in the ACT relating to such an application was also made by Elkaim J; Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361 (the 2017 decision). In that decision however, the applicants were unsuccessful. This was primarily on the basis that the defendants in those proceedings had previously provided the surveillance to third-party medical experts to comment upon.

In considering the ex-parte applications in Fuller, His Honour distinguished them from his 2017 decision on two grounds:

1. The surveillance footage had not been provided to medico-legal experts or any other third parties for comment prior to hearing; and
2. The excerpts of the surveillance footage presented to His Honour did not starkly contradict the plaintiff’s history as provided to his medico-legal experts.

On that basis, His Honour made the orders we sought on both occasions. In making the orders, His Honour commented that should the plaintiff later seek an adjournment in order for his medical practitioners to comment upon the footage, were the trial judge minded to grant such an adjournment, it should be at the cost of the defendants.

Implications for surveillance use

These decisions provide a clear indication as to the appropriate steps to be taken in order to maintain privilege over surveillance footage in personal injury matters. The Court however does not look favourably upon ‘running cases by ambush’ and for any ex- parte application to be successful the surveillance footage will need to show ‘a dramatic difference between the plaintiff’s expected evidence and the surveillance evidence’.

If an insurer is considering the use of surveillance in an ACT personal injury claim, the following should be carefully noted:

1. Surveillance should be sought after proceedings have commenced, otherwise the pre-litigation disclosure requirements in personal injury legislation would apply: s105 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) and s68 of the Civil Law (Wrongs) Act 2002 (ACT)
2. If the surveillance is used in the substantive hearing, the Court may adjourn the hearing to grant the plaintiff an opportunity to respond to it. The costs of such an adjournment will likely be borne by the defendant.
3. If a case arises where it is necessary to have medico-legal experts comment on surveillance prior to hearing, the defendants will still be required to disclose the surveillance
4. Although not considered in either of these decisions, insurers may also want to consider similar applications to maintain privilege over other material that contradicts the evidence of a plaintiff, particularly in cases of suspected fraud (see s73 of the Civil Law (Wrongs) Act 2002 (ACT)).

Chase Deans, Senior Associate and Rohan Reddy, Associate acted for NRMA Insurance in Fuller v Allen.

Further information / assistance regarding the issues raised in this article is available from the authors, Chase Deans, Senior Associate and Rohan Reddy, Associate or your usual contact at Moray & Agnew.