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[2024] QSC 175
This judgment provides an insightful overview of the scope of the duties on a respondent to a claim for damages under s 27 Personal Injuries Proceedings Act 2002, and examines whether pursuant to that provision there should be a distinction drawn between “records” and “information”.
Martin SJA
21 August 2024
The applicant (Mr Sinclair) had requested information and documents from the respondent (Coles) pursuant to s 27 Personal Injuries Proceedings Act 2002 (“PIPA”). He considered Coles’ response to be inadequate and subsequently sought orders under s 35 PIPA that certain additional information be provided. [4].
The documentation initially sought from the respondent in discharge of its PIPA pre-trial obligations
Early in the proceedings, the applicant made a request pursuant to s 27 PIPA, seeking access to 19 itemised pieces of information. [11]. In his Honour’s assessment, the list had been “drawn as widely as possible and, in some instances, without regard to the alleged incident”. [12]. Some of the requested documentation was provided but the applicant claimed that the respondent had not fulfilled its duty of disclosure. [14].
The orders sought
By the application, Mr Sinclair sought orders that Coles provide:
a.“all records regarding any previous and/or similar incidents and complaints made about safety at the Coles, Hope Island store;
b.the CCTV footage that was identified by the Respondent’s Assistant Manager, Mitch on 13 February 2024 as having been footage that ‘a report had been done’ in relation to and that he had ‘marked the spot on the store tape’ that covered the incident as he ‘had seen something’ on the recording which he had tagged; and
c.the CCTV footage from CCTV cameras shown in Exhibit HH-7 to the affidavit of Harrison Hynd sworn on 9 May 2024, specifically, from 6:30am through [sic] 8:30am on 12 February 2024”. [15].
Coles contended that it had provided all relevant documentation and further stated that no CCTV footage of the actual incident existed. [17]. Mr Sinclair disputed both matters. In relation to the CCTV issue, he argued that it was implausible that footage would not exist, in circumstances where he claimed he had conversed with Coles’ staff about the presence of CCTV cameras in the store where the incident occurred. [18]. His solicitor sent a letter to Coles, requesting footage from the CCTV cameras stating that:
“Should Coles maintain the position that the CCTV footage does not exist, then we request a statutory declaration from Mitch, Sam and any other individual involved explaining how the CCTV went from being seen and marked by Mitch on 13 February 2024 to no longer existing. The request of all material referred to in this letter is made pursuant to section 27 of PIPA”. [27].
Coles maintained that there was no CCTV footage in its possession. Coles also argued that there was a distinction in s 27 between “records” and “information” and that in any event documents that were not about the incident were not disclosable. [37].
Consideration
His Honour noted the following:
1.That Coles “cannot disclose [material] something which does not exist”, and an application under PIPA is not an application for further and better disclosure, but rather a discrete means via which relevant information can be provided to an applicant. [23];
2.It is not the case that the PIPA regime contemplates the resolution of disputes concerning the content and meaning of conversations such as those which the applicant alleged had taken place between himself and an employee of the respondent regarding CCTV footage. [25];
3.That pursuant to s 27(3) PIPA a claimant is permitted to require that information which has been provided to it be verified by statutory declaration and a respondent must comply with such a request. Here, Mr Sinclair’s request was not in that form. Instead, it was a request for an explanation of something which Coles said was untrue. The request was seeking information about: (a) why documents, which they thought existed, did not exist; (b) why, if those documents had existed, they ceased to exist; and (c) why particular comments were allegedly made by identified individuals. None of those matters concerned “the circumstances of, or the reasons for, the incident”. It followed that Coles was not obliged to either verify or explain information it had simply not given. [28]–[33];
4.That verification by statutory declaration is to be made by the respondent under s 27(3) PIPA – in this case, Coles. Coles elects who should do that. The claimant is unable to demand that a person of its choosing make such a statutory declaration. [34];
5.That once verification is made the matter is finalised unless a respondent either misconstrues the obligation it is under or withholds information or documents. [35];
6.That s 27(1) PIPA requires a respondent (so far as this case was concerned) to provide copies of “reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates”. Records which are about the “incident” would naturally come within the description “other documentary material”. The word “information” has a broad meaning and includes “records” which are “about the circumstances of, or the reasons for, the incident” as set out in s 27(1)(b)(i). It is not correct that there should be a distinction drawn in s 27 between “records” and “information”, nor that documents that are not about the incident are not disclosable. Whilst Coles was required by s 27(1)(b)(i) to provide information about the existence of prior, similar incidents, it was not obliged to provide information about “complaints made about safety” at the store. The latter exceeded the requirement of the section. A request for information ought to be confined to seeking “information” instead of “records” (which might potentially confuse the issue). [37]–[45].
Disposition
The applicant was partially successful with his Honour ordering that the respondent provide “information that is in its possession about previous incidents at the Hope Island store which are similar to the incident alleged by the [claimant]” and pay 20 per cent of the claimant’s costs on the standard basis. He failed in his application so far as it concerned CCTV footage.
A Jarro