Forensic tactical strategy (surveillance) & pleadings  

Carswell v KBRV Resort Operations Pty Ltd (No 2) [2018] QSC 110

Martin J


The plaintiff was employed as a tour guide by the defendant. In March 2013, the plaintiff suffered a spinal injury while demonstrating to tourists the activity of jumping from the edge of a sand dune to the dune slope below. Liability was admitted, and the matter came to trial on quantum only.

The trial commenced on 23 August 2017 but was adjourned on the following day due to unexpected disclosure by the defendant to the plaintiff of video surveillance, surveillance logs and various medical reports commenting on the surveillance.

Relevantly, the first and second versions of the defence pleaded non-admissions to paragraph 12 of the statement of claim. The third version filed 23 August 2017, admitted the allegations in paragraph 12 of the SOC, to an extent, for the period from 31 March 2013 to December 2013 and denied allegations after that date.

On 27 October 2017, Martin J ordered that paragraphs 5 and 10 of the further amended defence (FAD) be struck out. In December 2017, the defendant filed an application seeking leave to amend the FAD. The plaintiff opposed the application on the basis that the amendment does not comply with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and that the plaintiff will suffer prejudice.


Rule 380 UCPR provides:

An amendment after the filing of the request for trial date may only be made with the leave of the court.

His Honour continued, referring to Aon Risk Services Australia Limited v Australian National University [4] where the analogous r 21 of the ACT Supreme Court Rules was considered. In that case, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:

[98] … limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

[102] … It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates.

In the present case, Martin J continued:

[33] … Where a party seeks to amend in a way which is a departure from earlier pleadings and which would allow it to call evidence, then it would ordinarily be expected that the party would give an indication of the evidence it would seek to lead. In this case it did not. It is known that there is surveillance material and some expert report or reports based on that material. The defendant did not reveal that for consideration. The defendant, no doubt, wants to retain the forensic element of surprise so far as the surveillance material is concerned. The price of doing that can be high – especially where the issue goes further than the credibility of the plaintiff’s account of his injuries. …

[35] … The problem arose out of the desire to maintain the secrecy of the surveillance material. These were not inadvertent – they were drawn deliberately to conceal the surveillance material. Secondly, the defendant’s position was to be assessed by reference to the primary assertions in the pleading, that is, the existence of the injuries and their effects, not the secondary or consequential effect of the damages which arise from those injuries. Thirdly, the defendant admitted, for all purposes, the evidence of the various reports which were admitted on the first day of trial. Thus, the defendant seeks to plead a case contrary to evidence which it has consented to being admitted.


In relation to whether the plaintiff would suffer prejudice, his Honour concluded:

[36] There is also the prejudice which the plaintiff says he would suffer by this late change in pleadings. In Aon reference was made to “the prejudice which might reasonably be assumed to follow and that which is shown”.[6] The extent of the detriment which would be occasioned by the amendments being made was dealt with at length in the affidavit of Mr Land. He set out all the steps he would have taken had the pleadings been in the form currently sought. He was not challenged on that. There were some fleeting submissions to the effect that he had, perhaps, over-egged the pudding, but he was not cross-examined on anything he said. His account was not inherently implausible and it demonstrates that the plaintiff, who remains subject to the cross-examination which has commenced, would be prejudiced by the changes sought in the FAD.

In summary, his Honour dismissed the application stating at [37] that the amendments sought by the defendant:

  • are very late,
  • are inconsistent with evidence admitted by consent,
  • are not the subject of any realistic explanation,
  • would allow the defendant to mount a positive case but the defendant has not indicated what that case may be, and
  • would cause prejudice to the plaintiff.

David Cormack – Brisbane Barrister & Mediator

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