Who is Watching?
I can't recall Insurers' conduct in surveilling injured people pursuing compensation claims being scrutinised, but in the recent decision of Ardis-Phasey v Neal & Anor [2026] QDC 25, Porter KC DCJ (Judge Porter) had cause to comment on the potential legality of the actions of those responsible for covert surveillance of the plaintiff who was filmed attending to his work duties at his employer's supermarket and in another shop where he was present with a female friend.
Additionally, Judge Porter commented in regard to the "immodest filming of a young woman who had nothing to do with this case".
The Defendant's conduct relating to the surveillance provided food for thought and the possibility of the need for a different approach going forwards.
The Case
The plaintiff was injured in a motor vehicle accident which occurred on 16 December 2019 when he was 14 years of age. The compulsory third party insurer was Allianz Australia Insurance Limited ("Allianz") and it was at their direction that the covert surveillance was undertaken.
Other matters
For completeness, Judge Porter's comments regarding the surveillance were as follows:
[60] I want to say something about the surveillance footage in this case. The surveillance footage was taken inside the plaintiff's employer's supermarket and in another shop where he was present with a female friend. There was no suggestion of consent from the occupants of either premise. This likely involved unlawful trespass: Slaveski v Victoria [2010] VSC 441 at [1362] to [1364].
[61] In that case, there was litigation involving the taking of a film by police officers and whether that was lawful under a search warrant. The observation in that case was that there was no suggestion of express or implied authority to film arising from the implied invitation to enter premises from the occupier and the counsel in that case was correct not to argue that there was no trespass in those circumstances (subject to the effect of the search warrant).
[62] I also refer to Barker v R [1983] 153 CLR 338. The interesting thing about that case is that it identified that entering premises with an intention to do something beyond that which might be expected by a shop owner is not itself a trespass, but of course, the corollary of that, as I read the High Court decision, is that when you begin doing something that was plainly outside the scope of the invitation, that becomes a trespass.
[63] It seems to me to be strongly arguable that filming as occurred here without the consent of Costco at their premises was an unlawful trespass. Certainly, the inference that Costco would have refused permission to film is strong from the reaction to the filming once discovered. Mr Ardis-Phasey said his employer wanted to prevent the return of the person who filmed to Costco premises.
[64] There was another offensive aspect of it, and that is the filming in the second shop involved what I thought was immodest filming of a young woman who had nothing to do with this case.
[65] While I understand insurers have an obligation to their shareholders and to the public and to the public interest to challenge cases that they think should be challenged and they should not be criticized for doing so, I think they should consider the law of trespass when commissioning surveillance. Further, whoever took the images of the young woman should be told that they should not do that again.
I was disappointed to hear the plaintiff's services at Costco were suspended shortly after the conclusion of the trial.
Judge Porter referred to two Authorities in his Judgment and some further matters that I think a trial judge may consider in the future.
Firstly, His Honour referred to Slaveski v Victoria [2010] VSC 441. In that matter, the plaintiff, Lupco Slaveski, sued twenty three present or former police officers ("police defendants") in the State of Victoria ("State") seeking damages arising out of the conduct of the police officers, including damages for trespass.
The claims against the police defendants arose out of thirteen incidents that occurred between 8 September 2000 and 7 May 2007, including one incident on 13 December 2005 when the plaintiff alleged that officers unlawfully arrested and handcuffed him outside his electronic retail and sales business. The plaintiff alleged that the officers arrested and handcuffed him outside the shop then conducted a search of the shop in a manner that exceeded their powers under the relevant search warrant. The plaintiff also claimed that the police officers stole documents and musical equipment, unlawfully took video footage and photographs and failed to return to him seized items when they decided not to charge him with any offence relating to those items.
The police defendants conceded that on 13 December 2005 they neither sought nor obtained the plaintiff's permission to take video footage or photographs outside the shop when the plaintiff was arrested. The police defendants stated that the purpose of the video taping was to have evidence of the arrest and execution of the search warrant in order to answer any allegations that the plaintiff might make about the police conduct.
It was not contended in the case that there was anything unlawful about the taking of video or photographs from a public place outside the shop. As the taking of video footage and photographs inside the shop were activities carried out on land occupied by the plaintiff those activities would constitute trespass to that land unless they were undertaken with an express or implied consent of the plaintiff or they were authorised by law.
It was not in dispute that the plaintiff did not provide any express or implied consent to the filming and photographing. Accordingly, the question of whether the carrying out of those activities on the premises of the shop constituted trespass to land turned on whether they were authorised by law.
The trial judge held that there was a close nexus between the photographs and the seized items and in the absence of any evidence of any improper use of the photographs, it could be inferred that the photographs were taken for the proper purpose of the police having a record of the seized items. The photographs recorded the locations in which the items were found, the condition of the items, when they were found and when they were seized, the areas in which the items were seized, the areas that were searched, the relationship between those areas and the premises generally.
In regard to the video footage none of the officers alleged that they wanted the footage for possible use as evidence in any subsequent prosecution of the plaintiff.
The trial judge held that any video footage that satisfied the incidental nexus and proper purpose requirements was impliedly authorised by the warrant. This included footage that was taken for the proper purpose of creating a record of the lawful execution of the warrant provided that footage depicts activities, objects or parts of the shop that were incidental to the exercise of the express powers of the warrant.
The trial judge held that the taking of footage that does not satisfy the incidental nexus and proper purpose requirements was not impliedly authorised by the warrant and constituted a trespass to land, in particular, the taking of footage in parts of the shop where no search was to be conducted and of objects or parts of the premises which were unconnected with any search warrant were unlawful.
The trial judge held that the footage did not satisfy one or both of the incidental nexus or the proper purpose requirement. Accordingly, the trial judge found that the police officers trespassed on the shop during the time that the video footage was taken and the times they were taking any other footage which did not satisfy the incidental nexus and proper purpose requirements.
The trial judge, inter alia, ordered that the police officers who had taken the video footage pay damages and that the State was liable for the trespass.
In Barker v R (supra) the application raised the question: Does a person who is given by another person entitled to give it, limited authority to enter premises, but enters those premises with intent to steal, enter as a "trespasser" within the meaning of s.76 of the Crimes Act 1958 (Vic)?
The court held that the word "trespasser" was a basic legal term with an established legal meaning. At common law the essence of trespass by wrongful entry consisted of an entry without right or authority by one person onto the land of another who was in possession.
The High Court held if the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass. Thus, a person who has an invitation or permission to enter the land of another for a specific purpose commits a trespass if they enter for any other purpose, especially if that other purpose be an unlawful purpose. It is a matter of determining the scope of the authority to enter which the license or invitation confers. If a person enters for a purpose outside of the scope of the authority then they stand in no better position than a person who enters with no authority at all. Their entry is unrelated to the authority.
The court held that it was possible that the question as to whether a particular entry is within the scope of a limited permission can involve difficulty in the identification of the limits of the permission in the definition of the actual entry. An obvious example was the case where the permission was confined by reference to a particular purpose and an entry is made for that purpose and some other illegitimate purpose.
The court held that except where an authority under the general law or a question of construction of a written document is involved, the identification of the limits of the authority, like the definition of the actual entry for the purpose of ascertaining whether it comes within those limits, is essentially a question of fact to be determined by reference to the circumstances of the particular case.
Fruit of the Poisonous Tree
This is a legal doctrine where evidence derived from an illegal search, arrest or interrogation is considered "tainted" and generally is inadmissible in a court. If the source (the "tree") is tainted the evidence obtained (the "fruit") is also excluded.
The doctrine was established in 1920 by the decision in Silverthorne Lumber Co. v. United States 251 U.S. 385 (1920) and the phrase "fruit from the poisonous tree" was coined by Justice Frankfurter in his 1939 opinion in Nadone v United States 308 U.S. 338 (1939).
In Queensland and Australia, more broadly, the American legal concept of the "fruit of the poisonous tree" does not strictly apply in the same way as it does in the United States. Instead, Australian courts including those in Queensland use a discretionary approach to determine whether to exclude illegally or improperly obtained evidence.
The test is whether the evidence obtained improperly or in contravention of an Australian law will be excluded unless the court finds that the "desirability of permitting the evidence outweighs the undesirability of permitting evidence that has been obtained in the way in which the evidence was obtained".
The onus is on the person relying on the evidence. Factors considered by courts include:
the gravity and seriousness of the offence
the nature and seriousness of the illegal conduct or intentional misconduct
whether the evidence could have been obtained lawfully anyway
the probative value of the evidence
Recently, in the High Court case of Kadir v the Queen [2020] HCA 1, it was held there was no strict "fruit of the poisonous tree" rule, but evidence derived from illegal actions are strongly subject to exclusion if the breach is serious.
Where does all of this take us in our day to day working lives as advocates for injured people?
MAIC Guidelines
Whilst it is not mentioned in the judgment in Ardis-Phasey, through its Motor Accident Insurance Commission Claims Management Standards (Claims Management Standard 510: Surveillance [CMS 510]), the Motor Accident Insurance Commission has tried (unsuccessfully in my view) to regulate the conduct of surveillance operatives and insurers to 'assist' in legally obtaining and using surveillance.
They are to be read in conjunction with the Motor Accident Insurance Act 1994 (Qld) and Motor Accident Insurance Regulation 2018 (Qld).
Within the Standard it is noted:
Surveillance refers to covert monitoring and recording of claimant behaviour and activities using photographing, video recording and direct observations.
The insurer may conduct surveillance of a claimant when either of, or all of the following apply: (a) based on available evidence, the insurer reasonably suspects the claimant is exhibiting or providing misleading information or documents in relation to a claim; or (b) based on available evidence, the insurer reasonably suspects that the claim is inconsistent with information or documents in the insurer's possession regarding the circumstances of the accident or medical evidence; or (c) based on available evidence, the insurer has reasonable grounds to suspect a claimant of fraud.
There must be a clear purpose for obtaining the surveillance and the surveillance is likely to gather the information required. The appointed delegate decision-maker must be satisfied that alternative methods of verifying the relevant information have been considered prior to arranging surveillance.
The surveillance duration must be proportionate to the purpose, and all requests for, and extensions to, surveillance must be internally reviewed and approved by an appropriately authorised delegate as decision maker prior to arranging the surveillance.
If the insurer intends to rely upon section 48 of the Act to withhold surveillance from disclosure, this decision must be made by an appropriately authorised delegate of the insurer and this decision is to be reviewed at regular intervals throughout the life of the claim.
It is further noted that there are requirements that must be considered when arranging surveillance and must be communicated to the investigator/surveillance operative when engaging their services which include:
The details of the person to be surveilled and the purpose and duration of the surveillance.
The surveillance activity must comply with all applicable laws, rules and regulations and be conducted only by licensed investigators who are required to act within the law as part of their licence conditions.
Surveillance is only to be conducted in or from places regarded as public places or where the claimant, whilst on private property can be observed by members of the public going about their ordinary day to day activities.
The investigator must not actively interfere with the claimant's activities while under observation or interact with the claimant so as to have an impact on their activities.
The investigator must not engage in any acts of inducement or entrapment when carrying out surveillance activities. Inducement or entrapment can include fraudulent impersonation or fraudulent misrepresentation.
Surveillance must be undertaken in a way that is sensitive to the privacy rights of children, takes reasonable action to avoid video surveillance of children, and where possible does not show images of children in reports and/or recordings.
Where possible, reports and recordings are redacted or censored to protect the identity of other individuals who are not the subject of the surveillance.
With respect to the Standard it does not authorise illegal trespass as it is subject to and subordinate to the common law principles in regard to illegal trespass. In my view, the MAIC guidelines do not afford an insurer any greater right than the rights it had at common law or instructions imposed by common law.
Hiding the Surveillance
In pre-proceedings a Motor Vehicle Accident CTP insurer has the right to withhold from disclosure information and documentary material if an insurer has reasonable grounds to suspect a claimant of fraud and the disclosure would alert the claimant to the discovery of the grounds of suspicion or could help in the furtherance of fraud.
These provisions are barely tested, however, as a claimant is unaware that they have been surveilled and whether an insurer has reasonable grounds to suspect can hardly be tested by a person who is unaware of their rights being infringed.
Once proceedings have commenced and the Uniform Civil Procedure Rules are applicable then the parties have a duty of disclosure pursuant to UCPR 211.
From personal experience, insurance companies have often not met their obligations of disclosure as Lists of Documents are served and only very close to trial bring an application pursuant to UCPR 393 to be relieved of the obligation to disclose and/or provide to any other party to the action an opportunity to inspect the documents and surveillance footage.
Further, such application would seek pursuant to UCPR 223 an order that they not provide delivery, production or inspection of any of the documents or surveillance footage.
The application would seek orders pursuant to UCPR 224 to be relieved of their obligation to provide disclosure.
In work injury matters, the order would include that pursuant to s.284(3) of the Workers' Compensation and Rehabilitation Act 2003 that the insurer be relieved of their obligations under s.279 and 284 of the Workers' Compensation and Rehabilitation Act 2003 to disclose and/or provide the claimant an opportunity to inspect documents.
The application is usually brought ex parte for obvious reasons.
In my view, those acting for insurers who bring an application to "hide the surveillance" should at that time, as part of their duty to the Court, advise the judge whether the surveillance material was obtained legally. In exercising their discretion a Judge hearing such an application should be made cognisant of whether the surveillance was illegally obtained and may wish to look at the date of the Defendant's List of Documents and (if there is delay) ask why the "hide the surveillance" application is only now being brought. I have some significant doubts whether such a procedure is presently followed.
The Can and Cannots
In my view, surveillance footage taken by persons whilst on private property without the consent of the owner or occupier is illegal hence video footage shot in restaurants, shopping centres, shopping centre carparks and the like is in my view, likely to be illegally obtained.
I do not consider that if an investigator is surveilling a claimant in a shop, for example, and stops to buy an item to justify that they are legally in the store the position does not change an illegal trespass to a legal one.
The investigator's sole purpose in being in the store is to surveil the claimant. It does not become non-trespass by them buying incidental items to justify their presence. The purpose for which they were in the store was to surveil the claimant. That was an improper purpose and is, in my view, illegal.
Video footage taken of a person in their own home or yard from a public place is, in my view, legally obtained.
Conclusion
The above views are my own and are not meant as being for legal advice.
I'm not sure that the topic of surveillance material obtained by illegal trespass has been discussed at length.
Judge Porter's comments give one cause to think greater scrutiny of insurers' conduct may be warranted.