Amy Louise Hodge in her capacity as administrator of the estate of David Andrew Hodge v TAL Life Limited
[2023] NSWSC 1102
•08 September 2023
Supreme Court
New South Wales
Medium Neutral Citation: Amy Louise Hodge in her capacity as administrator of the estate of David Andrew Hodge v TAL Life Limited [2023] NSWSC 1102 Hearing dates: 08 September 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Subpoena set aside in part
Catchwords: CIVIL PROCEDURE – subpoenas – application to set aside – where subpoena sought “all documents relating to” nominated matters
Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Category: Procedural rulings Parties: Amy Louise Hodge in her capacity as administrator of the estate of David Andrew Hodge (Plaintiff)
TAL Life Limited (First Defendant)
Peter John Foley (Second Defendant/Respondent)
Financial Services Partners Pty Ltd (Third Defendant/Respondent)
Zurich Australia Limited (Applicant)Representation: Counsel:
Solicitors:
D Fernando (solicitor) (Applicant)
A Poukchanski (Second and Third Defendants/Respondents)
HWL Ebsworth (Applicant)
Corrs Chambers Westgarth (Second and Third Defendants/Respondents)
File Number(s): 2022/203528
EX TEMPORE JUDGMENT (REVISED)
-
The plaintiff is the widow and administrator of the estate of the late Mr David Hodge. The defendants are Mr Peter Foley and Financial Services Partners Pty Ltd, who are alleged to have been financial advisers to Mr Hodge during his lifetime.
-
On 16 June 2011, Mr Hodge took out a life insurance policy with OnePath Life Limited. Zurich Australia Limited has acquired OnePath’s life insurance business and is now its successor. OnePath issued the policy on the basis of a personal statement and application form submitted by Mr Foley to OnePath on 31 March 2011. The sum insured was some $2.8 million.
-
The plaintiff alleges that prior to the policy being issued, Mr Hodge had been admitted to St Vincent's Hospital requesting assistance with detoxification for cocaine and ecstasy use. The plaintiff also alleges that Mr Hodge had told Mr Foley of his drug use and, presumably, also of his admission to hospital. The plaintiff alleges that nonetheless Mr Foley did not disclose Mr Hodge’s cocaine and ecstasy use or his admission to hospital in the 31 March 2011 application.
-
Mr Hodge died on 14 July 2019 and on 16 July 2019 the plaintiff, his widow, lodged a claim under the policy.
-
On 15 March 2022, OnePath avoided the policy on the basis of the failure to disclose Mr Hodge’s previous drug use and admission to hospital.
-
The gravamen of the claim that the plaintiff makes against the defendant financial advisers in that regard is that Mr Foley failed to advise Mr Hodge that if OnePath would not agree to insure Mr Hodge by reason of his drug use and admission to hospital, Mr Hodge could “enter a contract of life insurance” with OnePath, or an alternative insurer, “in the future when such insurer would agree to provide such coverage notwithstanding” Mr Hodge’s “previous” drug use and admission to hospital.
-
It appears to be implicit in that claim that there is no dispute as to OnePath’s entitlement to avoid the policy.
-
It is in those circumstances that the defendants have served a subpoena on Zurich Life Limited as successor to OnePath.
-
That subpoena seeks the following documents:
“2. All documents relating to any policy of insurance help by Mr David Andrew Hodge on his own behalf, or in which he was the insured member of a superannuation fund and/or group insurance cover, including but not limited to policies associated with [the relevant policy number] (Hodge Policies).
3. Without limiting category 2 above:
a. All applications and/or claim forms completed in respect of the Hodge Policies;
b. All reports of any claims for insured benefits or compensation made by or on behalf of Mr Hodge or his deceased estate;
c. All documents showing details of payments of compensation and/or insured benefits made in respect of the Hodge Policies;
d. All documents evidencing or recording any admissions, treatment, reports or consultations with or about Mr Hodge, including but not limited to all medical cards, medical reports, nurses’ notes, discharge summaries, outpatient records and/or any document or thing relevant to any tests or procedures whether surgical or otherwise carried out in relation to Mr Hodge;
e. All records relating to the payment of premiums in respect of the Hodge Policies;
f. All correspondence, memoranda, file notes, facsimiles and emails in relation to the Hodge Policies, including but not limited to applications and claims made in respect of any of the Hodge Policies.” (Emphasis in original.)
-
By Notice of Motion filed on 24 August 2023, Zurich seeks to set aside the subpoena or alternatively seeks an order that par 2 be set aside in so far as it calls for any documents apart from the policy wording, the policy schedules and policy endorsements with respect to any policy issued to or for the benefit of Mr Hodge.
-
Other alternatives are proposed in the Notice of Motion.
-
I have been told today that there is now no objection to production by Zurich of the documents in pars 3(a) through to (e). Zurich’s objection to the subpoena is now focussed on pars 2 and 3(f).
-
As can be seen, those paragraphs are very widely drawn and seek “all documents relating to” the matters in par 2 and all correspondence, memoranda, file notes, facsimiles and emails “in relation to” the policy.
-
In effect, those paragraphs seek that Zurich produce the whole of the OnePath file and indeed potentially documents beyond any such file. It is in effect an “all documents” subpoena.
-
In that regard, the solicitor for Zurich has deposed that:
“The Applicant has provided my office with a copy of the claim file held by it in relation to the claim made upon the Applicant under [the relevant policy number]. I have looked briefly over that file. I can see that it contains around 80 separate items of correspondence, including internal correspondence between persons employed by the Applicant, correspondence between the Applicant and its external service providers, correspondence between the Applicant and its reinsurer, correspondence between the Applicant and the claimant or the claimant’s representatives, and correspondence in relation to the obtaining of external legal advice by the Applicant.”
-
I think it obvious from Ms Court’s description of what she has looked at that there will be many documents in the file that would not relate in any way to the issues in the proceedings and would thus not be “apparently relevant” or likely to “materially assist on an identified issue”, to use the words of Bell P, as the Chief Justice then was, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council. [1]
1. [2021] NSWCA 145 at [65] (Brereton and McCallum JA agreeing).
-
One obvious example is that the file obviously contains communications between Zurich and its reinsurer which could not possibly be relevant to the issues in the proceedings here.
-
As I have set out, there is a question on the “pleadings” as to whether OnePath or any other insurer might, in the future, have been prepared to offer any cover to Mr Hodge, presumably once he had been rehabilitated. The breadth of pars 2 and 3(f) of the subpoena suggest the defendants are, by issuing this subpoena, seeking to ascertain whether there might be documents in Zurich’s file which might cast light on that question. That is obviously an impermissible approach to adopt.
-
In my opinion, the subpoena is drawn more widely than is necessary to capture any apparently relevant documents that may exist in the hands of Zurich. The careful submissions offered by Ms Poukchanksi on behalf of the defendants show that OnePath might well hold relevant documents that a differently crafted subpoena might capture. But those submissions do not persuade me that the impugned paragraphs of the subpoena can stand.
-
I set aside the subpoena in so far as par 2 calls for documents other than those I have set out at [10] above, and in so far as it calls for the documents in par 3(f).
-
Zurich Australia Limited’s motion is otherwise dismissed with costs.
-
I order that the defendants pay the costs of Zurich Australia Limited of the motion.
**********
Endnote
Decision last updated: 11 September 2023
0
1
0