Cassimatis v Axis Specialty Europe Ltd - [2013] QSC 237

SUPREME COURT OF QUEENSLAND

CITATION:

Cassimatis & Anor v Axis Specialty Europe Ltd & Anor [2013] QSC 237

PARTIES:

EMMANUEL GEORGE CASSIMATIS AND JULIE GLADYS CASSIMATIS
(plaintiffs)

v

AXIS SPECIALY EUROPE LIMITED
ABN 131 203 122
(first defendant)

and

AON RISK SERVICES AUSTRALIA LIMTIED
ACN 000 434 720
(second defendant)

FILE NO:

BS 11925 of 2011

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2013

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. the notice of non-party disclosure issued to the Australian Securities & Investment Commission dated 26 June 2013 be amended to delete the description of the documents required to be produced in the existing items 1 and 2 and substituting the plaintiffs’ proposed items 1 to 5 for the deleted description.

2. Costs of the application are costs in the proceeding.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – OTHER GROUNDS – where a notice of non-party disclosure includes documents provided to and generated by ASIC in the course of ASIC’s enquires and investigations under the Australian Securities and Investments Commission Act 2001 (Cth) – where ASIC resists production of documents on the grounds there is insufficient particularity in the notice, documents are of no direct relevance, and some documents are confidential in nature – whether the court should exercise its discretion and make a direction limiting the disclosure under a notice of non-party disclosure issued to ASIC

Australian Securities and Investments Commission Act 2001 (Cth), s 25, s 127
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 242, r 244, r 245, r 367

Johns v Australian Securities Commission & Ors (1993) 178 CLR 408; [1993] HCA 56, cited

COUNSEL:

S Russell (Solicitor) for the plaintiffs
L Kelly SC and M Johnston for the first defendant
S J Forrest for ASIC

SOLICITORS:

Russell Solicitors for the plaintiffs
Sparke Helmore for the first defendant
ASIC for ASIC

JACKSON J: The plaintiffs apply for an order setting aside the notice of non-party disclosure issued to the Australian Securities & Investment Commission (“ASIC”) dated 26 June 2013 (“the notice”). The notice was issued by the court upon the certificate of the solicitor for the first defendant as the requesting party’s solicitor dated 26 June 2013.

The notice requires the production of the following documents:

Number Date Description

1 Various between 1 September 2008 and 30 December 2008 Any correspondence (including letters, faxes, emails), notices, memoranda of file notes regarding ASIC’s enquires and investigations of/or reporting requirements of Storm Financial Ltd

2 Various between 1 September 2008 and 30 December 2008 Any files notes, internal memoranda or other documents regarding meetings with Storm Financial Ltd and/or its directors and officers.

Background

The plaintiffs’ claim against the first defendant is upon a policy of insurance in respect of directors and officers liability. The first defendant defends the claim on the ground that,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QSC 237
Decision Date: 6 September 2013

CaseChat Overview and Summary

The case of Cassimatis v Axis Specialty Europe Ltd involved a dispute regarding the discovery and inspection of documents as part of a legal proceeding. The plaintiffs sought disclosure from the Australian Securities & Investment Commission (ASIC), which was named as a non-party in the notice of non-party disclosure. ASIC resisted the disclosure on various grounds, including insufficient particularity in the notice, the irrelevance of some documents, and the confidential nature of others. The matter was heard in the Federal Court of Australia, where the court had to determine whether to exercise its discretion to limit the disclosure as requested by ASIC.

The legal issues central to this case revolved around the court’s discretion to modify or restrict a notice of non-party disclosure when faced with resistance from a non-party like ASIC. Specifically, the court had to consider whether the notice was sufficiently particular, whether the requested documents were relevant, and if some documents were confidential to the extent that they should not be disclosed. The plaintiffs argued that the notice should be upheld, while ASIC contended that modifications were necessary to protect sensitive information and ensure relevance.

The court examined the particularity of the notice, finding that the descriptions of the documents were not specific enough. It also addressed the relevance of the documents, concluding that some were indeed relevant to the case. Regarding confidentiality, the court acknowledged ASIC's concerns but determined that the balance of convenience favoured the plaintiffs. Consequently, the court amended the notice to include more specific descriptions of the required documents and ordered that the costs of the application be included in the overall costs of the proceeding.

In summary, the court’s order required the amendment of the notice of non-party disclosure to be more specific in describing the documents needed. It also mandated that the costs of the application be included in the overall costs of the proceeding. This decision underscored the importance of precision in discovery notices and the court’s role in balancing the interests of the parties involved.

Orders

Orders of the court

The order of the court is that:

1. the notice of non-party disclosure issued to the Australian Securities & Investment Commission dated 26 June 2013 be amended to delete the description of the documents required to be produced in the existing items 1 and 2 and substituting the plaintiffs’ proposed items 1 to 5 for the deleted description.

2. Costs of the application are costs in the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cassimatis & Anor v Axis Specialty Europe Ltd & Anor [2013] QSC 237
PARTIES:	EMMANUEL GEORGE CASSIMATIS AND JULIE GLADYS CASSIMATIS (plaintiffs) v AXIS SPECIALY EUROPE LIMITED ABN 131 203 122 (first defendant) and AON RISK SERVICES AUSTRALIA LIMTIED ACN 000 434 720 (second defendant)
FILE NO:	BS 11925 of 2011
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	6 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	9 August 2013
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. the notice of non-party disclosure issued to the Australian Securities & Investment Commission dated 26 June 2013 be amended to delete the description of the documents required to be produced in the existing items 1 and 2 and substituting the plaintiffs’ proposed items 1 to 5 for the deleted description. 2. Costs of the application are costs in the proceeding.
CATCHWORDS:	PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – OTHER GROUNDS – where a notice of non-party disclosure includes documents provided to and generated by ASIC in the course of ASIC’s enquires and investigations under the Australian Securities and Investments Commission Act 2001 (Cth) – where ASIC resists production of documents on the grounds there is insufficient particularity in the notice, documents are of no direct relevance, and some documents are confidential in nature – whether the court should exercise its discretion and make a direction limiting the disclosure under a notice of non-party disclosure issued to ASIC Australian Securities and Investments Commission Act 2001 (Cth), s 25, s 127 Uniform Civil Procedure Rules 1999 (Qld), r 5, r 242, r 244, r 245, r 367 Johns v Australian Securities Commission & Ors (1993) 178 CLR 408; [1993] HCA 56, cited
COUNSEL:	S Russell (Solicitor) for the plaintiffs L Kelly SC and M Johnston for the first defendant S J Forrest for ASIC
SOLICITORS:	Russell Solicitors for the plaintiffs Sparke Helmore for the first defendant ASIC for ASIC

Number	Date	Description
1	Various between 1 September 2008 and 30 December 2008	Any correspondence (including letters, faxes, emails), notices, memoranda of file notes regarding ASIC’s enquires and investigations of/or reporting requirements of Storm Financial Ltd
2	Various between 1 September 2008 and 30 December 2008	Any files notes, internal memoranda or other documents regarding meetings with Storm Financial Ltd and/or its directors and officers.