Chenoweth v ING Australia Limited

SUPREME COURT OF QUEENSLAND

CITATION:

Chenoweth v ING Australia Limited [2004] QSC 143

PARTIES:

IAN LEWIS CHENOWETH
(applicant/plaintiff)
v
ING AUSTRALIA LIMITED ACN 009 657 176
(defendant)
SWISS RE LIFE AND HEALTH AUSTALIA LTD
ACN 000 218 306
(respondent)

FILE NO/S:

SC No 11527 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2004

JUDGE:

Mackenzie J

ORDER:

1.The notice is set aside. 

2. The applicant pay the respondent’s costs of andincidental to the application to be assessed.      

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PARTIES – THIRD PARTIES AND SIMILAR PROCEEDINGS – disclosure – where notice for non-party disclosure – whether sufficient particularity – whether documents directly relevant – whether notice should be set aside

Uniform Civil Procedure Rules, rr 242, 247, 444, 445

Labon v The Lake Placid Resort Pty Ltd [1995] 1 Qd R 24, cited
Lin v Lin & Macquarie Bank [2003] QSC 177, distinguished
Petoneport Pty Ltd  v Barnes [1999] 2 Qd R 267, cited
Uthmann v Ipswich City Council [1998] 1 Qd R 435, cited
Waind v Hill [1978] 1 NSWLR 372, cited

COUNSEL:

JP Kimmins for the applicant
AW Duffy for the respondent

SOLICITORS:

Maurice Blackburn Cashman for the applicant
Freehills for the respondent

1. MACKENZIE J:        This is an application by the plaintiff under UCPR 247 requiring a decision about objections to the production of documents in a notice of non-party disclosure.  The notice required Swiss Re Life and Health Australia Limited to produce certain documents in an action concerning cessation of payments to the respondent plaintiff under a Group Salary Continuance Policy. 

1. The framework of the plaintiff’s case in the action is that from December 1987 to September 1999 he was employed by a company that had a staff and executive superannuation fund which held a Group Salary Continuance Policy with the defendant entitling an employee to benefits if the member suffered from a total disability.  On or about 27 January 1999 the plaintiff claimed on the policy on the basis of chronic fatigue syndrome.  The claim was accepted and payments were made until about October 2001.  Payments ceased because the defendant said it had formed the opinion that the plaintiff did not currently have a sickness.  It was alleged that the defendant breached the policy in ceasing to pay the plaintiff the benefits and had breached the duties of good faith and fair dealing which it owed to the plaintiff. 

1. In its defence, the defendant admitted it owed the plaintiff a duty of good faith and fair dealing.  It also admitted a duty to consider and determine whether it should form the opinion that the plaintiff was totally disabled as defined in the policy and to act reasonably in making its decision.  However it asserted that it was under no obligation to pay benefits unless it received proof to its satisfaction of an event or…