FEDERAL COURT OF AUSTRALIA
Darshn v Avant Insurance Limited [2021] FCA 232
File number: NSD 1390 of 2020 Judgment of: ALLSOP CJ Date of judgment: 16 March 2021 Catchwords: PRACTICE AND PROCEDURE – production of documents – whether requested documents relevant to any issue raised in the proceeding – whether category of documents too broad and oppressive Legislation: Insurance Contracts Act 1984 (Cth) ss 14, 40(3), 54 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance – Insurance List Number of paragraphs: 13 Date of hearing: 16 March 2021 Counsel for the Applicant: Mr G Donnellan with Ms K Morris Solicitor for the Applicant: William Roberts Lawyers Counsel for the First Respondent: Mr M T McCulloch SC Solicitor for the First Respondent: Carter Newell Lawyers Counsel for the Second Respondent: Mr A Byrne Solicitor for the Second Respondent: Gilchrist Connell ORDERS
NSD 1390 of 2020 BETWEEN: SRI BALAKRISHNAN DARSHN
Applicant
AND: AVANT INSURANCE LIMITED
First Respondent
MEDICAL INSURANCE AUSTRALIA PTY LIMITED
Second Respondent
ORDER MADE BY:
ALLSOP CJ
DATE OF ORDER:
16 MARCH 2021
THE COURT ORDERS THAT:
1.On or before 23 March 2021 and subject to Order 2, the first respondent produce to the applicant the documents falling within categories (e) and (f) described in the letter from the applicant’s solicitor to the first respondent’s solicitor dated 5 March 2021 as explained in relation to paragraph (f) on page 2 of the letter of the same solicitor dated 12 March 2021.
2.The first respondent need not produce on 23 March 2021 to the applicant documents for which a claim for legal professional privilege is made, the privilege in relation to such documents to be justified by affidavit or affidavits to be filed and served on or before 26 March 2021. The documents the subject of the claim are to be kept in a sealed envelope by the solicitor for the first respondent and be available for production should that be ordered in due course.
3.The following orders of 26 February 2021 be vacated:
(a)in so far as it relates to the second respondent, order 4; and
(b)order 5.
4.On or before noon on 17 March 2021, the second respondent:
(a)file and serve:
(i)A concise statement in response setting out the factual and legal basis for its declinature; and
(ii)Any evidence upon which it wishes to rely either by affidavit or by statement; and
(b)serve upon the applicant a call for documents to be produced to it as if under notice to produce to be provided on or before 22 March 2021.
5.On or before 26 March 2021, the applicant file and serve:
(a)Any concise statement in reply; and
(b)Any further evidence in reply.
6.Liberty to apply on 24 hours’ notice.
7.The matter be listed for case management on 26 March 2021 at a time to be fixed in consultation with the chambers of the Chief Justice.
Note: Entry of orders is dealt with in Rule 39.32 of the
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- Case
- [2021] FCA 232
- Decision Date
CaseChat Overview and Summary
The Court had to determine whether the requested documents were relevant to any issue in the proceeding. Additionally, the Court considered if the categories of documents sought by the applicant were excessively broad or oppressive, potentially burdening the respondents unnecessarily. The Court assessed the scope and necessity of the document production request in the context of the legal proceedings.
In its decision, the Court ruled that certain documents falling within specific categories should be produced by the first respondent to the applicant. However, the Court found that documents for which a claim of legal professional privilege was made should not be produced immediately. Instead, the first respondent was required to justify the privilege claim by affidavit. The Court also vacated certain previous orders and set new timelines for the filing of statements and evidence by the parties. The matter was subsequently listed for further case management.
The final orders included directives for the production of specific documents, a waiver for privileged documents pending further justification, and new timelines for the filing of statements and evidence. The Court granted liberty to apply for further orders and scheduled a case management conference.
Orders
Orders of the court
1. On or before 23 March 2021 and subject to Order 2, the first respondent produce to the applicant the documents falling within categories (e) and (f) described in the letter from the applicant’s solicitor to the first respondent’s solicitor dated 5 March 2021 as explained in relation to paragraph (f) on page 2 of the letter of the same solicitor dated 12 March 2021.
2. The first respondent need not produce on 23 March 2021 to the applicant documents for which a claim for legal professional privilege is made, the privilege in relation to such documents to be justified by affidavit or affidavits to be filed and served on or before 26 March 2021. The documents the subject of the claim are to be kept in a sealed envelope by the solicitor for the first respondent and be available for production should that be ordered in due course.
3. The following orders of 26 February 2021 be vacated:
(a) in so far as it relates to the second respondent, order 4; and
(b) order 5.
4. On or before noon on 17 March 2021, the second respondent:
(a) file and serve:
(i) A concise statement in response setting out the factual and legal basis for its declinature; and
(ii) Any evidence upon which it wishes to rely either by affidavit or by statement; and
(b) serve upon the applicant a call for documents to be produced to it as if under notice to produce to be provided on or before 22 March 2021.
5. On or before 26 March 2021, the applicant file and serve:
(a) Any concise statement in reply; and
(b) Any further evidence in reply.
6. Liberty to apply on 24 hours’ notice.
7. The matter be listed for case management on 26 March 2021 at a time to be fixed in consultation with the chambers of the Chief Justice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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