Darshn v Avant Insurance Limited

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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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Details
Case
[2021] FCA 232
Decision Date

CaseChat Overview and Summary

The case of Darshn v Avant Insurance Limited concerned a dispute between the applicant, Darshn, and the respondents, Avant Insurance Limited and another respondent, regarding the production of documents. The matter was heard in the Federal Court of Australia. The core issue before the Court was whether certain documents requested by the applicant were relevant to the proceeding, and if the categories of documents requested by the applicant were too broad and oppressive.

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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