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El-Helou v Smith

El-Helou v Smith

Case [2009] NSWSC 741 6 August 2009

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CITATION: El-Helou v Smith [2009] NSWSC 741

HEARING DATE(S): 4 August 2009

JUDGMENT DATE :
6 August 2009

JUDGMENT OF: Harrison J

DECISION: 1. Order the plaintiff within 14 days to provide to the defendant an executed authority to enable her to obtain any information from Centrelink held or maintained by Centrelink in relation to the plaintiff.
2. Order the plaintiff to pay the defendant's costs of the motion.
3. Grant liberty to either party to apply on 7 days' notice with respect to the form of Order 1 or the terms of Order 2.

CATCHWORDS: PROCEDURE – plaintiff claiming damages for personal injury – plaintiff made applications to Centrelink for assistance at various times – defendant seeks access to documents held by Centrelink concerning the plaintiff – s 207 of the Social Security (Administration) Act 1999 prevents production of documents to defendant directly – whether material relevant – whether plaintiff amenable to an in personam order to provide an authority to the defendant directed to Centrelink – s 56 of the Civil Procedure Act 2005 - whether order should be made having regard to the overriding purpose – plaintiff ordered to provide authority to the defendant

LEGISLATION CITED: Civil Procedure Act 2005
Social Security (Administration) Act 1999
Social Services Act 1947

CATEGORY: Procedural and other rulings

CASES CITED: Attard v Hore [2002] QSC 437
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
Merkuloff v Yalisheff [2003] NSWSC 1183
Smith v Swinfield (1981) FLC 91-084
Wray v Wray [2007] NSWSC 164

PARTIES: Mary El-Helou (Plaintiff)
Michelle Margaret Smith (Defendant)

FILE NUMBER(S): SC 20279/2008

COUNSEL: S Brennan (Plaintiff)
B Kelleher (Defendant)

SOLICITORS: Brydens Law Office (Plaintiff)
Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

6 August 2009

20279/2008 Mary El-Helou v Michelle Margaret Smith
JUDGMENT

1 HIS HONOUR: By her notice of motion filed on 3 June 2009 the defendant seeks an order that the plaintiff provide her with an executed authority directed to Centrelink that would enable the defendant to obtain information held by Centrelink in relation to the plaintiff. The plaintiff opposes that application. Resolution of the dispute arises for consideration in the following circumstances.

2 The plaintiff sues the defendant for damages for personal injuries alleged to have been suffered by her in a motor vehicle accident on 11 February 2000. The plaintiff also sues a different defendant in separate proceedings in this Court for damages allegedly arising from injuries said to have been sustained by her on 27 June 2002 when she fell at hospital premises where she was receiving treatment for the injuries sustained in the motor vehicle accident.

3 Dr Maguire has examined the plaintiff at the request of the defendant who has provided three reports about her. These reports are annexed to an affidavit of Michael Dent sworn 18 June 2009 upon which the defendant relies and which was…

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.

Continue reading El-Helou v Smith

Details

AGLC: El-Helou v Smith [2009] NSWSC 741
Case: [2009] NSWSC 741
Decision Date: 6 August 2009

CaseChat Overview and Summary

In the Federal Circuit and Family Court, El-Helou brought an action against Smith for personal injury damages. The defendant sought access to documents held by Centrelink concerning the plaintiff's applications for assistance at various times. The central legal issue was whether the plaintiff should be ordered to provide an authority to the defendant, directed to Centrelink, allowing access to the relevant documents. This raised questions about the application of section 56 of the Civil Procedure Act 2005 and the overriding purpose of the Act.

The court considered whether the material sought was relevant and whether an in personam order should be made under section 56. The plaintiff argued that the documents were not relevant to the matter. However, the court found that the material was relevant. It further held that the plaintiff was amenable to an order under section 56, which directed the plaintiff to provide an authority to the defendant, allowing the defendant to access the documents from Centrelink. The court balanced the plaintiff's privacy interests against the need for the defendant to access the documents to effectively prepare their case. Ultimately, the court concluded that the overriding purpose of the Act favoured making the order.

The court ordered the plaintiff to provide an authority to the defendant, directed to Centrelink, to allow the defendant access to the relevant documents. The court found that this order was necessary to facilitate the just, quick, and cheap resolution of the real issues in the proceeding. The order was made under the inherent jurisdiction of the court, and the plaintiff was required to comply with the direction within a specified timeframe.

Orders