Gunn v ING Life

[2004] NSWSC 169

CITATION:	Gunn v ING Life [2004] NSWSC 169
HEARING DATE(S):	10/03/04
JUDGMENT DATE:	10 March 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	I dismiss the Notice of Motion filed on 5 December 2003. The defendant is to pay the costs of that Notice of Motion.
CATCHWORDS:	Contested application for directions that parties serve statements of lay witness by affidavit - refusal of Registrar to deal with application because it was contested - application fixed before Master for hearing.
LEGISLATION CITED:	Supreme Court Rules 1970, Pt 26 r 1
CASES CITED:	N/A
PARTIES :	Theodora Gunn (Plaintiff) v ING Life Limited (Defendant)
FILE NUMBER(S):	SC 13418 of 2002
COUNSEL:	Mr K Rewell SC/A Beardow (Plaintiff) Mr J Downing (Defendant)
SOLICITORS:	Dennis & Company (Plaintiff) Ebsworth & Ebsworth (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 10 March 2004

13418 of 2002 Theodora Gunn v ING Life Limited

JUDGMENT - Application for directions pursuant to defendant’s Notice of Motion filed 5 December 2003.

1 MASTER: The defendant seeks an order or directions that both parties be directed to serve statements of lay evidence by affidavit. This issue is apparently a matter that has been before a Registrar on a number of occasions, presumably in the context of a status conference. I am informed that the Registrar has refused to deal with this matter because there was a dispute as to the order or direction sought. As a consequence, without regard to jurisdictional considerations, the application has been referred to and fixed for hearing before a Master for determination. This has put the parties to a lot of additional trouble and expense.

2 As I earlier said, this is a matter which could have been and should have been dealt with by the Registrar. The Registrar has more than ample powers to deal with such an issue (inter alia, Pt 26 r 1).

3 I have heard argument from both sides on the disputed issue. In my view, I am left unsatisfied that the orders sought should be made at this stage. It may be that in the future there could be a change of circumstances which could see a different result. However, in the present circumstances I do not see that justice is best served by making the order a direction that is sought.

4 I dismiss the Notice of Motion filed on 5 December 2003. The defendant is to pay the costs of that Notice of Motion.

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Last Modified: 03/18/2004