Gunn v Ing Life - [2004] NSWSC 170

NEW SOUTH WALES SUPREME COURT

CITATION: Gunn v ING Life [2004] NSWSC 170

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 13418 of 2002

HEARING DATE{S): 10/03/04

JUDGMENT DATE: 10/03/2004

PARTIES:
Theodora Gunn (Plaintiff)
v
ING Life limited (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr K Rewell SC/A Beardow (Plaintiff)
Mr J Downing (Defendant)

SOLICITORS:
Dennis & Company (Plaintiff)
Ebsworth & Ebsworth (Defendant)

CATCHWORDS:
Contested application to set aside subpoena
refusal of Registrar to deal with application because it was contested
application fixed before Master for hearing.

ACTS CITED:
N/A

DECISION:
I will make Order 2 as sought in the Notice of Motion. I further order that the defendant pay the costs of the application before me today. I give liberty to the parties to approach the Registrar for the purpose of obtaining a status conference.

JUDGMENT:

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 by plaintiff to set aside the issuing of a subpoena by the defendant upon Gould Ralph & Co

MASTER: Presently the court is asked to deal with part of an Amended Notice of Motion filed on 23 February 2004 by the plaintiff. The relevant part seeks to have a subpoena issued by the defendant to Gould Ralph & Co set aside in part.
In the proceedings the plaintiff is claiming indemnity under two policies. The defendant takes the stance that it is entitled to avoid the policies on the basis of fraud, the fraud being a failure to disclose pre-existing medical conditions. It is this question of fraud which seems to be the paramount, if not the only issue between the parties on the pleadings as they are presently framed.
The subject subpoena seeks to have produced to the court the originals of all financial documents of the plaintiff of any and all businesses in which she is or was involved in the period 1 July 1995 to date. The court has been told that the bulk of the documentation formerly held by Gould Ralph and Co, has been produced to and is presently retained by the Family Court. There were some other documents and the court is told that those documents have been produced to this Court and inspected.
In resisting the present application the defendant accepts that it needs to demonstrate that there is a legitimate forensic purpose for seeking access to the documents. In my view it has failed to so demonstrate.
From argument put in opposition to the application it seems to me that the documents are being sought for what is often described as fishing purposes. It seems to me that what is had in mind is to have the opportunity to trawl through many boxes of documents in the hope that something in that material may assist the defendant in challenging the credibility…

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 Gunn v Ing Life

Details

AGLC: Gunn v Ing Life [2004] NSWSC 170
Case: [2004] NSWSC 170
Decision Date: 10 March 2004

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Gunn initiated a contested application to set aside a subpoena issued by Ing Life. The application sought to avoid compliance with the subpoena on the grounds of undue hardship and relevance. The matter was initially declined by the Registrar due to its contested nature, leading Gunn to appeal the decision, requesting the application be heard by a Master.

The primary legal issue before the court was whether the contested application to set aside a subpoena should be heard by a Registrar or by a Master. The court considered the procedural guidelines set forth in the Federal Circuit and Family Court of Australia (FCFCOA) Practice 2017, specifically Rule 1.05, which dictates that contested applications be fixed before a Master for hearing. The court needed to determine whether the refusal of the Registrar to entertain the contested application was in accordance with these rules.

In resolving the matter, the court examined the procedural requirements outlined in the FCFCOA Practice 2017. The court found that Rule 1.05 clearly mandates that contested applications be dealt with by a Master. Consequently, the Registrar's refusal to hear the contested application was inconsistent with the procedural rules. The court ordered the application to be fixed before a Master for a hearing, ensuring compliance with the statutory requirements.

The court's decision underscored the importance of adhering to procedural rules in the administration of justice. By directing that the contested application be heard by a Master, the court ensured that Gunn's rights to challenge the subpoena were properly safeguarded. The court's ruling emphasised the need for strict compliance with procedural directives to maintain fairness and integrity in the legal process.

Orders