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

1. 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. 

2. 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.

3. 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.

4. 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.

5. 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 of the plaintiff.

6. In the circumstances, I am satisfied that justice is best served by granting the plaintiff the relief sought.

7. The plaintiff does not object to production to the court of those documents which came into being from November 1999.

8. Before concluding these short reasons I should also mention a couple of other matters.

9. There was raised by the defendant what has been described as a threshold question. This is a question which went to the status of the plaintiff to move to have the subpoena set aside.  As I understand the course of argument, at best this question was pressed only in part.  Ultimately, it seemed to me that it may have not been really pressed at all.  If it is still pressed, it seems to me that there is authority which gives the plaintiff the appropriate status to move to have this subpoena set aside.  In any event, it seems to me that it does not matter as the application is before the court and the court can move on its own motion.

10. I must also mention that this is another matter which should have been dealt with by a Registrar and not set down for hearing before a Master.  Registrars have been setting aside subpoenas for many years.  It is a matter which falls clearly within the Registrar’s jurisdiction.  I am told that this is another application that was given a special fixture before a Master simply because a Registrar decided that he or she was unable to hear a disputed application.

11. 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.

12. I give liberty to the parties to approach the Registrar for the purpose of obtaining a status conference.

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LAST UPDATED:            16/03/2004