Reported Decision: 78 NSWLR 265261 ALR 741[2010] ALMD 5301
New South Wales
Court of Appeal
CITATION: Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 15 September 2009
JUDGMENT DATE:
23 November 2009JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Sackville AJA at 38 DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.
3. Appellant to pay Respondent’s costs of appeal, including the application for leave to appeal.CATCHWORDS: PROCEDURE – application by defendant insurer to waive direction that all affidavit evidence be served before trial – application of discretionary power said to be established by Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 – source of power to make orders sought by insurer – whether the power exists under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules – whether primary judge erred in the exercise of discretion in making the order sought by the insurer LEGISLATION CITED: Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth), cl 37M(3)
Administrative Appeals Tribunals Act 1975 (Cth), s 2A
Insurance Contracts Act 1984 (Cth), s 56
Civil Procedure Act 2005 (NSW), s 14, s 15, Pt 6
Supreme Court Act 1970 (NSW), s 76A
Supreme Court Rules 1970 (NSW), Pt 23 r 10(1), Pt 26 r 1, Pt 37 r 10
Uniform Civil Procedure Rules 2005 (NSW), r 2.1, r 2.3, r 21.7, r 31.1, r 33.9
Practice Note SC CL 5
Court Procedures Rules 2006 (ACT), r 21(1)
Uniform Civil Procedure Rules 1999 (Qld), r 5
Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 1.14
Rules of the Supreme Court 1971 (WA), O 36 r 4
Civil Procedure Act 1997 (UK), r 1.1
Civil Procedure Rules 1998 (UK)CATEGORY: Principal judgment CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 258 ALR 14
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Boyes v Collins [2000] WASCA 344; 23 WAR 123
Broadwater Taxation and Investment Services Pty Ltd v Hendriks (Supreme Court of New South Wales, Santow J, 9 September 1993, unreported)
Commissioner of Police (NSW) v Industrial Relations Commission (NSW) [2009] NSWCA 198
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Evans v Marmont (1997) 42 NSWLR 70
Griffin v Sogelease Australia Ltd [2003] NSWCA 158; 57 NSWLR 257
Halpin v Lumley General Insurance Ltd [2009] NSWSC 644
Hammoud Brothers Pty Ltd v NRMA Insurance Ltd [2004] NSWCA 1
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
House v The King [1936] HCA 40; 55 CLR 499
Kimberley Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210
Kon v AMP Life Ltd [2006] NSWSC 957
Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428
National Employers’ Mutual General Insurance Association Ltd…
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Details
- Case
- [2009] NSWCA 372
- Decision Date
CaseChat Overview and Summary
The case of *Halpin v Lumley General Insurance Ltd* concerned an application by the defendant insurer to waive a direction that all affidavit evidence be served before trial. The dispute arose in the context of proceedings before the Court of Appeal of New South Wales.
The central legal issues before the Court of Appeal were whether the power to make the orders sought by the insurer existed under the *Civil Procedure Act 2005* (NSW) and the *Uniform Civil Procedure Rules* (NSW), and whether the primary judge had erred in the exercise of discretion in making the order sought by the insurer. The insurer relied on the discretionary power said to be established in *Markus v Provincial Insurance Co Ltd* (1983) 25 NSWCCR 1.
The Court of Appeal considered the source of the power to make such orders, examining the relevant legislative provisions and rules. The Court ultimately determined that the primary judge had not erred in the exercise of discretion. Leave to appeal was granted, but the appeal itself was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, including the application for leave to appeal.
The central legal issues before the Court of Appeal were whether the power to make the orders sought by the insurer existed under the *Civil Procedure Act 2005* (NSW) and the *Uniform Civil Procedure Rules* (NSW), and whether the primary judge had erred in the exercise of discretion in making the order sought by the insurer. The insurer relied on the discretionary power said to be established in *Markus v Provincial Insurance Co Ltd* (1983) 25 NSWCCR 1.
The Court of Appeal considered the source of the power to make such orders, examining the relevant legislative provisions and rules. The Court ultimately determined that the primary judge had not erred in the exercise of discretion. Leave to appeal was granted, but the appeal itself was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, including the application for leave to appeal.
Orders
Orders of the court
1. Leave to appeal granted.
2. Appeal dismissed.
3. Appellant to pay Respondent’s costs of appeal, including the application for leave to appeal.
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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