Halpin v Lumley General Insurance Ltd - [2009] NSWSC 644

CITATION: Halpin & Ors v Lumley General Insurance Ltd [2009] NSWSC 644

HEARING DATE(S): 06/07/2009

JUDGMENT DATE :
10 July 2009

JUDGMENT OF: Hoeben J

DECISION: I direct that the defendant not be required to serve on the plaintiffs the affidavits referred to in the affidavit of Danielle Maree Wallis of 6 July 2009.
I order that the affidavit of Danielle Maree Wallis of 6 July 2009 and its attachments be placed in a sealed envelope in the Court file and marked “Documents inspected by Court for purposes of Notice of Motion heard on 6 July 2009”.
I direct that the sealed envelope to which I have referred in (2) above, be retained on the Court file and not be opened without the leave of a Judge.
I order that the costs of this motion be costs in the cause.

CATCHWORDS: PRACTICE AND PROCEDURE - application to waive requirement to serve affidavits - whether the principle in Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 still exists - whether such a principle is consistent with the Civil Procedure Act 2005 and the "cards on the table" approach to litigation - whether elements of Markus principle made out - matters to be taken into account by court in exercise of its discretion.

LEGISLATION CITED: Civil Procedure Act 2005
Insurance Contracts Act 1984 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: Broadwater Taxation and Investment Services Pty Limited v Hendriks (NSWSC, unreported, 9 September 1993, Santow J)
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets [2004] NSWSC 40
Kon v AMP Life Limited [2006] NSWSC 957
Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1
Ng v Goldberg (NSWSC, unreported, 17 August 1993, Young J)
Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116

PARTIES: Loretta Halpin - First Plaintiff
Michael Halpin - Second Plaintiff
Haljen Pty Limited - Third Plaintiff

FILE NUMBER(S): SC 20345/2007

COUNSEL: Mr D Pritchard SC - Plaintiffs
Mr R A Cavanagh - Defendant

SOLICITORS: Henry Davis York - Plaintiffs
TurksLegal - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 10 July 2009

20345/2007 – Loretta HALPIN and Ors v LUMLEY GENERAL INSURANCE LIMITED
JUDGMENT

1 HIS HONOUR:

Nature of Application

Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1

2 In support of the motion the defendant relies upon two affidavits of Danielle Maree Wallis of 17 June and 6 July 2009. For the purposes of the application, the contents of the affidavit of 6 July 2009 were confidential. Both sides agreed that I should read the affidavit and in particular the annexures to it.

3 The plaintiffs oppose the order sought…

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.

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Details

Case: [2009] NSWSC 644
Decision Date: 10 July 2009

CaseChat Overview and Summary

The case of Halpin v Lumley General Insurance Ltd involved a dispute between the plaintiff, Mr. Halpin, and the defendant, Lumley General Insurance Ltd, regarding an insurance claim. The matter was brought before the Supreme Court of New South Wales. The central legal issue was whether the court should waive the requirement for the parties to serve affidavits before proceeding with the trial, as per the principle established in Markus v Provincial Insurance Company Limited.

The court examined whether the principle from Markus, which allows for the waiver of the affidavit requirement in certain circumstances, continues to be applicable. The court considered whether this principle is consistent with the modern procedural framework established by the Civil Procedure Act 2005 and the overarching objective of promoting transparency and fairness, often referred to as the "cards on the table" approach to litigation. The court also assessed whether the specific elements required to apply the Markus principle were present in the case at hand and what factors should be considered in exercising the court's discretion.

The court determined that the principle from Markus remains valid but must be applied in a manner that aligns with the current statutory requirements and procedural objectives. The court found that the elements of the Markus principle were satisfied in this instance and outlined several matters that should be taken into account when exercising discretion regarding the waiver of affidavit service. Ultimately, the court decided to waive the requirement for the service of affidavits, allowing the case to proceed on the basis of other evidence and submissions provided by the parties.

Orders