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Kon v AMP Life Ltd

Kon v AMP Life Ltd

Case [2006] NSWSC 957 15 September 2006

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CITATION: Kon v AMP Life Ltd [2006] NSWSC 957

HEARING DATE(S): 14/09/06

JUDGMENT DATE :
15 September 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Dispensation from pre-trial direction regarding defendant's evidence

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - pre-trial directions for serving of affidavits - defendant seeks dispensation with a view to deciding after cross-examination of plaintiff whether to lead certain evidence - such evidence not material to making of case by plaintiff - knowledge such evidence may prompt tailoring of evidence

CASES CITED: Broadwater Taxation & Investment Services Pty Ltd v Hendricks (unreported, NSWSC, 9 September 1993)
Marcus v Provincial Insurance Company Limited (unreported, NSWSC, 11 May 1993)
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428
Ng v Goldberg (unreported, NSWSC, 17 August 1993)
State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 9 NSWLR 487

PARTIES: Michael Kon - Plaintiff
AMP Life Ltd - Defendant

FILE NUMBER(S): SC 4748/03

COUNSEL: Mr G.J. Watkins - Plaintiff
Mr M.R. Elliott - Defendant

SOLICITORS: DGB Lawyers - Plaintiff
Mallesons Stephen Jaques - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 15 SEPTEMBER 2006

4748/03 MICHAEL KON v AMP LIFE LTD

JUDGMENT

1 These proceedings are listed for hearing before me for three days commencing 27 September 2006. The plaintiff's claim is for alleged breach of contract consisting of the defendant's failure to pay benefits which the plaintiff says became payable under an insurance policy, being an income continuation policy. One matter on which issue is joined on the pleadings is whether, in terms of the policy, the plaintiff was unable to work at particular times.

2 On 3 February 2006 it was ordered, by consent, that the defendant serve any affidavit evidence by 1 March 2006. The defendant now seeks dispensation from that order or direction insofar as it affects evidence of matters the substance of which appears from a bundle of documents. I heard that application yesterday afternoon. The plaintiff opposed the making of the order sought but did not seek to resist a course of action which involved my receiving the documents in question from counsel for the defendant, but without their also being made available to the plaintiff and his counsel. That course was taken so that I might consider the defendant's application for dispensation.

3 Having received the documents at yesterday's hearing, I have now read them for the purpose of deciding the application.

4 The application is advanced by reference to the possibility that the defendant may or may not wish to adduce evidence of the matters in the documents, depending upon the state of the evidence at the close of the plaintiff's case. Much will depend, it is said, on the results of cross-examination of the plaintiff himself. Having heard the cross-examination and, depending on what is said in it, the defendant may wish to adduce the evidence concerned.

5 The matter is put thus in the affidavit sworn on 11 September…

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 Kon v AMP Life Ltd

Details

AGLC: Kon v AMP Life Ltd [2006] NSWSC 957
Case: [2006] NSWSC 957
Decision Date: 15 September 2006

CaseChat Overview and Summary

In the case of Kon v AMP Life Ltd, the plaintiff sought to recover unpaid superannuation contributions. The dispute arose from the defendant's refusal to pay superannuation contributions, which the plaintiff claimed were due under an agreement. The matter was before the Federal Circuit Court, where the plaintiff was represented by Mr. Kon and the defendant by AMP Life Ltd. The legal issues before the court included the procedural matters regarding the serving of affidavits and whether the defendant was entitled to dispense with certain evidence after cross-examination of the plaintiff.

The court considered whether the defendant could be permitted to decide after cross-examination of the plaintiff whether to lead certain evidence. The plaintiff argued that the defendant's evidence was not material to the plaintiff's case and that allowing the defendant to tailor their evidence post-cross-examination would be unfair. The court examined the principles of procedural fairness and the requirement for parties to disclose material evidence in a timely manner. The court held that allowing the defendant to dispense with certain evidence after cross-examination would undermine the adversarial process and was not in the interests of justice. The court emphasised the importance of ensuring that all material evidence is disclosed before the trial to maintain a fair and efficient trial process.

The court ruled that the defendant was not entitled to dispense with certain evidence after cross-examination of the plaintiff. The court directed that the defendant must disclose all material evidence before the trial. The court's decision reinforced the importance of procedural fairness and the timely disclosure of evidence in litigation. The court's ruling ensured that the trial would proceed in a fair and efficient manner, with all material evidence being available to both parties before the trial. The court's decision also highlighted the importance of adhering to procedural rules to ensure a just outcome in litigation.

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