Long v Is Industry Fund Pty Ltd (No 2) - [2020] NSWSC 1541

Supreme Court

New South Wales

Medium Neutral Citation: Long v IS Industry Fund Pty Ltd (No 2) [2020] NSWSC 1541
Hearing dates: On the papers. Final written submissions 13 October 2020.
Date of orders: 2 November 2020
Decision date: 02 November 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See par [40].

Catchwords:
EVIDENCE — Discretions — Civil proceedings — s 192A of the Evidence Act 1995 (NSW) — whether two doctors reports would be admissible at the final hearing — whether, alternatively, the reports were irrelevant or should be rejected under s 135 of the Evidence Act 1995 (NSW) — where the reports are admissible — where the reports are relevant — where sufficient prejudice has not been identified to justify the exercise of the discretion — reports admitted.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Long v IS Industry Fund Pty Ltd [2020] NSWSC 1151
TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68

Category: Procedural and other rulings
Parties: Martin Long (plaintiff)
IS Industry Fund Pty Ltd (first defendant)
Hannover Life Re of Australasia Ltd (second defendant)
Representation:
Counsel: A Coombes (plaintiff)
I Wylie (sol) (defendants)
Solicitors: Firths (plaintiff)
William Roberts Lawyers (defendants)

File Number(s): 2018 / 374473

Judgment

Judgment in these proceedings on a separate question was delivered on 27 August 2020: see Long v IS Industry Fund Pty Ltd [2020] NSWSC 1151 (the first judgment). I will assume an understanding of the first judgment for the purpose of these reasons, and will use the same terms and abbreviations.
Relevantly, the proceedings concern an application by Mr Long against Hannover for an order that he be paid a TPD benefit under the Policy. As recorded at [31] of the first judgment, after the hearing, the parties agreed that the Court should only decide, as a separate question pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 28.2, whether some or all of Hannover’s decisions to decline Mr Long’s claim involved breaches of Hannover’s duty to Mr Long, and were accordingly void and without effect.
This question concerned the now-recognised first stage of the two-stage process for determining whether a claimant for a TPD benefit under an insurance policy is entitled to that benefit. This arises where the insurer declines the claim by exercising its right to be satisfied that the entitling criteria for the benefit have been established. If the Court decides that the insurer’s rejection of the claim was invalid for breach of duty by the insurer, the second stage involves the Court determining the issue of whether the criteria for entitlement to the TPD benefit have been established on the basis of the evidence put before the Court: see TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 (Shuetrim).
In the first judgment, I decided at [406] that the separate question should be answered in the affirmative, but only in relation to the third and fourth rejections of Mr Long’s…

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: [2020] NSWSC 1541
Decision Date: 02 November 2020

CaseChat Overview and Summary

In the matter of Long v Is Industry Fund Pty Ltd, the court was tasked with determining the admissibility of two medical reports during the final hearing of the case. The dispute arose out of a legal battle between the plaintiff, Long, and the defendant, Is Industry Fund Pty Ltd, focusing on issues related to evidence and the applicability of specific sections of the Evidence Act 1995 (NSW).

The court needed to address whether the two medical reports prepared by doctors would be admissible at the final hearing. Additionally, the court had to consider if the reports were irrelevant or should be rejected under section 135 of the Evidence Act 1995 (NSW). The plaintiff argued that the reports were admissible and relevant, while the defendant contended that they should be excluded due to irrelevance or potential prejudice.

After examining the evidence presented, the court found that the reports were indeed admissible. The court further determined that the reports were relevant to the issues at hand. Moreover, the court found that no sufficient prejudice had been demonstrated to warrant the exercise of the discretion to exclude the reports under section 135. Consequently, the court ruled in favour of admitting the reports, finding them to be both admissible and relevant.

The court's decision concluded that the reports would be utilised in the final hearing, affirming their admissibility and relevance while rejecting the defendant's arguments for exclusion.

Orders