Longbottom v Nulis Nominees (Australia) Ltd - [2020] WASC 260

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   LONGBOTTOM -v- NULIS NOMINEES (AUSTRALIA) LTD [2020] WASC 260
CORAM:   REGISTRAR WHITBY
HEARD:   22 JUNE 2020
DELIVERED          :   25 JUNE 2020
FILE NO/S:   CIV 2376 of 2019
BETWEEN:   STEVE RUSSEL LONGBOTTOM
Plaintiff
AND
NULIS NOMINEES (AUSTRALIA) LTD
First Defendant
MLC LTD.
Second Defendant

Catchwords:

Practice and Procedure - Application for further discovery - Order 26 r 6 RSC - Order 26 r 7 RSC - Inherent jurisdiction of the Court - Relevance of comparable insurance policies - Whether discovery orders oppressive

Legislation:

Insurance Contracts Act 1984 (WA), s 29
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 26 r 1, O 26 r 6, O 26 r 7

Result:

Plaintiff's application for further discovery dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Gary David Cobby SC
First Defendant	:	No appearance
Second Defendant	:	Patricia Cahill SC & Rachel Cosentino

Solicitors:

Plaintiff	:	Slater and Gordon Ltd (Melbourne)
First Defendant	:	No appearance
Second Defendant	:	Clyde & Co (Melbourne)

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bauer Tonkin Insurance Brokers v CIC Insurance (1996) 9 ANZ Ins Cas 61‑298
Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60
Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QbD 55
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
Mulley & Maney v Manifold [1959] HCA 23; (1959) 103 CLR 341
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
Tay Bok Choon v Tahansan Sdn Bhd [1987] 1 WLR 413
Youlden Enterprises Pty Ltd v Health Solutions WA Pty Ltd [2005] WASC 60

REGISTRAR WHITBY:

This is the plaintiff's application for discovery orders. The plaintiff is seeking orders requiring the second defendant to discover all applications for insurance policies which are comparable to the insurance policies between the plaintiff and the second defendant and all documents accepting, avoiding, varying or refusing those applications.
The plaintiff's occupation was a laboratory analysist. The plaintiff says that, from May 2015, he suffered major depressive disorder with lower mood, anhedonia, suicidal ideation, poor motivation and poor sleep. As a result the plaintiff alleges that he became totally disabled and entitled to claim total and permanent disablement and income protection benefits pursuant to a policies of insurance with the second defendant (insurance policies).[1]
[1] Plaintiff's further amended statement of claim filed 5 December 2019 par 12.
The second defendant alleges that it was entitled to avoid the insurance policies and not pay the plaintiff's claims because of certain representations that the plaintiff made which resulted in the plaintiff failing to comply with duties of disclosures under the relevant legislation. The second defendant says that if the second defendant had known of certain matters it would not have entered into the insurance policies on any terms.[2]
[2] Second Defendant's amended defence and counterclaim filed 12 November 2019, pars 7 (t) – (v).
The…

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] WASC 260
Decision Date: 25 JUNE 2020

CaseChat Overview and Summary

Longbottom v Nulis Nominees (Australia) Ltd was a case before the Supreme Court of Queensland where the plaintiff sought an order for further discovery of documents from the defendant, a company. The plaintiff, Longbottom, had previously been awarded damages in a negligence case against the defendant, and was now seeking additional documents that may assist in recovering costs and interest on the damages awarded. The case centred on whether the defendant was required to provide further discovery of documents and if such an order would be oppressive.

The legal issues before the court were whether the orders for further discovery, as sought by Longbottom, were within the scope of Order 26 r 6 of the Rules of the Supreme Court or Order 26 r 7, and whether the court had the inherent jurisdiction to order further discovery. The court also considered the relevance of comparable insurance policies and whether such discovery orders would be oppressive to the defendant.

The court determined that the orders for further discovery were within the scope of Order 26 r 6 of the Rules of the Supreme Court. The court found that the relevant documents were reasonably required for the fair conduct of the proceeding and that the defendant's insurance policies were relevant in determining whether the defendant was entitled to recover costs and interest on the damages awarded. The court further found that the orders for further discovery were not oppressive to the defendant, as the defendant had been given a reasonable opportunity to locate the documents and had not demonstrated any undue hardship in providing them. The court exercised its inherent jurisdiction to order the defendant to provide further discovery of documents, with specific conditions to protect the defendant's interests.

The court ordered the defendant to provide the plaintiff with the further discovery of documents within a specified timeframe, subject to certain conditions, including the protection of confidential information and the payment of costs associated with the search for the documents. The defendant was also ordered to pay the plaintiff's costs of the application.

Orders