Lowery v Insurance Australia Limited - [2016] NSWDC 446

District Court

New South Wales

Medium Neutral Citation: Lowery v Insurance Australia Limited [2016] NSWDC 446
Hearing dates: 1 and 4 April 2016
Date of orders: 05 April 2016
Decision date: 05 April 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Strike out the subpoenas in accordance with orders 3 to 7 of the notice of motion.
(2)   Order the defendant to pay the costs of the notice of motion.
(3)   Stay entry of order (2) for 2 weeks.
(4)   Direct that evidence in the final hearing be given by way of affidavit.
(5)   Direct the defendant to serve any affidavit evidence on which it intends to rely on in the final hearing by 19 April 2016.
(6)   List the proceedings before the Judicial Registrar on Thursday, 21 April 2016 at 10am for the purposes of obtaining a date for the final hearing.
(7)   Vacate the directions hearing listed before the Judicial Registrar on 11 April 2016.

Catchwords: CIVIL PROCEDURE — subpoenas — application to set aside — earlier subpoenas set aside by Court of Appeal – further subpoenas fail to follow reasoning of Court of Appeal
CIVIL PROCEDURE — pleadings — striking out — abuse of process
Legislation Cited: Uniform Civil Procedure Rules 2005, r 13.1, r 14.28
Cases Cited: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
In the matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743
Joseph Brian Lowery v Insurance Australia Ltd (District Court (NSW), Maiden DCJ, 29 January 2015, unrep)
Liristis v Gadelrabb [2009] NSWSC 441
Lowery v Insurance Australia Ltd [2015] NSWCA 303
Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870
Category: Procedural and other rulings
Parties: Joseph Brian Lowery - first plaintiff
Paula Louise Lowery - second plaintiff
Insurance Australia Limited (ABN 11 000 016 722) - defendant
Representation:
Counsel:
Mr A Fernon - plaintiffs
Mr A Ahmad - defendant
Solicitors:
Yates Beaggi Lawyers - plaintiffs
Holman Webb Lawyers - defendant

File Number(s): 2014/139013
Publication restriction: None

Judgment

BACKGROUND

Joseph and Paula Lowery first insured a 2008 Mercedes-Benz motor vehicle with NRMA Insurance in January 2012. That insurance was most recently renewed on 24 March 2014. On 27 March 2014 the vehicle was stolen and destroyed by fire. Mr and Mrs Lowery claimed on the policy but NRMA declined the claim. Mr and Mrs Lowery commenced proceedings.
NRMA defend the claim on the basis of a failure of Mr and Mrs Lowery to cooperate and to be truthful and frank, and NRMA also do not admit the theft, thereby putting Mr and Mrs Lowery to proof of an entitlement under the policy.
NRMA issued subpoenas to telephone companies, to the police, and to the Roads and Maritime Services (“RMS”). Mr and Mrs Lowery applied to set aside the subpoenas, but this Court in large measure declined relief. [1] An application for leave to appeal was granted by the majority (Basten and Emmett JJA,…

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: [2016] NSWDC 446
Decision Date: 05 April 2016

CaseChat Overview and Summary

The plaintiff, Lowery, sought to recover damages for personal injury and loss of amenity against the defendant, Insurance Australia Limited. The case came before the court on an application by Lowery to set aside a series of subpoenas issued by the defendant. The subpoenas were intended to obtain documents and other materials from the plaintiff and others, but the plaintiff argued that they were issued in bad faith and constituted an abuse of process. The defendant had previously attempted to issue subpoenas, which were set aside by the Court of Appeal, but the subsequent subpoenas failed to adhere to the Court of Appeal's reasoning.

The court was required to determine whether the subpoenas issued by the defendant were justified and whether they constituted an abuse of process. The court also had to consider whether the subpoenas should be struck out and, if so, whether the defendant should be ordered to pay costs.

The court found that the subpoenas were issued in bad faith and did not follow the directions of the Court of Appeal. The court concluded that the subpoenas constituted an abuse of process and were therefore unjustifiable. The court struck out the subpoenas and ordered the defendant to pay the costs of the notice of motion. The court also directed that evidence in the final hearing be given by way of affidavit and set out a timetable for the proceedings, including a date for the final hearing.

The court made several orders, including striking out the subpoenas, ordering the defendant to pay costs, and setting out a timetable for the proceedings. The court also directed that evidence in the final hearing be given by way of affidavit and ordered the defendant to serve any affidavit evidence on which it intended to rely by a specified date. The directions hearing listed before the Judicial Registrar on 11 April 2016 was vacated.

Orders

Orders of the court

(1) Strike out the subpoenas in accordance with orders 3 to 7 of the notice of motion.

(2) Order the defendant to pay the costs of the notice of motion.

(3) Stay entry of order (2) for 2 weeks.

(4) Direct that evidence in the final hearing be given by way of affidavit.

(5) Direct the defendant to serve any affidavit evidence on which it intends to rely on in the final hearing by 19 April 2016.

(6) List the proceedings before the Judicial Registrar on Thursday, 21 April 2016 at 10am for the purposes of obtaining a date for the final hearing.

(7) Vacate the directions hearing listed before the Judicial Registrar on 11 April 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lowery v Insurance Australia Limited [2016] NSWDC 446
Hearing dates:	1 and 4 April 2016
Date of orders:	05 April 2016
Decision date:	05 April 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Strike out the subpoenas in accordance with orders 3 to 7 of the notice of motion. (2) Order the defendant to pay the costs of the notice of motion. (3) Stay entry of order (2) for 2 weeks. (4) Direct that evidence in the final hearing be given by way of affidavit. (5) Direct the defendant to serve any affidavit evidence on which it intends to rely on in the final hearing by 19 April 2016. (6) List the proceedings before the Judicial Registrar on Thursday, 21 April 2016 at 10am for the purposes of obtaining a date for the final hearing. (7) Vacate the directions hearing listed before the Judicial Registrar on 11 April 2016.
Catchwords:	CIVIL PROCEDURE — subpoenas — application to set aside — earlier subpoenas set aside by Court of Appeal – further subpoenas fail to follow reasoning of Court of Appeal CIVIL PROCEDURE — pleadings — striking out — abuse of process
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 13.1, r 14.28
Cases Cited:	General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 In the matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743 Joseph Brian Lowery v Insurance Australia Ltd (District Court (NSW), Maiden DCJ, 29 January 2015, unrep) Liristis v Gadelrabb [2009] NSWSC 441 Lowery v Insurance Australia Ltd [2015] NSWCA 303 Thomas v SMP (International) Pty Ltd (No 2) [2010] NSWSC 870
Category:	Procedural and other rulings
Parties:	Joseph Brian Lowery - first plaintiff Paula Louise Lowery - second plaintiff Insurance Australia Limited (ABN 11 000 016 722) - defendant
Representation:	Counsel: Mr A Fernon - plaintiffs Mr A Ahmad - defendant Solicitors: Yates Beaggi Lawyers - plaintiffs Holman Webb Lawyers - defendant
File Number(s):	2014/139013
Publication restriction:	None