Mann v Medical Defence Union Ltd - [1997] FCA 45

CATCHWORDS

Practice and Procedure - Discovery - Use of document discovered in action for breach of contract and contravention of Trade Practices Act to frame new cause of action in defamation and to join added respondent - whether leave of the court required - whether proposed use of document was for ulterior or collateral purpose - circumstances relevant to court's discretion to grant leave to use the document.

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10

Riddick v Thames Board Mills Ltd 1977 QB 881

Wilden Pump & Engineering Company v Fusfeld [1985] FSR 581

Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 57 FCR 360

Sybron Corporation v Barclays Bank Plc [1985] Ch 299

Crest Homes Plc v Marks [1987] AC 829

Halcon International Inc v Shell Transport and Trading Co [1979] RPC 97

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

ARNOLD MANN v MEDICAL DEFENCE UNION LIMITED

VG 131 of 1993

Ryan J
Melbourne
7 February 1997

IN THE FEDERAL COURT OF AUSTRALIA )
)

VICTORIA DISTRICT REGISTRY ) No VG 131 of 1993
)

GENERAL DIVISION )

BETWEEN: Arnold Mann

(Applicant)

AND: Medical Defence Union Limited

(Respondent)

CORAM:    Ryan J
DATE:     7 February 1997
PLACE:    Melbourne

MINUTES OF ORDER

IT IS ORDERED:

That the leave granted to the applicant by the order of Ryan J of 5 February 1997 to file and serve a further amended statement of claim be rescinded.

That the applicant have leave to file and serve a further amended statement of claim in the form of the draft which is exhibit "SK2" to the affidavit of Patrick Simon Kearney excluding paragraphs 52, 53, 54 and 55 and the joinder as a respondent of Craig Martin Lilienthal.

That the applicant pay the respondent's costs of the motion on notice dated 5 September 1996.

That paragraph 1 of this order be stayed until 4.15pm on 28 February 1997 or further order.

That paragraph 3 of the order of Ryan J of 5 February 1997 be varied by substituting for the date "7 February 1997" the date "28 February 1997".

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA )
)

VICTORIA DISTRICT REGISTRY ) No VG 131 of 1993
)

GENERAL DIVISION )

BETWEEN: Arnold Mann

(Applicant)

AND: Medical Defence Union Limited

(Respondent)

CORAM:    Ryan J
DATE:     7 February 1997
PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J: By his amended statement of claim, the applicant, who is a medical practitioner, has invoked causes of action for breach of contract and contravention of the Trade Practices Act against the respondent ("the MDU"). In essence, the applicant's complaint is that the MDU has failed to pay his legal costs or indemnify him in respect of those costs in connection with an action which he instituted in the Supreme…

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: [1997] FCA 45
Decision Date: 7 FEBRUARY 1997

CaseChat Overview and Summary

Mann v Medical Defence Union Limited [1997] FCA 224 involved a medical practitioner, Arnold Mann, who sued the Medical Defence Union Limited (MDU) for breach of contract and contravention of the Trade Practices Act. Mann alleged that the MDU had failed to pay his legal costs or indemnify him in relation to a previous action. Mann sought leave to amend his statement of claim to include a defamation claim against the MDU and a new respondent, Craig Martin Lilienthal. The amendment included a defamation claim based on a document discovered during the original litigation. The MDU opposed the amendment, arguing that using the discovered document for the defamation claim was for a collateral purpose and required the court's leave.

The court considered whether leave was needed to use the discovered document for the defamation claim and, if so, whether leave should be granted. The court acknowledged an implied undertaking that documents discovered in litigation would only be used for the purposes of that litigation. However, it was established that using discovered documents to add new causes of action or parties was permissible if it related to the prosecution or defence of the case. The court found that a defamation claim was collateral to Mann's original claims for breach of contract and contravention of the Trade Practices Act. The defamation claim involved different issues and potential liabilities than the original claims, making it an inappropriate use of the discovered document. The court concluded that granting leave for the defamation claim would not be in the special circumstances required and rescinded the earlier leave granted to Mann to file the amended statement of claim. Mann was instead granted leave to file an amended statement of claim excluding the defamation allegations and the joinder of Lilienthal as a respondent.

Orders