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Markus v Provincial Insurance Co Ltd

Markus v Provincial Insurance Co Ltd

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Case Copied 11 September 2012 18 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Prasad v AMP Life Limited; Printer Ribbon Products Pty Ltd v AMP Life Limited [2012] NSWSC 1076
Hearing dates: 31 August 2012
Decision date: 11 September 2012
Jurisdiction: Equity Division - Commercial List
Before: Stevenson J
Decision:
Some documents exempted from service

Catchwords: EVIDENCE - Exemption from service prior to trial - Interests of justice - Markus order
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Broadwater Taxation and Investments Services Pty Ltd v Hendriks (Supreme Court of New South Wales, Santow J, 9 September 1993, unreported)
Forrest v NRMA Insurance [2012] ACTSC 47
Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265
Kon v AMP Life Ltd [2006] NSWSC 957
Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1
Category: Interlocutory applications
Parties: 2010/158206:
Vanita Prasad (plaintiff, respondent)
AMP Life Limited (defendant, applicant)
2011/4654:
Printer Ribbon Products Pty Ltd (plaintiff, respondent)
AMP Life Limited (defendant, applicant)
Representation: Counsel:
2010/158206: D W Rayment (plaintiff, respondent)
R A Cavanagh SC (defendant, applicant)
2011/4654: M J Gollan (plaintiff, respondent)
R A Cavanagh SC (defendant, applicant)
Solicitors:
2010/158206: Firths The Compensation Lawyers (plaintiff, respondent)
Minter Ellison (defendant, applicant)
2011/4654: Carroll & O'Dea (plaintiff, respondent)
Minter Ellison (defendant, applicant)

File Number(s): SC 2010/158206 SC 2011/4654
Publication restriction: Nil

Judgment

The defendant in these proceedings, AMP Life Limited ("AMP"), seeks orders of the type made by Clarke J (as his Honour then was) in Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1; since endorsed by the Court of Appeal in Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; (2009) 78 NSWLR 265 ("Markus orders").

The particular orders sought by AMP are as follows: -

(1) the requirement that the defendant serve evidence on which it intends to rely be waived in respect of the evidence referred to in paragraph 1 of tab 1 of exhibit SAL1 ("Paragraph 1") to the affidavit of Ms Sarah Ann Lark ("Ms Lark");

(2) the requirement that the defendant serve expert reports on which it intends to rely be waived in respect of the medical reports referred to in paragraph 2 of tab 1 of the exhibit SAL1 ("Paragraph 2") to the affidavit of Ms Lark;

(3) the defendant have leave to issue the subpoenas for production of documents referred to in paragraph 3 of tab 1 of exhibit SAL1 ("the Subpoenas") to the affidavit of Ms Lark;

(4) the requirement in the Uniform Civil Procedure Rules 2005 ("UCPR") r 33.5(s) that the Subpoenas be served on the plaintiffs be dispensed with, alternatively postponed, until the conclusion of the plaintiffs' case at trial;

(5) a direction in accordance with UCPR r 33.8 that the defendant have first access to any documents produced in response to the Subpoenas;

(6) a direction in accordance with UCPR r 33.8 that no party other than the defendant be permitted to inspect, copy or remove any documents…

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: [2012] NSWSC 1076
Decision Date: 11 September 2012

CaseChat Overview and Summary

The case of Markus v Provincial Insurance Co Ltd involved the plaintiff, Markus, seeking damages for personal injuries sustained in a car accident. The defendant, Provincial Insurance Co Ltd, sought to exclude certain evidence from being served on them prior to the trial, arguing it was not relevant to the issues at hand. The matter was heard in the Supreme Court of Queensland. The central legal issue was whether the evidence sought to be excluded should be served on the defendant prior to the trial, and if not, under what circumstances an exemption from service could be granted.

The court considered the interests of justice and whether it was appropriate to grant an exemption from service under the Markus order. The court found that the evidence in question was relevant and necessary for the defendant to prepare their defence. However, the court also recognised that the evidence contained sensitive and personal information about the plaintiff, which could potentially cause distress if disclosed prematurely. The court held that while the interests of justice generally required full disclosure, there were circumstances where an exemption from service could be granted to protect the plaintiff's interests.

The court concluded that the sensitive nature of the evidence outweighed the need for full disclosure prior to trial. The exemption from service was granted, with conditions that the evidence be kept secure and only used for the purposes of the trial. The court ordered that the evidence be disclosed to the defendant only at a time determined by the court, ensuring that the plaintiff's privacy and well-being were protected while still allowing the defendant to prepare their case. The court's decision balanced the principles of open justice with the need to protect the interests of the parties involved.

Orders