Pout v Shipway - [2024] ACTSC 324

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pout v Shipway
Citation:	[2024] ACTSC 324
Hearing Date:	22 October 2024
Decision Date:	22 October 2024
Before:	Mossop J
Decision:	See [21]
Catchwords:	PRACTICE AND PROCEDURE – PRODUCTION AND INSPECTION – Application to compel compliance with Notice for Non-Party Production – Notice issued to insurer for the defendant – response from insurer almost entirely inappropriate – it included statements that were self-evidently false – it will not really cost $80,000,000.00 to comply with the Notice – consideration of categories of items sought – most categories do not warrant the making of an order for production – orders made to compel production in limited categories
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 664, 665
Cases Cited:	Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
Parties:	Jason Leslie Pout ( Plaintiff) Robert Shipway ( Defendant)
Representation:	Counsel WDB Buckland ( Plaintiff) J Moffett ( Defendant and AAI Limited trading as GIO)
Solicitors United Legal ( Plaintiff) Mills Oakley Lawyers ( Defendant)
File Number:	SC 480 of 2022

MOSSOP J:

1․This is an application in proceeding brought by the plaintiff for orders to enforce compliance with a Notice for Non-Party Production served on the defendant’s insurer, AAI Limited, which trades as GIO.
2․The application was brought pursuant to r 665 of the Court Procedures Rules 2006 (ACT). Counsel for GIO pointed to the process that was required in relation to Notices for Non-Party Production under r 664. This process has the effect that if the recipient of a Notice for Non-Party Production (or another party to the proceedings) objects to production of documents pursuant to the Notice, that person must give notice of the objection to the applicant for the Notice. If required by the applicant for the Notice, the respondent who objects can be required to file and serve an affidavit on the applicant identifying the document which the person objects to, and the reasons why there is a claim of privilege or other objection. Once the objection is made by notice to the applicant, then, whether or not the applicant requires an affidavit to be filed and served, the person objecting need not produce the document and the applicant (or another party or the respondent to the Notice) is then in a position to apply for orders from the court in relation to the claim or objection.
3․In the present case, no affidavit was required to be filed, and the application is not identified as being one under r 664(4). Rather, it was an application under r 665, which applies where there is a failure to produce a document stated in a Notice. Although GIO initially argued that there had been no non-compliance with the Notice because of the objection under r 664, ultimately it was accepted that there was at least a brief period after production was required pursuant to the Notice and before the notice objecting to production was given in which…

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.

Continue reading Pout v Shipway

Details

AGLC: Pout v Shipway [2024] ACTSC 324
Case: [2024] ACTSC 324
Decision Date: 22 October 2024

CaseChat Overview and Summary

In the case of Pout v Shipway, the applicant sought an order to compel the defendant’s insurer to comply with a Notice for Non-Party Production. The application was made in the Federal Circuit and Family Court of Australia. The dispute arose from a personal injury claim where the applicant sought documents from the defendant’s insurer that were relevant to the case. The insurer had responded to the Notice, but the applicant argued that the response was almost entirely inappropriate and included statements that were self-evidently false.

The court was required to determine whether the insurer's response was adequate and whether there were grounds to compel compliance with the Notice for Non-Party Production. It needed to consider the categories of items sought and whether they warranted an order for production. The court also had to assess the reasonableness of the insurer's cost estimate of $80,000,000.00 for compliance.

The court found that the insurer's response was largely inappropriate, containing several false statements. It concluded that the majority of the categories of documents sought did not warrant the making of an order for production. However, the court did find that in certain limited categories, the making of an order for production was appropriate. The court considered the reasonableness of the cost estimate provided by the insurer and found it to be exaggerated. Based on this reasoning, the court made orders to compel production in the limited categories where it was deemed necessary. These orders are detailed in [21] of the decision.

Orders

Orders of the court

See [21]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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