Stephen v NRMA Insurance Ltd - [2001] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION: Stephan v. NRMA Insurance Limited [2001] QDC 002

PARTIES: JOSEPH STEPHAN (Plaintiff)
v.
NRMA INSURANCE LIMITED (Defendant)

FILE NO/S: Plaint 1875 of 1999

DIVISION:

PROCEEDING: Application

ORIGINATING COURT: District Court Brisbane

DELIVERED ON: 31 January 2001

DELIVERED AT: Brisbane

HEARING DATE: 20 December 2000

JUDGE: McGill DCJ

ORDER:
Order for the production of document 39 refused. Order that the defendant be relieved, until after the close of the plaintiff’s case, of the duty of disclosure of documents number 2, 3, 4, 33, 40, 41, 48, 58, 59 and 93 in the “NRMA Claim File” part of Part 1 of Schedule 1 of the defendant’s list of documents dated 1 October 1999. Plaintiff’s application otherwise dismissed.

Order the costs of each party of the application be costs in the cause.

Order that the affidavit of Anthony Charles Cotter sworn 20 December 2000, together with the exhibits thereto be placed on the file in a sealed envelope which is not to be opened except by order of a judge or, if an appeal is instituted, by a deputy registrar of the Court of Appeal.

CATCHWORDS:
PRACTICE – disclosure – relief from duty of – documents suppressed to assist cross-examination and avoid risk of tailoring evidence – Uniform Civil Procedure Rules rr 223, 224.

Church of Scientology of California v. Department of Health and Social Security [1979] 1 WLR 723 - considered
Riddick v. Thames Board Mills Ltd [1977] QB 881 – cited
Magellan Petroleum Australia Ltd v. Sagasco Amadeus Pty Ltd [1994] 2 Qd.R. 57 – cited
Kimberly Mineral Holdings Ltd v. McEwan [1980] 1 NSWLR 210 - cited
Markus v. Provincial Insurance Co Ltd (Number 17241/82, Supreme Court New South Wales, 11.5.83, unreported) – followed
Broadwater Taxation and Investment Services Pty Ltd v. Hendriks (3618/93, Supreme Court New South Wales, 9.9.93, unreported) – followed
Wilson v. Camden Plumbing Pty Ltd (19505/93, Supreme Court New South Wales, 1.11.95, unreported) - cited
Marsden v. Amalgamated Television Services Pty Ltd [1999] New South Wales Supreme Court, 428 – considered
Kahn v. Armaguard Ltd [1994] 1 WLR 1204 - considered
Kitching v. Millaquin Sugar Co Pty Ltd [1992] 1 Qd.R. 194 – applied
Martin v. Kennedy [1992] 2 Qd.R. 109 – applied
King v. Nolan [1992] 2 Qd.R. 498 - applied
Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants and Bars Pty Ltd [1999] QCA 276 – considered
Mobil Oil Australia Ltd v. Guina Developments Pty Ltd [1996] 2 VR 34 – cited
Robson v. Reb Engineering Pty Ltd [1997] 2 Qd.R. 102

COUNSEL: S P Barry for the plaintiff
K Buxton for the defendant

SOLICITORS: Bradley Munt & Co for the plaintiff
McCullough Robertson for the defendant

This is an application by the plaintiff for an order that the defendant deliver copies of particular documents in the defendant’s list of documents, copies of which the defendant has refused to provide. Rule 223(1) relevantly provides that the court may order a party to a proceeding to disclose to…

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: [2001] QDC 2
Decision Date: 31 January 2001

CaseChat Overview and Summary

The plaintiff in this proceeding sought an order for the production of particular documents from the defendant, which the defendant had refused to provide. The defendant resisted the application on the ground that disclosure of the relevant documents to the plaintiff prior to the trial cannot assist the plaintiff to prove his case, and, if his claim is not genuine, their production may permit him to manufacture evidence and thus facilitate an abuse of process. The plaintiff claimed that the defendant was in possession of a motor vehicle under a hire purchase agreement and had issued a policy and certificate of insurance agreeing to insure the vehicle. The plaintiff alleged that the vehicle was stolen and destroyed by fire. The defendant admitted the making of the policy but denied the vehicle was stolen and alleged that the plaintiff had not been truthful and frank in statements made by him in connection with the claim he had purported to make under the contract. The defendant further alleged that the plaintiff was in breach of his obligation of utmost good faith in respect of these matters, so that the defendant was entitled to refuse to indemnify the plaintiff and to cancel the contract. The court found that it was appropriate to postpone the duty of disclosure until after the close of the plaintiff’s case. It ordered that the defendant be relieved, until after the close of the plaintiff’s case, of the duty of disclosure of documents number 2, 3, 4, 33, 40, 41, 48, 58, 59 and 93 in the “NRMA Claim File” part of Part 1 of Schedule 1 of the defendant’s list of documents dated 1 October 1999. The plaintiff’s application was otherwise dismissed. The court ordered that the costs of each party of the application be costs in the cause.

Orders