Wilson v Yehaa Pty Limited

[2015] NSWDC 433

District Court

New South Wales

Medium Neutral Citation:	Wilson v Yehaa Pty Limited [2015] NSWDC 433
Hearing dates:	9 October 2015
Date of orders:	09 October 2015
Decision date:	09 October 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Set aside the subpoenas issued to Calliden Insurance Limited on 27 November 2014 and 17 August 2015 pursuant to Part 33 rule 4 of the Uniform Civil Procedure Rules 2005. (2)   By consent and pursuant to Uniform Civil Procedure Rule 5.3(1), order that the applicant, Calliden Insurance Limited, within 14 days give discovery to the plaintiff of all documents recording or conveying the “instructions received” by the applicant in relation to the matter “that the company’s vessels must not operate past the designated eastern line of operation (a line between Georges Head and Watson[s] Bay approximately 1.5 kilometres inside the Heads)” referred to in paragraph (c) of the letter by the applicant dated 9 September 2013 to the first defendant. (3)   Order that the plaintiff pay the applicant’s costs of the notice of motion. (4)   Order (3) to be stayed for 3 months and in the event that the applicant is joined in that period, that order (3) not be enforced before the conclusion of the proceedings without further leave of the Court. (5)   Stand over the proceedings for further directions on Thursday, 5 November 2015 at 9.30am before the Judicial Registrar.
Catchwords:	CIVIL PROCEDURE – subpoenas – setting aside – discovery by prospective party – proposed joinder of insurer
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 5.3, r 33.4
Category:	Procedural and other rulings
Parties:	Calliden Insurance Limited (applicant on notice of motion) David John Wilson (plaintiff/respondent on notice of motion) Yehaa Pty Limited (ACN 093 224 116) formerly known as Oz Jet Boating Pty Ltd (first defendant) Richard Joseph Peipman (second defendant)
Representation:	Counsel: Mr M Newtown (applicant on notice of motion) Mr K Andrews (plaintiff/respondent on notice of motion)   Solicitors: HWL Ebsworth Lawyers (applicant on notice of motion) Slater & Gordon Lawyers (plaintiff/respondent on notice of motion)
File Number(s):	2013/131607
Publication restriction:	None

Judgment

1. David Wilson alleges that he was injured in a boating accident. He has joined as defendants the owner and the operator of the relevant boat. The insurer of the boat owner, Calliden Insurance Limited, has sought to avoid the policy ab initio by reason of alleged misrepresentations said to have been made by the broker of the boat owner about the area of operation of the boat.

2. Mr Wilson has issued a subpoena to the insurer seeking:

“3. All correspondence or copy correspondence between you, Livingstons Insurance Brokers and/or Sports Underwriting Australia and/or Yehaa Pty Limited...and/or Fezit Pty Limited...formerly known as Oz Jet Boating Sydney Harbour Pty Ltd and/or their solicitors in relation to the subject accident on 30 April 2011 involving a Jet Boat…”

and:

“2. A copy of all documents including correspondence and copy correspondence, certificates of survey and proposal forms passing between you and Livingstons Insurance Brokers in relation to:

• Policy number...including documents created prior to the inception of the policy, and any documents addressing conditions and/or endorsements placed on the policy; and

• Any documents containing instructions, information or representations by Livingstons Insurance Brokers regarding restrictions on the operation of the vessels operated by Oz Jet Boating Pty Ltd.

3. A copy of all annexures and/or proposal documents retained in relation to policy number...”

3. As the insurer is not a party to the proceedings and as the documents pertain only to the question of the entitlement of the insurer to decline indemnity, the insurer contends that the documents are irrelevant to the current proceedings. This is not disputed by Mr Wilson, but he says that as he is considering joining the insurer the Court’s discretion in relation to the setting aside of a subpoena should be exercised in his favour.

4. Reference was made to the provisions of r 5.3 of the Uniform Civil Procedure Rules 2005, which allow, in certain circumstances, discovery of documents from a prospective defendant. Subrule (1) of that provision states:

“(1) If it appears to the court that:

(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.”

5. There are differences between the procedure on a subpoena and an order for discovery under r 5.3(1). There are also differences between the breadth of the subpoenas in the present case and the focus of an order under r 5.3(1).

6. Neither party spoke against the proposal of the subpoena being set aside but an order being made under r 5.3, nor about any procedural inappropriateness of joining the insurer.

7. Mr Wilson has made attempts, including by issuing the subpoenas, to determine whether the insurer’s avoidance of the policy can be challenged. As there is no real opposition to an order under r 5.3(1) I propose to set aside the subpoena and make such an order.

8. Submissions were made as to the width of such an order. The nature of an appropriate order is informed by the particulars of the alleged misrepresentations. The insurer’s letter dated 9 September 2013 stated:

“(b) Before the Policy was incepted, the Underwriter had specifically raised an issue about where the vessels operated and his concern about the waves near the Heads.

(c) Your broker, Mark Livingston of Livingston Brokers, conveyed instructions received from you, that the company’s vessels must not operate past the designated eastern line of operation (a line between Georges Head and Watson[s] Bay approximately 1.5 kilometres inside the Heads).”

9. I propose to order that the insurer produce all documents recording or conveying the “instructions received” by the insurer in relation to the matter “that the company’s vessels must not operate past the designated eastern line of operation (a line between Georges Head and Watson[s] Bay, approximately 1.5 kilometres inside the Heads)” referred to in para (c) of the letter of the insurer dated 9 September 2013.

10. I am not minded to include any widening of that order to embrace any additional documents which may be indicated by para (b) of the letter quoted above because they do not seem to me to be necessary for Mr Wilson to decide, under r5.3(1), “whether or not to commence proceedings against” the insurer. Given the overriding purpose of the rules is to produce a quick, cheap and just determination of the real issues in the dispute, an order of this nature is appropriate: it is inappropriate to multiply the interlocutory proceedings, the costs and time before the potential joinder of the insurer to the proceedings is resolved.

11. Mr Wilson does not resist a costs order but seeks that it not be enforced until the conclusion of the proceedings. If the joinder proceeds then Mr Wilson’s request is appropriate. Accordingly, I propose to order that Mr Wilson pay the applicant insurer’s costs, but that the order be stayed for three months and also order that if the applicant is joined to the proceedings within that period, that the order not be enforced before the conclusion of the proceedings without further leave of the Court.

12. Accordingly, the orders of the Court are:

1. Set aside the subpoenas issued to Calliden Insurance Limited on 27 November 2014 and 17 August 2015 pursuant to Part 33 rule 4 of the Uniform Civil Procedure Rules 2005.

2. By consent and pursuant to Uniform Civil Procedure Rule 5.3(1), order that the applicant, Calliden Insurance Limited, within 14 days give discovery to the plaintiff of all documents recording or conveying the “instructions received” by the applicant in relation to the matter “that the company’s vessels must not operate past the designated eastern line of operation (a line between Georges Head and Watson[s] Bay approximately 1.5 kilometres inside the Heads)” referred to in paragraph (c) of the letter by the applicant dated 9 September 2013 to the first defendant.

3. Order that the plaintiff pay the applicant’s costs of the notice of motion.

4. Order (3) to be stayed for 3 months and in the event that the applicant is joined in that period, that order (3) not be enforced before the conclusion of the proceedings without further leave of the Court.

5. Stand over the proceedings for further directions on Thursday, 5 November 2015 at 9.30am before the Judicial Registrar.

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Decision last updated: 12 July 2018