Zadeh v The Hollard Insurance Company Pty Ltd

[2021] NSWSC 1419

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zadeh v The Hollard Insurance Company Pty Ltd [2021] NSWSC 1419

Hearing dates:

3 November 2021

Date of orders:

3 November 2021

Decision date:

03 November 2021

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)   The plaintiff’s notice of motion filed on 5 October 2021 be dismissed.

(2)   The plaintiff is to pay the defendant’s costs of and incidental to the motion.

Catchwords:

CIVIL PROCEDURE – notice of motion – plaintiff seeking material in defendant’s possession already provided – motion dismissed costs

Legislation Cited:

Local Court Act 2007 (NSW), s 39(2)

Category:

Procedural rulings

Parties:

Parviz Haji Zadeh (Plaintiff)
The Hollard Insurance Company Pty Ltd (Defendant)

Representation:

Counsel:
J Gruzman (Defendant)

Solicitors:
Mr Zadeh (self-represented)
Grace Lawyers Pty Ltd (Defendant)

File Number(s):

2021/202214

Publication restriction:

NIL

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: On 23 November 2020, the plaintiff in these proceedings, currently the applicant on a notice of motion, had a hearing in the small claims division of the Local Court. He was unsuccessful and subsequently sought to bring an appeal under s 39(2) of the Local Court Act2007 (NSW) to the District Court which is available on the grounds of lack of jurisdiction or denial of procedural fairness.

2. On 22 February, he sought an extension of time in which to appeal, there being some issue as to whether he had in fact lodged his appeal within time or not.

3. On 15 June of this year, the Judicial Registrar in the District Court refused his application for an extension of time. The plaintiff/applicant has brought an application for leave to appeal to this Court from the decision of the Judicial Registrar. That matter is listed for hearing in this Court on 3 February 2022. There is a directions hearing on 19 November 2021.

4. In the course of the proceedings seeking leave to appeal, the plaintiff/applicant filed a notice of motion which is before me today.

5. Subsequent to that motion being filed, I note that the defendant has also filed a motion yesterday which is listed for directions on 9 November and in that motion seeks ultimately the summons be dismissed as incompetent or otherwise dismissed. That, as I say, is not before me today, neither is the application for leave to appeal. I am simply dealing with the notice of motion filed by the plaintiff/applicant on 5 October 2021.

6. In that motion, the plaintiff/applicant seeks, one, an order that:

“1.    The Duty of Disclosure statement in plaintiff's voice footage to be provided and it has to be the actual Duty of Disclosure statement which expected to be consistent in plaintiff's voice footage not a general copy or sample of it.

2.    Defendant pay the plaintiff's insurance claim amount along with interest and associated costs.”

7. The plaintiff/applicant did not file or read any evidence on the motion. The defendant in accordance with directions given by the Registrar filed an affidavit on 28 October 2021 and that affidavit was read on this hearing. That is an affidavit of Ms Victoria Parker of 28 October 2021.

8. In that affidavit, Ms Parker sets out the background to the matter. In short, it relates to an insurance policy taken out by the plaintiff on 2 November 2018 with respect to his motor vehicle. It was on 2 March 2019 the plaintiff lodged a claim with the defendant following an accident. The claim was denied due to, on the defendant's case, a failure by the plaintiff to disclose five previous claims in the previous three years prior to inception of the policy.

9. The plaintiff/applicant was dissatisfied with the refusal to pay on the policy and took action in the small claims division of the Local Court seeking that the policy in essence be honoured and he be paid an amount of money commensurate with his loss.

10. The application for leave to appeal is, as I say, set for hearing in February 2022. With respect to this motion, the evidence of Ms Parker deals with material that has been provided by the defendant/respondent to the plaintiff and the basis upon which the defendant claims that they have provided all materials requested to the plaintiff/applicant.

11. The affidavit of Ms Parker indicates that she has been informed and believes that there is a procedure adopted by the defendant when telephone calls are made seeking insurance. The calls are made to Woolworths Insurance although the policy is actually with the defendant company, Hollard. The evidence is that when a person calls Woolworths Insurance, there is an automatic pre-recorded duty of disclosure played. The person is then placed in a queue and then once the call commences with the claims officer, the recording of the call commences. Ms Parker indicates in her affidavit that on 3 August of this year, she sent an email to the plaintiff providing a copy of the sound recording of the phone call taking out the policy, and a statement of Ms Karen Russell, which was filed in the Local Court proceedings enclosing the transcript of that telephone call, and the certificate of insurance containing the duty of disclosure. That transcript makes it clear that the initial pre-recorded aspect of the telephone call is not part of that recording.

12. Ms Parker further indicates that on 26 August of this year, she sent an email enclosing a copy of the sound recording of the pre-recorded disclosure statement prior to the policy inception call.

13. On the evidence of Ms Parker, that is the entirety of the telephone conversation that took place between the plaintiff/applicant and Woolworths Insurance.

14. The plaintiff maintains that there is something more. He, however, also maintains that he was never told that the policy was actually with the Hollard Insurance Company and not with Woolworths. Be that as it may, the defendant's point is they have provided him with everything they have. Perhaps more pertinently, as I understand it, the plaintiff’s point is he was never told about the Hollard Insurance Company. His contention in that regard is, on what he has told me today, supported by the material provided to him, that is, it is his contention that it does not reveal anything said about the Hollard Insurance Company.

15. In other words, the plaintiff has brought this motion to establish the non-existence of particular material. In those circumstances it is unnecessary to make order 1 in the notice of motion as I am satisfied that the defendant has provided all material in its possession.

16. With respect to order 2, the plaintiff seeks in essence resolution of the initial claim in his favour. That is not a matter appropriate for this motion but, rather, the matter will need to take its course with respect to the application for leave to appeal and any orders consequent on that. That being the case, I propose to dismiss the plaintiff/applicant’s motion.

HIS HONOUR HEARD THE PARTIES AS TO COSTS

17. I have a broad discretion as to costs but in the ordinary course costs will follow the event, and in the circumstances of this matter where it seems that the defendant has been put to unnecessary trouble and expense in responding to the motion in circumstances where material has previously been provided to the plaintiff, I am of the view that the defendant is entitled to his costs.

18. I order that the plaintiff pay the defendant’s costs of and incidental to the motion.

19. Accordingly, the orders I make are:

1. The plaintiff’s notice of motion filed on 5 October 2021 be dismissed.

2. The plaintiff is to pay the defendant’s costs of and incidental to the motion.

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Amendments

04 November 2021 - [14] Typographical error

11 May 2022 - typographical error corrected [19] and coversheet

Decision last updated: 11 May 2022