Halpin & Ors v Lumley General Insurance Ltd

(2009) 78 NSWLR 265; [2009] NSWCA 372

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Case management
3. › Pre-trial disclosure of evidence
4. › Power to exempt party from direction to serve affidavit evidence before trial
5. › Whether power exists under Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW)
6. › Whether power constrained where withheld material relates to issue on which withholding party bears onus of proof
7. › Civil Procedure Act 2005 (NSW), ss 56-58, 61
8. › Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3
1. Practice and Procedure
2. › Case management
3. › Overriding purpose
4. › Relationship between just determination and quick and cheap resolution
5. › Balancing competing objectives under ss 56-58 of Civil Procedure Act 2005 (NSW)
6. › Whether 'cards on the table' approach precludes withholding of evidence
1. Insurance
2. › Insurance contracts
3. › Fraudulent claims
4. › Onus of proof
5. › Whether insurer may withhold evidence supporting fraud defence pending trial
6. › Insurance Contracts Act 1984 (Cth), s 56
1. Appeal
2. › Interlocutory orders
3. › Leave to appeal
4. › Exercise of discretion
5. › Whether error of principle demonstrated
6. › House v The King (1936) 55 CLR 499

Quick Take

Courts in New South Wales have power under s 61 of the Civil Procedure Act 2005 (NSW) and r 2.1 of the UCPR to direct that a party may withhold affidavit evidence from the opposing party pending trial. The power is not limited to cases where the withheld material relates only to issues on which the opposing party bears the onus of proof. The 'cards on the table' approach embodied in ss 56-58 of the CP Act does not preclude the exercise of this power in appropriate cases, particularly where there is a risk that disclosure would enable a party to tailor evidence to meet challenges to credibility in fraud cases.