RILEY v TOWER LIFE AUSTRALIA LTD [1998] NSWCA 185

RILEY v TOWER LIFE AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA and FITZGERALD AJA 6 October 1998, 16 December 1998

[1998] NSWCA 185

DISCOVERY Supreme Court Rules Pt23 r3 — documents sought by appellant were the type of document which a defendant is entitled to keep confidential for use at trial — decision of primary judgment correct.

Priestley JA I agree with Fitzgerald AJA. Powell JA I agree with Fitzgerald AJA.

Fitzgerald AJA This is an appeal by leave from a refusal of an order that the respondent give the appellant discovery of the following classes of documents pursuant to Pt23 13 of the Rules of Court:

"5. All investigators or loss assessors reports compiled in relation to the claim made by the [appellant] under the policy including all statements obtained from any witness and including any statement made by the [appellant].

6. Any report of any surveillance carried out in relation to the [appellant] in any films or video tapes made following upon such surveillance."

The order was sought in an action in the Common Law Division in which the appellant is suing the respondent for damages for breach of a disability insurance policy. It is common ground that the appellant was for a period "Totally Disabled" within the meaning of the policy and entitled to payment of "Total Disability Benefit", and, for a subsequent period, "Partially Disabled" within the meaning of the policy and entitled to "Partial Disability Benefit". According to the appellant, his "Total Disability" extended from ".... a date in late April 1992..." until "....a date in March or April 1993 known to the [respondent]", and his "Partial Disability" then commenced and is continuing. According to the respondent, it ".... became aware that the [appellant's] entitlement to total disability benefits ended on 29 March 1993" (which does not seem contentious), but the appellant only remained entitled to partial disability benefit... until 22 September 1994....". The respondent ceased payment of any benefit from that date. There is an ancillary dispute concerning the amounts of the "Total Disability" and "Partial Disability" benefits to which the appellant was entitled under the policy.