New South Wales Supreme Court CITATION : Kon v AMP Life Ltd [2006] NSWSC 957 HEARING DATE(S) : 14/09/06 JUDGMENT DATE : 15 September 2006 JURISDICTION : Equity Division JUDGMENT OF : Barrett J DECISION : Dispensation from pre-trial direction regarding defendant's evidence CATCHWORDS : PROCEDURE - miscellaneous procedural matters - pre-trial directions for serving of affidavits - defendant seeks dispensation with a view to deciding after cross-examination of plaintiff whether to lead certain evidence - such evidence not material to making of case by plaintiff - knowledge such evidence may prompt tailoring of evidence Broadwater Taxation & Investment Services Pty Ltd v Hendricks (unreported, NSWSC, 9 September 1993) Marcus v Provincial Insurance Company Limited (unreported, NSWSC, 11 May 1993) CASES CITED : Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428 Ng v Goldberg (unreported, NSWSC, 17 August 1993) State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 9 NSWLR 487 PARTIES : Michael Kon - Plaintiff AMP Life Ltd - Defendant FILE NUMBER(S) : SC 4748/03 COUNSEL : Mr G.J. Watkins - Plaintiff Mr M.R. Elliott - Defendant SOLICITORS : DGB Lawyers - Plaintiff Mallesons Stephen Jaques - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J FRIDAY 15 SEPTEMBER 2006 4748/03 MICHAEL KON v AMP LIFE LTD JUDGMENT 1 These proceedings are listed for hearing before me for three days commencing 27 September 2006. The plaintiff's claim is for alleged breach of contract consisting of the defendant's failure to pay benefits which the plaintiff says became payable under an insurance policy, being an income continuation policy. One matter on which issue is joined on the pleadings is whether, in terms of the policy, the plaintiff was unable to work at particular times. 2 On 3 February 2006 it was ordered, by consent, that the defendant serve any affidavit evidence by 1 March 2006. The defendant now seeks dispensation from that order or direction insofar as it affects evidence of matters the substance of which appears from a bundle of documents. I heard that application yesterday afternoon. The plaintiff opposed the making of the order sought but did not seek to resist a course of action which involved my receiving the documents in question from counsel for the defendant, but without their also being made available to the plaintiff and his counsel. That course was taken so that I might consider the defendant's application for dispensation. 3 Having received the documents at yesterday's hearing, I have now read them for the purpose of deciding the application. 4 The application is advanced by reference to the possibility that the defendant may or may not wish to adduce evidence of the matters in the documents, depending upon the state of the evidence at the close of the plaintiff's case. Much will depend, it is said, on the results of cross-examination of the plaintiff himself. Having heard the cross-examination and, depending on what is said in it, the defendant may wish to adduce the evidence concerned. 5 The matter is put thus in the affidavit sworn on 11 September by Ms Tamhane of the defendant's solicitors: "3. Upon present instructions, the defendant intends to put various factual propositions to the plaintiff which go to credit and certain facts in issue. 4. Depending on the plaintiff's answers the possibility exists that the defendant will seek leave to adduce oral evidence consistent with the contents of various documents." 6 The plaintiff does not dispute that there is power to grant the dispensation that the defendant seeks, thus leaving open the possibility that the defendant may, at some later point, seek to lead the evidence in question. Assuming that the evidence was at that time seen to be relevant and was tendered in admissible form, there would, in theory, be a possibility that the court would decline to allow it to be adduced. I refer to observations of Gleeson CJ in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 9 NSWLR 487 at 493. But that would only occur if some particular unfairness was seen at that time. 7 The purpose of the present application is to ensure that the existing direction could, if such a point were reached, no longer be seen as a source of unfairness or indeed as any other form of impediment to an approach under which, as regards the material in question, there was a departure from the ordinary principle of litigation that there should be no possibility of surprise and material matters on both sides should be out in the open in advance of the hearing. 8 In support of its application, the defendant relies on a decision of Clarke J in Marcus v Provincial Insurance Company Limited (unreported, NSWSC, 11 May 1993) concerning questions about access to a discovered document. The question before his Honour is clear from his description of the submission of the defendant, by which production of the document was resisted: "The defendant has submitted the interests of justice would not be served by producing the document because it contains material which does not advance the plaintiffs' case but which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them to tailor or endeavour to tailor their evidence to meet the circumstances." 9 The same basis was asserted in a case that came before Santow J later in the same year, Broadwater Taxation & Investment Services Pty Ltd v Hendricks (unreported, NSWSC, 9 September 1993). That case involved circumstances even closer to those of this case. The application there was for an order or direction to the effect that ten affidavits of potential witnesses for the plaintiff and notice of the identities of the deponents need not be served on the defendants until after conclusion of the cross-examination of the defendants and that pre-trial directions be varied to permit this. The rationale for the application was stated by Santow J as follows: "The essential basis for this submission by the Plaintiff is that making available this material to the Defendants will not advance the Defendants' case and that, if so made available prior to completion of cross examination of either Defendant would, if the Defendants were not genuine, enable the Defendants to tailor or endeavour to tailor their evidence to meet such evidence contained in the materials." 10 In each of these cases the material in question was withheld. There were two main reasons. The first was that the material was not of a kind that could assist the deprived party in the formulation and presentation of its own case. It was of such a nature that it could be of assistance only to the applicant in meeting the case made by the deprived party and, depending upon what came out in the deprived party's case, it might not even be relied on for that purpose. In other words, the evidence in question might, after the close of the deprived party's case, be seen to be of no use in any event. 11 The second point was that the material was of such a nature that it would, if made available, tend to tempt the deprived party to tailor its evidence or at least to consider doing so. An example of the kinds of material in question and a statement of the rationale for withholding it is given in another unreported decision of 1993, that of Young J in Ng v Goldberg (unreported, NSWSC, 17 August 1993): "The kernel of the documents that fall into this category are those where the defendant has taken pains to prepare material to attack the credit of the plaintiff and had prepared films or other reports on the plaintiff's activities, which if the plaintiff were able to sight them before the trial would deprive the defendant of a legitimate advantage of testing the plaintiff's story using that material." 12 I was also referred to a decision of Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428 but I do not think I need to go specifically to it. 13 Having reviewed the documents handed up yesterday, I am satisfied that this is a case in which the interests of justice will be better served by the course the defendant seeks to follow than by the ordinary course which sees disclosure in affidavit form in the pre-trial phase of all evidence proposed to be led on both sides. The evidence now in question satisfies both elements of the descriptions given by Clark J and Santow J. It could not possibly assist the plaintiff in the preparation of his case and disclosure of it before the close of the plaintiff's case, or at least before completion of cross-examination of the plaintiff himself, would pose at least a risk of tailoring or distortion, being a risk that the interests of justice require be avoided if it can be. There is also the point to which Young J refers, that is, reserving to the defendant a legitimate forensic advantage of challenging the plaintiff's account of matters in cross-examination of him. 14 The only matter that has made me hesitate is the possibility that disclosure of the evidence at the pre-trial stage might enhance the possibility of a settlement. While that is probably so, I am not satisfied that I should place any real weight on that factor. The plaintiff is bringing the claim and bears the burden of proof. The main concern must be, in my view, to facilitate the processes by which the plaintiff's claim is advanced in an orderly way, best calculated to see the issues brought before the court free from possible distortion. Granting of the present application will advance that purpose. 15 I have placed the documents handed up by the defendant yesterday in a sealed envelope marked, "Documents inspected by court for purposes of notice of motion heard on 14 September 2006". The envelope is also marked "Confidential. Not to be opened without the leave of the judge". That envelope will be left with the court file. 16 I order that, with respect to the substance of the documents in the sealed envelope in the court file marked, "Documents inspected by court for purposes of notice of motion heard on 14 September 2006", the defendant be granted relief from the order or direction made on 3 February 2006 that the defendant serve any affidavit evidence on which it intends to rely by 1 March 2006. 17 I direct that the sealed envelope to which I have referred be retained on the court file and not be opened without the leave of a judge. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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