Eyles v Norwich Union Life Australia Ltd [2008] NSWSC 741

New South Wales Supreme Court

CITATION : Eyles v Norwich Union Life Australia Ltd [2008] NSWSC 741

HEARING DATE(S) : 17/07/08 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 17 July 2008

DECISION : Decline to make the orders in the notice of motion which is dismissed with costs.

CATCHWORDS : PROCEDURE [429]- Discovery- Discovery only ordered if reasonably necessary- Court must give effect to the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings- Categories of documents sought do not focus on the real issue namely whether the plaintiff has had a heart attack.

LEGISLATION CITED : Civil Procedure Act 2005, ss 56-60

PARTIES : David Eyles (P) Norwich Union Life Australia Limited t/as Aviva (D)

FILE NUMBER(S) : SC 6069/07

COUNSEL : E G Romaniuk (P) J Gleeson SC (D)

SOLICITORS : Kennedys (P) TurksLegal (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 17 July 2008

6069/07 – EYLES v NORWICH UNION LIFE AUSTRALIA LTD

JUDGMENT 1 HIS HONOUR: This is a notice of motion filed by a plaintiff who considers that the defendant wrongly rejected his claim for benefit under an insurance policy when he says he suffered a heart attack. 2 The pleadings in the amended statement of claim not only raise that particular issue but there is a claim in prayer (iv) that: "In addition, an order for damages occasioned by reason of the defendant's breach of contract and/or breach of the good faith obligation pursuant to s 13 of the Insurance Contracts Act 1984 (Cth) and/or conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) and/or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth)." 3 Those prayers are allegedly supported by the pleadings in paras 10 and 11 of the statement of claim. Paragraph 10 says: "Further, or in the alternative, the defendant's conduct in relying upon the requirement for Q waves to be present as part of the definition of a heart attack amounts to a breach of the defendant's duty of utmost good faith pursuant to ss 13 and 14 of the Insurance Contracts Act 1984 (Cth)." 4 Paragraph 11 reads: "Further, or in the alternative, the defendant's conduct in refusing to pay the plaintiff pursuant to the policy in respect of the heart attack constitutes conduct that is misleading and deceptive or likely to be misleading and deceptive contrary to s 52 of the Trade Practices Act 1974 (Cth) and/or s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth)." 5 The particulars as to para 10 say that contemporary medical opinion ceased reliance on the presence of Q waves as a diagnostic tool and that the method or standard of proof specified by the defendant does not accord with contemporary opinion. Further, the defendant's failure in this respect amounts to a failure to act in accordance with good faith and that the defendant has, in fact, continued to offer similar insurance cover in the market place in which "heart attack" is relevantly defined by reference to new electrocardiographic changes consistent with myocardial infarction. 6 The defence denies para 10 and para 11 but also pleads that the para 11 claim does not, in any event, fall within s 52 of the Trade Practices Act and is out of time. 7 On 5 March 2008, the solicitor for the plaintiff wrote to the solicitor for the defendant seeking discovery of a series of documents under eight headings or categories which can be summarised as follows: