Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372

Reported Decision: 78 NSWLR 265261 ALR 741[2010] ALMD 5301

New South Wales Court of Appeal

CITATION: Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 September 2009

JUDGMENT DATE: 23 November 2009

JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Sackville AJA at 38

1. Leave to appeal granted. DECISION: 2. Appeal dismissed. 3. Appellant to pay Respondent's costs of appeal, including the application for leave to appeal.

CATCHWORDS: PROCEDURE – application by defendant insurer to waive direction that all affidavit evidence be served before trial – application of discretionary power said to be established by Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 – source of power to make orders sought by insurer – whether the power exists under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules – whether primary judge erred in the exercise of discretion in making the order sought by the insurer

Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 (Cth), cl 37M(3) Administrative Appeals Tribunals Act 1975 (Cth), s 2A Insurance Contracts Act 1984 (Cth), s 56 Civil Procedure Act 2005 (NSW), s 14, s 15, Pt 6 Supreme Court Act 1970 (NSW), s 76A Supreme Court Rules 1970 (NSW), Pt 23 r 10(1), Pt 26 r 1, Pt 37 r 10 LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW), r 2.1, r 2.3, r 21.7, r 31.1, r 33.9 Practice Note SC CL 5 Court Procedures Rules 2006 (ACT), r 21(1) Uniform Civil Procedure Rules 1999 (Qld), r 5 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 1.14 Rules of the Supreme Court 1971 (WA), O 36 r 4 Civil Procedure Act 1997 (UK), r 1.1 Civil Procedure Rules 1998 (UK)