Halpin & Ors v Lumley General Insurance Ltd [2009] NSWSC 644

New South Wales Supreme Court

CITATION : Halpin & Ors v Lumley General Insurance Ltd [2009] NSWSC 644

HEARING DATE(S) : 06/07/2009

JUDGMENT DATE : 10 July 2009

JUDGMENT OF : Hoeben J

I direct that the defendant not be required to serve on the plaintiffs the affidavits referred to in the affidavit of Danielle Maree Wallis of 6 July 2009. DECISION : I order that the affidavit of Danielle Maree Wallis of 6 July 2009 and its attachments be placed in a sealed envelope in the Court file and marked "Documents inspected by Court for purposes of Notice of Motion heard on 6 July 2009". I direct that the sealed envelope to which I have referred in (2) above, be retained on the Court file and not be opened without the leave of a Judge. I order that the costs of this motion be costs in the cause.

CATCHWORDS : PRACTICE AND PROCEDURE - application to waive requirement to serve affidavits - whether the principle in Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 still exists - whether such a principle is consistent with the Civil Procedure Act 2005 and the "cards on the table" approach to litigation - whether elements of Markus principle made out - matters to be taken into account by court in exercise of its discretion.

LEGISLATION CITED : Civil Procedure Act 2005 Insurance Contracts Act 1984 (Cth)

CATEGORY : Procedural and other rulings

Broadwater Taxation and Investment Services Pty Limited v Hendriks (NSWSC, unreported, 9 September 1993, Santow J) Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets [2004] NSWSC 40 CASES CITED : Kon v AMP Life Limited [2006] NSWSC 957 Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 Ng v Goldberg (NSWSC, unreported, 17 August 1993, Young J) Nowlan v Marson Transport Pty Limited (2001) 53 NSWLR 116