Crane v Insurance Australia Limited trading as NRMA Insurance [2014] NSWDC 218

District Court New South Wales

Medium Neutral Citation: Crane v Insurance Australia Limited trading as NRMA Insurance [2014] NSWDC 218 Hearing dates: 10 November 2014 Decision date: 12 November 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Subpoena issued 8 September 2014 to the defendant in these proceedings set aside. (2) The parties to provide short minutes of order providing an extension of time for the plaintiff to serve witness statements on a date mutually convenient to the parties prior to 12 December 2014, followed by the service of statements by the defendant and such other steps as the parties may deem necessary. (3) Defendant's Amended Notice of Motion dismissed. (4) Proceedings listed before the Registrar on 19 January 2015 for directions. (5) Costs reserved. (6) Confidential affidavit of the defendant and all annexures are returned. Catchwords: PRACTICE AND PROCEDURE - plaintiff currently in breach of orders to file statements, in proceedings where an insurer had pleaded fraud, issues subpoena for investigative reports - application to set aside subpoena on the basis of oppression, lack of legitimate forensic purpose and a fishing expedition - whether claim for "Markus privilege" (Markus v Provincial Insurance Co Ltd (1983) NSWCCR 1) made out - whether documents sought for the purpose of "tailoring" the plaintiff's case - subpoena set aside Legislation Cited: Insurance Contracts Act 1984 (Cth), s 13 Uniform Civil Procedure Rules 2005 (NSW), r 33.4 Cases Cited: Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491 Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Broadwater Taxation and Investment Services Pty Ltd v Hendriks (Supreme Court of New South Wales, 9 September 1993) Dimovski v GIO (1995) 21 MVR 288 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 Hammoud Brothers Pty Ltd v Insurance Australia Limited [2004] NSWCA 366 Ho v Fordyce (ex parte) [2012] NSWSC 1404 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Markus v Provincial Insurance Co Ltd (1983) NSWCCR 1 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428 McLennan v Insurance Australia Ltd [2011] NSWDC 132 Morton v Colonial Mutual Life Insurance Society Ltd [2013] FCA 681 Prasad v AMP Life Ltd [2012] NSWSC 1076 TZ Ltd v ZMS Investments Pty Ltd & Ors; Sigalla v TZ Ltd [2010] NSWSC 138 Vidal v NRMA Insurance Ltd [2005] NSWCA 390 Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: James Crane Defendant: Insurance Australia Limited trading as NRMA Insurance Representation: Plaintiff: Mr R E Quickenden Defendant: Mr A Ahmad Plaintiff: Bourne Lawyers Defendant: Holman Webb Lawyers File Number(s): 2013/348706 Publication restriction: None