Newling v FSS Trustee Corporation [2017] NSWSC 1839

Supreme Court New South Wales

Medium Neutral Citation: Newling v FSS Trustee Corporation [2017] NSWSC 1839 Hearing dates: 10 November 2017 Date of orders: 10 November 2017 Decision date: 10 November 2017 Jurisdiction: Equity Before: Parker J Decision: Order made for separate hearing Catchwords: Civil Procedure – Application for hearing of issue as separate question – Whether plaintiff entitled to total permanent disability benefits – First stage of inquiry – Wording of separate question should follow Statement of Claim Cases Cited: Annan v FSS Trustee Corporation [2017] NSWSC 1453 Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 Category: Procedural and other rulings Parties: Kim Newling (Plaintiff) FSS Trustee Corporation (First Defendant) MetLife Insurance Ltd (Second Defendant) Representation: Counsel: A Coombes (Plaintiff) J Harrison (Defendants)

Solicitors: Walter Madden Jenkins Solicitors (Plaintiff) Moray & Agnew (Defendants) File Number(s): 2016/181890 Publication restriction: Nil

Judgment – EX TEMPORE 1. This is an application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 28.2 for the determination of a separate question in proceedings in the Court. 2. The plaintiff in the proceedings is a former officer of the New South Wales Police Force. She claims that as a result of her service with the Police Force, she has become totally and permanently disabled for the purposes of the Police Blue Ribbon Insurance - Group Life Insurance Policy which covered her during her service. 3. As is usual in a case of this sort, the plaintiff's case involves two stages. The plaintiff must first demonstrate that the conduct of the insurer in declining the claim was such as to be a breach of the insurer's obligations towards her. If this condition is satisfied, then the plaintiff must establish that, on the facts, she was entitled to the benefit which she claims: see, generally, Hannover Life Re of Australasia Ltd v Jones [2017] NSWCA 233 at [86]. 4. The first stage of the inquiry is confined to an analysis of the material which was before the insurer at the time it declined the claim and the reasonableness of the insurer's conduct in doing so. The actual facts of the plaintiff's condition are not directly relevant. 5. In this case, as is commonly the case, there is a significant dispute as to the nature and extent of the plaintiff's condition and the connection between any such condition and her service with the Police Force that is likely to involve evidence from the plaintiff herself, possibly members of her family and medical experts. 6. None of this evidence is relevant at the first stage of the inquiry. The plaintiff accepts that there is a real issue about the first stage. It follows that the separate determination of the first stage presents the opportunity for a substantial potential saving of time because if the plaintiff is unable to establish breach of duty on the part of the insurer, it will not be necessary to go into the factual questions which arise about the nature and extent of her condition. 7. There have been a number of cases in this Division where orders have been made for the separate hearing of the issues which arise at the first stage of the inquiry. Most recently, such orders were made by in Black J in J Annan v FSS Trustee Corporation [2017] NSWSC 1453. 8. I agree that in this case the making of such an order would be a desirable step. In the present case, the parties are agreed, in principle, that such an order should be made. 9. When the matter was heard before me, the debate centred around the form of the order. I expressed the view that the wording of the separate question to be determined should, as much as possible, follow the wording of the Statement of Claim. This is because it is the Statement of Claim which defines the issues to be determined in the proceedings. 10. In the course of the debate it became apparent that the way in which the plaintiff had formulated the duty alleged against the insurer and the breach of that duty in her Statement of Claim needed to be revised and expanded. Accordingly, I adjourned the application to allow that to happen. 11. The plaintiff has now brought in an Amended Statement of Claim and Short Minutes of Order have been agreed which will deal with the procedural consequences of the amendment. 12. The parties are now agreed on the form of the order identifying the separate question which follows the wording of the Statement of Claim as amended. 13. Accordingly, I will make the orders in the Short Minutes which give effect to the amendment and which specify the separate question which is to be determined. 14. The only remaining issue is the question of costs. The plaintiff accepts that she must pay the costs, if any, thrown away by reason of the amendment. However, the second defendant seeks to include a further order that the costs of the amendment include the costs of the hearing before me. I am not prepared to make that order. There was no opposition, in principle, by the plaintiff to the second defendant's application, but I took the view that an order of this sort is not the type of order which should be made merely as a result of the consent of the parties but required judicial consideration to ensure, so far as that is possible, that the order was appropriate and was made in an appropriate form. 15. In the argument before me, counsel for the second defendant proposed a form of order which did not follow the wording of the Statement of Claim. I do not say this critically but only to illustrate that the hearing which took place before me was required in any event. 16. The second defendant is not in the position of a party who has succeeded completely over opposition of the other party in an interlocutory application. The attitude of both parties and their counsel to the application was not one of contest but, appropriately, one of co-operation. 17. Accordingly, the appropriate order is that the costs of the application be costs in the cause. 18. The orders of the Court are: 1. I make orders in accordance with paragraphs 1, 3, 4 and 5 of the Short Minutes of Order which I have initialled and dated with today's date. 2. I note the agreement of the parties as to the agreed outcome of the separate question as recorded in the letter from the solicitors for the second defendant to the solicitors for the plaintiff dated 9 November 2017 at paragraphs 2(b) and 2(c). 3. I order that the plaintiff pay the costs thrown away by reason of the amendment of her Statement of Claim. 4. I order that the costs of the second defendant's motion for a separate determination be costs in the cause.