Jaqueline Isabell McLennan v Insurance Australia Limited [2011] NSWDC 132

Jaqueline Isabell McLennan v Insurance Australia Limited [2011] NSWDC 132

The application to withhold the affidavits was refused because the defendant did not establish that disclosure of the material would tend to tempt the plaintiff to tailor her evidence or consider doing so. Witness 1's central material concerned representations made to a third party outside the plaintiff's presence, while witnesses 2 and 3 concerned observations of events in the plaintiff's absence and contained little additional revelation beyond material already known from police statements. Withholding the material also risked disruption, adjournment, delay and additional cost, and would not promote the just, quick and cheap resolution of the proceedings.

Jurisdiction
Australia
Judgment Date
31 May 2011
Procedural Posture
Interlocutory Application in Insurance Proceedings / Defendant's Notice of Motion Seeking Relief From Serving Affidavits Until After the Close of the Plaintiff's Case and a Special Fixture
Outcome
Defendant's application to be relieved from serving the affidavits until after the close of the plaintiff's case was declined; no order was made at that time for a special fixture; costs awarded to the plaintiff on the motion.
Legal Topics
['application to Withhold Affidavit Evidence Before Trial' 'markus Discretion' 'case Management Under the Civil Procedure Act 2005' 'alleged Fraudulent Insurance Claim' 'risk of Tailoring Evidence' 'fire Damage Insurance Claim']
['insurance Law' 'civil Procedure' 'evidence'] ['application to Withhold Affidavit Evidence Before Trial' 'markus Discretion' 'case Management Under the Civil Procedure Act 2005' 'alleged Fraudulent Insurance Claim' 'risk of Tailoring Evidence' 'fire Damage Insurance Claim']

Case Brief

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Procedural Posture

Interlocutory Application in Insurance Proceedings / Defendant's Notice of Motion Seeking Relief From Serving Affidavits Until After the Close of the Plaintiff's Case and a Special Fixture

Legal Issues

  1. 1 ["Whether the defendant should be relieved from serving affidavits of three witnesses on the plaintiff until after the close of the plaintiff's case at the hearing." 'Whether disclosure of the withheld material would tend to tempt the plaintiff to tailor her evidence or consider doing so.' 'Whether withholding the evidence would facilitate the just, quick and cheap resolution of the proceedings.' 'Whether orders should be made for the matter to be listed as a special fixture.']

Ratio Decidendi

The application to withhold the affidavits was refused because the defendant did not establish that disclosure of the material would tend to tempt the plaintiff to tailor her evidence or consider doing so. Witness 1's central material concerned representations made to a third party outside the plaintiff's presence, while witnesses 2 and 3 concerned observations of events in the plaintiff's absence and contained little additional revelation beyond material already known from police statements. Withholding the material also risked disruption, adjournment, delay and additional cost, and would not promote the just, quick and cheap resolution of the proceedings.

Court Disposition

Defendant's application to be relieved from serving the affidavits until after the close of the plaintiff's case was declined; no order was made at that time for a special fixture; costs awarded to the plaintiff on the motion.

Orders

  • ['The defendant is to serve the evidence upon which it intends to rely at the hearing of the matter on or before 28 June 2011 or such later date as is fixed by the Court.' 'No orders are made in relation to the matter being specially fixed.' "The defendant pay the plaintiff's costs of and incidental to the motion."...