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

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

The affidavits sought to be withheld fell within the scope of the Markus discretion: their disclosure would not advance the plaintiffs’ case but could tempt tailoring of evidence due to their focus on inconsistencies and credibility challenges. The interests of justice were served by withholding the affidavits, pursuant to established principles and s 56–58 Civil Procedure Act 2005.

Parties
First Plaintiff: Loretta Halpin; Second Plaintiff: Michael Halpin; Third Plaintiff: Haljen Pty Limited; Defendant: Lumley General Insurance Ltd
Jurisdiction
Australia
Judgment Date
10 July 2009
Procedural Posture
Civil / Interlocutory Motion
Outcome
Defendant's motion granted
Legal Topics
Application to Waive Requirement to Serve Affidavits, Markus Discretion, Fraudulent Insurance Claim, Civil Procedure Act 2005, Cards on the Table Litigation, Trial by Ambush
Practice and Procedure Insurance Application to Waive Requirement to Serve Affidavits Markus Discretion Fraudulent Insurance Claim Civil Procedure Act 2005 Cards on the Table Litigation Trial by Ambush

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Parties

Loretta Halpin

First Plaintiff

Michael Halpin

Second Plaintiff

Haljen Pty Limited

Third Plaintiff

Lumley General Insurance Ltd

Defendant

Procedural Posture

Civil / Interlocutory Motion

Legal Issues

  1. 1 Whether the principle in Markus v Provincial Insurance Company Limited (1983) 25 NSWCCR 1 still exists and applies
  2. 2 Whether such principle is consistent with Civil Procedure Act 2005 and the 'cards on the table' approach
  3. 3 Whether elements of Markus principle are made out

Ratio Decidendi

The affidavits sought to be withheld fell within the scope of the Markus discretion: their disclosure would not advance the plaintiffs’ case but could tempt tailoring of evidence due to their focus on inconsistencies and credibility challenges. The interests of justice were served by withholding the affidavits, pursuant to established principles and s 56–58 Civil Procedure Act 2005.

Court Disposition

Defendant's motion granted

Orders

  • The defendant is not required to serve on the plaintiffs the affidavits referred to in the affidavit of Danielle Maree Wallis of 6 July 2009.
  • The affidavit of Danielle Maree Wallis of 6 July 2009 and its attachments are to be placed in a sealed envelope in the Court file marked 'Documents inspected by Court for purposes of Notice of Motion heard on 6 July 2009'.