Yabsley v MLC Limited [2017] NSWSC 832

Yabsley v MLC Limited [2017] NSWSC 832

The order sought was within the broad procedural power in UCPR r 2.1 and was necessary or expedient for the just, quick and cheap resolution of the proceedings because medical records concerning the Saudi Arabian surgery were potentially relevant to the claimed major brain injury. The plaintiffs' objections about uncertainty of existence or relevance of records were not substantial, the hospital's correspondence indicated a file may exist, and requiring the defendant to pursue a foreign subpoena was not a viable or reasonable alternative given issues of international comity, enforceability, utility and expense. The plaintiffs' opposition was unreasonable, warranting costs against them.

Jurisdiction
Australia
Judgment Date
16 June 2017
Procedural Posture
Civil Proceedings Concerning an Insurance Claim for a Critical Illness Benefit / Defendant's Notice of Motion/application Under Uniform Civil Procedure Rules 2005 (nsw), R 2.1 for an Order Requiring Execution of a Power of Attorney to Obtain Overseas Medical Records
Outcome
Defendant's motion granted; first plaintiff ordered to provide an executed and completed Power of Attorney and plaintiffs ordered to pay the defendant's costs of the motion.
Legal Topics
['critical Illness Benefit' 'overseas Medical Records' 'power of Attorney' 'subpoena Outside Australia' 'international Comity' 'costs']
['civil Procedure' 'insurance'] ['critical Illness Benefit' 'overseas Medical Records' 'power of Attorney' 'subpoena Outside Australia' 'international Comity' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Proceedings Concerning an Insurance Claim for a Critical Illness Benefit / Defendant's Notice of Motion/application Under Uniform Civil Procedure Rules 2005 (nsw), R 2.1 for an Order Requiring Execution of a Power of Attorney to Obtain Overseas Medical Records

Legal Issues

  1. 1 ["Whether the Court should order the first plaintiff to execute a Power of Attorney in favour of the defendant's Saudi Arabian lawyers to obtain access to records of the first plaintiff's medical procedure in Saudi Arabia." 'Whether Uniform Civil Procedure Rules 2005 (NSW), r 2.1 empowered the Court to make the order sought.' 'Whether the possible availability of subpoena procedure outside Australia was a reason to refuse the order.' "Whether the plaintiffs should pay the defendant's costs of the motion."]

Ratio Decidendi

The order sought was within the broad procedural power in UCPR r 2.1 and was necessary or expedient for the just, quick and cheap resolution of the proceedings because medical records concerning the Saudi Arabian surgery were potentially relevant to the claimed major brain injury. The plaintiffs' objections about uncertainty of existence or relevance of records were not substantial, the hospital's correspondence indicated a file may exist, and requiring the defendant to pursue a foreign subpoena was not a viable or reasonable alternative given issues of international comity, enforceability, utility and expense. The plaintiffs' opposition was unreasonable, warranting costs against them.

Court Disposition

Defendant's motion granted; first plaintiff ordered to provide an executed and completed Power of Attorney and plaintiffs ordered to pay the defendant's costs of the motion.

Orders

  • ["Order that the first plaintiff within seven days is to provide to the solicitors for the defendant a duly executed and completed Power of Attorney document in the form attached to the defendant's notice of motion dated 27 March 2017 upon the defendant's undertakings." 'The defendant undertakes to take all...