Gavan v FSS Trustee Corporation [2019] NSWSC 667

Gavan v FSS Trustee Corporation [2019] NSWSC 667

The notice to produce issued by MetLife sought documents highly relevant to the key factual issue (severity of Ms Gavan’s psychiatric condition and her credibility), and was neither too broad nor an impermissible fishing expedition. The use of such documents by MetLife in determining Ms Gavan’s TPD claim does not breach the Harman undertaking because the administrative and court processes are sufficiently connected; no abuse of process or improper delay was proved. The consent order waiving the Harman obligation could be set aside for lack of informed consent, but use of documents under it to date was deemed authorised. MetLife’s broader application for an open-ended waiver was dismissed...

Parties
Plaintiff: Roslyn Amy Gavan; First Defendant: FSS Trustee Corporation as Trustee of the First State Superannuation Scheme; Second Defendant: MetLife Insurance Limited
Jurisdiction
Australia
Judgment Date
07 June 2019
Procedural Posture
Civil (equity, TPD Insurance, Superannuation) / Interlocutory Application/procedural Ruling on Notices to Produce and Motions
Outcome
Interlocutory applications disposed; substantive case continues.
Legal Topics
Notice to Produce, Harman Undertaking, Abuse of Process, Legitimate Forensic Purpose, Waiver of Implied Undertaking, Privacy in Litigation
Civil Procedure Equity Insurance Law Superannuation Notice to Produce Harman Undertaking Abuse of Process Legitimate Forensic Purpose +2 more

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Parties

Roslyn Amy Gavan

Plaintiff

FSS Trustee Corporation as Trustee of the First State Superannuation Scheme

First Defendant

MetLife Insurance Limited

Second Defendant

Procedural Posture

Civil (equity, TPD Insurance, Superannuation) / Interlocutory Application/procedural Ruling on Notices to Produce and Motions

Legal Issues

  1. 1 Whether MetLife's notice to produce should be set aside for lack of legitimate forensic purpose, abuse of process, or breach of Harman undertaking.
  2. 2 Whether consent order of 16 February 2017 waiving Harman undertaking should be set aside.
  3. 3 Whether MetLife should be granted leave to use documents produced under litigation for assessment of TPD claim.

Ratio Decidendi

The notice to produce issued by MetLife sought documents highly relevant to the key factual issue (severity of Ms Gavan’s psychiatric condition and her credibility), and was neither too broad nor an impermissible fishing expedition. The use of such documents by MetLife in determining Ms Gavan’s TPD claim does not breach the Harman undertaking because the administrative and court processes are sufficiently connected; no abuse of process or improper delay was proved. The consent order waiving the Harman obligation could be set aside for lack of informed consent, but use of documents under it to date was deemed authorised. MetLife’s broader application for an open-ended waiver was dismissed...

Court Disposition

Interlocutory applications disposed; substantive case continues.

Orders

  • Order 4 of the consent orders made on 16 February 2017 is set aside (past unauthorised use deemed authorised).
  • Plaintiff’s amended notice of motion filed 14 November 2018 dismissed with costs.