Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 3) [2021] NSWSC 1238

Shoal Bay Beach Constructions No. 1 Pty Ltd v Mark Hickey and the persons listed in Schedule A to this Statement of Claim trading as at all material times Sparke Helmore (No 3) [2021] NSWSC 1238

Paragraph 1 of the subpoena to Lawcover was set aside because the asserted possibility that the defendants had admitted negligence to their insurer was no more than speculation and did not meet the civil threshold for legitimate forensic purpose. Further security for costs was ordered because the plaintiff was impecunious, the circumstances had changed since the original security order, further costs had been and would be incurred, and further security would not stultify the proceedings.

Jurisdiction
Australia
Judgment Date
30 September 2021
Procedural Posture
Procedural Rulings in Negligence Proceedings / Review of Registrar's Refusal to Set Aside Subpoena and Defendants' Application for Further Security for Costs
Outcome
Registrar's order refusing to set aside paragraph 1 of the subpoena was set aside; paragraphs 1 and 2 of the subpoena were set aside; further security for costs ordered; plaintiff ordered to pay costs subject to any written application for a different order.
Legal Topics
['subpoenas' "review of Registrar's Decision" 'legitimate Forensic Purpose' 'security for Costs' 'additional Security for Costs']
['civil Procedure' 'costs'] ['subpoenas' "review of Registrar's Decision" 'legitimate Forensic Purpose' 'security for Costs' 'additional Security for Costs']

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Procedural Posture

Procedural Rulings in Negligence Proceedings / Review of Registrar's Refusal to Set Aside Subpoena and Defendants' Application for Further Security for Costs

Legal Issues

  1. 1 ['Whether paragraph 1 of the subpoena issued to Lawcover Insurance Pty Limited should be set aside for lack of a legitimate forensic purpose in civil proceedings.' "Whether the plaintiff should be ordered to provide further security for the defendants' costs." 'What amount and form of further security for costs should be ordered.']

Ratio Decidendi

Paragraph 1 of the subpoena to Lawcover was set aside because the asserted possibility that the defendants had admitted negligence to their insurer was no more than speculation and did not meet the civil threshold for legitimate forensic purpose. Further security for costs was ordered because the plaintiff was impecunious, the circumstances had changed since the original security order, further costs had been and would be incurred, and further security would not stultify the proceedings.

Court Disposition

Registrar's order refusing to set aside paragraph 1 of the subpoena was set aside; paragraphs 1 and 2 of the subpoena were set aside; further security for costs ordered; plaintiff ordered to pay costs subject to any written application for a different order.

Orders

  • ['Set aside order (1) made by the Registrar on 26 November 2020 and, in lieu thereof, order that paragraphs 1 and 2 of the subpoena issued to Lawcover Insurance Pty Limited on 2 October 2020 be set aside.' "Subject to an application for a different order being made in writing to my Associate within seven days...