Longbottom vs. Nulis Nominees (Australia) ltd - (25 Jun 2020)

Any order for further and better discovery is discretionary and the discretion must be exercised having regard to the objectives of case management

Civil

Present is the Plaintiff's application for discovery orders. The Plaintiff is seeking orders requiring the second Defendant to discover all applications for insurance policies which are comparable to the insurance policies between the Plaintiff and the second Defendant and all documents accepting, avoiding, varying or refusing those applications.

The Plaintiff's occupation was a laboratory analysist. The Plaintiff says that, from May 2015, he suffered major depressive disorder with lower mood, anhedonia, suicidal ideation, poor motivation and poor sleep. As a result, the Plaintiff alleges that he became totally disabled and entitled to claim total and permanent disablement and income protection benefits pursuant to a policies of insurance with the second defendant (insurance policies).

The onus is upon the party seeking further discovery to satisfy the court that the orders should be made. A discovery order should only be made in the inherent jurisdiction of the court, if the court has reasonable grounds for being fairly certain that there are other relevant documents which ought to have been discovered.

There is no dispute that the documents sought exist. The issue on present application is whether or not the documents are relevant. Documents are considered relevant where they may either (a) advance a party's case or damage his or her opponents case; or (b) lead to a train of enquiry that would either advance a party's case or damage his or her opponent's case.

Applications that disclose all of the matters that the second Defendant plead the Plaintiff ought to have disclosed would be relevant to the matters in issue. Applications which disclose only a mental health issue or only a gambling issue or only a drug use issue or only a personal or financial stress issue (or only some, but not all, of those issues) are not relevant. The second Defendant does not put in issue whether it would have been prepared to insure the plaintiff if he had disclosed one or some of those matters, only where he did not disclose all of those matters.

Any order for further and better discovery is discretionary and the discretion must be exercised having regard to the objectives of case management and the just resolution and determination of litigation.

The plaintiff has not sought to adduce any affidavit evidence in response to the Oliver affidavit. This is not surprising given that the evidence is wholly within the knowledge of the second defendant. However, in the absence of cross examination of Ms Oliver or a credible denial of Ms Oliver's evidence in opposing affidavits, the facts deposed to in the Oliver affidavit are undisputed and are to be accepted.

Given the number of policies that the second defendant has and the nature of the documents sought, it is plausible and probable that the task is a large one. Given the limited relevance of the documents (at best), the discovery orders sought are oppressive. The burden outweighs the benefit of the discovery of those documents. Therefore, discovery of the documents sought, even if they are of limited relevance, is oppressive. The Plaintiff's application for discovery orders be dismissed.

Tags : DISCOVERY ORDERS ENTITLEMENT JURISDICTION